THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
$14,000,000.00 SEPTEMBER 20, 2001
FOR VALUE RECEIVED, the undersigned, THE TRIZETTO GROUP, INC., a
Delaware corporation ("TriZetto"), CREATIVE BUSINESS SOLUTIONS, INC., a Texas
corporation ("CBS"); FINSERV HEALTH CARE SYSTEMS, INC., a New York corporation
("Finserv"); HEALTHCARE MEDIA ENTERPRISES, INC., a Delaware corporation ("HME");
HEALTHWEB, INC., a Delaware corporation ("HealthWeb"); XXXXXXXX HEALTH
ENTERPRISES, INC., a California corporation ("Xxxxxxxx"); XXXXXXX Corporation, a
Delaware corporation ("Xxxxxxx"); TRIZETTO APPLICATION SERVICES, INC., a
Colorado corporation ("TriZetto Application"); DIGITAL INSURANCE SYSTEMS
CORPORATION, an Ohio corporation ("Digital"); HEALTH NETWORKS OF AMERICA, INC.,
a Maryland corporation ("Health Networks"); XXXXXXX DEVELOPMENT CORPORATION, a
Delaware corporation ("Xxxxxxx Development"); XXXXXXX DEVELOPMENT & LICENSING
CORPORATION, an Indiana corporation ("Xxxxxxx Licensing"); XXXXXXX SERVICES
CORPORATION, a Delaware corporation ("Xxxxxxx Services" and, together with
TriZetto, CBS, Finserv, HME, HealthWeb, Margolis, Novalis, TriZetto Application,
Digital, Health Networks, Xxxxxxx Development and Xxxxxxx Licensing, the
"Original Borrower"), ERISCO, INC., a New York corporation ("Erisco"), RESOURCE
INFORMATION MANAGEMENT SYSTEMS, INC., an Illinois corporation ("RIMS"), WINTHROP
FINANCIAL GROUP, INC., an Illinois corporation ("Winthrop"), OPTION SERVICES
GROUP, INC., an Illinois corporation ("Option Services" and, collectively with
Erisco, RIMS and Winthtrop, "Additional Borrower") and INFOTRUST COMPANY, an
Illinois corporation ("New Borrower" and, collectively with Original Borrower
and Additional Borrower, the "Borrower"), jointly and severally, promise to pay,
in lawful money of the United States, to the order of XXXXXX HEALTHCARE FINANCE,
INC., a Delaware corporation (together with its successors and assigns,
"Lender"), the principal sum of FOURTEEN MILLION AND NO/100 DOLLARS
($14,000,000.00), or so much of such principal sum as shall be advanced or
readvanced and shall remain unpaid under the Loan established pursuant to that
certain Loan and Security Agreement dated as of September 11, 2000 by and among
Original Borrower, Healthcare Media Private Limited, an India company and
subsidiary of HME ("HMP") and Lender (as amended by that certain Amendment No. 1
to Loan and Security Agreement dated as of October 17, 2000 by and among
Original Borrower, HMP, Erisco and Lender, by that certain Amendment No. 2 to
Loan and Security Agreement dated as of December 28, 2000 by and among Original
Borrower, Additional Borrower, Principal Financial Associates, Inc. and Xxxxxx,
and by that certain Amendment No. 3 to Loan and Security Agreement dated of even
date herewith by and among Original Borrower, Additional Borrower and New
Borrower, and as it may be further amended, modified, restated or replaced from
time to time, the "Loan Agreement"), plus interest on the unpaid balance
thereof, computed on a 360-day basis, at the rate per annum that is set forth in
the Loan Agreement. This Note
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amends, restates and replaces in its entirety the Revolving Credit Note dated
September 11, 2000, the Amended and Restated Revolving Credit Note dated October
17, 2000 and the Second Amended and Restated Revolving Credit Note dated
December 28, 2000, each previously executed and delivered by Xxxxxxxx and made
payable to Lender.
1. All capitalized terms used and not otherwise specifically defined
in this Revolving Credit Note (as amended, modified, restated or replaced from
time to time, the "Note") shall have the meanings given to them in the Loan
Agreement.
2. This Note shall evidence the undersigned's obligation to repay
all sums advanced by Xxxxxx from time to time under the Loan Agreement and as
part of the Loan. The actual amount due and owing from time to time under this
Note shall be evidenced by Xxxxxx's records of receipts and disbursements with
respect to the Loan, which shall be conclusive evidence of that amount, absent
manifest error.
3. Interest due pursuant to this Note shall be payable monthly, in
arrears, on the first Business Day of each month after the date of this Note
(for the previous month). For purposes of this Note, a "Business Day" shall mean
any day on which banks are open for business in Maryland, excluding Saturdays
and Sundays.
4. This Note shall become due and payable upon the earlier to occur
of (a) the expiration of the Term, or (b) the occurrence of any Event of Default
under the Loan Agreement, or any other event under any other Loan Documents
which would result in this Note becoming due and payable. At such time, the
entire principal balance of this Note and all other fees, costs and expenses, if
any, shall be due and payable in full. Xxxxxx shall then have the option at any
time and from time to time to exercise all of the rights and remedies set forth
in this Note and in the other Loan Documents, as well as all rights and remedies
otherwise available to Lender at law or in equity, to collect the unpaid
indebtedness under this Note and the other Loan Documents. This Note is secured
by the Collateral, as defined in and described in the Loan Agreement.
5. Whenever any principal and/or interest and/or fee under this Note
shall not be paid when due, whether at the stated maturity or by acceleration,
interest on such unpaid amounts shall thereafter be payable at a rate per annum
equal to five (5) percentage points above the stated rate of interest on this
Note until such amounts shall be paid.
6. The undersigned and Lender intend to conform strictly to the
applicable usury laws in effect from time to time during the term of the Loan.
Accordingly, if any transaction contemplated by the Loan Agreement or this Note
would be usurious under such laws, then notwithstanding any other provision
hereof: (a) the aggregate of all interest that is contracted for, charged, or
received under this Note or under any other Loan Document shall not exceed the
maximum amount of interest allowed by applicable law, and any excess shall be
promptly credited to the undersigned by Xxxxxx (or, to the extent that such
consideration shall have been paid, such excess shall be promptly refunded to
the undersigned by Xxxxxx); (b) neither the
2
undersigned nor any other Person (as defined in the Loan Agreement) now or
hereafter liable hereunder shall be obligated to pay the amount of such interest
to the extent that it is in excess of the maximum interest permitted by
applicable law; and (c) the effective rate of interest shall be reduced to the
Highest Lawful Rate (as defined in the Loan Agreement). All sums paid, or agreed
to be paid, to Lender for the use, forbearance, and detention of the debt of
Borrower to Lender shall, to the extent permitted by applicable law, be
allocated throughout the full term of this Note until payment is made in full so
that the actual rate of interest does not exceed the Highest Lawful Rate in
effect at any particular time during the full term thereof. If at any time the
rate of interest under this Note exceeds the Highest Lawful Rate, the rate of
interest to accrue pursuant to this Note shall be limited, notwithstanding
anything to the contrary in this Note, to the Highest Lawful Rate, but any
subsequent reductions in the Base Rate shall not reduce the interest to accrue
pursuant to this Note below the Highest Lawful Rate until the total amount of
interest accrued equals the amount of interest that would have accrued if a
varying rate per annum equal to the interest rate under the Note had at all
times been in effect. If the total amount of interest paid or accrued pursuant
to this Note under the foregoing provisions is less than the total amount of
interest that would have accrued if a varying rate per annum equal to the
interest rate under this Note had been in effect, then the undersigned agrees to
pay to Lender an amount equal to the difference between (x) the lesser of (A)
the amount of interest that would have accrued if the Highest Lawful Rate had at
all times been in effect, or (B) the amount of interest that would have accrued
if a varying rate per annum equal to the interest rate under the Note had at all
times been in effect, and (y) the amount of interest accrued in accordance with
the other provisions of this Note and the Loan Agreement.
7. This Note is the "Note" referred to in the Loan Agreement, and is
issued pursuant to the Loan Agreement. Reference is made to the Loan Agreement
for a statement of the additional rights and obligations of the undersigned and
Lender. In the event of any conflict between the terms of this Note and the
terms of the Loan Agreement, the terms of the Loan Agreement shall prevail. All
of the terms, covenants, provisions, conditions, stipulations, promises and
agreements contained in the Loan Documents to be kept, observed and/or performed
by the undersigned are made a part of this Note and are incorporated into this
Note by this reference to the same extent and with the same force and effect as
if they were fully set forth in this Note; the undersigned promises and agrees
to keep, observe and perform them or cause them to be kept, observed and
performed, strictly in accordance with the terms and provisions thereof.
8. Each party liable on this Note in any capacity, whether as maker,
endorser, surety, guarantor or otherwise, (a) waives presentment for payment,
demand, protest and notice of presentment, notice of protest, notice of
non-payment and notice of dishonor of this debt and each and every other notice
of any kind respecting this Note and all lack of diligence or delays in
collection or enforcement hereof; (b) agrees that Lender at any time or times,
without notice to the undersigned or its consent, may grant extensions of time,
without limit as to the number of the aggregate period of such extensions, for
the payment of any principal, interest or other sums due hereunder; (c) to the
extent permitted by law, waives all exemptions under the laws of the State of
Maryland and/or any state or territory of the United States; (d) to the extent
permitted by
3
law, waives the benefit of any law or rule of law intended for its advantage or
protection as an obligor under this Note or providing for its release or
discharge from liability on this Note, in whole or in part, on account of any
facts or circumstances other than full and complete payment of all amounts due
under this Note; and (e) agrees to pay, in addition to all other sums of money
due, all cost of collection and attorney's fees, whether suit be brought or not,
if this Note is not paid in full when due, whether at the stated maturity or by
acceleration.
9. No waiver by Lender of any one or more defaults by the
undersigned in the performance of any of its obligations under this Note shall
operate or be construed as a waiver of any future default or defaults, whether
of a like or different nature. No failure or delay on the part of Lender in
exercising any right, power or remedy under this Note (including, without
limitation, the right to declare this Note due and payable) shall operate as a
waiver of such right, power or remedy nor shall any single or partial exercise
of any such right, power or remedy preclude any other or further exercise of
such right, power or remedy or the exercise of any other right, power or remedy.
10. If any term, provision, covenant or condition of this Note or the
application of any term, provision, covenant or condition of this Note to any
party or circumstance shall be found by a court of competent jurisdiction to be,
to any extent, invalid or unenforceable, then the remainder of this Note and the
application of such term, provision, covenant, or condition to parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, provision, covenant or condition
shall be valid and enforced to the fullest extent permitted by law. Upon
determination that any such term, provision, covenant or condition is invalid,
illegal or unenforceable, Lender may, but is not obligated to, advance funds to
Borrower under this Note until Borrower and Lender amend this Note so as to
effect the original intent of the parties as closely as possible in a valid and
enforceable manner.
11. No amendment, supplement or modification of this Note nor any
waiver of any provision of this Note shall be made except in writing executed by
the party against whom enforcement is sought.
12. This Note shall be binding upon the undersigned and its
successors and assigns. Notwithstanding the foregoing, the undersigned may not
assign any of its rights or delegate any of its obligations under this Note
without the prior written consent of Lender, which may be withheld in its sole
discretion.
13. Each entity constituting Borrower shall be jointly and severally
liable for all of the obligations of Borrower under this Note.
14. THIS NOTE IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF MARYLAND WITHOUT RESPECT TO ANY OTHERWISE APPLICABLE
CONFLICTS-OF-LAWS PRINCIPLES, BOTH AS TO INTERPRETATION AND PERFORMANCE, AND THE
PARTIES EXPRESSLY CONSENT AND AGREE TO THE NON-EXCLUSIVE
4
JURISDICTION OF THE COURTS OF THE STATE OF MARYLAND AND THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MARYLAND AND TO THE LAYING OF VENUE IN THE
STATE OF MARYLAND, WAIVING ALL CLAIMS OR DEFENSES BASED ON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE, INCONVENIENT FORUM OR THE LIKE. BORROWER HEREBY
CONSENTS TO SERVICE OF PROCESS BY MAILING A COPY OF THE SUMMONS TO BORROWER, BY
CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO XXXXXXXX'S ADDRESS SET FORTH
IN SECTION 9.4 OF THE LOAN AGREEMENT. BORROWER FURTHER WAIVES ANY CLAIM FOR
CONSEQUENTIAL DAMAGES IN RESPECT OF ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY
LENDER IN GOOD FAITH.
15. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES SHALL
BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF ALL
APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE
FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). XXXXXXXX AGREES
THAT XXXXXX'S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY
OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY
DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN
EVIDENCE DEPOSITION. BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE
EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN
THE MANNER REQUESTED BY XXXXXX, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE,
ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO THE
DISPUTE IN ANY JURISDICTION THAT RECOGNIZES THAT (OR ANY SIMILAR) DISTINCTION.
16. THE UNDERSIGNED HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT
TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY
BY THE UNDERSIGNED, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE
ACCRUE. XXXXXX IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS NOTE TO ANY
COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS
TO SERVE AS CONCLUSIVE EVIDENCE OF THE UNDERSIGNED'S WAIVER OF THE RIGHT TO JURY
TRIAL. FURTHER, THE UNDERSIGNED HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER (INCLUDING XXXXXX'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO ANY BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
5
17. THE UNDERSIGNED HEREBY AUTHORIZES ANY ATTORNEY ADMITTED TO
PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR THE CLERK OF SUCH
COURT TO APPEAR ON BEHALF OF THE UNDERSIGNED IN ANY COURT IN ONE OR MORE
PROCEEDINGS, OR BEFORE ANY CLERK THEREOF OF PROTHONOTARY OR OTHER COURT
OFFICIAL, AND TO CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF XXXXXX IN
THE FULL AMOUNT DUE ON THIS NOTE (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY
AND ALL CHARGES, FEES AND COSTS) PLUS ATTORNEYS' FEES EQUAL TO FIFTEEN PERCENT
(15%) OF THE AMOUNT DUE, PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR
OPPORTUNITY OF BORROWER FOR PRIOR HEARING. NOTWITHSTANDING ANY OTHER PROVISIONS
OF THIS SECTION, THE LENDER ACKNOWLEDGES THAT ATTORNEYS' FEES ARE STATED TO BE
FIFTEEN PERCENT (15%) SOLELY FOR PURPOSES OF FIXING A SUM CERTAIN FOR WHICH
JUDGEMENT CAN BE ENTERED BY CONFESSION; AND THE LENDER AGREES THAT IN ENFORCING
ANY JUDGEMENT BY CONFESSION, XXXXXX SHALL NOT DEMAND, SOLELY WITH RESPECT TO
ATTORNEYS' FEES INCURRED BY THE LENDER IN CONNECTION WITH SUCH INDEBTEDNESS
AFTER SUCH JUDGEMENT IS RENDERED, ANY AMOUNTS IN EXCESS OF THE ACTUAL AMOUNT OF
ATTORNEYS' FEES CHARGED OR BILLED TO THE LENDER (WHICH ATTORNEYS' FEES SHALL BE
CHARGED OR BILLED TO THE LENDER AT THE STANDARD HOURLY RATES). THE UNDERSIGNED
AGREES AND CONSENTS THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT
COURT OF ANY COUNTY OF THE STATE OF MARYLAND OR OF BALTIMORE CITY, MARYLAND, OR
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND. THE
UNDERSIGNED WAIVES THE BENEFIT OF ANY AND EVERY STATUTE, ORDINANCE, OR RULE OF
COURT WHICH MAY BE LAWFULLY WAIVED CONFERRING UPON BORROWER ANY RIGHT OR
PRIVILEGE OF EXEMPTION, HOMESTEAD RIGHTS, STAY OF EXECUTION, OR SUPPLEMENTARY
PROCEEDINGS, OR OTHER RELIEF FROM THE ENFORCEMENT OR IMMEDIATE ENFORCEMENT OF A
JUDGMENT OR RELATED PROCEEDINGS ON A JUDGMENT. THE AUTHORITY AND POWER TO APPEAR
FOR AND ENTER JUDGMENT AGAINST THE UNDERSIGNED SHALL NOT BE EXHAUSTED BY ONE OR
MORE EXERCISES THEREOF, OR BY ANY IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE
EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH AUTHORITY AND POWER
MAY BE EXERCISED ON ONE OR MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR
DIFFERENT JURISDICTIONS, AS OFTEN AS LENDER SHALL DEEM NECESSARY, CONVENIENT, OR
PROPER.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Third Amended and
Restated Revolving Credit Note as of the date first above written.
BORROWER:
THE TRIZETTO GROUP, INC.,
a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
CREATIVE BUSINESS SOLUTIONS, INC.,
a Texas corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
FINSERV HEALTH CARE SYSTEMS, INC.,
a New York corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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HEALTHCARE MEDIA ENTERPRISES, INC.,
a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
HEALTHWEB, INC., a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
XXXXXXXX HEALTH ENTERPRISES, INC.,
a California corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
XXXXXXX CORPORATION,
a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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TRIZETTO APPLICATION SERVICES, INC.,
a Colorado corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
DIGITAL INSURANCE SYSTEMS CORPORATION,
an Ohio corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
HEALTH NETWORKS OF AMERICA, INC.,
a Maryland corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
XXXXXXX DEVELOPMENT CORPORATION,
a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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XXXXXXX DEVELOPMENT & LICENSING
CORPORATION, an Indiana corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
XXXXXXX SERVICES CORPORATION,
a Delaware corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
ERISCO, INC., a New York corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
RESOURCE INFORMATION
MANAGEMENT SYSTEMS, INC.,
an Illinois corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
10
WINTHROP FINANCIAL GROUP, INC.,
an Illinois corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
OPTION SERVICES GROUP, INC., an
Illinois corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
INFOTRUST COMPANY,
an Illinois corporation
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer/Secretary
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