exv10w1






Exhibit 10.1




$225,000,000




CREDIT AGREEMENT



Dated as of October 1, 2010



among



CBAY INC., MEDQUIST INC.



and



MEDQUIST TRANSCRIPTIONS, LTD, AS BORROWERS



CBAYSYSTEMS HOLDINGS LIMITED, AS HOLDINGS



THE LENDERS AND L/C ISSUERS PARTY HERETO



and



GENERAL ELECTRIC CAPITAL CORPORATION,

AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT



and



SUNTRUST BANK, AS SYNDICATION AGENT



and



ING CAPITAL LLC AND REGIONS BANK,



AS CO-DOCUMENTATION AGENTS




♦ ♦ ♦



GE CAPITAL MARKETS, INC. AND SUNTRUST ROBINSON HUMPHREY, INC.,

AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS



 













 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE 1 DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
	 	 	6	 
	 
	 	 	 	 
	Section 1.1 Defined Terms
	 	 	6	 
	Section 1.2 UCC Terms
	 	 	41	 
	Section 1.3 Accounting Terms and Principles
	 	 	41	 
	Section 1.4 Pro Forma
	 	 	42	 
	Section 1.5 Payments
	 	 	42	 
	Section 1.6 Interpretation
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 2 THE FACILITIES
	 	 	43	 
	 
	 	 	 	 
	Section 2.1 The Commitments
	 	 	43	 
	Section 2.2 Borrowing Procedures
	 	 	43	 
	Section 2.3 Swing Loans
	 	 	45	 
	Section 2.4 Letters of Credit
	 	 	47	 
	Section 2.5 Reduction and Termination of the Commitments
	 	 	50	 
	Section 2.6 Repayment of Loans
	 	 	51	 
	Section 2.7 Optional Prepayments
	 	 	51	 
	Section 2.8 Mandatory Prepayments
	 	 	51	 
	Section 2.9 Interest
	 	 	53	 
	Section 2.10 Conversion and Continuation Options
	 	 	54	 
	Section 2.11 Fees
	 	 	54	 
	Section 2.12 Application of Payments
	 	 	55	 
	Section 2.13 Payments and Computations
	 	 	57	 
	Section 2.14 Evidence of Debt
	 	 	58	 
	Section 2.15 Suspension of Eurodollar Rate Option
	 	 	59	 
	Section 2.16 Breakage Costs; Increased Costs; Capital Requirements
	 	 	60	 
	Section 2.17 Taxes
	 	 	61	 
	Section 2.18 Substitution of Lenders
	 	 	64	 
	Section 2.19 Borrower Representative
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 3 CONDITIONS TO LOANS AND LETTERS OF CREDIT
	 	 	65	 
	 
	 	 	 	 
	Section 3.1 Conditions Precedent to Initial Loans and Letters of Credit
	 	 	65	 
	Section 3.2 Conditions Precedent to Each Loan and Letter of Credit
	 	 	67	 
	Section 3.3 Conditions Precedent to Effectiveness of this Agreement
	 	 	67	 
	Section 3.4 Determinations of Initial Borrowing Conditions
	 	 	69	 
	 
	 	 	 	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES
	 	 	69	 
	 
	 	 	 	 
	Section 4.1 Corporate Existence; Compliance with Law
	 	 	69	 
	Section 4.2 Loan and Related Documents
	 	 	69	 
	Section 4.3 Ownership of Group Members
	 	 	70	 
	Section 4.4 Financial Statements
	 	 	70	 
	Section 4.5 Material Adverse Effect
	 	 	71	 
	Section 4.6 Solvency
	 	 	71	 
	Section 4.7 Litigation
	 	 	71	 
	Section 4.8 Taxes
	 	 	71	 
	Section 4.9 Margin Regulations
	 	 	72	 
	Section 4.10 No Defaults
	 	 	72	 
	Section 4.11 Investment Company Act
	 	 	72	 
	Section 4.12 Labor Matters
	 	 	72	 
	Section 4.13 ERISA
	 	 	72	 
	Section 4.14 Environmental Matters
	 	 	73	 
	Section 4.15 Intellectual Property
	 	 	73	 








2










 






	 	 	 	 	 

	Section 4.16 Title; Real Property
	 	 	74	 
	Section 4.17 Full Disclosure
	 	 	74	 
	Section 4.18 Anti-Terrorism Laws
	 	 	74	 
	Section 4.19 Material Agreements
	 	 	74	 
	Section 4.20 Health Care Matters
	 	 	74	 
	Section 4.21 Health Care Permits
	 	 	74	 
	Section 4.22 Exclusion
	 	 	75	 
	Section 4.23 HIPAA
	 	 	75	 
	 
	 	 	 	 
	ARTICLE 5 FINANCIAL COVENANTS
	 	 	75	 
	 
	 	 	 	 
	Section 5.1 Maximum Consolidated Senior Leverage Ratio
	 	 	76	 
	Section 5.2 Maximum Consolidated Total Leverage Ratio
	 	 	76	 
	Section 5.3 Minimum Consolidated Interest Coverage Ratio
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 6 REPORTING COVENANTS
	 	 	78	 
	 
	 	 	 	 
	Section 6.1 Financial Statements
	 	 	78	 
	Section 6.2 Other Events
	 	 	80	 
	Section 6.3 Copies of Notices and Reports
	 	 	81	 
	Section 6.4 Labor Matters
	 	 	81	 
	Section 6.5 ERISA-Related Information
	 	 	81	 
	 
	 	 	 	 
	ARTICLE 7 AFFIRMATIVE COVENANTS
	 	 	82	 
	 
	 	 	 	 
	Section 7.1 Maintenance of Corporate Existence
	 	 	82	 
	Section 7.2 Compliance with Laws, Etc
	 	 	82	 
	Section 7.3 Payment of Obligations
	 	 	82	 
	Section 7.4 Maintenance of Property
	 	 	82	 
	Section 7.5 Maintenance of Insurance
	 	 	82	 
	Section 7.6 Keeping of Books
	 	 	83	 
	Section 7.7 Access to Books and Property
	 	 	83	 
	Section 7.8 Environmental
	 	 	83	 
	Section 7.9 Use of Proceeds
	 	 	84	 
	Section 7.10 Additional Collateral and Guaranties
	 	 	84	 
	Section 7.11 Controlled Deposit Accounts and Controlled Securities Accounts
	 	 	85	 
	Section 7.12 Compliance Program
	 	 	85	 
	Section 7.13 Interest Rate Contracts
	 	 	85	 
	Section 7.14 Post Closing Covenant
	 	 	85	 
	 
	 	 	 	 
	ARTICLE 8 NEGATIVE COVENANTS
	 	 	86	 
	 
	 	 	 	 
	Section 8.1 Indebtedness
	 	 	86	 
	Section 8.2 Liens
	 	 	88	 
	Section 8.3 Investments
	 	 	89	 
	Section 8.4 Asset Sales
	 	 	90	 
	Section 8.5 Restricted Payments
	 	 	92	 
	Section 8.6 Prepayments of Indebtedness Under Subordinated Notes
	 	 	94	 
	Section 8.7 Fundamental Changes
	 	 	94	 
	Section 8.8 Change in Nature of Business
	 	 	95	 
	Section 8.9 Transactions with Affiliates
	 	 	96	 
	Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted Payments
	 	 	97	 
	Section 8.11 Modification of Certain Documents
	 	 	98	 
	Section 8.12 Accounting Changes; Fiscal Year
	 	 	99	 
	Section 8.13 Margin Regulations
	 	 	99	 
	Section 8.14 Compliance with ERISA
	 	 	99	 
	Section 8.15 Hazardous Materials
	 	 	99	 









3










 







	 	 	 	 	 

	ARTICLE 9 EVENTS OF DEFAULT
	 	 	99	 
	 
	 	 	 	 
	Section 9.1 Definition
	 	 	99	 
	Section 9.2 Remedies
	 	 	101	 
	Section 9.3 Actions in Respect of Letters of Credit
	 	 	102	 
	Section 9.4 Cash Collateral Accounts
	 	 	102	 
	 
	 	 	 	 
	ARTICLE 10 THE ADMINISTRATIVE AGENT
	 	 	102	 
	 
	 	 	 	 
	Section 10.1 Appointment and Duties
	 	 	102	 
	Section 10.2 Binding Effect
	 	 	103	 
	Section 10.3 Use of Discretion
	 	 	104	 
	Section 10.4 Delegation of Rights and Duties
	 	 	104	 
	Section 10.5 Reliance and Liability
	 	 	104	 
	Section 10.6 the Administrative Agent Individually
	 	 	105	 
	Section 10.7 Lender Credit Decision
	 	 	105	 
	Section 10.8 Expenses; Indemnities
	 	 	106	 
	Section 10.9 Resignation of the Administrative Agent or L/C Issuer
	 	 	106	 
	Section 10.10 Release of Collateral or Guarantors
	 	 	107	 
	Section 10.11 Additional Secured Parties
	 	 	108	 
	 
	 	 	 	 
	ARTICLE 11 MISCELLANEOUS
	 	 	109	 
	 
	 	 	 	 
	Section 11.1 Amendments, Waivers, Etc
	 	 	109	 
	Section 11.2 Assignments and Participations; Binding Effect
	 	 	110	 
	Section 11.3 Costs and Expenses
	 	 	113	 
	Section 11.4 Indemnities
	 	 	114	 
	Section 11.5 Survival
	 	 	115	 
	Section 11.6 Limitation of Liability for Certain Damages
	 	 	115	 
	Section 11.7 Lender-Creditor Relationship
	 	 	115	 
	Section 11.8 Right of Setoff
	 	 	115	 
	Section 11.9 Sharing of Payments, Etc
	 	 	116	 
	Section 11.10 Marshaling; Payments Set Aside
	 	 	116	 
	Section 11.11 Notices
	 	 	116	 
	Section 11.12 Electronic Transmissions
	 	 	117	 
	Section 11.13 Governing Law
	 	 	118	 
	Section 11.14 Jurisdiction
	 	 	118	 
	Section 11.15 Waiver of Jury Trial
	 	 	119	 
	Section 11.16 Severability
	 	 	119	 
	Section 11.17 Execution in Counterparts
	 	 	119	 
	Section 11.18 Entire Agreement
	 	 	119	 
	Section 11.19 Use of Name
	 	 	119	 
	Section 11.20 Non-Public Information; Confidentiality
	 	 	120	 
	Section 11.21 Patriot Act Notice
	 	 	120	 
	 
	 	 	 	 
	ARTICLE 12 CROSS-GUARANTY
	 	 	120	 
	 
	 	 	 	 
	Section 12.1 Cross-Guaranty
	 	 	120	 
	Section 12.2 Waivers by Borrowers
	 	 	121	 
	Section 12.3 Benefit of Guaranty
	 	 	121	 
	Section 12.4 Subordination of Subrogation, Etc
	 	 	121	 
	Section 12.5 Election of Remedies
	 	 	122	 
	Section 12.6 Limitation
	 	 	122	 
	Section 12.7 Contribution with Respect to Guaranty Obligations
	 	 	123	 
	Section 12.8 Liability Cumulative
	 	 	123	 










4








 






SCHEDULES




	 	 	 

	Schedule I

	 	Loan Commitments
	Schedule 4.3

	 	Capitalization
	Schedule 4.12

	 	Labor Matters
	Schedule 4.14

	 	Environmental Matters
	Schedule 4.21

	 	Health Care Permits
	Schedule 8.1

	 	Indebtedness
	Schedule 8.2

	 	Liens
	Schedule 8.3

	 	Investments
	Schedule 8.9

	 	Affiliate Transactions
	Schedule 8.10

	 	Contractual Obligations






EXHIBITS




	 	 	 

	Exhibit A

	 	Form of Assignment
	Exhibit B-1

	 	Form of Revolving Note
	Exhibit B-2

	 	Form of Term Note
	Exhibit C

	 	Form of Notice of Borrowing
	Exhibit D

	 	Form of Swingline Request
	Exhibit E

	 	Form of L/C Request
	Exhibit F

	 	Form of Notice of Conversion or Continuation
	Exhibit G

	 	Form of Compliance Certificate





 




5









 






          THIS CREDIT AGREEMENT, DATED AS OF OCTOBER 1, 2010, IS ENTERED INTO AMONG CBAY INC., A
DELAWARE CORPORATION (“CBAY”), MEDQUIST INC., A NEW JERSEY CORPORATION
(“MEDQUIST”), MEDQUIST TRANSCRIPTIONS, LTD., A NEW JERSEY CORPORATION (“MEDQUIST
TRANSCRIPTIONS”, AND TOGETHER WITH CBAY AND MEDQUIST, THE “BORROWERS”), CBAYSYSTEMS
HOLDINGS LIMITED, A COMPANY INCORPORATED IN THE BRITISH VIRGIN ISLANDS AND AS SUCH ENTITY MAY BE
CONVERTED TO A DELAWARE CORPORATION PURSUANT TO SECTION 265 OF THE DELAWARE GENERAL CORPORATION LAW
(“HOLDINGS”), MEDQUIST, AS BORROWER REPRESENTATIVE, THE LENDERS (AS DEFINED BELOW), THE L/C
ISSUERS (AS DEFINED BELOW) AND GENERAL ELECTRIC CAPITAL CORPORATION (“GE CAPITAL”), AS
ADMINISTRATIVE AGENT AND COLLATERAL AGENT FOR THE LENDERS AND THE L/C ISSUERS (IN SUCH CAPACITY,
AND TOGETHER WITH ITS SUCCESSORS AND PERMITTED ASSIGNS, THE “ADMINISTRATIVE
AGENT”).




W I T N E S S E T H:




          WHEREAS, the Borrowers have requested, and Lenders have agreed to make available to Borrowers,
certain credit facilities upon and subject to the terms and conditions set forth in this Agreement;




          WHEREAS, the Borrowers desire to secure all of their Obligations under the Loan Documents by
granting to the Administrative Agent, for the benefit of the Administrative Agent, Lenders and the
other Secured Parties, a security interest in and lien upon substantially all of their property;




          WHEREAS, Holdings, who, directly or indirectly, owns all of the Stock and Stock Equivalents of
CBay and a majority of the Stock and Stock Equivalents of each other Borrower, is willing to
guaranty all of the Obligations pursuant to, and in accordance with, the Guaranty and Security
Agreement;




          WHEREAS, subject to the terms hereof, each Subsidiary of Holdings (other than Excluded Foreign
Subsidiaries as more particularly set forth herein) is willing to guaranty all of the Obligations
of the Borrowers and to grant to the Administrative Agent, for the benefit of the Administrative
Agent, Lenders and the other Secured Parties, a security interest in and lien upon substantially
all of its property;




          NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties hereto agree as follows:




ARTICLE 1

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS




          Section 1.1 Defined Terms. As used in this Agreement, the following terms have the
following meanings:




     “Acquired Business” means the assets of Spheris Inc. and its subsidiaries acquired by
the Borrowers pursuant to the terms of the Acquisition Agreement.







6








 





     “Acquisition” means the acquisition by the Borrowers of the Acquired Business.



     “Acquisition Agreement” means that certain Stock and Asset Purchase Agreement, dated
as of February 2, 2010, by and among Spheris Inc. and certain of its affiliates as sellers and CBay
and MedQuist as purchasers.



     “Additional Available Cash” means, on any date, (i) aggregate Excess Cash Flow of
Holdings for periods after the Closing Date for which audited financial statements and related
Compliance Certificates have been delivered pursuant to Section 6.1(c) and (d)
after the Closing Date not required to be paid to the Administrative Agent pursuant to Section
2.8(a) plus (ii) aggregate Net Cash Proceeds arising from the issuance or Sale by any Group
Member of its own Stock (other than the Holdings IPO) not required to be paid to the Administrative
Agent pursuant to Section 2.8(b), plus (iii) Available Holdings IPO Proceeds, plus (iv) Net
Cash Proceeds arising from the A-Life Sale, minus (v) any such amounts, previously used on or prior
to such date to make Permitted Acquisitions, Investments or Restricted Payments, in each case as
expressly permitted hereunder to be made with Additional Available Cash, minus (vi) prepayments of
the Subordinated Notes.



     “Administrative Agent” has the meaning specified in the preamble.



     “Affected Lender” has the meaning specified in Section 2.18(a).



     “Affiliate” means, with respect to any Person, each other Person that directly or
indirectly controls, is controlled by, or is under common control with, such Person;
provided, however, that no Secured Party shall be an Affiliate of any Borrower.
For purpose of this definition, “control” means the possession of either (a) the power to
vote 10% or more of the Voting Stock of such Person or (b) the power to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise.



     “Aggregate Excess Funding Amount” has the meaning specified in Section
2.4(f)(ii).



     “Agreement” means this Credit Agreement.



     “A-Life Sale” means the sale by MedQuist of its equity investment in A-Life Medical,
Inc. pursuant to that certain Agreement and Plan of Merger, dated as of September 20, 2010, among
Ingenix, Inc., Oasis Acquisition Holdings, Inc., A-Life Medical, Inc., MedQuist and the other
equity holders of A-Life Medical, Inc., for approximately $19,000,000 in cash at closing and
$5,000,000 pursuant to an eighteen month escrow arrangement.



     “Applicable Margin” means (a) 4.50% per annum with respect to Base Rate
Loans and (b) 5.50% per annum with respect to Eurodollar Rate Loans.



     “Approved Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its business and (b) is
advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual) that administers
or manages such Lender.







7








 





     “Assignment” means an assignment agreement entered into by a Lender, as assignor, and
any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the
consent of any party whose consent is required by Section 11.2), accepted by the
Administrative Agent, in substantially the form of Exhibit A, or any other form approved by
the Administrative Agent.



     “Available Holdings IPO Proceeds” means, on any date, (i) the Net Cash Proceeds
received by Holdings from the consummation of the Holdings IPO, minus (ii) in the case of the
initial Holdings IPO, the Designated IPO Proceeds Amount; provided, however, that in no event shall
Available Holdings IPO Proceeds be less than zero.



     “Bank Product Amount” shall have the meaning set forth in the definition of “Bank
Product Provider”.



     “Bank Product Obligations” shall mean, collectively, all obligations and other
liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank
Products.



     “Bank Product Provider” means any Person that, at the time it provides any Bank
Products to any Loan Party, (i) is a Lender or an Affiliate of a Lender and (ii) has provided prior
written notice to the Administrative Agent which has been acknowledged by the Borrower
Representative of (x) the existence of such Bank Product and (y) the maximum dollar amount of
obligations arising thereunder (the “Bank Product Amount”). In no event shall any Bank
Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of
and as to Bank Products except that each reference to the term “Lender” in Article 10 shall be
deemed to include such Bank Product Provider and in no event shall the approval of any such person
in its capacity as Bank Product Provider be required in connection with the release or termination
of any security interest or Lien of the Administrative Agent. The Bank Product Amount may be
changed from time to time upon written notice to the Administrative Agent by the applicable Bank
Product Provider.



     “Bank Products” shall mean any of the following services provided to any Loan Party by
any Bank Product Provider: (a) any treasury or other cash management services, including deposit
accounts, automated clearing house (ACH) origination and other funds transfer, depository
(including cash vault and check deposit), zero balance accounts and sweeps, return items
processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account
reconciliation and information reporting, payables outsourcing, payroll processing, trade finance
services, investment accounts and securities accounts, and (b) card services, including credit card
(including purchasing card and commercial card), prepaid cards, including payroll, stored value and
gift cards, merchant services processing, and debit card services.



     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.



     “Base Rate” means, for any day, a rate per annum equal to the highest of (a) the rate
last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall
Street Journal ceases to quote such rate, the highest per annum interest rate published by the
Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates)
as the
“bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted
therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve
Board (as determined by the Administrative Agent), (b) the sum of 0.50% per annum and the Federal







8








 




Funds Rate, and (c) the sum of (x) the Eurodollar Rate calculated for each such day based on an
Interest Period of one month determined two (2) Business Days prior to such day, plus (y) the
excess of the Applicable Margin for Eurodollar Rate Loans over the Applicable Margin for Base Rate
Loans, in each instance, as of such day. Any change in the Base Rate due to a change in any of the
foregoing shall be effective on the effective date of such change in the “bank prime loan” rate,
the Federal Funds Rate, or the Eurodollar Rate for an Interest Period of one month.




     “Base Rate Loan” means any Loan that bears interest based on the Base Rate.



     “Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA
(whether governed by the laws of the United States or otherwise) to which any Group Member incurs
or otherwise has any obligation or liability, contingent or otherwise.



     “Borrower Representative” has the meaning specified in Section 2.19.



     “Borrowers” has the meaning specified in the preamble.



     “Borrowing” means a borrowing consisting of Loans (other than Swing Loans and Loans
deemed made pursuant to Section 2.3 or 2.4) made in one Facility on the same day by
the Lenders according to their respective Commitments under such Facility.



     “Business Day” means any day of the year that is not a Saturday, Sunday or a day on
which banks are required or authorized to close in New York City and, when determined in connection
with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate Loan or any
funding, conversion, continuation, Interest Period or payment of any Eurodollar Rate Loan, that is
also a day on which dealings in Dollar deposits are carried on in the London interbank market.



     “Capital Expenditures” means, for any Person for any period, the aggregate of all
expenditures, whether or not made through the incurrence of Indebtedness, by such Person and its
Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease),
construction, replacement, repair, substitution or improvement of fixed or capital assets or
additions to equipment, in each case required to be capitalized under GAAP on a Consolidated
balance sheet of such Person, excluding (a) interest capitalized during construction and (b) any
expenditure to the extent, for purpose of the definition of Permitted Acquisition, such expenditure
is part of the aggregate amounts payable in connection with, or other consideration for, any
Permitted Acquisition consummated during or prior to such period.



     “Capital Lease” means, with respect to any Person, any lease of, or other arrangement
conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee
that has been or should be accounted for as a capital lease on a balance sheet of such Person
prepared in accordance with GAAP.



     “Capitalized Lease Obligations” means, at any time, with respect to any Capital Lease,
any lease entered into as part of any Sale and Leaseback Transaction of any Person or any synthetic
lease, the amount of all obligations of such Person that is (or that would be, if such
synthetic lease or other lease were accounted for as a Capital Lease) capitalized on a balance
sheet of such Person prepared in accordance with GAAP.







9








 





     “Cash Collateral Account” means a deposit account or securities account in the name of
the Borrower Representative and under the sole control (as defined in the applicable UCC) of the
Administrative Agent and (a) in the case of a deposit account, from which the Borrowers may not
make withdrawals except as permitted by the Administrative Agent and (b) in the case of a
securities account, with respect to which the Administrative Agent shall be the only Person
authorized to give entitlement orders with respect thereto without further consent by the
entitlement holder. As used herein, “Cash Collateral Account” does not include “Controlled Deposit
Account” or “Controlled Securities Account”.



     “Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or
directly, unconditionally and fully guaranteed or insured by the United States federal government
or (ii) issued by any agency of the United States federal government the obligations of which are
fully backed by the full faith and credit of the United States federal government, (b) any
readily-marketable direct obligations issued by any other agency of the United States federal
government, any state of the United States or any political subdivision of any such state or any
public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or
at least “P-1” from Moody’s, (c) any commercial paper rated at least “A-1” by S&P
or “P-1” by Moody’s and issued by any Person organized under the laws of any state of the
United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight
bank deposit or bankers’ acceptance issued or accepted by any commercial bank that is (A) organized
under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately
capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has
Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any
United States money market fund that (i) has substantially all of its assets invested continuously
in the types of investments referred to in clause (a), (b), (c) or
(d) above with maturities as set forth in the proviso below, (ii) has net assets in excess
of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for
money market funds in the United States; provided, however, that the maturities of
all obligations specified in any of clauses (a), (b), (c) and (d)
above shall not exceed 365 days.



     “CBay” has the meaning specified in the preamble.



     “CBay India” means CBay Systems (India) Private Limited, a company incorporated in
India.



     “CBay Management Agreement” means that certain Services Agreement, dated as of
September 19, 2009, between Holdings and CBay.



     “CBay Transcription Agreements” means (i) that certain Sales & Services Agreement,
dated as of March 9, 2010, between MedQuist Transcriptions and CBay Systems and (ii) that certain
Transcription Services Subcontracting Agreement by and between MedQuist Transcriptions and CBay
Systems dated as of March 31, 2009, each as in effect as of the Signing Date.



     “CBay Systems” means CBay Systems & Services, Inc., a Delaware corporation.



     “CERCLA” means the United States Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. §§ 9601 et seq.).







10








 





     “Change of Control” means the occurrence of any of the following: (a) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the Signing Date), other than Sponsor, of Stock representing
35% of the aggregate ordinary voting power represented by the issued and outstanding Stock of
Holdings, (b) the Sale by Sponsor of all or substantially all of the Stock of Holdings owned by
Sponsor to any Person or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the Signing Date) (but
excluding any sale by Sponsor of all of its shares of Stock of Holdings to the extent such shares
constitute no more than 5% of the shares of Stock of Holdings held by the Sponsor on the Signing
Date and are not sold in a series of related transactions that would otherwise be a Change of
Control), (c) the occupation of a majority of the seats on the board of directors of Holdings by
Persons who were not directors on the Signing Date and were neither (i) nominated by the board of
directors of Holdings nor (ii) appointed by directors so nominated, (c) Holdings ceases, directly
or indirectly, to own and control, beneficially and of record, ninety-five percent (95%) of the
issued and outstanding Voting Stock and Stock Equivalents of CBay on a fully diluted basis (as the
same may be adjusted for any combination, recapitalization or reclassification into a greater or
smaller number of shares, interests or other unit of equity security), (d) CBay ceases, directly or
indirectly, to own and control, beneficially and of record, a percentage equal to or greater than
the percentage owned and controlled as of the Signing Date of the issued and outstanding Voting
Stock and Stock Equivalents of MedQuist on a fully diluted basis (other than through the exercise
of options existing on the Signing Date) or (e) a “Change of Control” or any term of similar
effect, as defined in any Subordinated Note Document.



     “Closing Date” means the first date on which all of the conditions precedent set forth
in Section 3.1 have been satisfied or duly waived and any Term Loan is made.



     “Code” means the U.S. Internal Revenue Code of 1986, as amended.



     “Collateral” means all property and interests in property and proceeds thereof now
owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be
granted pursuant to any Loan Document.



     “Collection Account” has the meaning specified in Section 2.13(a).



     “Commitment” means, with respect to any Lender, such Lender’s Revolving Credit
Commitment and Term Loan Commitment.



     “Compliance Certificate” means a certificate substantially in the form of
Exhibit G.



     “Consolidated” means, with respect to any Person, the accounts of such Person and its
Subsidiaries consolidated in accordance with GAAP.



     “Consolidated Cash Interest Expense” means, with respect to any Person for any period,
the Consolidated Interest Expense of such Person for such period less the sum of, in each
case to the extent included in the definition of Consolidated Interest Expense, (a) the amortized
amount
of debt discount and debt issuance costs, (b) charges relating to write-ups or write-downs in
the book or carrying value of existing Consolidated Total Debt, (c) interest payable in evidences
of







11








 




Indebtedness or by addition to the principal of the related Indebtedness and (d) other non-cash
interest.




     “Consolidated Current Assets” means, with respect to any Person at any date, the total
Consolidated current assets of such Person at such date other than cash, Cash Equivalents and any
Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person.



     “Consolidated Current Liabilities” means, with respect to any Person at any date, all
liabilities of such Person and its Subsidiaries at such date that should be classified as current
liabilities on a Consolidated balance sheet of such Person in accordance with GAAP;
provided, however, that “Consolidated Current Liabilities” shall exclude
the principal amount of the Loans then outstanding, the current portion of any other long term
Indebtedness and accrued interest payable.



     “Consolidated EBITDA” means, with respect to any Person for any period:



     (a) the Consolidated Net Income of such Person for such period; plus



     (b) the sum of, in each case to the extent deducted in the calculation of such Consolidated
Net Income but without duplication:




     (i) any provision for United States federal income taxes or other taxes measured by
net income;




     (ii) Consolidated Interest Expense, amortization of debt discount and commissions and
other fees and charges associated with Indebtedness (except amortization of debt discount,
expenses and fees related to the consummation of the Related Transactions);




     (iii) any loss from extraordinary items as defined by GAAP;




     (iv) any depreciation, depletion and amortization expense;




     (v) any aggregate net loss on the Sale of property (other than accounts (as defined
under the applicable UCC) and inventory) outside the Ordinary Course of Business;




     (vi) expenses and fees paid in cash associated with the Related Transactions accrued
in the Fiscal Years ending on December 31, 2010 or December 31, 2011 and amortization of
debt discount, in the aggregate not to exceed $14,000,000;




     (vii) for purposes of calculating Consolidated EBITDA for Holdings (and not
Consolidated EBITDA of MedQuist), fees and expenses, and any unusual or non-recurring cash
charges, related to the Exchange Offer and the Holdings IPO and the issuance of equity of
Holdings in connection therewith;




     (viii) any other non-cash expenditure, charge or loss for such period (other than any
non-cash expenditure, charge or loss relating to write-offs, write-downs or
reserves with respect to accounts and inventory), including the amount of any
compensation deduction as the result of any grant of Stock or Stock Equivalents to







12








 






employees, officers, directors or consultants, or any other long-term incentive
arrangement;




     (ix) any non-recurring loss, including severance and restructuring costs related to
the Acquisition and the integration of the Acquired Business in an aggregate amount not to
exceed $5,500,000;




     (x) any unusual or non-recurring cash losses, cash charges or cash expenses, including
severance and restructuring costs, related to Permitted Acquisitions or Permitted
Indebtedness or equity issuances of Stock or Stock Equivalents permitted hereunder
(excluding any equity issuances in connection with the Exchange Offer or the Holdings IPO);




     (xi) costs of legal proceedings and settlements with respect to those matters
disclosed in Item 3 of MedQuist’s Annual Report on Form 10-K as of December 31, 2009 filed
on March 12, 2010, in an amount not to exceed $5,000,000 in any trailing twelve-month
period; and




     (xii) aggregate non-cash foreign exchange losses resulting from foreign currency
fluctuation or hedging activity related thereto; minus



     (c) the sum of, in each case to the extent included in the calculation of such Consolidated
Net Income and without duplication:




     (i) any credit for United States federal income taxes or other taxes measured by net
income;




     (ii) any gain from extraordinary items and any other non-recurring gain;




     (iii) any aggregate net gain from the Sale of property (other than accounts (as
defined in the applicable UCC) and inventory) out of the Ordinary Course of Business by
such Person;




     (iv) any other non-cash gain, including any reversal of a charge referred to in
clause (b)(vii) above by reason of a decrease in the value of any Stock or Stock
Equivalent;




     (v) any other cash payment in respect of expenditures, charges and losses that have
been added to Consolidated EBITDA of such Person pursuant to clause (b)(vii) above
in any prior period; and




     (vi) aggregate non-cash foreign exchange gains resulting from foreign currency
fluctuation or hedging activity related thereto.



     Notwithstanding the above, for purposes of calculating the condition precedent set forth in
Section 3.3(d) and covenants under Article 5 and Article 8, Consolidated
EBITDA for the following Fiscal Quarters shall be deemed to be the amount set forth opposite such
Fiscal Quarter below:







13








 





	 	 	 	 	 
	Fiscal Quarter Ended	 	Consolidated EBITDA	 
	September 30, 2009
	 	$	22,316,000	 
	 
	 	 	 	 
	December 31, 2009
	 	$	23,540,000	 
	 
	 	 	 	 
	March 31, 2010
	 	$	19,385,000	 
	 
	 	 	 	 
	June 30, 2010
	 	$	21,911,000	 






     “Consolidated Interest Coverage Ratio” means, with respect to any Person for any
period, the ratio of (a) Consolidated EBITDA of such Person for such period to (b) Consolidated
Cash Interest Expense of such Person for such period.



     “Consolidated Interest Expense” means, for any Person for any period, (a) Consolidated
total interest expense of such Person and its Subsidiaries for such period and including, in any
event, (i) interest capitalized during such period and net losses under Interest Rate Contracts for
such period and (ii) all fees, charges, commissions, discounts and other similar obligations (other
than reimbursement obligations) with respect to letters of credit, bank guarantees, banker’s
acceptances, surety bonds and performance bonds (whether or not matured) payable by such Person and
its Subsidiaries during such period minus (b) the sum of (i) Consolidated net gains of such
Person and its Subsidiaries under Interest Rate Contracts for such period and (ii) Consolidated
interest income of such Person and its Subsidiaries for such period.



     “Consolidated Net Debt” means, with respect to any person, as of any date, the
Consolidated Total Debt of such Person net of all cash and Cash Equivalents held by such Person and
its Consolidated Subsidiaries.



     “Consolidated Net Income” means, with respect to any Person, for any period, the
Consolidated net income (or loss) of such Person and its Subsidiaries for such period;
provided, however, that the following shall be excluded: (a) the net income of any
other Person in which such Person or one of its Subsidiaries has a joint interest with a third
party (which interest does not cause the net income of such other Person to be Consolidated into
the net income of such Person), except to the extent of the amount of dividends or distributions
paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person that is, on
the last day of such period, subject to any restriction or limitation on the payment of dividends
or the making of other distributions, to the extent of such restriction or limitation and (c) the
net income of any other Person arising prior to such other Person becoming a Subsidiary of such
Person or merging or consolidating into such Person or its Subsidiaries, other than any Permitted
Acquisition, in which case Consolidated Net Income shall include the net income of such Person
measured on a Pro Forma Basis. For the avoidance of doubt, the net income (or loss) of A Life
Medical Inc. shall not be included in the Consolidated Net Income of Holdings or MedQuist.



     “Consolidated Net Leverage Ratio” means, with respect to any Person, as of any date,
the ratio of (a) Consolidated Net Debt of such Person outstanding as of such date to (b)
Consolidated







14








 




EBITDA for such Person for the period of four consecutive Fiscal Quarters ending on or before
such date.




     “Consolidated Senior Debt” means, as of any date, (i) the Consolidated Total Debt of
Holdings less (ii) all Indebtedness evidenced by the Subordinated Notes.



     “Consolidated Senior Leverage Ratio” means, with respect to any Person as of any date,
the ratio of (a) Consolidated Senior Debt of such Person outstanding as of such date to (b)
Consolidated EBITDA for such Person for the last period of four (4) consecutive Fiscal Quarters
ending on or before such date.



     “Consolidated Total Debt” of any Person means all Indebtedness of a type described in
clause (a), (b), (c), (d), (f) or (g) of the
definition thereof and, without duplication, all Guaranty Obligations with respect to any such
Indebtedness, in each case of such Person and its Subsidiaries on a Consolidated basis.



     “Consolidated Total Leverage Ratio” means, with respect to any Person as of any date,
the ratio of (a) Consolidated Total Debt of such Person outstanding as of such date to (b)
Consolidated EBITDA for such Person for the last period of four (4) consecutive Fiscal Quarters
ending on or before such date.



     “Constituent Documents” means, with respect to any Person, collectively and, in each
case, together with any modification of any term thereof to the extent not prohibited hereunder,
(a) the articles of incorporation, certificate of incorporation, constitution or certificate of
formation of such Person, (b) the bylaws, operating agreement or joint venture agreement of such
Person, (c) any other constitutive, organizational or governing document of such Person, whether or
not equivalent, and (d) any other document setting forth the manner of election or duties of the
directors, officers or managing members of such Person or the designation, amount or relative
rights, limitations and preferences of any Stock of such Person.



     “Contingent Loan Document Obligations” means (i) contingent indemnification
obligations arising under the Loan Documents for which no claims have been asserted, (ii) L/C
Obligations that are cash collateralized in an amount of at least 102% of such L/C Obligations or
supported by one or more backstop letters of credit from an issuer, in an amount and in a form
reasonably satisfactory to the L/C Issuer, (iii) contingent Bank Product Obligations not yet due
and (iv) contingent obligations arising under any Secured Hedging Agreement not yet due.



     “Contractual Obligation” means, with respect to any Person, any provision of any
Security issued by such Person or of any document or undertaking (other than a Loan Document) to
which such Person is a party or by which it or any of its property is bound or to which any of its
property is subject.



     “Control Agreement” means, with respect to any deposit account, any securities
account, commodity account, securities entitlement or commodity contract, an agreement, in form and
substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, the
financial institution or other Person at which such account is maintained or with which such
entitlement or contract is carried and the Loan Party maintaining such account, effective to grant
“control” (as defined under the applicable UCC) over such account to the Administrative Agent.







15








 





     “Controlled Deposit Account” means each deposit account (including all funds on
deposit therein) that is the subject of an effective Control Agreement and that is maintained by
any Loan Party with a financial institution approved by the Administrative Agent.



     “Controlled Securities Account” means each securities account or commodity account
(including all financial assets held therein and all certificates and instruments, if any,
representing or evidencing such financial assets) that is the subject of an effective Control
Agreement and that is maintained by any Loan Party with a securities intermediary or commodity
intermediary approved by the Administrative Agent.



     “Copyrights” means all rights, title and interests (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to copyrights and all mask work,
database and design rights, whether or not registered or published, all registrations and
recordations thereof and all applications in connection therewith.



     “Corporate Chart” means a document in form reasonably acceptable to the Administrative
Agent and setting forth, as of a date set forth therein, for each Person that is a Loan Party or a
Subsidiary or joint venture of a Loan Party, (a) the full legal name of such Person, (b) the
jurisdiction of organization and, if organized under the laws of a state of the United States, any
organizational number and tax identification number of such Person, (c) the location of such
Person’s chief executive office (or, if applicable, sole place of business), (d) the number of
shares of each class of Stock of such Person (other than Holdings) authorized and outstanding and
(e) the number and percentage of such outstanding shares for each such class owned, directly or
indirectly, by each Group Member.



     “Customary Permitted Liens” means, with respect to any Person, any of the following:



     (a) Liens (i) with respect to the payment of taxes, assessments or other governmental charges
that are not yet overdue or (ii) of suppliers, carriers, materialmen, warehousemen, workmen or
mechanics and other similar Liens that are not yet overdue for a period of more than 30 days
without the commencement of enforcement or foreclosure, in each case imposed by law or arising in
the Ordinary Course of Business, and, for each of the Liens in clauses (i) and (ii)
above for amounts that are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;



     (b) Liens of a collection bank on items in the course of collection arising under Section
4-208 of the UCC as in effect in the State of New York or any similar section under any applicable
UCC or any similar Requirement of Law of any foreign jurisdiction;



     (c) pledges or cash deposits made in the Ordinary Course of Business (i) in connection with
workers’ compensation, unemployment insurance or other types of social security benefits (other
than any Lien imposed by ERISA), (ii) to secure the performance of bids, tenders, leases (other
than Capital Leases) sales or other trade contracts (other than for the repayment of borrowed
money) or (iii) made in lieu of, or to secure the performance of, surety, customs, reclamation or
performance bonds (in each case not related to judgments or litigation);



     (d) judgment liens (other than for the payment of taxes, assessments or other governmental
charges) securing judgments and other proceedings not constituting an Event of







16








 




Default under Section 9.1(e) and pledges or cash deposits made in lieu of, or to
secure the performance of, judgment or appeal bonds in respect of such judgments and proceedings;




     (e) Liens (i) arising by reason of zoning restrictions, easements, licenses, reservations,
restrictions, covenants, rights-of-way, encroachments, minor defects or irregularities in title
(including leasehold title) and other similar encumbrances on the use of real property or (ii)
consisting of leases, licenses or subleases granted by a lessor, licensor or sublessor on its
property (in each case other than Capital Leases) otherwise permitted under Section 8.4
that, for each of the Liens in clauses (i) and (ii) above, do not, in the
aggregate, materially (x) impair the value or marketability of such real property or (y) interfere
with the ordinary conduct of the business conducted and proposed to be conducted at such real
property;



     (f) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease
or related Contractual Obligation entered into in the Ordinary Course of Business, (ii) on fixtures
and movable tangible property located on the real property leased or subleased from such landlord,
(iii) for amounts not overdue for a period of more than 30 days without the commencement of
enforcement or foreclosure or that are being contested in good faith by appropriate proceedings
diligently conducted and (iv) for which adequate reserves or other appropriate provisions are
maintained on the books of such Person in accordance with GAAP;



     (g) Liens arising from precautionary uniform commercial code financing statements filed under
any lease permitted by this Agreement;



     (h) licenses (including, without limitation, licenses granted by a Group Member with respect
to its Intellectual Property), sublicenses, leases or subleases granted to third parties in the
Ordinary Course of Business not interfering with the business of the Group Members;



     (i) Liens in favor of collecting banks arising under Section 4-210 of the UCC (except to the
extent subordinated or waived pursuant to a Control Agreement);



     (j) Liens (including the right of set-off) in favor of a bank or other depository institution
arising as a matter of law encumbering deposits (except to the extent subordinated or waived
pursuant to a Control Agreement), or Liens that are contractual rights of set-off (i) relating to
the establishment of depository relations with banks not given in connection with the issuance of
Indebtedness or (ii) relating to pooled deposit, automatic clearing house or sweep accounts of the
Group Members to permit satisfaction of overdraft or similar obligations incurred in the Ordinary
Course of Business of the Group Members;



     (k) Liens arising out of consignment or similar arrangements for the sale of goods entered
into by Group Member in the Ordinary Course of Business;



     (l) Liens in favor of customs and revenue authorities arising as a matter of law that secure
payment of customs duties in connection with the importation of goods of any Group Member in the
Ordinary Course of Business;



     (m) Liens (i) on cash earnest money deposits in favor of the seller of any Property to be
acquired in an Investment permitted pursuant to Section 8.3 to be applied against the
purchase price for such Investment and (ii) consisting of an agreement to sell, transfer, lease or
otherwise dispose of any Property in a transaction permitted under Section 8.4 and
affecting only the Property that is the subject of such agreement, in each case, solely to the
extent such Investment







17








 




or sale, disposition, transfer or lease would have been permitted on the date of the creation
of such Lien;




     (n) Liens that are in the nature of (i) a common law or statutory right of set-off arising
solely by operation of applicable law, or (ii) a right of set-off, relating to purchase orders and
other agreements entered into with customers of the Group Members in the Ordinary Course of
Business (except to the extent such Lien was waived or subordinated to the Obligations pursuant to
the terms of the applicable Contractual Obligations or any amendment thereto);



     (o) Liens on an insurance policy and the proceeds thereof securing the financing of the
insurance premiums payable with respect to such policy; and



     (p) the title and interest of a lessor or sublessor in and to personal property leased or
subleased (other than through a Capital Lease), in each case extending only to such personal
property.



     “Default” means any Event of Default and any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.



     “Designated IPO Proceeds Amount” means $19,500,000, which represents the Net Cash
Proceeds from the Holdings IPO available to fund the transactions permitted under Section
8.5(h) and Sections 8.9(j) and (k).



     “Disclosure Documents” means, collectively, (a) all confidential information memoranda
and related materials prepared in connection with the syndication of the Facilities and (b) all
other documents filed by any Group Member with the United States Securities and Exchange
Commission.



     “Dollars” and the sign “$” each mean the lawful money of the United States of
America.



     “Domestic Person” means any “United States person” as defined in
Section 7701(a)(30) of the Code.



     “E-Fax” means any system used to receive or transmit faxes electronically.



     “Electronic Transmission” means each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made or communicated by
e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.



     “Eligible Assignee” has the meaning specified in Section 11.2.



     “Environmental Laws” means all Requirements of Law and Permits imposing liability or
standards of conduct for or relating to the regulation and protection of human health and safety
(to the extent related to Releases, Remedial Action or protection from or exposure to Hazardous
Material), the environment and natural resources, including CERCLA, the SWDA, the Hazardous
Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.), the Toxic Substances Control Act
(15 U.S.C. §§ 2601 et seq.), the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Occupational Safety
and Health Act (29 U.S.C. §§ 651 et seq.),







18








 




the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), all regulations promulgated
under any of the foregoing, all analogous Requirements of Law and Permits and any environmental
transfer of ownership notification or approval statutes, including the Industrial Site Recovery Act
(N.J. Stat. Ann. §§ 13:1K-6 et seq.).




     “Environmental Liabilities” means all Liabilities (including costs of Remedial
Actions, natural resource damages and costs and expenses of investigation and feasibility studies)
that may be imposed on, incurred by or asserted against any Group Member as a result of, or related
to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in
contract, tort, implied or express warranty, strict liability, criminal or civil statute or common
law or otherwise, arising under any Environmental Law or in connection with any environmental,
health or safety condition or with any Release and resulting from the ownership, lease, sublease or
other operation or occupation of property by any Group Member, whether on, prior to or after the
Signing Date.



     “ERISA” means the United States Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued thereunder.



     “ERISA Affiliate” means, collectively, any Group Member, and any Person under common
control, or treated as a single employer, with any Group Member, within the meaning of Section
414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.



     “ERISA Event” means any of the following: (a) a reportable event described in
Section 4043 of ERISA (as to which the PBGC has not waived, under subsection .22, .23, .25, .27 or
..28 of PBGC Regulation Section 4043, the requirement of Section 4043(a) of ERISA that it be
notified of such event) with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate
from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial
withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any
Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or
treatment of a plan amendment as termination) under Section 4041A of ERISA, or the receipt by any
ERISA Affiliate of any notice, that any Multiemployer Plan is in endangered or critical status
under Section 305 of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or
treatment of a plan amendment as termination) under Section 4041 of ERISA, (f) the institution of
proceedings to terminate a Title IV Plan or a Multiemployer Plan by the PBGC, (g) the failure to
make any required contribution to any Title IV Plan or Multiemployer Plan when due, there being or
arising any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined
or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title 1 of ERISA)
with respect to a Multiemployer Plan or a Title IV Plan (whether or not waived), the filing of any
request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to
any Benefit Plan, or that such filing may be reasonably be expected to be made, or a determination
that any Title IV Plan is, or is reasonably expected to be, in at-risk status under Title IV of
ERISA; (h) the imposition of a lien under Section 430 of the Code or Section 303 or 4068 of ERISA
on any property (or rights to property, whether real or personal) of any ERISA Affiliate, (i) the
failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under
Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder; and (j) engaging
in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section
406 of ERISA; and (k) any other event or condition that might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer







19








 




Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA,
other than for PBGC premiums due but not delinquent.




     “E-Signature” means the process of attaching to or logically associating with an
Electronic Transmission an electronic symbol, encryption, digital signature or process (including
the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with
the intent to sign, authenticate or accept such Electronic Transmission.



     “E-System” means any electronic system, including Intralinks® and ClearPar®
and any other Internet or extranet-based site, whether such electronic system is owned, operated or
hosted by the Administrative Agent, any of its Related Persons or any other Person, providing for
access to data protected by passcodes or other security system.



     “Eurodollar Base Rate” means, with respect to any Interest Period for any Eurodollar
Rate Loan, the rate determined by the Administrative Agent to be the offered rate for deposits in
Dollars in the London interbank market for the applicable Interest Period appearing on the Reuters
Screen LIBOR01 page as of 11:00 a.m. (London time) on the second full Business Day next preceding
the first day of each Interest Period. In the event that such rate does not appear on the Reuters
Screen LIBOR01 page at such time, the “Eurodollar Base Rate” shall be determined by
reference to such other comparable publicly available service for displaying the offered rate for
deposit in Dollars in the London interbank market as may be selected by the Administrative Agent
and, in the absence of availability, such other method to determine such offered rate as may be
selected by the Administrative Agent in its sole discretion.



     “Eurodollar Rate” means, a rate per annum, with respect to any Interest Period, equal
to the higher of (a) the ratio of (i) the Eurodollar Base Rate with respect to such Interest Period
for such Eurodollar Rate Loan to (ii) the difference between the number one and the Eurodollar
Reserve Requirements with respect to such Interest Period and for such Eurodollar Rate Loan and
(b) 1.75%.



     “Eurodollar Rate Loan” means any Loan that bears interest based on the Eurodollar
Rate.



     “Eurodollar Reserve Requirements” means, with respect to any Interest Period and for
any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without duplication, of the
maximum rates (expressed as a decimal number) of reserve requirements in effect two (2) Business
Days prior to the first day of such Interest Period (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the
Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.



     “Event of Default” has the meaning specified in Section 9.1.



     “Excess Availability” means, at any time, the remainder of (a) the aggregate Revolving
Credit Commitments less (b) the Revolving Credit Outstandings.



     “Excess Cash Flow” means, for any Person for any period,



     (a) Consolidated EBITDA of such Person;







20








 





     (b) minus, without duplication and only in each case to the extent included in
calculation of Consolidated EBITDA:




     (i) any cash principal payment on the Loans during such period (but only, in the case
of payment in respect of Revolving Loans, to the extent that the Revolving Credit
Commitments are permanently reduced by the amount of such payment) other than any mandatory
prepayment required pursuant to Section 2.8(a) because of the existence of Excess
Cash Flow for a prior period;




     (ii) any scheduled cash principal payment made by such Person or any of its
Subsidiaries during such period on any Capitalized Lease Obligation or other Indebtedness
(but only, if such Indebtedness may be reborrowed, to the extent such payment results in a
permanent reduction in commitments thereof and excluding principal payments on Indebtedness
evidenced by the Subordinated Notes);




     (iii) any Capital Expenditure made by such Person or any of its Subsidiaries during
such period to the extent permitted by this Agreement, excluding any such Capital
Expenditure to the extent financed through the incurrence of Capitalized Lease Obligations
or any other long-term Indebtedness (excluding the Obligations);




     (iv) the Consolidated Cash Interest Expense of such Person for such period;




     (v) any cash losses from extraordinary items;




     (vi) any cash payment made during such period to satisfy obligations for United States
federal income taxes or other taxes measured by net income;




     (vii) any increase in the Working Capital of such Person during such period (measured
as the excess of such Working Capital at the end of such period over such Working Capital
at the beginning of such period);




     (viii) consideration paid in cash with respect to the purchase price of any Permitted
Acquisition or Investment made pursuant to Section 8.3(o), except to the extent
such cash consideration is funded from the issuance of Indebtedness or Stock of such Person
or its Subsidiaries or reduces Additional Available Cash pursuant to clause (v) of the
definition thereof; provided, however, that to the extent the A-Life Sale
is consummated during such Fiscal Year, the cash consideration paid with respect to any
Permitted Acquisition or Investment made pursuant to Section 8.3(o) that reduces
Additional Available Cash pursuant to clause (v) of the definition thereof shall,
notwithstanding the foregoing, be deducted in calculating Excess Cash Flow to the extent of
any gain included in Consolidated EBITDA as a result of the A-Life Sale;




     (ix) cash payments in respect of severance and restructuring costs related to the
Acquisition and the integration of the Acquired Business as set forth in reasonable detail
in any such applicable Compliance Certificate in an aggregate amount not to exceed
$5,500,000,




     (x) cash payments of fees and expenses related to the Related Transactions and paid
prior to the end of the Fiscal Year ending December 31, 2011 as set forth in







21








 






reasonable detail in any such applicable Compliance Certificate in an aggregate amount
not to exceed $14,000,000;




     (xi) to the extent added back in calculating Consolidated EBITDA pursuant to clause
(b)(x) of the definition thereof, any unusual or non-recurring cash losses, cash charges or
cash expenses, including severance and restructuring costs, related to Permitted
Acquisitions or Permitted Indebtedness (regardless of when paid) or equity issuances of
Stock or Stock Equivalents permitted hereunder (excluding any equity issuances in
connection with the Exchange Offer or the Holdings IPO) as set forth in reasonable detail
in any such applicable Compliance Certificate; and




     (xii) to the extent added back in calculating Consolidated EBITDA pursuant to clause
(b)(xi) of the definition thereof, costs of legal proceedings and settlements with respect
to those matters disclosed in Item 3 of MedQuist’s Annual Report on Form 10-K as of
December 31, 2009 filed on March 12, 2010 in an aggregate amount not to exceed $5,000,000;



     (c) plus, without duplication,




     (i) to the extent included in the calculation of Consolidated EBITDA pursuant to
clause (b)(i) of the definition thereof, any provision for United States federal
income taxes or other taxes measured by net income;




     (ii) to the extent the calculation of Excess Cash Flow is based on the Consolidated
EBITDA of MedQuist rather than Holdings, the total amount of cash payments made by MedQuist
or its Subsidiaries to Holdings or its Subsidiaries (other than MedQuist and its
Subsidiaries) in excess of (x) payments required to be made under the CBay Transcription
Agreements and (y) up to $2,000,000 of payments made pursuant to the CBay Management
Agreement;




     (iii) any decrease in the Working Capital of such Person during such period (measured
as the excess of such Working Capital at the beginning of such period over such Working
Capital at the end thereof).



     “Exchange Offer” means one or more transactions in which shareholders of MedQuist
other than CBay exchange their Stock of MedQuist for shares of common stock of Holdings, cash or a
combination of such shares and cash.



     “Excluded Foreign Subsidiary” means any Subsidiary that is not a Domestic Person
unless (i) such Subsidiary has granted a Lien on any of its property as collateral for, or incurred
any Guaranty Obligations with respect to, any Indebtedness of any Loan Party (other than
Obligations) or (ii) more than 65% of the Voting Stock of such Subsidiary has been pledged as
collateral for any such Indebtedness.



     “Existing Agent” means General Electric Capital Corporation, in its capacity as
administrative agent under the Existing Credit Agreement.



     “Existing CBay Debt” means (a) those certain 6.00% Convertible Senior PIK Notes due
2015 which mature on August 6, 2015 issued by CBay to Koninklijke Philips Electronics N.V.







22








 




and (b) the credit facilities provided by K Bank to CBay and certain of its Affiliates as of
the Signing Date.




     “Existing Credit Agreement” means that certain Credit Agreement, dated as of April 22,
2010, among MedQuist, MedQuist Transcriptions, the institutions party thereto as lenders and
issuers and the Existing Agent.



     “Existing Subordinated Note” means that certain Subordinated Promissory Note, dated
July 30, 2010, in the amount of $17,500,000 issued by MedQuist Transcriptions to Black Horse
Capital LP, Black Horse Capital (QP) LP, and Black Horse Capital Master Fund Ltd.



     “Facilities” means (a) the Term Loan Facility and (b) the Revolving Credit Facility.



     “Federal Flood Insurance” means Federally backed Flood Insurance available under the
National Flood Insurance Program to owners of real property improvements located in Special Flood
Hazard Areas in a community participating in the National Flood Insurance Program.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
determined by the Administrative Agent in its sole discretion.



     “Federal Reserve Board” means the Board of Governors of the United States Federal
Reserve System and any successor thereto.



     “Fee Letter” means the letter agreement, dated as of the Signing Date, addressed to
Holdings and MedQuist from the Administrative Agent and accepted by Holdings and MedQuist, with
respect to certain fees to be paid from time to time to the Administrative Agent and its Related
Persons and the Lenders.



     “FEMA” means the Federal Emergency Management Agency, a component of the U.S.
Department of Homeland Security that administers the National Flood Insurance Program.



     “FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended.



     “Financial Statement” means each financial statement delivered pursuant to
Section 4.4 or 6.1.



     “Fiscal Quarter” means each three (3) fiscal month period ending on March 31, June 30,
September 30 or December 31.



     “Fiscal Year” means each twelve fiscal month period ending on December 31.



     “Flood Insurance” means, for any real property located in a Special Flood Hazard Area,
Federal Flood Insurance or private insurance that meets the requirements set forth by FEMA in its
Mandatory Purchase of Flood Insurance Guidelines. Flood Insurance shall be in an amount equal to
the full, unpaid balance of the Loans and any prior liens on the real property up to the maximum
policy limits set under the National Flood Insurance Program, or as otherwise required by the
Administrative Agent, with deductibles not to exceed $50,000.







23








 





     “GAAP” means generally accepted accounting principles in the United States of America,
as in effect from time to time, set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants, in the statements and
pronouncements of the Financial Accounting Standards Board and in such other statements by such
other entity as may be in general use by significant segments of the accounting profession that are
applicable to the circumstances as of the date of determination. Subject to Section 1.3,
all references to “GAAP” shall be to GAAP applied consistently with the principles used in
the preparation of the Financial Statements described in Section 4.4(a).



     “GE Capital” has the meaning specified in the preamble.



     “Governmental Authority” means any nation, sovereign or government, any state or other
political subdivision thereof, any agency, authority or instrumentality thereof and any entity or
authority exercising executive, legislative, taxing, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank, stock exchange, regulatory
body, arbitrator, public sector entity, supra-national entity (including the European Union and the
European Central Bank) and any self-regulatory organization (including the National Association of
Insurance Commissioners).



     “Governmental Payor Programs” means all governmental third party payor programs in
which any Group Member participates, including, without limitation, Medicare, Medicaid, TRICARE or
any other federal or state health care programs.



     “Group Members” means, collectively, Holdings and its Subsidiaries.



     “Group Members’ Accountants” means KPMG LLP or other nationally-recognized independent
registered certified public accountants reasonably acceptable to the Administrative Agent.



     “Guarantor” means Holdings and each Subsidiary Guarantor.



     “Guaranty and Security Agreement” means that certain Guaranty and Security Agreement,
dated as of the Closing Date, among the Administrative Agent, the Borrowers and the Guarantors from
time to time party thereto.



     “Guaranty Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person for any Indebtedness, lease, dividend or other
obligation (the “primary obligation”) of another Person (the “primary obligor”), if
the purpose or intent of such Person in incurring such liability, or the economic effect thereof,
is to guarantee such primary obligation or provide support, assurance or comfort to the holder of
such primary obligation or to protect or indemnify such holder against loss with respect to such
primary obligation, including (a) the direct or indirect guaranty, endorsement (other than for
collection or deposit in the Ordinary Course of Business), co-making, discounting with recourse or
sale with recourse by such Person of any primary obligation, (b) the existence of any Lien, or any
right, contingent or otherwise, to receive a Lien, on the property of such Person securing any part
of any primary obligation and (c) any liability of such Person for a primary obligation through any
Contractual Obligation (contingent or otherwise) or other arrangement (i) to purchase, repurchase
or otherwise acquire such primary obligation or any security therefor or to provide funds for the
payment or discharge of such primary obligation (whether in the form of a loan, advance, stock
purchase, capital contribution or otherwise), (ii) to maintain the solvency, working capital,
equity







24








 




capital or any balance sheet item, level of income or cash flow, liquidity or financial
condition of any primary obligor, (iii) to make take-or-pay or similar payments, if required,
regardless of non-performance by any other party to any Contractual Obligation, (iv) to purchase,
sell or lease (as lessor or lessee) any property, or to purchase or sell services, primarily for
the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the
holder of such primary obligation against loss or (v) to supply funds to or in any other manner
invest in, such primary obligor (including to pay for property or services irrespective of whether
such property is received or such services are rendered); provided, however, that
“Guaranty Obligations” shall not include (x) endorsements for collection or deposit in the
Ordinary Course of Business and (y) product warranties given in the Ordinary Course of Business.
The outstanding amount of any Guaranty Obligation shall equal the outstanding amount of the primary
obligation so guaranteed or otherwise supported or, if lower, the stated maximum amount for which
such Person may be liable under such Guaranty Obligation.




     “Hazardous Material” means any substance, material or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant
or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or
any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.



     “Health Care Laws” means, collectively, any and all federal, state or local laws,
rules, regulations, manuals, orders, ordinances, statutes, guidelines and requirements issued with
respect to regulatory matters relating to the provision, administration, and/or payment for
healthcare products or services, including, without limitation, to the extent applicable, rules and
regulations governing the operation and administration of Medicare, Medicaid or any other
Government Payor Program, HIPAA, any and all federal, state and local fraud and abuse laws of any
Governmental Authority, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C.
§ 1320a-7(b)), the Stark Law (42 U.S.C. § 1395nn and § 1395(q)), the civil False Claims Act (31
U.S.C. § 3729 et seq.), and rules and regulations of the U.S. Food and Drug Administration,
as the same may be amended, modified or supplemented from time to time, and any successor statute
thereto.



     “Hedging Agreement” means any Interest Rate Contract, foreign exchange, swap, option
or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and
any other similar transaction and any other similar agreement or arrangement designed to alter the
risks of any Person arising from fluctuations in any underlying variable.



     “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as the
same may be amended, modified or supplemented from time to time, any successor statute thereto, any
and all rules or regulations promulgated from time to time thereunder, and any comparable state
laws.



     “HIPAA Compliance Plan” has the meaning specified in Section 4.23.



     “Holding Company” means any Person that (i) is an Affiliate of a Permitted Investor,
(ii) is a direct or indirect holder of Stock of Holdings and (iii) owns no substantial assets other
than such Stock.



     “Holdings” has the meaning specified in the preamble.







25








 





     “Holdings IPO” means one or more sales by Holdings of its Stock after the Closing Date
pursuant to one or more underwritten public offerings pursuant to an effective registration
statement filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933,
provided that the Net Cash Proceeds of the first such offering are at least equal to the Designated
IPO Proceeds Amount.



     “Impacted Lender” means any Lender that (a) has failed to fund, and not cured, loans,
participations, advances, or reimbursement obligations under any other syndicated credit
facilities, unless subject to a good faith dispute, or (b) fails to provide the Administrative
Agent, within three (3) Business Days following the Administrative Agent’s written request,
satisfactory assurance that such Lender will not become a Non-Funding Lender.



     “Indebtedness” of any Person means, without duplication, any of the following, whether
or not matured: (a) all indebtedness for borrowed money, (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all reimbursement and other obligations with respect
to (i) letters of credit, bank guarantees or bankers’ acceptances or (ii) surety, customs,
reclamation or performance bonds (in each case not related to judgments or litigation) other than
those entered into in the Ordinary Course of Business, (d) all obligations to pay the deferred
purchase price of property or services, other than trade payables incurred in the Ordinary Course
of Business, (e) all obligations created or arising under any conditional sale or other title
retention agreement, regardless of whether the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property, (f)
all Capitalized Lease Obligations, (g) all obligations, whether or not contingent, to purchase,
redeem, retire, defease or otherwise acquire for value any of its own Stock or Stock Equivalents
(or any Stock or Stock Equivalent of a direct or indirect parent entity thereof) prior to March 31,
2017, valued at, in the case of redeemable preferred Stock, the greater of the voluntary
liquidation preference and the involuntary liquidation preference of such Stock plus accrued and
unpaid dividends, (h) all net payments that would be required to be made in respect of any Hedging
Agreement in the event of a termination (including an early termination) on the date of
determination and (i) all Guaranty Obligations for obligations of any other Person constituting
Indebtedness of such other Person; provided, however, that the items in each of
clauses (a) through (i) above shall constitute “Indebtedness” of such
Person solely to the extent (x) such Person is liable for such item or (y) any such item is secured
by a Lien on such Person’s property.



     “Indemnified Matters” has the meaning specified in Section 11.4.



     “Indemnitee” has the meaning specified in Section 11.4.



     “Initial Projections” means those financial projections covering the Fiscal Years
ending in 2010 through 2015 and delivered to the Administrative Agent by the Borrower
Representative on August 22, 2010.



     “Intellectual Property” means all rights, title and interests in or relating to
intellectual property and industrial property arising under any Requirement of Law and all IP
Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain
Names, Trade Secrets and IP Licenses.



     “Interest Period” means, with respect to any Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or,
if such loan is continued, on the last day of the immediately preceding Interest Period







26








 




therefor and, in each case, ending 1, 2, 3 or 6 months thereafter, as selected by the Borrower
Representative pursuant hereto; provided, however, that (a) if any Interest Period
would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless the result of such extension would be to extend such
Interest Period into another such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month, (c) the Borrower Representative may not select any Interest
Period (i) in the case of Revolving Loans, ending after the Scheduled Revolving Credit Termination
Date and (ii) in the case of Term Loans, ending after the Term Loan Maturity Date, (d) the Borrower
Representative may not select any Interest Period in respect of Loans having an aggregate principal
amount of less than $5,000,000 and (e) there shall be outstanding at any one time no more than 7
Interest Periods.




     “Interest Rate Contracts” means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance.



     “Internet Domain Names” means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to Internet domain names.



     “Investment” means, with respect to any Person (a) to own, purchase or otherwise
acquire, in each case whether beneficially or otherwise, any investment in, including any interest
in, any Security of any other Person (other than any evidence of any Obligation), (b) to purchase
or otherwise acquire, whether in one transaction or in a series of transactions, all or a
significant part of the property of any other Person or a business conducted by any other Person or
all or substantially all of the assets constituting the business of a division, branch, brand or
other unit operation of any other Person, (c) to incur, or to remain liable under, any Guaranty
Obligation for Indebtedness of any other Person, to assume the Indebtedness of any other Person or
to make, hold, purchase or otherwise acquire any deposit, loan, advance, commitment to lend or
advance, or other extension of credit, excluding deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items created in the
Ordinary Course of Business or (d) to make any contribution to the capital of any other Person;
provided, however, that for purposes of Section 8.3(e) and 8.4(b),
(i) any purchase of any property by any Person for more than fair market value shall constitute an
Investment in the seller of such property by such Person to the extent of such excess over such
fair market value and (ii) any Sale of any property by any Person for less than fair market value
shall constitute an Investment in the purchaser of such property by such Person to the extent of
such deficiency below such fair market value.



     “IP Ancillary Rights” means, with respect to any other Intellectual Property, as
applicable, all foreign counterparts to, and all divisionals, reversions, continuations,
continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual
Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted
under or with respect to any of the foregoing or otherwise with respect to such Intellectual
Property, including all rights to sue or recover at law or in equity for any past, present or
future infringement, misappropriation, dilution, violation or other impairment thereof, and, in
each case, all rights to obtain any other IP Ancillary Right.







27








 





     “IP License” means all Contractual Obligations (and all related IP Ancillary Rights),
whether written or oral, granting any right title and interest in or relating to any Intellectual
Property.



     “IRS” means the Internal Revenue Service of the United States and any successor
thereto.



     “Issue” means, with respect to any Letter of Credit, to issue, extend the expiration
date of, renew (including by failure to object to any automatic renewal on the last day such
objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease
in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.
The terms “Issued” and “Issuance” have correlative meanings.



     “L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically
designated as such by the Borrower Representative in a notice to the Administrative Agent and (b)
from and after the effectiveness of such notice, not containing any funds other than those required
under the Loan Documents to be placed therein.



     “L/C Issuer” means (a) GE Capital or any of its Affiliates and (b) each Person that
hereafter becomes an L/C Issuer with the approval of, and pursuant to an agreement with and in form
and substance satisfactory to, the Administrative Agent and the Borrowers, in each case in their
capacity as L/C Issuers hereunder and together with their successors.



     “L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the
L/C Reimbursement Obligations at such time for such Letter of Credit and (b) the aggregate maximum
undrawn face amount of such Letter of Credit outstanding at such time.



     “L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a).



     “L/C Reimbursement Date” has the meaning specified in Section 2.4(e).



     “L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of the
Borrowers to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such
Letter of Credit.



     “L/C Request” has the meaning specified in Section 2.4(b).



     “L/C Sublimit” means $5,000,000.



     “Lehman” means Lehman Brothers Commercial Corporation Asia.



     “Lender” means, collectively, the Swingline Lender and any other financial institution
or other Person that (a) is listed on the signature pages hereof as a “Lender” or (b) from
time to time becomes a party hereto by execution of an Assignment, in each case together with its
successors.



     “Letter of Credit” means any letter of credit Issued pursuant to Section 2.4.



     “Liabilities” means all claims, actions, suits, judgments, damages, losses, liability,
obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions,
charges, disbursements and expenses, in each case of any kind or nature (including interest accrued
thereon or as a result thereto and fees, charges and disbursements of financial, legal and other







28








 




advisors and consultants), whether joint or several, whether or not indirect, contingent,
consequential, actual, punitive, treble or otherwise.




     “Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral
assignment, charge, encumbrance, easement, lien (statutory or other), or preference, priority or
other security interest or preferential arrangement in the nature of a lien, including any
conditional sale contract or other title retention agreement, any assignment of any right to
receive income or profits, the interest of a lessor under a Capital Lease and any synthetic or
other financing lease having substantially the same economic effect as any of the foregoing (but
not the interest of a lessor under an operating lease).



     “Liquidity” means Excess Availability plus cash and Cash Equivalents of Holdings and
its Subsidiaries held in deposit accounts or securities accounts subject to Control Agreements.



     “Loan” means any loan made or deemed made by any Lender hereunder.



     “Loan Documents” means, collectively, this Agreement, any Notes, the Guaranty and
Security Agreement, any Mortgages, the Control Agreements, the Fee Letter, the Subordination
Agreement, the L/C Reimbursement Agreements, all landlord waivers, and, when executed, each
document executed by a Loan Party and delivered to the Administrative Agent, any Lender or any L/C
Issuer in connection with or pursuant to any of the foregoing or the Obligations, together with any
modification of any term, or any waiver with respect to, any of the foregoing.



     “Loan Party” means each Borrower and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in the financial
condition, business, operations or property of the Group Members, taken as a whole, (b) material
impairment of the ability of the Loan Parties (taken as a whole) to perform in any material respect
their obligations under the Loan Documents and (c) a material adverse effect upon the validity or
enforceability of the Credit Agreement, Guaranty and Security Agreement, Fee Letter, the Control
Agreements or the other Loan Documents taken as a whole or the rights and remedies of the
Administrative Agent, the Lenders and the other Secured Parties under the Loan Documents.



     “Material Agreement” means the agreements between (i) any Group Member and Multimodal
Technologies, Inc., and (ii) MedQuist Inc. or any of its Subsidiaries and Nuance Communications,
Inc., together with any amendments, modifications and replacements of any such Material Agreements
permitted hereby; provided, however, that “Material Agreements” shall not include that
certain Dictaphone Corporation Maintenance Plan, dated on or about May 18, 2004, between
HealthScribe, Inc. and Dictaphone Corporation.



     “Maximum Lawful Rate” has the meaning specified in Section 2.9(d).



     “Medicaid” means, collectively, the health care assistance program established by
Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) and any statutes succeeding
thereto, and all laws, rules, regulations, manuals, orders, or requirements pertaining to such
program, including (a) all federal statutes affecting such program; (b) all state statutes and
plans for medical assistance enacted in connection with such program and federal rules and
regulations promulgated in connection with such program; and (c) all applicable provisions of all
rules, regulations, manuals, orders and administrative, reimbursement, and requirements of all
government authorities promulgated in connection with such program (whether or not having the







29








 




force of law), in each case as the same may be amended, supplemented or otherwise modified
from time to time.




     “Medicare” means, collectively, the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) and any
statutes succeeding thereto, and all laws, rules, regulations, manuals, or orders pertaining to
such program including (a) all federal statutes (whether set forth in Title XVIII of the Social
Security Act or elsewhere) affecting such program; and (b) all applicable provisions of all rules,
regulations, manuals, orders and administrative, reimbursement and requirements of all governmental
authorities promulgated in connection with such program (whether or not having the force of law),
in each case as the same may be amended, supplemented or otherwise modified from time to time.



     “MedQuist” has the meaning specified in the preamble.



     “MedQuist Consolidation Date” means the earlier of (a) December 31, 2013 or (b) the
date upon which Holdings owns, directly or indirectly, 100% of the Stock of MedQuist.



     “MedQuist Transcriptions” has the meaning specified in the preamble.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Mortgage” means any mortgage, deed of trust or other document executed or required
herein to be executed by any Loan Party and granting a security interest over real property in
favor of the Administrative Agent as security for the Obligations.



     “Mortgage Supporting Documents” means, with respect to any Mortgage for a parcel of
real property, each document (including title policies or marked-up unconditional insurance binders
(in each case, together with copies of all documents referred to therein), maps, ALTA (or TLTA, if
applicable) as-built surveys (in form and as to date that is sufficiently acceptable to the title
insurer issuing title insurance to the Administrative Agent for such title insurer to deliver
endorsements to such title insurance as reasonably requested by the Administrative Agent),
environmental assessments and reports and evidence regarding recording and payment of fees,
insurance premium and taxes that the Administrative Agent may reasonably request, to create,
register, perfect, maintain, evidence the existence, substance, form or validity of or enforce a
valid lien on such parcel of real property in favor of the Administrative Agent for the benefit of
the Secured Parties, subject only to Permitted Liens and such other Liens as the Administrative
Agent may approve.



     “Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent
or otherwise.



     “National Flood Insurance Program” means the program created by the U.S. Congress
pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973,
as revised by the National Flood Insurance Reform Act of 1994, that mandates the purchase of flood
insurance to cover real property improvements located in Special Flood Hazard Areas in
participating communities and provides protection to property owners through a Federal insurance
program.







30








 





     “Net Cash Proceeds” means proceeds received in cash, checks or other cash equivalent
financial instruments (including Cash Equivalents) from (a) any Sale of, or Property Loss Event
with respect to, property, net of (i) the customary out-of-pocket cash costs, fees and expenses
paid or required to be paid in connection therewith, (ii) taxes paid or reasonably estimated to be
payable as a result thereof, (iii) any amount required to be paid or prepaid on Indebtedness (other
than the Obligations and Indebtedness owing to any Group Member) secured by the property subject
thereto and (iv) any applicable amounts required to be held in escrow until such time as such
amounts are released from escrow, whereupon such amounts shall be considered Net Cash Proceeds or
(b) any sale or issuance of Stock or incurrence of Indebtedness, in each case net of brokers’,
advisors’ and investment banking fees and other customary out-of-pocket underwriting discounts,
commissions and other customary out-of-pocket cash costs, fees and expenses (including costs and
expenses of legal counsel), in each case incurred in connection with such transaction;
provided, however, that any such proceeds received by any Group Member that is not
a Wholly Owned Subsidiary of Holdings shall constitute “Net Cash Proceeds” only to the extent of
the aggregate direct and indirect beneficial ownership interest of Holdings therein.



     “Non-Funding Lender” means any Lender that has (a) failed to fund any payments
required to be made by it under the Loan Documents within two (2) Business Days after any such
payment is due (excluding expense and similar reimbursements that are subject to good faith
disputes), (b) given written notice (and the Administrative Agent has not received a revocation
thereof in writing) to the Borrower Representative, the Administrative Agent, any Lender, or any
L/C Issuer or has otherwise publicly announced (and the Administrative Agent has not received
notice of a public retraction thereof) that such Lender believes it will fail to fund payments or
purchases of participations required to be funded by it under the Loan Documents or one or more
other syndicated credit facilities or (c) any Lender that has, or any Person that directly or
indirectly controls such Lender has, (i) become subject to a voluntary or involuntary case under
the Bankruptcy Code or any similar bankruptcy laws, (ii) a custodian, conservator, receiver or
similar official appointed for it or any substantial part of such Person’s assets, or (iii) made a
general assignment for the benefit of creditors, been liquidated, or otherwise been adjudicated as,
or determined by any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent or bankrupt, and for this clause (c), the Administrative Agent has
determined that such Lender is reasonably likely to become a Non-Funding Lender under clause
(a) or (b) of this definition. For purposes of this definition, control of a Person
shall have the same meaning as in the second sentence of the definition of “Affiliate”.



     “Non-U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is not a Domestic Person.



     “Note” means a promissory note issued jointly and severally by the Borrowers, in
substantially the form of Exhibit B-1 or B-2, as applicable, payable to the order
of a Lender in any Facility in a principal amount equal to the amount of such Lender’s Commitment
under such Facility (or, in the case of the Term Loan Facility, the aggregate initial principal
amount of its Term Loan).



     “Notice of Borrowing” has the meaning specified in Section 2.2(a).



     “Notice of Conversion or Continuation” has the meaning specified in
Section 2.10(b).



     “Obligations” means, with respect to any Loan Party, all Loans, L/C Obligations, Bank
Product Obligations and other amounts, obligations, liabilities, covenants and duties of every type







31








 




and description owing by such Loan Party arising out of or under any Loan Document or Secured
Hedging Agreement, (regardless of whether acquired by assignment), absolute or contingent, due or
to become due, whether liquidated or not, now existing or hereafter arising and however incurred,
and whether or not evidenced by any instrument or for the payment of money, including, without
duplication, (a) if such Loan Party is a Borrower, all Loans and L/C Obligations, (b) all interest,
whether or not accruing after the filing of any petition in bankruptcy or after the commencement of
any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or
post-petition interest is allowed in any such proceeding, and (c) all other fees, expenses
(including fees, charges and disbursement of counsel), interest, commissions, charges, costs,
disbursements, indemnities and reimbursement of amounts paid and other sums to the extent
chargeable to such Loan Party under any Loan Document (including those payable to L/C Issuers as
described in Section 2.11) or Secured Hedging Agreement.




     “Ordinary Course of Business” means, in respect of any transaction involving any Group
Member, the ordinary course of such Person’s business, as undertaken by such Person in good faith.



     “Other Taxes” has the meaning specified in Section 2.17(c).



     “Participant Register” has the meaning specified in Section 11.2(f).



     “Patents” means all rights, title and interests (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to letters patent and applications therefor.



     “Patriot Act” has the meaning specified in Section 11.21.



     “PBGC” means the United States Pension Benefit Guaranty Corporation and any successor
thereto.



     “Permit” means, with respect to any Person, any permit, approval, authorization,
license, registration, certificate, concession, grant, franchise, variance or permission from, and
any other Contractual Obligations with, any Governmental Authority, in each case whether or not
having the force of law and applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.



     “Permitted Acquisition” means any Proposed Acquisition satisfying each of the
following conditions: (a) the aggregate amounts payable in connection with, and other
consideration for (in each case, including all transaction costs and all Indebtedness, liabilities
and Guaranty Obligations incurred or assumed in connection therewith or otherwise reflected in a
Consolidated balance sheet of Holdings and the Proposed Acquisition Target), such Proposed
Acquisition and all other Permitted Acquisitions consummated on or prior to the date of the
consummation of such Proposed Acquisition shall not exceed (i) $25,000,000 in the aggregate in any
Fiscal Year or $75,000,000 in the aggregate during the term of this Agreement plus (ii) Additional
Available Cash as of the date of consummation of such Proposed Acquisition plus (iii) $50,000,000
in the aggregate during the term of this Agreement in the form of shares of common stock of
Holdings issued in connection with such Proposed Acquisition, (b) the Administrative Agent shall
have received reasonable advance notice of such Proposed Acquisition including a reasonably
detailed description thereof at least 15 days prior to the consummation of such Proposed
Acquisition (or such later date as may be agreed by the Administrative Agent) and on or prior to
the date of such Proposed Acquisition, the Administrative Agent shall have received copies of the
acquisition







32








 




agreement and related Contractual Obligations and other documents (including financial
information and analysis, environmental assessments and reports, opinions, certificates and lien
searches) and information reasonably requested by the Administrative Agent, (c) as of the date of
consummation of such Proposed Acquisition and after giving effect to all transactions to occur on
such date as part of such Proposed Acquisition, (1) all conditions set forth in clauses (i)
and (ii) of Section 3.2(b) shall be satisfied or duly waived, (2) Holdings shall,
on a Pro Forma Basis as of the last day of the last Fiscal Quarter for which Financial Statements
have been delivered hereunder, have a Consolidated Total Leverage Ratio and Consolidated Senior
Leverage Ratio which are at least 0.25:1.00 less than the required thresholds set forth in
Sections 5.1 and 5.2 as of such date, as applicable, and (3) Holdings shall have
Liquidity of at least $20,000,000 and (d) such Proposed Acquisition is consummated no earlier than
December 31, 2010.




     “Permitted Indebtedness” means any Indebtedness of any Group Member that is permitted
in Section 8.1.



     “Permitted Investment” means any Investment of any Group Member that is permitted in
Section 8.3.



     “Permitted Investors” means, collectively, Sponsor, and any limited partners,
operating partners or Affiliates of any of the foregoing.



     “Permitted Lien” means any Lien on or with respect to the property of any Group Member
that is permitted in Section 8.2.



     “Permitted Refinancing” means Indebtedness constituting a refinancing or extension of
Permitted Indebtedness that (a) has an aggregate outstanding principal amount not greater than the
aggregate principal amount of such Permitted Indebtedness outstanding at the time of such
refinancing or extension, (b) has a weighted average maturity (measured as of the date of such
refinancing or extension) and maturity no shorter than that of such Permitted Indebtedness, (c) is
not entered into as part of a Sale and Leaseback transaction, (d) is not secured by any property or
any Lien other than those securing such Permitted Indebtedness and (e) is otherwise on terms (other
than market based interest rates, discounts and fees at the time of refinancing) no less favorable
to the Group Members, taken as a whole, than those of such Permitted Indebtedness;
provided, however, that, notwithstanding the foregoing, (x) the terms of such
Permitted Indebtedness may be modified as part of such Permitted Refinancing if such modification
would have been permitted pursuant to Section 8.11 and (y) no Guaranty Obligation for such
Indebtedness shall constitute part of such Permitted Refinancing unless similar Guaranty
Obligations with respect to such Permitted Indebtedness existed and constituted Permitted
Indebtedness prior to such refinancing or extension.



     “Permitted Reinvestment” means, with respect to the Net Cash Proceeds of any Sale or
Property Loss Event, to acquire (or make Capital Expenditures to finance the acquisition, repair,
improvement or construction of), to the extent otherwise permitted hereunder, property useful in
the business of the Group Members, as determined in good faith by the Borrowers (including through
a Permitted Acquisition) or, if such Property Loss Event involves loss or damage to property, to
repair such loss or damage.



     “Person” means any individual, partnership, corporation (including a business trust
and a public benefit corporation), joint stock company, estate, association, firm, enterprise,
trust,







33








 





limited liability company, unincorporated association, joint venture and any other entity or
Governmental Authority.




     “Pro Forma Balance Sheet” has the meaning specified in Section 4.4(d).



     “Pro Forma Basis” means, with respect to any determination for any period and any Pro
Forma Transaction, that such determination shall be made by giving
pro forma effect to each such
Pro Forma Transaction, as if each such Pro Forma Transaction had been consummated on the first day
of such period, based on historical results accounted for in accordance with GAAP and, to the
extent applicable, reasonable assumptions that are specified in reasonable detail in the relevant
Compliance Certificate, Financial Statement or other document provided to the Administrative Agent
or any Lender in connection herewith in accordance with Regulation S-X of the Securities Act of
1933; provided that non-Regulation S-X adjustments approved by the Administrative
Agent in writing may also be made to reflect operating expense reductions and other operating
improvements or synergies or cost savings reasonably expected to result from such Pro Forma
Transaction, which adjustments are reasonably anticipated by the Borrowers to be realizable in
connection with such Pro Forma Transaction and are estimated on a good faith basis by the
Borrowers.



     “Pro Forma Transaction” means any transaction consummated as part of any Permitted
Acquisition or any Sale of Property permitted under Sections 8.4(k) or (l),
together with each other transaction relating thereto and consummated in connection therewith,
including any incurrence or repayment of Indebtedness.



     “Projections” means, collectively, the Initial Projections and the projections
delivered pursuant to Section 6.1(f).



     “Property” means any interest in any kind of property or asset, whether real, personal
or mixed, and whether tangible or intangible.



     “Property Loss Event” means, with respect to any property, any loss of or damage to
such property or any taking of such property or condemnation thereof.



     “Proposed Acquisition” means (a) any proposed acquisition of all or substantially all
of the assets or Stock of any Proposed Acquisition Target by any Borrower or any Subsidiary of a
Borrower or by Holdings that is consensual and approved by the board of directors of such Proposed
Acquisition Target or the Person that owns such Proposed Acquisition Target, or (b) any proposed
merger of any Proposed Acquisition Target with or into any Borrower or Holdings or any Subsidiary
of a Borrower or Holdings (and, in the case of a merger with a Borrower or Holdings, with such
Borrower or Holdings being the surviving corporation).



     “Proposed Acquisition Target” means any Person or any brand, line of business,
division, branch, operating division or other unit operation of any Person.



     “Pro Rata Outstandings”, of any Lender at any time, means (a) in the case of the Term
Loan Facility, the outstanding principal amount of the Term Loans owing to such Lender and (b) in
the case of the Revolving Credit Facility, the sum of (i) the outstanding principal amount of
Revolving Loans owing to such Lender and (ii) the amount of the participation of such Lender in the
L/C Obligations outstanding with respect to all Letters of Credit.







34








 





     “Pro Rata Share” means, with respect to any Lender at any time, the percentage
obtained by dividing (a) the Revolving Commitment (or, if Revolving Commitments are terminated, the
Pro Rata Outstandings of such Lender under the Revolving Credit Facility) or the Pro Rata
Outstandings under the Term Loan Facility of such Lender, as applicable, then in effect by (b) the
sum of the Revolving Commitments (or, if such Revolving Commitments are terminated, the Pro Rata
Outstandings of all Lenders under the Revolving Credit Facility) or Term Loans of all Lenders then
in effect, as applicable; provided, however, that, if there are no Commitments and
no Pro Rata Outstandings in any of such Facilities, such Lender’s Pro Rata Share in any Facility,
as applicable, shall be determined based on the Commitments and/or Pro Rata Outstandings most
recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro
rata payments of any Lender pursuant to Section 2.18.



     “RCM Sale” means a Sale of the
revenue cycle management services Subsidiary,  which was disclosed to the Administrative Agent
on or before the Signing Date.



     “Recapitalization Dividend” means a dividend or distribution paid by MedQuist to the
holders of its outstanding shares of Stock in the aggregate amount of up to $177,000,000, allocated
ratably to such shareholders.



     “Register” has the meaning specified in Section 2.14(b).



     “Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds on the
Reinvestment Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount
paid by any Group Member to make Permitted Reinvestments with such Net Cash Proceeds pursuant to a
Contractual Obligation entered into with any Person that is not an Affiliate of any Borrower.



     “Reinvestment Prepayment Date” means, with respect to any portion of any Net Cash
Proceeds of any Sale or Property Loss Event, the earliest of (a) the 365th day after the
completion of the portion of such Sale or Property Loss Event corresponding to such Net Cash
Proceeds, (b) the date that is five (5) Business Days after the date on which the Borrower
Representative shall have notified the Administrative Agent of the Borrowers’ determination not to
make Permitted Reinvestments with such Net Cash Proceeds, (c) the occurrence of any Event of
Default set forth in Section 9.1(e)(ii), (d) any acceleration of the Obligations under
Section 9.2 and (e) five (5) Business Days after the delivery of a notice by the
Administrative Agent or the Required Lenders to the Borrower Representative during the continuance
of any Event of Default set forth in Section 9.1(a) or (e).



     “Related Documents” means, collectively, the Subordinated Note Documents and each
other document executed with respect thereto or with respect to any Related Transaction.



     “Related Person” means, with respect to any Person, each Affiliate of such Person and
each director, officer, employee, agent, trustee, representative, attorney, accountant and each
insurance, environmental, legal, financial and other advisor (including those retained in
connection with the satisfaction or attempted satisfaction of any condition set forth in
Article 3) of or to such Person or any of its Affiliates, together with, if such Person is
the Administrative Agent, each other Person or individual designated, nominated or otherwise
mandated by or helping the Administrative Agent pursuant to and in accordance with
Section 10.4 or any comparable provision of any Loan Document.







35








 





     “Related Transactions” means, collectively, the funding of the initial Loans and
Letters of Credit, the application of the proceeds thereof in accordance with Section 7.9,
the payment of the Recapitalization Dividend, the issuance of the Subordinated Notes, the
refinancing of the Existing Credit Agreement, Existing Subordinated Note and Existing CBay Debt,
the execution and delivery of all Related Documents and the payment of all related fees, costs and
expenses.



     “Release” means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material into or through the environment.



     “Remedial Action” means all actions required to (a) clean up, remove, treat or in any
other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or
minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care with respect to any Hazardous
Material.



     “Required Lenders” means, at any time, Lenders having at such time in excess of 50% of
the sum of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are
terminated, the sum of the amounts of the participations in Swing Loans, the principal amount of
unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit
Facility) and Term Loan Commitments (or, if such Commitments are terminated, the outstanding
principal amount of the Term Loans) then in effect, ignoring, in such calculation, the amounts held
by any Non-Funding Lender or Sponsor Affiliated Lender.



     “Required Revolving Lenders” means, at any time, Lenders having at such time in excess
of 50% of the aggregate Revolving Credit Commitments (or, if such Revolving Credit Commitments are
terminated, the sum of the amounts of the participations in Swing Loans, the principal amount of
the unparticipated portions of the Swing Loans and the Pro Rata Outstandings in the Revolving
Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Non-Funding
Lender or Sponsor Affiliated Lender.



     “Required Term Lenders” means, at any time, Lenders having at such time in excess of
50% of the aggregate Term Loan Commitments (or, if such Commitments are terminated, the outstanding
principal amount of the Term Loans) then in effect, ignoring, in such calculation, the Commitments
and Pro Rata Outstandings of any Non-Funding Lender or Sponsor Affiliated Lender.



     “Requirements of Law” means, with respect to any Person, collectively, the laws
(statutory or common), treaties, rules and regulations, ordinances, orders, other legal
requirements of any Governmental Authority, in each case that are applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject,
including without limitation all Healthcare Laws.



     “Responsible Officer” means, with respect to any Person, any of the president, chief
executive officer, treasurer, assistant treasurer, controller, managing member or general partner
of such Person but, in any event, with respect to financial matters, any such officer that is
responsible for preparing the Financial Statements delivered hereunder and, with respect to the
Corporate Chart and other documents delivered pursuant to Section 6.1(e), documents
delivered on the Signing Date or Closing Date and documents delivered pursuant to
Section 7.10, the







36








 




secretary or assistant secretary of such Person or any other officer responsible for
maintaining the corporate and similar records of such Person.




     “Restricted Payment” means (a) any dividend or other distribution, whether in cash,
Securities or other property, on account of any Stock or Stock Equivalent of any Group Member, in
each case now or hereafter outstanding, and (b) any redemption, retirement, termination,
defeasance, cancellation, purchase or other acquisition for value of any Stock or Stock Equivalent
of any Group Member, now or hereafter outstanding, and any payment or other transfer setting aside
funds for any such redemption, retirement, termination, cancellation, purchase or other
acquisition, whether to a sinking fund, a similar fund or otherwise.



     “Revolving Credit Commitment” means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and acquire interests in other Revolving Credit Outstandings,
which commitment is in the amount set forth opposite such Lender’s name on Schedule I under
the caption “Revolving Credit Commitment”, as amended to reflect Assignments and as such
amount may be reduced pursuant to this Agreement. The aggregate amount of the Revolving Credit
Commitments on the Signing Date equals $25,000,000.



     “Revolving Credit Facility” means the Revolving Credit Commitments and the provisions
herein related to the Revolving Loans, Swing Loans and Letters of Credit.



     “Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment,
holds a Revolving Loan or participates in any Swing Loan or Letter of Credit.



     “Revolving Credit Outstandings” means, at any time, the sum of, in each case to the
extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and
Swing Loans and (b) the L/C Obligations for all Letters of Credit.



     “Revolving Credit Termination Date” means the earliest of (a) the Scheduled Revolving
Credit Termination Date, (b) the date of termination of the Revolving Credit Commitments pursuant
to Section 2.5 or Section 9.2 and (c) the date on which the Obligations become due
and payable pursuant to Section 9.2.



     “Revolving Loan” has the meaning specified in Section 2.1(a).



     “S&P” means Standard & Poor’s Rating Services.



     “Sale and Leaseback Transaction” means, with respect to any Person (the “obligor”),
any Contractual Obligation or other arrangement with any other Person (the “counterparty”)
consisting of a lease by such obligor of any property that, directly or indirectly, has been or is
to be Sold by the obligor to such counterparty or to any other Person to whom funds have been
advanced by such counterparty based on a Lien on, or an assignment of, such property or any
obligations of such obligor under such lease.



     “Scheduled Revolving Credit Termination Date” means October 1, 2015.



     “Secured Hedging Agreement” means any Hedging Agreement that (a) has been entered into
with a Secured Hedging Counterparty, (b) in the case of a Hedging Agreement not entered into with
or provided or arranged by the Administrative Agent or an Affiliate of the Administrative Agent, is
expressly identified as being a “Secured Hedging Agreement” hereunder







37








 




in a joint notice from such Loan Party and such Person delivered to the Administrative Agent
reasonably promptly after the execution of such Hedging Agreement and (c) meets the requirements of
Section 8.1(f).




     “Secured Hedging Counterparty” means (a) a Person who has entered into a Hedging
Agreement with a Loan Party if such Hedging Agreement was provided or arranged by the
Administrative Agent or an Affiliate of the Administrative Agent, and any assignee of such Person
or (b) a Lender or an Affiliate of a Lender who has entered into a Hedging Agreement with a Loan
Party (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and
delivery of the Hedging Agreement).



     “Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any
Secured Hedging Counterparty and any other Person to which any Obligations are owed.



     “Security” means all Stock, Stock Equivalents, voting trust certificates, bonds,
debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or
subordinated, all certificates of interest, share or participations in, all certificates for the
acquisition of, and all warrants, options and other rights to acquire, any Security.



     “Sell” means, with respect to any property, to sell, convey, transfer, assign,
license, lease or otherwise dispose of, any interest therein or to permit any Person to acquire any
such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale,
factoring at maturity, collection of or other disposal, with or without recourse, of any notes or
accounts receivable. Conjugated forms thereof and the noun “Sale” have correlative
meanings.



     “Signing Date” means the first date on which the conditions precedent set forth in
Section 3.3 have been satisfied.



     “Solvent” means, with respect to any Person as of any date of determination, that, as
of such date, after giving effect to the rights of contribution against other Loan Parties set
forth in Section 12.7 and in the Guaranty and Security Agreement, (a) the value of the
assets of such Person (both at fair value and present fair saleable value) is greater than the
total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b)
such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such
Person does not have unreasonably small capital. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in
light of all the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.



     “Special Flood Hazard Area” means an area that FEMA’s current flood maps indicate has
at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a
100-year flood) in any given year.



     “Sponsor” means S.A.C. Private Capital Group, LLC, a Delaware limited liability
company.



     “Sponsor Affiliated Lender” means any Lender that is either the Sponsor or an
Affiliate of the Sponsor (excluding its portfolio companies).







38








 





     “Sponsor Consulting Agreement” means that certain Agreement, dated as of August 19,
2008, by and among Holdings, S.A.C. PEI CB Investment II, LLC and Lehman Brothers Commercial
Corporation Asia.



     “SPV” means any special purpose funding vehicle identified as such in a writing by any
Lender to the Administrative Agent.



     “Stock” means all shares of capital stock (whether denominated as common stock or
preferred stock), equity interests, beneficial, partnership or membership interests, joint venture
interests or other ownership or profit interests in or equivalents (regardless of how designated)
of or in a Person (other than an individual), whether voting or non-voting.



     “Stock Equivalents” means all securities convertible into or exchangeable for Stock or
any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or
otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible,
exchangeable or exercisable.



     “Subordinated Debt” means any Indebtedness that is subordinated to the payment in full
of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent,
including any Indebtedness under the Subordinated Notes.



     “Subordinated Notes” means the 13% Senior Subordinated Notes due October 15, 2016,
issued by the Borrowers on the Closing Date in Dollars in the aggregate amount of up to $85,000,000
and governed by the terms of the Subordinated Notes Documents.



     “Subordinated Notes Documents” means, collectively, the Subordinated Notes, the Senior
Subordinated Note Purchase Agreement and any other document related to any of the foregoing.



     “Senior Subordinated Note Purchase Agreement” means the Senior Subordinated Note
Purchase Agreement, dated as of September 30, 2010, between the Borrowers, Blackrock Kelso Capital
Corporation, a Delaware corporation, PennantPark Investment Corporation, a Maryland corporation,
Citibank, N.A., a national association and THL Credit, Inc., a Delaware corporation.



     “Subordination Agreement” means that certain Subordination and Intercreditor
Agreement, dated as of the Signing Date, by and among the initial holders of the Subordinated Notes
and the Administrative Agent on behalf of the Lenders, and acknowledged by Holdings and the
Borrowers, as such agreement shall be amended, modified, amended and restated or otherwise changed
from time to time in accordance with the terms hereof and thereof.



     “Subsidiary” means, with respect to any Person, any corporation, partnership, joint
venture, limited liability company, association or other entity, the management of which is,
directly or indirectly, controlled by, or of which an aggregate of more than 50% of the outstanding
Voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or
more Subsidiaries of such Person. Unless the context otherwise clearly requires, references herein
to a “Subsidiary” refer to a Subsidiary of Holdings.



     “Subsidiary Guarantor” means each Subsidiary of Holdings that (a) enters into any
Guaranty Obligations with respect to the Obligations pursuant to the Guaranty and Security







39








 




Agreement or any other Agreement acceptable to the Administrative Agent or (b) is required to
execute the Guaranty and Security Agreement on the Closing Date pursuant to Section 3.1(a).




     “Substitute Lender” has the meaning specified in Section 2.18(a).



     “SWDA” means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.).



     “Swingline Commitment” means $5,000,000.



     “Swingline Lender” means, each in its capacity as Swingline Lender hereunder,
GE Capital or, upon the resignation of GE Capital as administrative agent hereunder, any Lender (or
Affiliate or Approved Fund of any Lender) that agrees, with the approval of the successor
Administrative Agent (or, if there is no such successor Administrative Agent, the Required
Revolving Lenders) and the Borrowers, to act as the Swingline Lender hereunder.



     “Swingline Request” has the meaning specified in Section 2.3(b).



     “Swing Loan” has the meaning specified in Section 2.3(a).



     “Tax Return” has the meaning specified in Section 4.8.



     “Taxes” has the meaning specified in Section 2.17(a).



     “Term Loan” has the meaning specified in Section 2.1(b).



     “Term Loan Commitment” means, with respect to each Term Loan Lender, the commitment of
such Lender to make Term Loans to the Borrowers, which commitment is in the amount set forth
opposite such Lender’s name on Schedule I under the caption “Term Loan Commitment”,
as amended to reflect Assignments and as such amount may be reduced pursuant to this Agreement.
The aggregate amount of the Term Loan Commitments on the Signing Date equals $200,000,000.



     “Term Loan Facility” means the Term Loan Commitments and the provisions herein related
to the Term Loans.



     “Term Loan Lender” means each Lender that has a Term Loan Commitment or that holds a
Term Loan.



     “Term Loan Maturity Date” means October 1, 2015.



     “Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a
Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or
liability, contingent or otherwise.



     “Trademarks” means all rights, title and interests (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles, service marks, logos
and other source or business identifiers and, in each case, all goodwill associated therewith, all
registrations and recordations thereof and all applications in connection therewith.



 






40











 





     “Trade Secrets” means all right, title and interest (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to trade secrets.



     “TRICARE” means, collectively, a program of medical benefits covering former and
active members of the uniformed services and certain of their dependents, financed and administered
by the United States Departments of Defense, Health and Human Services and Transportation, and all
laws applicable to such programs.



     “UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the
applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as
in effect in the State of New York.



     “Unfunded Pension Liability” of any Title IV Plan shall mean the amount, if any, by
which, as of the date of the most recent financial statements reflecting such amounts, the value of
the accumulated plan benefits under the Title IV Plan (based on assumptions used for purposes of
Accounting Standards Codification No. 715: Compensation-Retirement Benefits), exceeds the fair
market value of all plan assets allocable to such liabilities (excluding any accrued but unpaid
contributions).



     “United States” means the United States of America.



     “Unused Commitment Fee” has the meaning specified in Section 2.11(a).



     “U.S. Lender Party” means each of the Administrative Agent, each Lender, each
L/C Issuer, each SPV and each participant, in each case that is a Domestic Person.



     “Voting Stock” means Stock of any Person having ordinary power to vote in the election
of members of the board of directors, managers or equivalent governing body of such Person
(irrespective of whether, at the time, Stock of any other class or classes of such entity shall
have or might have voting power by reason of the occurrence of any contingency).



     “Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person, all of
the Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such
Person, either directly or through one or more Wholly Owned Subsidiaries of such Person.



     “Withdrawal Liability” means, at any time, any liability incurred (whether or not
assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to
any Multiemployer Plan pursuant to Section 4201 of ERISA.



     “Working Capital” means, for any Person at any date, its Consolidated Current Assets
at such date minus its Consolidated Current Liabilities at such date.



          Section 1.2 UCC Terms. The following terms have the meanings given to them in the
applicable UCC: “account”, “commodity account”, “commodity contract”, “commodity intermediary”,
“deposit account”, “entitlement holder”, “entitlement order”, “equipment”, “financial asset”,
“general intangible”, “goods”, “instruments”, “inventory”, “securities account”, “securities
intermediary” and “security entitlement”.



          Section 1.3 Accounting Terms and Principles. (a) GAAP. All accounting
determinations required to be made pursuant hereto shall, unless expressly otherwise provided



 







41









 







herein, be made in accordance with GAAP. No material change in the accounting principles used in
the preparation of any Financial Statement hereafter adopted by Holdings shall be given effect if
such change would affect a calculation that measures compliance with any provision of
Article 5 or Article 8 unless the Borrowers, the Administrative Agent and the
Required Lenders agree to modify such provisions to reflect such material changes in GAAP and,
unless such provisions are modified, all Financial Statements, Compliance Certificates and similar
documents provided hereunder shall be provided together with a reconciliation between the
calculations and amounts set forth therein before and after giving effect to such material change
in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios
referred to in Article 5 and Article 8 shall be made, without giving effect to any
election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party
or any Subsidiary of any Loan Party at “fair value.”




          Section 1.4 Pro Forma. All components of financial calculations made to determine
compliance with Section 3.3(d), Article 5 and Article 8 shall be adjusted
on a Pro Forma Basis to include or exclude, as the case may be, without duplication, such
components of such calculations attributable to any Pro Forma Transaction consummated after the
first day of the applicable period of determination and prior to the end of such period, as
determined in good faith by the Borrowers based on assumptions expressed therein and that were
believed in good faith by the Borrowers to be reasonable based on the information available to the
Borrowers at the time of preparation of the Compliance Certificate setting forth such calculations.




          Section 1.5 Payments. The Administrative Agent may set up standards and procedures to
determine or redetermine the equivalent in Dollars of any amount expressed in any currency other
than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by
any Loan Party or any L/C Issuer. Any such determination or redetermination by the Administrative
Agent shall be conclusive and binding for all purposes, absent manifest error. No determination or
redetermination by any Secured Party or Loan Party and no other currency conversion shall change or
release any obligation of any Loan Party or of any Secured Party (other than the Administrative
Agent and its Related Persons) under any Loan Document, each of which agrees to pay separately for
any shortfall remaining after any conversion and payment of the amount as converted. The
Administrative Agent may round up or down, and may set up appropriate mechanisms to round up or
down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de
minimis payment thresholds.




          Section 1.6 Interpretation. (a) Certain Terms. Except as set forth in any
Loan Document, all accounting terms not specifically defined herein shall be construed in
accordance with GAAP (except for the term “property”, which shall be interpreted as broadly
as possible, including, in any case, cash, Securities, other assets, rights under Contractual
Obligations and Permits and any right or interest in any property). The terms “herein”,
“hereof” and similar terms refer to this Agreement as a whole. In the computation of
periods of time from a specified date to a later specified date in any Loan Document, the terms
“from” means “from and including” and the words “to” and “until” each mean
“to but excluding” and the word “through” means “to and including.” In any other case, the
term “including” when used in any Loan Document means “including without limitation.” The
term “documents” means all writings, however evidenced and whether in physical or
electronic form, including all documents,




 







42









 







instruments, agreements, notices, demands, certificates, forms, financial statements, opinions and reports.




          (b) Certain References. Unless otherwise expressly indicated, references (i) in this
Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or
Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A)
any agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to
such agreement and any modification to any term of such agreement but only to the extent such
modifications are not prohibited by the terms of any Loan Document, (B) any statute shall be to
such statute as modified from time to time and to any successor legislation thereto, in each case
as in effect at the time any such reference is operative and (C) any time of day shall be a
reference to New York time. Titles of articles, sections, clauses, exhibits, schedules and annexes
contained in any Loan Document are without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto. Unless otherwise expressly
indicated, the meaning of any term defined (including by reference) in any Loan Document shall be
equally applicable to both the singular and plural forms of such term.




ARTICLE 2

THE FACILITIES




          Section 2.1 The Commitments. (a) Revolving Credit Commitments. On the terms
and subject to the conditions contained in this Agreement, each Revolving Credit Lender severally,
but not jointly, agrees to make loans in Dollars (each a “Revolving Loan”) to the Borrowers
from time to time on any Business Day during the period commencing one Business Day after the
Closing Date until the Revolving Credit Termination Date in an aggregate principal amount at any
time outstanding for all such loans by such Lender not to exceed such Lender’s Revolving Credit
Commitment (less such Lender’s participation in outstanding Swing Loans and L/C Obligations);
provided, however, that at no time shall any Revolving Credit Lender be obligated
to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the amount by which the then
effective Revolving Credit Commitments exceeds the aggregate Revolving Credit Outstandings at such
time. Within the limits set forth in the first sentence of this clause (a), amounts of
Revolving Loans repaid may be reborrowed under this Section 2.1.




          (b) Term Loan Commitments. On the terms and subject to the conditions contained in
this Agreement, each Term Loan Lender severally, but not jointly, agrees to make a loan (each a
“Term Loan”) in Dollars to the Borrowers on the Closing Date in an amount not to exceed
such Lender’s Term Loan Commitment. Amounts of Term Loans prepaid or repaid may not be reborrowed.
Term Loans may be Base Rate Loans or Eurodollar Loans, as further provided herein.




          Section 2.2 Borrowing Procedures. (a) Notice From the Borrower
Representative. Each Borrowing of new Loans shall be made on notice given by the Borrower
Representative to the Administrative Agent not later than (i) 1:00 p.m. on the first Business Day,
in the case of a Borrowing of Base Rate Loans and (ii) 1:00 p.m. on the third Business Day, in the
case of a Borrowing of Eurodollar Rate Loans, prior to the date of the proposed Borrowing. Each
such notice may be made in a writing substantially in the form of Exhibit C (a “Notice
of Borrowing”) duly completed or by telephone if confirmed promptly, but in any event within
one (1) Business Day and prior to such Borrowing, with a Notice of Borrowing. Loans shall be made




 





43









 







as Base Rate Loans unless, outside of a suspension period pursuant to Section 2.15, the
Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each
Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 or must equal
the Excess Availability then in effect.




          (b) Notice to Each Lender. The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans
are properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate.
Each Lender shall, before 1:00 p.m. on the date of the proposed Borrowing, make available to the
Administrative Agent at its address referred to in Section 11.11, such Lender’s Pro Rata
Share of such proposed Borrowing. Upon fulfillment or due waiver (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 and (ii) on the Closing Date and any time
thereafter, of the applicable conditions set forth in Section 3.2, the Administrative Agent
shall promptly make such funds available to the Borrowers.




          (c) Non-Funding Lenders; Procedures.





          (i) Responsibility. The failure of any Non-Funding Lender to make any Loan,
to fund any purchase of any participation to be made or funded by it, or to make any
payment required by it hereunder on the date specified therefor shall not relieve any other
Lender of its obligations to make such Loan, fund the purchase of any such participation,
or make any other payment required hereunder on such date, and neither the Administrative
Agent nor, other than as expressly set forth herein, any other Lender shall be responsible
for the failure of any Non-Funding Lender to make a Loan, fund the purchase of a
participation or make any other payment required hereunder.




          (ii) Voting Rights. Notwithstanding anything set forth herein to the
contrary, including Section 11.1, a Non-Funding Lender shall not have any voting or
consent rights under or with respect to any Loan Document or constitute a “Lender”, “Term
Loan Lender” or a “Revolving Credit Lender” (or be, or have its Loans and Commitments,
included in the determination of “Required Lenders”, “Required Term Lenders”, “Required
Revolving Lenders” or “Lenders directly affected” pursuant to Section 11.1) for any
voting or consent rights under or with respect to any Loan Document, provided that (A) the
Commitment of a Non-Funding Lender may not be increased or extended, (B) the principal of a
Non-Funding Lender’s Loans may not be reduced or forgiven, and (C) the interest rate
applicable to Obligations owing to a Non-Funding Lender may not be reduced in such a manner
that by its terms affects such Non-Funding Lender more adversely than other Lenders in such
Facility, in each case without the consent of such Non-Funding Lender. Moreover, for the
purposes of determining Required Lenders, Required Term Lenders and Required Revolving
Lenders the Loans, L/C Obligations, and Commitments held by Non-Funding Lenders shall be
excluded from the total Loans and Commitments outstanding.




          (iii) Borrower Payments to a Non-Funding Lender. The Administrative Agent
shall be entitled to hold, in a non-interest bearing account, all portions of any payments
received by the Administrative Agent for the benefit of any Non-Funding Lender (other than
any Lender that has a combined capital and surplus and undivided profits of at least
$500,000,000 and is a Non-Funding Lender solely as a result of the operation of clause
(c) of the definition thereof with respect to a Person that directly or indirectly
controls such Lender) pursuant to this Agreement as cash collateral.



 






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The Administrative
Agent is hereby authorized to use such cash collateral to pay in full the Aggregate Excess
Funding Amount to the appropriate Secured Parties thereof, and then, to hold as cash
collateral the amount of such Non-Funding Lender’s Pro Rata Share, without giving effect to
any reallocation pursuant to Section 2.4(f)(ii), of all funding obligations until
the Obligations are paid in full in cash, all L/C Obligations have been discharged or cash
collateralized and all Commitments have been terminated. Upon any such unfunded
obligations owing by a Non-Funding Lender becoming due and payable, the Administrative
Agent shall be authorized to use such cash collateral to make such payment on behalf of
such Non-Funding Lender. With respect to such Non-Funding Lender’s failure to fund
Revolving Loans or purchase participations in Letters of Credit or L/C Obligations, any
amounts applied by the Administrative Agent to satisfy such funding shortfalls shall be
deemed to constitute a Revolving Loan or amount of the participation required to be funded
and, if necessary to effectuate the foregoing, the other Revolving Credit Lenders shall be
deemed to have sold, and such Non-Funding Lender shall be deemed to have purchased,
Revolving Loans or Letter of Credit participation interests from the other Revolving Credit
Lenders until such time as the aggregate amount of the Revolving Loans and participations
in Letters of Credit and L/C Obligations are held by the Revolving Credit Lenders in
accordance with their Pro Rata Shares of the Revolving Loans. Any amounts owing by a
Non-Funding Lender to the Administrative Agent which are not paid when due shall accrue
interest at the interest rate applicable during such period to Revolving Loans that are
Base Rate Loans. In the event that the Administrative Agent is holding cash collateral of
a Non-Funding Lender that cures pursuant to clause (iv) below or ceases to be a
Non-Funding Lender pursuant to the definition of Non-Funding Lender, the Administrative
Agent shall return the unused portion of such cash collateral to such Lender.




          (iv) Cure. A Lender may cure its status as a Non-Funding Lender under
clause (a) of the definition of Non-Funding Lender if such Lender (A) fully pays to
the Administrative Agent, on behalf of the applicable Secured Parties, the Aggregate Excess
Funding Amount, plus all interest due thereon and, (B) timely funds the next Revolving Loan
required to be funded by such Lender or makes the next reimbursement required to be made by
such Lender. Any such cure shall not relieve any Lender from liability for breaching its
contractual obligations hereunder.




          (v) Fees. A Lender that is a Non-Funding Lender pursuant to clause
(a) of the definition of Non-Funding Lender shall not earn and shall not be entitled to
receive, and Borrowers shall not be required to pay, such Lender’s portion of the Unused
Commitment Fee during the time such Lender is a Non-Funding Lender pursuant to clause
(a) thereof. In the event that any reallocation of L/C Obligations occurs pursuant to
Section 2.4(f)(ii), during the period of time that such reallocation remains in
effect, the Letter of Credit fees set forth in Section 2.11(b) payable with respect
to such reallocated portion shall be payable to (A) all Revolving Credit Lenders based on
their Pro Rata Share of such reallocation or (B) to the L/C Issuer for any remaining
portion not reallocated to any other Revolving Credit Lenders.



          Section 2.3 Swing Loans. (a) Availability. On the terms and subject to the
conditions contained in this Agreement, the Swingline Lender agrees to make loans in Dollars (each
a “Swing Loan”) available to the Borrowers under the Revolving Credit Facility from time to
time on any Business Day during the period commencing one Business Day after the Closing




 







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Date until
the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding not
to exceed its Swingline Commitment; provided, however, that the Swingline Lender
may not make any Swing Loan (x) to the extent that after giving effect to such Swing Loan, the
aggregate Revolving Credit Outstandings would exceed the Revolving Credit Commitments and (y) in
the period commencing on the first Business Day after it receives notice from the Administrative
Agent or the Required Revolving Lenders that one or more of the conditions precedent contained in
Section 3.2 are not satisfied and ending when such conditions are satisfied or duly waived.
In connection with the making of any Swing Loan, the Swingline Lender (in its capacity as
Swingline Lender) may but shall not be required to otherwise determine whether the conditions
precedent set forth in Section 3.2 have been satisfied or waived. Each Swing Loan shall be
a Base Rate Loan and must be repaid in full on the earliest of (i) the funding date of any
Borrowing of Revolving Loans and (ii) the Revolving Credit Termination Date. Within the limits set
forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be
reborrowed under this clause (a).




          (b) Borrowing Procedures. In order to request a Swing Loan, the Borrower
Representative shall give to the Administrative Agent a notice to be received not later than 1:00
p.m. on the day of the proposed borrowing, which may be made in a writing substantially in the form
of Exhibit D duly completed (a “Swingline Request”) or by telephone if confirmed
promptly but, in any event, prior to such borrowing, with such a Swingline Request. In addition,
if any Notice of Borrowing requests a Borrowing of Base Rate Loans, the Swing Line Lender may,
notwithstanding anything else to the contrary in Section 2.2, make a Swing Loan available
to the Borrowers in an aggregate amount not to exceed such proposed Borrowing, and the aggregate
amount of the corresponding proposed Borrowing shall be reduced accordingly by the principal amount
of such Swing Loan. The Administrative Agent shall promptly notify the Swingline Lender of the
details of the requested Swing Loan. Upon receipt of such notice and subject to the terms of this
Agreement, the Swingline Lender may make a Swing Loan available to the Borrowers by making the
proceeds thereof available to the Administrative Agent and, in turn, the Administrative Agent shall
make such proceeds available to the Borrowers on the date set forth in the relevant Swingline
Request.




          (c) Refinancing Swing Loans. The Swingline Lender may at any time (and shall not less
than once every two weeks) forward a demand to the Administrative Agent (which the Administrative
Agent shall, upon receipt, forward to each Revolving Credit Lender) that each Revolving Credit
Lender pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving
Credit Lender’s Pro Rata Share of all or a portion of the outstanding Swing Loans. Each Revolving
Credit Lender shall pay such Pro Rata Share to the Administrative Agent for the account of the
Swingline Lender. Upon receipt by the Administrative Agent of such payment (other than during the
continuation of any Event of Default under Section 9.1(e)), such Revolving Credit Lender
shall be deemed to have made a Revolving Loan to the Borrowers, which, upon receipt of such payment
by the Swingline Lender from the Administrative Agent, the Borrowers shall be deemed to have used
in whole to refinance such Swing Loan. In addition, regardless of whether any such demand is made,
upon the occurrence of any Event of Default under Section 9.1(e), each Revolving Credit
Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and
participation in each Swing Loan in an amount equal to such Lender’s Pro Rata Share of such Swing
Loan. If any payment made by any Revolving Credit Lender as a result of any such demand is not
deemed a Revolving Loan, such payment shall be deemed a funding by such Lender of such
participation. Such participation shall not be otherwise required to be funded. Upon receipt by
the Swingline Lender of any payment




 






46









 







from any Revolving Credit Lender pursuant to this clause
(c) with respect to any portion of any Swing Loan, the Swingline Lender shall promptly pay over
to such Revolving Credit Lender all payments of principal (to the extent received after such
payment by such Lender) and interest (to the extent accrued with respect to periods after such
payment) received by the Swingline Lender with respect to such portion.




          (d) Obligation to Fund Absolute. Each Revolving Credit Lender’s obligations pursuant
to clause (c) above shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever,
including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right
that such Lender, any Affiliate thereof or any other Person may have against the Swingline Lender,
any other Secured Party or any other Person, (B) the failure of any condition precedent set forth
in Section 3.2 to be satisfied or the failure of the Borrowers or Borrower Representative
to deliver any notice set forth in Section 2.2(a) (each of which requirements the Revolving
Credit Lenders hereby irrevocably waive) and (C) any adverse change in the condition (financial or
otherwise) of any Loan Party.




          Section 2.4 Letters of Credit. (a) Commitment and Conditions. On the terms
and subject to the conditions contained herein, each L/C Issuer agrees to Issue, at the request of
the Borrower Representative, in accordance with such L/C Issuer’s usual and customary business
practices, and for the account of the Borrowers (or, as long as the Borrowers remains responsible
for the payment in full of all amounts drawn thereunder and related fees, costs and expenses, for
the account of any Group Member), Letters of Credit (denominated in Dollars and with face amounts
that are multiples of $500,000 or such lesser amount as may be agreed by the applicable L/C Issuer)
from time to time on any Business Day during the period commencing one Business Day after the
Closing Date through the earlier of the Revolving Credit Termination Date and seven (7) days prior
to the Scheduled Revolving Credit Termination Date; provided, however, that such
L/C Issuer shall not be under any obligation to Issue any Letter of Credit unless such L/C Issuer
and the Borrower Representative have agreed upon a fronting fee with respect to such Letter of
Credit or upon the occurrence of any of the following, after giving effect to such Issuance:





          (i) (A) the aggregate Revolving Credit Outstandings would exceed the aggregate
Revolving Credit Commitments or (B) the L/C Obligations for all Letters of Credit would
exceed the L/C Sublimit;




          (ii) the expiration date of such Letter of Credit (A) is not a Business Day, (B) is
more than one year after the date of issuance thereof or (C) is later than seven (7) days
prior to the Scheduled Revolving Credit Termination Date; provided,
however, that any Letter of Credit with a term not exceeding one year may provide
for its renewal for additional periods, with each such period not exceeding one year as
long as (x) each of the Borrowers and such L/C Issuer have the option to prevent such
renewal before the expiration of such term or any such period and (y) neither such L/C
Issuer nor the Borrowers shall permit any such renewal to extend such expiration date
beyond the date set forth in clause (C) of this Section 2.4(a)(ii); or




          (iii) (A) any fee due in connection with, and on or prior to, such Issuance has not
been paid, (B) such Letter of Credit is requested to be Issued in a form that is not
reasonably acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received,
each in form and substance reasonably acceptable to it and duly executed by the



 






47









 









Borrowers
(and, if such Letter of Credit is issued for the account of any other Group Member, such
Group Member), the documents that such L/C Issuer generally uses in the ordinary course of
its business for the Issuance of letters of credit of the type of such Letter of Credit
(collectively, the “L/C Reimbursement Agreement”).


For each such Issuance, the applicable L/C Issuer may, but shall not be required to, determine
that, or take notice whether, the conditions precedent set forth in Section 3.2 have been
satisfied or waived in connection with the Issuance of any Letter of Credit; provided,
however, that no Letter of Credit shall be Issued during the period starting on the first
Business Day after the receipt by such L/C Issuer of notice from the Administrative Agent or the
Required Revolving Lenders that any condition precedent contained in Section 3.2 is not
satisfied and ending on the date all such conditions are satisfied or duly waived. Furthermore, GE
Capital or any of its Affiliates as an L/C Issuer may elect only to issue Letters of Credit in its
own name and may only issue Letters of Credit to the extent permitted by Requirements of Law.



Notwithstanding anything else to the contrary herein, if any Lender is a Non-Funding Lender or
Impacted Lender, then no L/C Issuer shall be obligated to Issue any Letters of Credit unless either
the Non-Funding Lender or Impacted Lender has been replaced in accordance with Section 2.18
or Section 11.2, the L/C Obligations of that Non-Funding Lender or Impacted Lender have
been cash collateralized, the Revolving Credit Commitments of the other Lenders have been increased
by an amount sufficient to satisfy the Administrative Agent that all future L/C Obligations will be
covered by all Revolving Credit Lenders who are not Non-Funding Lenders or Impacted Lenders, or the
L/C Obligations of such Non-Funding Lender or Impacted Lender have been reallocated to other
Revolving Credit Lenders in a manner consistent with Section 2.4(f)(ii).




          (b) Notice of Issuance. The Borrower Representative shall give the relevant L/C
Issuer and the Administrative Agent a notice of any requested Issuance of any Letter of Credit,
which shall be effective only if received by such L/C Issuer and the Administrative Agent not later
than 11:00 a.m. on the third Business Day prior to the date of such requested Issuance. Such
notice may be made in a writing substantially the form of Exhibit E duly completed or in a
writing in any other form acceptable to such L/C Issuer (an “L/C Request”) or by telephone
if confirmed promptly, but in any event within one (1) Business Day prior to such Issuance, with
such an L/C Request.



          (c) Reporting Obligations of L/C Issuers. Each L/C Issuer agrees to provide the
Administrative Agent (which, after receipt, the Administrative Agent shall provide to each
Revolving Credit Lender), in form and substance satisfactory to the Administrative Agent, each of
the following on the following dates: (i) on or prior to (A) any Issuance of any Letter of Credit
by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure
to pay when due) by the Borrowers of any related L/C Reimbursement Obligation, notice thereof,
which shall contain a reasonably detailed description of such Issuance, drawing or payment, (ii)
upon the request of the Administrative Agent (or any Revolving Credit Lender through the
Administrative Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C
Reimbursement Agreement and such other documents and information as may reasonably be requested by
the Administrative Agent and (iii) on the first Business Day of each calendar week, a schedule of
the Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to
the Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding
on the last Business Day of the previous calendar week.



 






48









 








          (d) Acquisition of Participations. Upon any Issuance of a Letter of Credit in
accordance with the terms of this Agreement resulting in any increase in the L/C Obligations, each
Revolving Credit Lender shall be deemed to have acquired, without recourse or warranty, an
undivided interest and participation in such Letter of Credit and the related L/C Obligations in an
amount equal to such Lender’s Pro Rata Share of such L/C Obligations.



          (e) Reimbursement Obligations of the Borrowers. The Borrowers agree to pay to the L/C
Issuer of any Letter of Credit each L/C Reimbursement Obligation owing with respect to such Letter
of Credit no later than the first Business Day after the Borrower Representative receives notice
from such L/C Issuer that payment has been made under such Letter of Credit or that such L/C
Reimbursement Obligation is otherwise due (the “L/C Reimbursement Date”) with interest
thereon computed as set forth in clause (i) below. In the event that any L/C Issuer incurs
any L/C Reimbursement Obligation not repaid by the Borrowers as provided in this clause (e)
(or any such payment by the Borrowers is rescinded or set aside for any reason), such L/C Issuer
shall promptly notify the Administrative Agent of such failure (and, upon receipt of such notice,
the Administrative Agent shall forward a copy to each Revolving Credit Lender) and, irrespective of
whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by the
Borrowers with interest thereon computed (i) from the date on which such L/C Reimbursement
Obligation arose to the L/C Reimbursement Date, at the interest rate applicable during such period
to Revolving Loans that are Base Rate Loans and (ii) thereafter until payment in full, at the
interest rate applicable during such period to past due Revolving Loans that are Base Rate Loans.



          (f) Reimbursement Obligations of the Revolving Credit Lenders.





          (i) Upon receipt of the notice described in clause (e) above from the
Administrative Agent, each Revolving Credit Lender shall pay to the Administrative Agent
for the account of such L/C Issuer its Pro Rata Share of such L/C Reimbursement Obligation.




          (ii) If any Lender (other than the Lender that is the L/C Issuer that issued such
Letter of Credit) is a Non-Funding Lender, that Non-Funding Lender’s L/C Reimbursement
Obligation shall, at the Administrative Agent’s election at any time or upon any L/C
Issuer’s written request delivered to the Administrative Agent (whether before or after the
occurrence of any Default or Event of Default), be reallocated to and assumed by the other
Lenders pro rata in accordance with their Pro Rata Shares of the Revolving Loan (calculated
as if the Non-Funding Lender’s Pro Rata Share was reduced to zero and each other Lender’s
Pro Rata Share had been increased proportionately), provided that no Lender shall be
reallocated any such amounts or be required to fund any amounts that would cause its
Revolving Credit Outstandings to exceed its Revolving Credit Commitment. The
“Aggregate Excess Funding Amount” of a Non-Funding Lender shall be the aggregate
amount of (A) all unpaid obligations owing by such Lender to the Administrative Agent, L/C
Issuers, and other Lenders under the Loan Documents, including such Lender’s Pro Rata Share
of all Revolving Loans and L/C Obligations, plus, without duplication, and (B) all other
obligations of such Non-Funding Lender reallocated to other Lenders pursuant to this
clause (ii).




          (iii) By making any payments described in clauses (i) or (ii) above
(other than during the continuation of an Event of Default under subsection
9.1(e)(ii) as to any Borrower or Group Member), such Lender shall be deemed to have made a



 







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Revolving Loan to the Borrowers, which, upon receipt thereof by such L/C Issuer, the
Borrowers shall be deemed to have used in whole to repay such L/C Reimbursement Obligation.
Any such payment that is not deemed a Revolving Loan shall be deemed a funding by such
Lender of its participation in the applicable Letter of Credit and related L/C
Reimbursement Obligation. Such participation shall not otherwise be required to be funded.
Following receipt by any L/C Issuer of any payment from any Lender pursuant to this
paragraph (f) with respect to any portion of any L/C Reimbursement Obligation, such L/C
Issuer shall promptly pay over to such Lender all duplicate payments received from Persons
other than Lenders making payment on behalf of a Loan Party by such L/C Issuer with respect
to such portion of such L/C Reimbursement Obligation.




          (iv) For the avoidance of doubt, no Revolving Credit Lender shall be required to fund
any amount which would result in its Pro Rata Outstandings under the Revolving Credit
Facility to exceed its Revolving Credit Commitment.



          (g) Obligations Absolute. The obligations of the Borrowers and the Revolving Credit
Lenders pursuant to clauses (d), (e) and (f) above shall be absolute,
unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement
irrespective of (i) (A) the invalidity or unenforceability of any term or provision in any Letter
of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan
Document (including the sufficiency of any such instrument), or any modification to any provision
of any of the foregoing, (B) any document presented under a Letter of Credit being forged,
fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms
of such Letter of Credit or (C) any loss or delay, including in the transmission of any document,
(ii) the existence of any setoff, claim, abatement, recoupment, defense or other right that any
Person (including any Group Member) may have against the beneficiary of any Letter of Credit or any
other Person, whether in connection with any Loan Document or any other Contractual Obligation or
transaction, or the existence of any other withholding, abatement or reduction, (iii) in the case
of the obligations of any Revolving Credit Lender, (A) the failure of any condition precedent set
forth in Section 3.2 to be satisfied (each of which conditions precedent the Revolving
Credit Lenders hereby irrevocably waive) or (B) any adverse change in the condition (financial or
otherwise) of any Loan Party and (iv) any other act or omission to act or delay of any kind of any
Secured Party or any other Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this Section 2.4,
constitute a legal or equitable discharge of any obligation of any Borrower or any Revolving Credit
Lender hereunder; provided, that nothing herein shall relieve any L/C Issuer from liability
to the Borrowers for its gross negligence or willful misconduct in paying or failing to pay any
drawing under a Letter of Credit or from liability to the Revolving Credit Lenders for Issuing a
Letter of Credit in violation of the first sentence of the penultimate paragraph of Section
2.4(a).




          Section 2.5 Reduction and Termination of the Commitments. (a) Optional. The
Borrowers may, upon at least five (5) Business Days’ prior written notice to the Administrative
Agent, terminate in whole or reduce in part ratably any unused portion of the Revolving Credit
Commitments; provided, however, that each partial reduction shall be in an
aggregate amount that is an integral multiple of $1,000,000.




          (b) Mandatory. All outstanding (i) Revolving Credit Commitments shall terminate on
the Scheduled Revolving Credit Termination Date and (ii) Term Loan Commitments shall terminate on
the Closing Date after the funding of the Term Loans; provided, however, that




 





50









 







all
Commitments shall terminate on October 15, 2010, if all of the conditions precedent set forth in
Section 3.1 have not been satisfied or duly waived on or before such date.




          Section 2.6 Repayment of Loans. (a) The Borrowers promise to repay the entire
unpaid principal amount of the Revolving Loans and the Swing Loans on the Scheduled Revolving
Credit Termination Date.




          (b) The aggregate principal amount of the Term Loans shall be paid in equal quarterly
installments of $5,000,000 commencing on January 1, 2011 and continuing on the first day of each
January, April, July and October thereafter, with a final scheduled installment of the Term Loans
due and payable on the Term Loan Maturity Date in an amount equal to the entire remaining principal
balance of the Term Loans.




          Section 2.7 Optional Prepayments. The Borrowers may prepay the outstanding principal
amount of any Loan in whole or in part at any time (together with any breakage costs that may be
owing pursuant to Section 2.16(a) after giving effect to such prepayment);
provided, however, that each partial prepayment that is not of the entire
outstanding amount under any Facility shall be in an aggregate amount that is an integral multiple
of $1,000,000.




          Section 2.8 Mandatory Prepayments. (a) Excess Cash Flow. The Borrowers
shall pay or cause to be paid to the Administrative Agent, within five (5) Business Days after the
last date Financial Statements can be delivered pursuant to Section 6.1(b) for any Fiscal
Year ending after the Closing Date, an amount equal to (i) for any such Fiscal Year ending before
the MedQuist Consolidation Date, (A) 50% of the Excess Cash Flow of MedQuist for such Fiscal Year
if (1) such Fiscal Year ended on or before December 31, 2011 or (2) the Consolidated Total Leverage
Ratio of Holdings on the last day of such Fiscal Year was equal to or greater than 1.50:1.00 and
(B) otherwise 25% of the Excess Cash Flow of MedQuist and (ii) for any such Fiscal Year ending on
or after the MedQuist Consolidation Date, (A) 50% of the Excess Cash Flow of Holdings for such
Fiscal Year if (1) such Fiscal Year ended on or before December 31, 2011 or (2) the Consolidated
Total Leverage Ratio of Holdings on the last day of such Fiscal Year was equal to or greater than
1.50:1.00 and (B) otherwise 25% of Excess Cash Flow of Holdings; provided, however,
that with respect to the Fiscal Year ended December 31, 2010, such calculation shall be based on
the period beginning on the Signing Date and ending on December 31, 2010; provided,
further, that, notwithstanding the foregoing, (i) for any Fiscal Year ending before the MedQuist
Consolidation Date, (A) if the Consolidated Net Leverage Ratio is equal to or greater than
2:50:1:00, the Borrowers shall pay to the Administrative Agent 65% of the Excess Cash Flow of
MedQuist for such Fiscal Year in lieu of the amount provided above if the amount calculated
pursuant to this clause is greater than what would otherwise be payable pursuant to this Section
2.8(a), and (B) if the Consolidated Net Leverage Ratio is less than 2.50:1.00, but equal to or
greater than 2.00:1.00, the Borrowers shall pay to the Administrative Agent 60% of the Excess Cash
Flow of MedQuist for such Fiscal Year in lieu of the amount provided above if the amount payable
pursuant to this clause is greater than what would otherwise be payable pursuant to this Section
2.8(a), and (ii) for any Fiscal Year ending on or after the MedQuist Consolidation Date, (A) if the
Consolidated Net Leverage Ratio is equal to or greater than 2.50:1.00, the Borrowers shall pay to
the Administrative Agent 65% of the Excess Cash Flow of Holdings for such Fiscal Year in lieu of
the amount provided above if the amount payable pursuant to this clause is greater than the amount
that would otherwise be payable pursuant to this Section 2.8(a), and (B) if the Consolidated Net
Leverage Ratio is less than 2.50:1.00, but equal to or greater than 2.00:1.00, the Borrowers shall
pay to the Administrative Agent 60% of the Excess Cash Flow of Holdings for




 







51









 







such Fiscal Year in
lieu of the amount provided above if the amount payable pursuant to this clause is greater than the
amount that would otherwise be payable pursuant to this Section 2.8(a); and provided,
finally, that all amounts of Excess Cash Flow calculated pursuant to this Section 2.8(a) shall be
reduced by the amount of all voluntary prepayments of Indebtedness made during the Fiscal Year for
which Excess Cash Flow is being calculated (but only if such Indebtedness may be reborrowed, to the
extent such prepayment results in a permanent reduction in commitments thereof and excluding any
prepayment of the Subordinated Notes).




          (b) Equity and Debt Issuances. Upon receipt on or after the Closing Date by any Group
Member of Net Cash Proceeds arising from the issuance or Sale by any Group Member of its own Stock
(other than (A) the first $100,000,000 of Net Cash Proceeds from the Holdings IPO plus the
Designated IPO Proceeds Amount, and (B) any Net Cash Proceeds arising from the issuance of common
Stock of Holdings (1) to the Sponsor or any Affiliate of the Sponsor (other than its portfolio
companies) or (2) in the Ordinary Course of Business to any director, member of the management or
employee of Holdings or its Subsidiaries), the Borrowers shall immediately pay or cause to be paid
to the Administrative Agent an amount equal to 50% of such Net Cash Proceeds; provided,
however, that no prepayment shall be required hereunder from the issuance of Stock by
Holdings if the Consolidated Total Leverage Ratio of Holdings for the most recently ended Fiscal
Quarter for which Financial Statements required under Section 6.1 have been delivered was
less than 1.50:1.00. Upon receipt on or after the Closing Date by any Group Member of Net Cash
Proceeds arising from the incurrence by any Group Member of Indebtedness of the type specified in
clause (a) or (b) of the definition thereof (other than any such Indebtedness
permitted hereunder in Section 8.1), the Borrowers shall immediately pay or cause to be
paid to the Administrative Agent an amount equal to such Net Cash Proceeds.




          (c) Asset Sales and Property Loss Events. Within five (5) Business Days of receipt by
any Group Member of Net Cash Proceeds arising from (i) any Sale by any Group Member of any of its
property (excluding Net Cash Proceeds arising from Sales of its own Stock and Sales of property
permitted hereunder in reliance upon Section 8.4 but including Net Cash Proceeds in excess
of $12,000,000 arising from the RCM Sale) or (ii) any Property Loss Event with respect to any
property of any Group Member to the extent resulting, in the aggregate with all other such Property
Loss Events, in the receipt by any of them of Net Cash Proceeds in excess of $1,000,000, the
Borrowers shall immediately pay or cause to be paid to the Administrative Agent an amount equal to
such Net Cash Proceeds; provided, however, that, upon any such receipt, as long as no Event of
Default shall be continuing, any Group Member may make Permitted Reinvestments with such Net Cash
Proceeds and the Borrowers shall not be required to make or cause such payment to the extent (x)
such Net Cash Proceeds are intended to be used to make Permitted Reinvestments and (y) on each
Reinvestment Prepayment Date for such Net Cash Proceeds, the Borrowers shall pay or cause to be
paid to the Administrative Agent an amount equal to the Reinvestment Prepayment Amount applicable
to such Reinvestment Prepayment Date and such Net Cash Proceeds.




          (d) Indenture Prepayments. Notwithstanding the foregoing in this Section 2.8,
to the extent that any prepayment is required under the Subordinated Note Documents in connection
with any asset sales or equity issuances, (together with any term of similar effect), the Borrowers
shall, in the event of receipt by any Loan Party or any Subsidiaries of any Loan Party of the Net
Cash Proceeds thereof, pay or cause to be paid to the Administrative Agent an amount, not to exceed
such Net Cash Proceeds, sufficient, and within the time period required under the applicable
Subordinated Note Documents, in each case to ensure that no




 






52









 







Group Member is required to prepay,
redeem, defease, purchase or make an offer to purchase any Indebtedness evidenced or governed by
Subordinated Note Documents or cause any of the foregoing, or grant or honor any option or other
right to do any of the foregoing, to the extent, in the absence of such obligation of the Borrowers
hereunder, a Group Member would be required to make or cause any such prepayment, redemption,
defeasance, purchase or offer or grant any such option.




          (e) Excess Outstandings. On any date on which the aggregate principal amount of
Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments, the Borrowers
shall pay to the Administrative Agent an amount equal to such excess.




          (f) Application of Payments. Any payments made to the Administrative Agent pursuant
to this Section 2.8 shall be applied to the Obligations in accordance with
Section 2.12(b).




          Section 2.9 Interest. (a) Rate. All Loans and the outstanding amount of all
other Obligations (other than pursuant to Secured Hedging Agreements) shall bear interest, in the
case of Loans, on the unpaid principal amount thereof from the date such Loans are made and, in the
case of such other Obligations, from the date such other Obligations are due and payable until, in
all cases, paid in full, except as otherwise provided in clause (c) below, as follows: (i)
in the case of Base Rate Loans, at a rate per annum equal to the sum of the Base Rate and the
Applicable Margin, each as in effect from time to time, (ii) in the case of Eurodollar Rate Loans,
at a rate per annum equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in
effect for the applicable Interest Period, and (iii) in the case of other Obligations, at a rate
per annum equal to the sum of the Base Rate and the Applicable Margin for Revolving Loans that are
Base Rate Loans, each as in effect from time to time.




          (b) Payments. Interest accrued shall be payable in arrears (i) if accrued on the
principal amount of any Loan, (A) at maturity (whether by acceleration or otherwise), (B) if such
Loan is a Term Loan, upon the payment or prepayment of the principal amount on which such interest
has accrued and (C)(1) if such Loan is a Base Rate Loan (including a Swing Loan), on the last day
of each calendar quarter commencing on the first such day following the making of such Loan, (2) if
such Loan is a Eurodollar Rate Loan, on the last day of each Interest Period applicable to such
Loan and, if applicable, on each date during such Interest Period occurring every three (3) months
from the first day of such Interest Period and (ii) if accrued on any other Obligation, on demand
from any time after the time such Obligation is due and payable (whether by acceleration or
otherwise).




          (c) Default Interest. Notwithstanding the rates of interest specified in
clause (a) above or elsewhere in any Loan Document (but without duplication of any other
default rate provided in any Loan Document, including Section 2.11(b)), effective
immediately upon (A) the occurrence of any Event of Default under Section 9.1(e)(ii) or (B)
the delivery of a notice by the Administrative Agent or the Required Lenders to the Borrower
Representative during the continuance of any other Event of Default and, in each case, for as long
as any Event of Default shall be continuing, the principal balance of all Obligations (including
any Obligation that bears interest by reference to the rate applicable to any other Obligation)
then due and payable shall bear interest at a rate that is 2% per annum in excess of the interest
rate applicable to such Obligations from time to time, payable on demand or, in the absence of
demand, on the date that would otherwise be applicable.




 







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          (d) Savings Clause. Anything herein to the contrary notwithstanding, the obligations
of the Borrowers hereunder shall be subject to the limitation that payments of interest shall not
be required, for any period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by the respective Lender would be
contrary to the provisions of any law applicable to such Lender limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Lender, and in such
event the Borrowers shall pay such Lender interest at the highest rate permitted by applicable law
(“Maximum Lawful Rate”); provided, however, that if at any time thereafter
the rate of interest payable hereunder is less than the Maximum Lawful Rate, the Borrowers shall
continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest
received by the Administrative Agent, on behalf of Lenders, is equal to the total interest that
would have been received had the interest payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Closing Date as otherwise provided in this
Agreement.




          Section 2.10 Conversion and Continuation Options. (a) Option. The Borrowers
may elect (i) in the case of any Eurodollar Rate Loan, (A) to continue such Eurodollar Rate Loan or
any portion thereof for an additional Interest Period on the last day of the Interest Period
applicable thereto and (B) to convert such Eurodollar Rate Loan or any portion thereof into a Base
Rate Loan at any time on any Business Day, subject to the payment of any breakage costs required by
Section 2.16(a), and (ii) in the case of Base Rate Loans (other than Swing Loans), to
convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans at any time on any
Business Day upon three (3) Business Days’ prior notice received by 1:00 p.m. on such Business Day;
provided, however, that, (x) for each Interest Period, the aggregate amount of
Eurodollar Rate Loans having such Interest Period must be an integral multiple of $1,000,000 and
(y) no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and no
continuation in whole or in part of Eurodollar Rate Loans shall be permitted at any time at which
(1) an Event of Default shall be continuing and the Administrative Agent or the Required Lenders
shall have determined in their sole discretion not to permit such conversions or continuations or
(2) such continuation or conversion would be made during a suspension imposed by
Section 2.15.




          (b) Procedure. Each such election shall be made by giving the Administrative Agent at
least three (3) Business Days’ prior notice in substantially the form of Exhibit F (a
“Notice of Conversion or Continuation”) duly completed. The Administrative Agent shall
promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the
options selected therein. If the Administrative Agent does not receive a timely Notice of
Conversion or Continuation from the Borrower Representative containing a permitted election to
continue or convert any Eurodollar Rate Loan, then, upon the expiration of the applicable Interest
Period, such Loan shall be automatically converted to a Base Rate Loan. Each partial conversion or
continuation shall be allocated ratably among the Lenders in the applicable Facility in accordance
with their Pro Rata Share.




          Section 2.11 Fees. (a) Unused Commitment Fee. The Borrowers shall pay to
the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, a fee (the
“Unused Commitment Fee”) calculated on a daily basis in an amount equal to (i) the ending
daily balance of the aggregate Revolving Credit Commitments, less (ii) the sum of the ending daily
balance of all Revolving Loans and L/C Obligations, in each case outstanding for each day occurring
during the preceding calendar quarter, multiplied by one-half of one percent (0.50%) per annum.
Such fee shall be payable quarterly in arrears on the last day of the fiscal quarter following the
date hereof and the last day of each fiscal quarter thereafter. The Unused




 






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Commitment Fee provided
in this subsection 2.11(a) shall accrue at all times from and after execution and delivery
of this Agreement through and including the date on which the Revolving Credit Commitments are
terminated. Following receipt of the Unused Commitment Fee, the Administrative Agent shall pay to
each Revolving Credit Lender from, and to the extent of, the Unused Commitment Fee an amount equal
to its Pro Rata Share calculated as if the average daily balance of Swing Loans for the preceding
calendar month had been zero.




          (b) Letter of Credit Fees. The Borrowers agree to pay, with respect to all Letters of
Credit issued by any L/C Issuer, (i) to such L/C Issuer, the fees, documentary and processing
charges as separately agreed between the Borrowers and such L/C Issuer or otherwise in accordance
with such L/C Issuer’s standard schedule in effect at the time of determination thereof, (ii) to
the Administrative Agent, for the benefit of the L/C Issuer, a fronting fee equal to 0.125% per
annum (or such other fronting fee as such L/C Issuer and the Borrower Representative shall agree),
multiplied by the face amount of such Letter of Credit and (iii) to the Administrative Agent, for
the benefit of the Revolving Credit Lenders according to their Pro Rata Shares, a fee accruing at a
rate per annum equal to the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on
the maximum undrawn face amount of such Letters of Credit, such fees under clauses (ii) and
(iii) shall be payable in arrears (A) on the last day of each calendar quarter, ending
after the issuance of such Letter of Credit and (B) on the Revolving Credit Termination Date;
provided, however, that the fee payable under clause (iii) shall be
increased by 2% per annum and shall be payable, in addition to being payable on any date it is
otherwise required to be paid hereunder, on demand effective immediately upon (x) the occurrence of
any Event of Default under Section 9.1(e)(ii) or (y) the delivery of a notice by the
Administrative Agent or the Required Lenders to the Borrower Representative during the continuance
of any other Event of Default and, in each case, for as long as such Event of Default shall be
continuing.




          (c) Additional Fees. The Borrowers shall pay to the Administrative Agent and its
Related Persons their reasonable and customary fees and expenses in connection with any payments
made pursuant to Section 2.16(a) (Breakage Costs) and shall pay to the
Administrative Agent and its Related Persons, as applicable, all additional fees described in the
Fee Letter.




          Section 2.12 Application of Payments. (a) Application of Voluntary Prepayments
or Other Payments. Unless otherwise provided in this Section 2.12 or elsewhere in any
Loan Document, all payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrowers shall be applied to repay the Obligations the Borrower Representative
designates.




          (b) Application of Mandatory Prepayments. Subject to the provisions of clause
(c) below with respect to the application of payments during the continuance of an Event of
Default, any payment made by the Borrowers to the Administrative Agent pursuant to
Section 2.8 (other than pursuant to Section 2.8(e)) or any other prepayment of the
Obligations required to be applied in accordance with this clause (b) shall be applied
first, ratably to the remaining installments of the Term Loans until the Term Loans have
been paid in full, second, to repay the outstanding principal balance of the Swing Loans
until paid in full, third, to repay the outstanding principal balance of the Revolving
Loans until paid in full (which shall not effect a permanent reduction in the Revolving Credit
Facility), and (if and only if an Event of Default has occurred and is continuing), fourth,
to provide cash collateral to the extent and in the manner provided for in Section 9.3 and,
then, any excess shall be retained by the Borrowers. Subject to the provisions of
clause (c) below with respect to the application of payments during the




 






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continuance of an Event of Default, any payment made by the Borrowers to the Administrative
Agent pursuant to Section 2.8(e) shall be applied first, to repay the outstanding
principal balance of the Swing Loans until paid in full, second, to repay the outstanding
principal balance of the Revolving Loans until paid in full (which shall not effect a permanent
reduction in the Revolving Credit Facility), and third (if and only if an Event of Default
has occurred and is continuing), to provide cash collateral to the extent and in the manner
provided for in Section 9.3.




          (c) Application of Payments During an Event of Default. Holdings and each Borrower
hereby irrevocably waives, and agrees to cause each Loan Party and each other Group Member to
waive, the right to direct the application during the continuance of an Event of Default of any and
all payments in respect of any Obligation and any proceeds of Collateral and agrees that,
notwithstanding the provisions of clause (a) above, the Administrative Agent may, and, upon
either (A) the direction of the Required Lenders or (B) the termination of the Revolving Credit
Commitment or the acceleration of any Obligation pursuant to Section 9.2, shall, apply all
payments in respect of any Obligation, all funds on deposit in any Cash Collateral Account and all
other proceeds of Collateral (i) first, to pay Obligations in respect of any cost or
expense reimbursements, fees or indemnities then due to the Administrative Agent, (ii)
second, to pay Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Lenders and the L/C Issuers, (iii) third, to pay interest then
due and payable in respect of the Loans and L/C Reimbursement Obligations, (iv) fourth, to
repay the outstanding principal amounts of the Loans and funded L/C Reimbursement Obligations, to
provide cash collateral for contingent L/C Reimbursement Obligations in the manner and to the
extent described in Section 9.3 and to pay amounts owing with respect to Secured Hedging
Agreements and (v) fifth, to the ratable payment of all other Obligations, and, then, any
excess shall be paid to the Borrowers or as otherwise ordered by a court of competent jurisdiction.




          (d) Application of Payments Generally. All payments that would otherwise be allocated
to the Revolving Credit Lenders pursuant to Section 2.12(c) shall instead be allocated
first, to repay interest on Swing Loans, on any portion of the Revolving Loans that the
Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement
Obligation, in each case for which the Administrative Agent or, as the case may be, the L/C Issuer
has not then been reimbursed by such Lender or the Borrowers, second to pay the outstanding
principal amount of the foregoing obligations and third, to repay the Revolving Loans. All
repayments of any Revolving Loans or Term Loans shall be applied first, to repay such Loans
outstanding as Base Rate Loans and then, to repay such Loans outstanding as Eurodollar Rate
Loans, with those Eurodollar Rate Loans having earlier expiring Interest Periods being repaid prior
to those having later expiring Interest Periods. Except as may be otherwise expressly provided
herein, all repayments of Term Loans shall be applied to reduce the remaining installments of such
outstanding principal amounts of the Term Loans in the stated order of their maturities. If
sufficient amounts are not available to repay all outstanding Obligations described in any priority
level set forth in this Section 2.12, the available amounts shall be applied, unless
otherwise expressly specified herein, to such Obligations ratably based on the proportion of the
Secured Parties’ interest in such Obligations. Any priority level set forth in this
Section 2.12 that includes interest shall include all such interest, whether or not
accruing after the filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition
interest is allowed in any such proceeding.



 
 





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          Section 2.13 Payments and Computations. (a) Procedure. The Borrowers shall
make each payment under any Loan Document not later than 11:00 a.m. on the day when due to the
Administrative Agent by wire transfer or ACH transfer (which shall be the exclusive means of
payment hereunder) to the following account (the “Collection Account”) (or at such other
account or by such other means to such other address as the Administrative Agent shall have
notified the Borrower Representative in writing within a reasonable time prior to such payment) in
immediately available Dollars and without setoff or counterclaim:



ABA No. 021-001-033

Account Number 502-861-90

Deutsche Bank Trust Company Americas, New York, New York

Account Name: GECC HFS/Mubadala (ACBS)

Reference: MedQuist Inc. (HFS2875)



The Administrative Agent shall promptly thereafter cause to be distributed immediately available
funds relating to the payment of principal, interest or fees to the Lenders, in accordance with the
application of payments set forth in Section 2.12. The Lenders shall make any payment
under any Loan Document in immediately available Dollars and without setoff or counterclaim. Each
Lender shall make each payment for the account of any L/C Issuer or Swingline Lender required
pursuant to Section 2.3 or 2.4 (A) if the notice or demand therefor was received by
such Lender prior to 11:00 a.m. on any Business Day, on such Business Day and (B) otherwise, on the
Business Day following such receipt of notice or demand. Payments received by the Administrative
Agent after 11:00 a.m. shall be deemed to be received on the next Business Day.




          (b) Computations of Interests and Fees. All computations of interest and of fees
shall be made by the Administrative Agent on the basis of a year of 360 days (or, in the case of
Base Rate Loans whose interest rate is calculated based on the rate set forth in clause (a)
of the definition of “Base Rate”, 365/366 days), in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination of an interest rate or the amount of a fee
hereunder shall be made by the Administrative Agent (including determinations of a Eurodollar Rate
or Base Rate in accordance with the definitions of “Eurodollar Rate” and “Base Rate”, respectively)
and shall be conclusive, binding and final for all purposes, absent manifest error.




          (c) Payment Dates. Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, the due date for such payment shall be extended to the next succeeding
Business Day without any increase in such payment as a result of additional interest or fees;
provided, however, that such interest and fees shall continue accruing as a result
of such extension of time.




          (d) Advancing Payments. Unless the Administrative Agent shall have received notice
from the Borrower Representative to the Lenders prior to the date on which any payment is due
hereunder that the Borrowers will not make such payment in full, the Administrative Agent may
assume that the Borrowers have made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If and to the extent
that the Borrowers shall not have made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent on demand such amount distributed to such Lender
together with interest thereon (at the Federal Funds Rate for the first Business Day and
thereafter, at the rate applicable to Base Rate Loans



 
 


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under the applicable Facility) for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative Agent.




          Section 2.14 Evidence of Debt. (a) Records of Lenders. Each Lender shall
maintain in accordance with its usual practice accounts evidencing Indebtedness of the Borrowers to
such Lender resulting from each Loan of such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under this Agreement. In
addition, each Lender having sold a participation in any of its Obligations or having identified an
SPV as such to the Administrative Agent, acting as Administrative Agent of the Borrowers solely for
this purpose and solely for tax purposes, shall establish and maintain at its address referred to
in Section 11.11 (or at such other address as such Lender shall notify the Borrower
Representative) a record of ownership, in which such Lender shall register by book entry (A) the
name and address of each such participant and SPV (and each change thereto, whether by assignment
or otherwise) and (B) the rights, interest or obligation of each such participant and SPV in any
Obligation, in any Commitment and in any right to receive any payment hereunder.




          (b) Records of the Administrative Agent. The Administrative Agent, acting as
Administrative Agent of the Borrowers solely for tax purposes and solely with respect to the
actions described in this Section 2.14, shall establish and maintain at its address
referred to in Section 11.11 (or at such other address as Administrative Agent may notify
the Borrower Representative) (A) a record of ownership (the “Register”) in which the
Administrative Agent agrees to register by book entry the interests (including any rights to
receive payment hereunder) of the Administrative Agent, each Lender and each L/C Issuer in the Term
Loans and the Revolving Credit Outstandings, each of their obligations under this Agreement to
participate in each Loan, Letter of Credit and L/C Reimbursement Obligation, and any assignment of
any such interest, obligation or right and (B) accounts in the Register in accordance with its
usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C
Issuers (and each change thereto pursuant to Section 2.18 (Substitution of Lenders)
and Section 11.2 (Assignments and Participations; Binding Effect)), (2) the
Commitments of each Lender, (3) the amount of each Loan and each funding of any participation
described in clause (A) above, for Eurodollar Rate Loans, the Interest Period applicable
thereto, (4) the amount of any principal or interest due and payable or paid, (5) the amount of the
L/C Reimbursement Obligations due and payable or paid and (6) any other payment received by the
Administrative Agent from the Borrowers and its application to the Obligations.




          (c) Registered Obligations. Notwithstanding anything to the contrary contained in
this Agreement, the Loans (including any Notes evidencing such Loans and, in the case of Revolving
Loans, the corresponding obligations to participate in L/C Obligations and Swing Loans) and the L/C
Reimbursement Obligations are registered obligations, the right, title and interest of the Lenders
and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as
the case may be, shall be transferable only upon notation of such transfer in the Register and no
assignment thereof shall be effective until recorded therein. This Section 2.14 and
Section 11.2 shall be construed so that the Loans and L/C Reimbursement Obligations are at
all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and
881(c)(2) of the Code and any related regulations (and any successor provisions).




          (d) Prima Facie Evidence. The entries made in the Register and in the accounts
maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by
applicable Requirements of Law, be prima facie evidence of the existence and amounts of the



 
 


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obligations recorded therein; provided, however, that no error in such account
and no failure of any Lender or the Administrative Agent to maintain any such account shall affect
the obligations of any Loan Party to repay the Loans in accordance with their terms. In addition,
the Loan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall treat each Person
whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes
of this Agreement. Information contained in the Register with respect to any Lender or any L/C
Issuer shall be available for access by the Borrowers, the Administrative Agent, such Lender or
such L/C Issuer at any reasonable time and from time to time upon reasonable prior notice. No
Lender or L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review
any information in the Register other than information with respect to such Lender or L/C Issuer
unless otherwise agreed by the Administrative Agent.




          (e) Notes. Upon any Lender’s request, the Borrowers shall promptly execute and
deliver Notes to such Lender evidencing the Loans of such Lender in a Facility and substantially in
the form of Exhibit B-1 or B-2, as applicable; provided, however,
that only one Note for each Facility shall be issued to each Lender, except (i) to an existing
Lender exchanging existing Notes to reflect changes in the Register relating to such Lender, in
which case the new Notes delivered to such Lender shall be dated the date of the original Notes and
(ii) in the case of loss, destruction or mutilation of existing Notes and similar circumstances.
Each Note, if issued, shall only be issued as means to evidence the right, title or interest of a
Lender or a registered assignee in and to the related Loan, as set forth in the Register, and in no
event shall any Note be considered a bearer instrument or obligation.




          Section 2.15 Suspension of Eurodollar Rate Option. Notwithstanding any provision to
the contrary in this Article 2, the following shall apply:




          (a) Interest Rate Unascertainable, Inadequate or Unfair. In the event that (A) the
Administrative Agent determines that adequate and fair means do not exist for ascertaining the
applicable interest rates by reference to which the Eurodollar Rate is determined or (B) the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period
will not adequately reflect the cost to the Lenders as a whole of making or maintaining such Loans
for such Interest Period, the Administrative Agent shall promptly so notify the Borrower
Representative and the Lenders, whereupon the obligation of each Lender to make or to continue
Eurodollar Rate Loans shall be suspended as provided in clause (c) below until the
Administrative Agent shall notify the Borrower Representative that it or the Required Lenders, as
the case may be, have determined that the circumstances causing such suspension no longer exist.




          (b) Illegality. If any Lender determines in good faith that the introduction of, or
any change in or in the interpretation of, any Requirement of Law after the date of this Agreement
shall make it unlawful, or any Governmental Authority shall assert that it is unlawful, for any
Lender or its applicable lending office to make Eurodollar Rate Loans or to continue to fund or
maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to the
Borrower Representative through the Administrative Agent, the obligation of such Lender to make or
to continue Eurodollar Rate Loans shall be suspended as provided in clause (c) below until
such Lender shall, through the Administrative Agent, notify the Borrower Representative that it has
determined that it may lawfully make Eurodollar Rate Loans.




          (c) Effect of Suspension. If the obligation of any Lender to make or to continue
Eurodollar Rate Loans is suspended, (A) the obligation of such Lender to convert Base


 
 



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Rate Loans into Eurodollar Rate Loans shall be suspended, (B) such Lender shall make a Base
Rate Loan at any time such Lender would otherwise be obligated to make a Eurodollar Rate Loan, (C)
the Borrower Representative may revoke any pending Notice of Borrowing or Notice of Conversion or
Continuation to make or continue any Eurodollar Rate Loan or to convert any Base Rate Loan into a
Eurodollar Rate Loan and (D) each Eurodollar Rate Loan of such Lender shall, on the last day of the
current Interest Period thereof (or earlier if required by law) be converted into a Base Rate Loan.




          Section 2.16 Breakage Costs; Increased Costs; Capital Requirements. (a) Breakage
Costs. The Borrowers shall compensate each Lender, upon demand from such Lender to the
Borrower Representative (with copy to the Administrative Agent), for all Liabilities (including, in
each case, those incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such Lender to the Borrowers but excluding any loss of the Applicable Margin on the relevant Loans)
that such Lender may incur (A) to the extent, for any reason other than solely by reason of such
Lender being a Non-Funding Lender, a proposed Borrowing, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion or Continuation or in a similar request made by telephone by the Borrower
Representative, (B) to the extent any Eurodollar Rate Loan is paid (whether through a scheduled,
optional or mandatory prepayment) or converted to a Base Rate Loan (including because of
Section 2.15) on a date that is not the last day of the applicable Interest Period or
(C) as a consequence of any failure by the Borrowers to repay Eurodollar Rate Loans when required
by the terms hereof. For purposes of this clause (a), each Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it using a matching deposit or other borrowing in the
London interbank market.




          (b) Increased Costs. If at any time any Lender or L/C Issuer determines in good faith
that, after the date hereof, the adoption of, or any change in or in the interpretation,
application or administration of, or compliance with, any Requirement of Law (other than any
imposition or increase of Eurodollar Reserve Requirements) from any Governmental Authority shall
have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any
Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to participate, in
extensions of credit, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any
Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C
Issuer with respect to compliance with its obligations under any Loan Document, then, upon demand
by such Lender or L/C Issuer (with copy to the Administrative Agent), the Borrowers shall pay to
the Administrative Agent for the account of such Lender or L/C Issuer amounts sufficient to
compensate such Lender or L/C Issuer for such increased cost;. Any amounts payable under this
Section shall be without duplication of any amounts payable in respect of Taxes under
Section 2.17.




          (c) Increased Capital Requirements. If at any time any Lender or L/C Issuer
determines in good faith that, after the date hereof, the adoption of, or any change in or in the
interpretation, application or administration of, or compliance with, any Requirement of Law (other
than any imposition or increase of Eurodollar Reserve Requirements) from any Governmental Authority
regarding capital adequacy, reserves, special deposits, compulsory loans, insurance charges against
property of, deposits with or for the account of, Obligations owing to, or other credit extended or
participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than
any imposition or increase of Eurodollar Reserve


 
 



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Requirements) shall have the effect of reducing the rate of return on the capital of such
Lender’s or L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a consequence
of its obligations under or with respect to any Loan Document or Letter of Credit to a level below
that which, taking into account the capital adequacy policies of such Lender, L/C Issuer or
corporation, such Lender, L/C Issuer or corporation could have achieved but for such adoption or
change, then, upon demand from time to time by such Lender or L/C Issuer (with a copy of such
demand to the Administrative Agent), the Borrowers shall pay to the Administrative Agent for the
account of such Lender amounts sufficient to compensate such Lender for such reduction.




          (d) Compensation Certificate. Each demand for compensation under this
Section 2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming
such compensation, setting forth the amounts to be paid hereunder, which certificate shall be
conclusive, binding and final for all purposes, absent manifest error; provided, that the
Borrowers shall not be required to compensate any Lender or L/C Issuer pursuant to this Section
2.16 for any amounts incurred more than six months prior to the date that such Lender or L/C
Issuer notifies the Borrower Representative, in writing of the amounts and of such Lender’s or L/C
Issuer’s intention to claim compensation thereof; provided, further, that if the event giving rise
to such increase is retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof. In determining such amount, such Lender or L/C
Issuer may use any reasonable averaging and attribution methods.




          Section 2.17 Taxes. (a) Payments Free and Clear of Taxes. Except as
otherwise provided in this Section 2.17, each payment by any Loan Party under any Loan
Document shall be made free and clear of, and without deduction for, any present or future taxes,
levies, imposts, deductions, charges or withholdings and all Liabilities with respect thereto
(collectively, but excluding the taxes set forth in clauses (i), (ii) and
(iii) below, “Taxes”), other than (i) taxes imposed on or measured by reference to
net income and franchise taxes imposed in lieu of net income taxes, in each case imposed on any
Secured Party as a result of a present or former connection between such Secured Party and the
jurisdiction imposing such tax or any political subdivision or taxing authority thereof or therein
(other than any connection arising solely from such Person having executed, delivered or performed
its obligations or received a payment under, or enforced, any Loan Document), (ii) any branch
profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction
described in clause (i), and (iii) any withholding tax that is imposed (including,
without limitation, under Section 1441, 1442, 1471 or 1472 of the Code) on amounts payable to any
Secured Party at the time such Secured Party becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Secured Party’s failure to deliver the documentation
required to be delivered pursuant to clause (f) below, except to the extent that such
Secured Party or its assignor (if any) was entitled, at the time of designation of a new lending
office (or assignment) to receive additional amounts from the Borrowers with respect to such
withholding tax pursuant to Section 2.17(b).




          (b) Gross-Up. If any Taxes shall be required by law to be deducted from or in respect
of any amount payable under any Loan Document (other than any Secured Hedging Agreement) to any
Secured Party (i) such amount shall be increased as necessary to ensure that, after all such
required deductions (including deductions applicable to any additional sums payable under this
Section 2.17(b)) are made, such Secured Party receives the amount it would have received
had no such deductions been made, (ii) the relevant Loan Party shall make such deductions, (iii)
the relevant Loan Party shall timely pay the full amount deducted to the relevant taxing authority
or other authority in accordance with applicable Requirements of Law and



 
 


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(iv) within 30 days after such payment is made, the relevant Loan Party shall deliver to the
Administrative Agent an original or certified copy of a receipt evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




          (c) Other Taxes. In addition, the Borrowers agree to pay, and authorizes the
Administrative Agent to pay in its name, any stamp, documentary, excise or property tax, charges or
similar levies imposed by any applicable Requirement of Law or Governmental Authority and all
Liabilities with respect thereto (including by reason of any delay in payment thereof), in each
case arising from the execution, delivery or registration of, or otherwise with respect to, any
Loan Document or any transaction contemplated therein (collectively, “Other Taxes”). The
Swingline Lender may, without any need for notice, demand or consent from the Borrowers, by making
funds available to the Administrative Agent in the amount equal to any such payment, make a Swing
Loan to the Borrowers in such amount, the proceeds of which shall be used by the Administrative
Agent in whole to make such payment. Within 30 days after the date of any payment of Taxes or
Other Taxes by any Loan Party, the Borrowers shall furnish to the Administrative Agent, at its
address referred to in Section 11.11, the original or a certified copy of a receipt
evidencing payment thereof.




          (d) Indemnification. Without duplication of any additional amounts paid pursuant to
Section 2.17(b), the Borrowers shall reimburse and indemnify, within 30 days after receipt
of demand therefor (with copy to the Administrative Agent), each Secured Party for all Taxes and
Other Taxes (including any Taxes and Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.17) paid by such Secured Party and all Liabilities with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted, provided
that, if the Borrowers determine that any such Taxes or Other Taxes were not correctly or legally
imposed or asserted, the relevant Secured Party shall allow the Borrowers to contest, the
imposition of such Tax upon the reasonable request of the Borrower Representative and at the
Borrowers’ expense. A certificate of the Secured Party (or of the Administrative Agent on behalf
of such Secured Party) claiming any compensation under this clause (d), setting forth the
amounts to be paid thereunder and delivered to the Borrower Representative with a copy to the
Administrative Agent (together with any supporting detail reasonably requested by the Borrower
Representative), shall be conclusive, binding and final for all purposes, absence manifest error.




          (e) Mitigation. Any Secured Party claiming any additional amounts payable pursuant to
this Section 2.17 shall use its reasonable efforts (consistent with its internal policies
and Requirements of Law) to change the jurisdiction of its lending office if such a change would
reduce any such additional amounts (or any similar amount that may thereafter accrue) and would
not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.




          (f) Tax Forms. (i) Each Non-U.S. Lender Party that, at any of the following times, is
entitled to an exemption from or reduction of United States withholding tax shall (w) on or prior
to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior
to the date on which any such form or certification expires or becomes obsolete, (y) after the
occurrence of any event or change in facts requiring a change in the most recent form or
certification previously delivered by it pursuant to this clause (f) and (z) from time to
time if requested by the Borrower Representative or the Administrative Agent (or, in the case of a
participant or SPV, the relevant Lender), provide the Administrative Agent and the Borrower
Representative (or, in the case of a participant or SPV, the relevant Lender) with two properly
completed and duly executed originals of each of the following, as applicable: (A) IRS Form W-



 
 


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8ECI (claiming exemption from U.S. withholding tax because the income is effectively connected
with a U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of, U.S.
withholding tax under an income tax treaty), as applicable, or any successor forms thereto, and (B)
in the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the
Code, Form W-8BEN (claiming exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form and a certificate in form and substance acceptable to the
Administrative Agent that such Non-U.S. Lender Party is not (1) a “bank” within the meaning of
Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of any Borrower within the meaning
of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the IRS certifying as
to the entitlement of such Non-U.S. Lender Party to such exemption from United States withholding
tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender Party under the
Loan Documents. Unless the Borrower Representative and the Administrative Agent have received
forms or other documents satisfactory to them indicating that payments under any Loan Document to
or for a Non-U.S. Lender Party are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Loan Parties and the Administrative
Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such
payments at the applicable statutory rate.





          (ii) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party
becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form
or certification expires or becomes obsolete, (C) after the occurrence of any event or
change in facts requiring a change in the most recent form or certification previously
delivered by it pursuant to this clause (f) and (D) from time to time if requested
by the Borrower Representative or the Administrative Agent (or, in the case of a
participant or SPV, the relevant Lender), provide the Administrative Agent and the Borrower
Representative (or, in the case of a participant or SPV, the relevant Lender) with two
properly completed and duly executed originals of IRS Form W-9 (certifying that such U.S.
Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor
form.




          (iii) Each Lender having sold a participation in any of its Obligations or identified
an SPV as such to the Administrative Agent shall collect from such participant or SPV the
documents described in this clause (f) and provide them to the Administrative
Agent.



          (g) Refunds. If any Secured Party determines that it has received any refund of any
Taxes or Other Taxes from the Governmental Authority to which such Taxes or Other Taxes were paid
as to which it has been indemnified by the Borrowers or with respect to which the Borrowers have
paid additional amounts pursuant to this Section 2.17, it shall pay over such refund to the
Borrowers (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrowers under this Section 2.17, with respect to Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Secured Party and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund);
provided, that the Borrowers, upon request of such Secured Party, agree to repay the amount
paid over the Borrowers (plus any penalties, interest or other charges imposed by the Governmental
Authority to the extent accrued from the date such refund is paid over to the Borrowers) to such
Secured Party, together with any Liabilities relating to such refund, in the event the
Administrative Agent or such Secured Party is required or requested to repay such



 
 


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refund to the Governmental Authority. This paragraph shall not be construed to require any
Secured Party to make available its tax returns (or any other information relating to its taxes
which it deems confidential) to Borrowers or any other Person.




          Section 2.18 Substitution of Lenders. (a) Substitution Right. In the event
that any Lender in any Facility (an “Affected Lender”), (i) makes a claim under clause
(b) (Increased Costs) or (c) (Increased Capital Requirements) of
Section 2.16, (ii) notifies the Borrower Representative pursuant to Section 2.15(b)
(Illegality) that it becomes illegal for such Lender to continue to fund or make any
Eurodollar Rate Loan in such Facility, (iii) makes a claim for payment pursuant to
Section 2.17(a) (Taxes), (iv) becomes a Non-Funding Lender with respect to such
Facility or (v) does not consent to any amendment, waiver or consent to any Loan Document for which
the consent of the Required Lenders (or the Required Revolving Lenders or Required Term Lenders, as
applicable) is obtained but that requires the consent of other Lenders in such Facility, the
Borrowers may substitute for such Affected Lender in such Facility any Lender or any Affiliate or
Approved Fund of any Lender or any other Person acceptable (which acceptance shall not be
unreasonably withheld or delayed) to the Administrative Agent (in each case, a “Substitute
Lender”).




          (b) Procedure. To substitute such Affected Lender, the Borrower Representative shall
deliver a notice to the Administrative Agent and such Affected Lender. The effectiveness of such
substitution shall be subject to the delivery to the Administrative Agent by the Substitute Lender
of (i) payment for the account of such Affected Lender, of, to the extent accrued through, and
outstanding on, the effective date for such payment or substitution, all Obligations owing to such
Affected Lender with respect to such Facility (including those that will be owed because of such
payment and all Obligations that would be owed to such Lender if it was solely a Lender in such
Facility) (ii) if such Affected Lender is an L/C Issuer, cash collateral or one or more backstop
letters of credit for the benefit of such L/C Issuer, in form and substance, and from an issuer,
reasonably satisfactory to such L/C Issuer, in either case in an amount equal to least 102% of the
aggregate stated amount of all outstanding Letters of Credit Issued by such L/C Issuer, (iii) in
the case of a payment in full of the Obligations owing to such Affected Lender in the Revolving
Credit Facility, payment of any amount that, after giving effect to the termination of the
Commitment of such Affected Lender, is required to be paid pursuant to Section 2.8(e)
(Excess Outstandings), (iv) payment of the assignment fee set forth in
Section 11.2(c) and (v) an assumption agreement in form and substance reasonably
satisfactory to the Administrative Agent whereby the Substitute Lender shall, among other things,
agree to be bound by the terms of the Loan Documents and assume the Commitment of the Affected
Lender under such Facility.




          (c) Effectiveness. Upon satisfaction of the conditions set forth in clause
(b) above, the Administrative Agent shall record such substitution in the Register, whereupon,
in the case of any substitution in any Facility, (i) the Affected Lender shall sell and be relieved
of, and the Substitute Lender shall purchase and assume, all rights and claims of such Affected
Lender under the Loan Documents with respect to such Facility, except that the Affected Lender
shall retain such rights expressly providing that they survive the repayment of the Obligations and
the termination of the Commitments, (ii) the Substitute Lender shall become a “Lender” hereunder
having a Commitment in such Facility in the amount of such Affected Lender’s Commitment in such
Facility and (iii) the Affected Lender shall execute and deliver to the Administrative Agent an
Assignment to evidence such substitution and deliver any Note in its possession with respect to
such Facility; provided, however, that the failure of any Affected Lender to
execute any such


 
 



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Assignment or deliver any such Note shall not render such sale and purchase (or the
corresponding assignment) invalid. If the Affected Lender being replaced pursuant to this
Section 2.18 is an L/C Issuer, such Affected Lender shall cease to have any further
obligation hereunder as an L/C Issuer upon such substitution becoming effective. If the Affected
Lender being replaced pursuant to this Section 2.18 is the Administrative Agent, the
Administrative Agent shall be deemed to have resigned effective immediately upon such substitution
becoming effective.



Notwithstanding the foregoing, with respect to a Lender that is a Non-Funding Lender or an Impacted
Lender, the Administrative Agent may, but shall not be obligated to, obtain a replacement Lender
and execute an Assignment on behalf of such Non-Funding Lender or Impacted Lender at any time with
three (3) Business Days’ prior notice to such Lender (unless notice is not practicable under the
circumstances) and cause such Lender’s Loans and Commitments to be sold and assigned, in whole or
in part, at par.




          Section 2.19 Borrower Representative. Each Borrower hereby designates and appoints
MedQuist as its representative and agent on its behalf (the “Borrower Representative”) for
the purposes of issuing Notices of Borrowings, Notices of Conversion/Continuation, L/C Requests,
delivering certificates (including Compliance Certificates), giving instructions with respect to
the disbursement of the proceeds of the Loans, selecting interest rate options, giving and
receiving all other notices and consents hereunder or under any of the other Loan Documents and
taking all other actions (including in respect of compliance with covenants) on behalf of any
Borrower or Borrowers under the Loan Documents. Borrower Representative hereby accepts such
appointment. Administrative Agent and each Lender may regard any notice or other communication
pursuant to any Loan Document from Borrower Representative as a notice or communication from all
Borrowers. Each action authorized to be taken on behalf of a Borrower by Borrower Representative
hereunder shall be deemed for all purposes to have been taken by such Borrower and shall be binding
upon and enforceable against such Borrower to the same extent as if the same had been taken
directly by such Borrower.




ARTICLE 3

CONDITIONS TO LOANS AND LETTERS OF CREDIT




          Section 3.1 Conditions Precedent to Term Loans. The obligation of each Lender to make
any Term Loan on the Closing Date is subject to the satisfaction or due waiver of each of the
following conditions precedent:




          (a) Certain Documents. The Administrative Agent shall have received on or prior to
the Closing Date each of the following, each dated the Closing Date unless otherwise agreed by the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:





          (i) each document required to be delivered pursuant to Section 3.3(a);




          (ii) the Guaranty and Security Agreement, duly executed by Holdings and each of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), together with (A) copies of
UCC, tax, judgment, fixture and Intellectual Property search reports and of all effective
prior filings listed therein, together with evidence of the


 
 

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termination of such prior filings other than with respect to Permitted Liens, in each
case as may be reasonably requested by the Administrative Agent, and (B) all certificates
representing all certificated securities (as defined in the UCC) being pledged pursuant to
such Guaranty and Security Agreement and related undated powers or endorsements duly
executed in blank;




          (iii) an irrevocable voting proxy or power of attorney duly executed by CBay India
with respect to all Stock of CBay owned by CBay India, and a separate agreement between the
Administrative Agent, CBay and CBay India with respect thereto, duly executed by CBay and
CBay India;




          (iv) duly executed customary opinions of counsel to the Loan Parties and CBay India,
addressed to the Administrative Agent, the L/C Issuers and the Lenders and addressing such
matters as Administrative Agent may reasonably request;




          (v) a certificate of a Responsible Officer of the Borrower Representative to the
effect that (A) each condition set forth in Sections 3.1(c) and (d),
Section 3.2(b) and Section 3.3(d) has been satisfied, (B) each Loan Party
is Solvent after giving effect to consummation of the Related Transactions, and (C)
attached thereto are complete and correct copies of (x) the Related Documents and (y) all
consents and authorizations required pursuant to any material Contractual Obligations with
any other Person and all Permits of, notices to and filings with, any Governmental
Authority, in each case, as are necessary in connection with the consummation of
transactions contemplated by the Loan Documents and the Related Transactions (after giving
effect to the use of proceeds of the Loans on the Closing Date); and




          (vi) payoff letters duly executed and delivered by the Existing Agent and the holders
of the Existing CBay Debt, as applicable.



          (b) Fee and Expenses. There shall have been paid to the Administrative Agent, for the
account of the Administrative Agent, its Related Persons, any L/C Issuer or any Lender, as the case
may be, all fees and all reimbursements of costs or expenses, in each case due and payable under
any Loan Document on or before the Closing Date and, in the case of the reimbursement of costs and
expenses, invoiced at least one Business Day prior to the Closing Date.




          (c) Related Transactions. Subject only to the funding of the initial Loans hereunder
and the use of proceeds thereof, (i) MedQuist shall have paid to CBay its portion of the
Recapitalization Dividend, (ii) $85,000,000 of Subordinated Notes shall have been issued and
Holdings shall have received the net proceeds thereof from the purchasers thereof and (iii) all
obligations due under the Existing Credit Agreement, the Existing Subordinated Note and the
Existing CBay Debt will have been repaid in full and the Existing Credit Agreement, all commitments
to extend credit thereunder, the Existing Subordinated Note and the Existing CBay Debt shall have
been terminated, as evidenced by payoff letters delivered pursuant to Section 3.1(a)(vi).




          (d) Outstanding Indebtedness. After giving effect to the Related Transactions, the
Group Members shall have no Indebtedness as of the Closing Date other than (i) Indebtedness
incurred under this Agreement, (ii) Indebtedness incurred under the Subordinated Notes and (iii) up
to $11,000,000 of other Indebtedness existing prior the Closing Date and not



 
 


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incurred in connection with the Related Transactions. There shall not occur as a result of,
and after giving effect to, the consummation of the Related Transactions, a default (or any event
which with the giving of notice or lapse of time or both will be a default) under any Material
Agreement of Holdings and its Subsidiaries. No Revolving Loans shall be made and no Letters of
Credit shall be Issued on the Closing Date.




          (e) Conditions to Effectiveness. Each condition precedent set forth in Section
3.3 shall have been met or duly waived as of the Closing Date.




          (f) Closing Date. The Closing Date shall occur either on or prior to October 15,
2010.




          Section 3.2 Conditions Precedent to Each Loan and Letter of Credit. The obligation of
each Lender on any date to make any Loan and of each L/C Issuer on any date to Issue any Letter of
Credit is subject to the satisfaction of each of the following conditions precedent:




          (a) Request. The Administrative Agent (and, in the case of any Issuance, the relevant
L/C Issuer) shall have received, to the extent required by Article II, a written, timely
and duly executed and completed Notice of Borrowing, Swingline Request or, as the case may be, L/C
Request.




          (b) Representations and Warranties; No Defaults. The following statements shall be
true on such date, both before and after giving effect to such Loan or, as applicable, such
Issuance: (i) the representations and warranties set forth in any Loan Document shall be true and
correct (A) if such date is the Closing Date, on and as of such date and (B) otherwise, in all
material respects on and as of such date or, to the extent such representations and warranties
expressly relate to an earlier date, on and as of such earlier date and (ii) no Default shall be
continuing.




The representations and warranties set forth in any Notice of Borrowing, Swingline Request or L/C
Request (or any certificate delivered in connection therewith) shall be deemed to be made again on
and as of the date of the relevant Loan or Issuance and the acceptance of the proceeds thereof or
of the delivery of the relevant Letter of Credit.




          Section 3.3 Conditions Precedent to Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the satisfaction or due waiver of each of the
following conditions precedent:




          (a) Certain Documents. The Administrative Agent shall have received on or prior to
the Signing Date each of the following, each dated the Signing Date unless otherwise agreed by the
Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:





          (i) this Agreement duly executed by Holdings and the Borrowers and, for the account of
each Lender having requested the same by notice to the Administrative Agent received at
least three (3) Business Days prior to the Closing Date, Notes in each applicable Facility
conforming to the requirements set forth in Section 2.14(e);


 
 

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          (ii) a copy of each Constituent Document of each Loan Party that is on file with any
Governmental Authority in its jurisdiction of organization, certified as of a recent date
by such Governmental Authority, together with, if applicable, certificates attesting to the
good standing of such Loan Party in (x) such jurisdiction and (y) each other jurisdiction
where such Loan Party is qualified to do business as a foreign entity and where such
qualification is necessary for the conduct of such Loan Party’s business (and, if
appropriate in any such jurisdiction, related tax certificates) except where the failure to
so qualify would not reasonably be expected to have a Material Adverse Effect;




          (iii) a certificate of the secretary or other officer of each Loan Party in charge of
maintaining books and records of such Loan Party certifying as to (A) the names and
signatures of each officer of such Loan Party that is authorized to and that will execute
and deliver any Loan Document on the Signing Date or Closing Date, (B) the Constituent
Documents of such Loan Party attached to such certificate are complete and correct copies
of such Constituent Documents as in effect on the date of such certification (or, for any
such Constituent Document delivered pursuant to clause (iv) above, that there have
been no changes from such Constituent Document so delivered) and (C) the resolutions of
such Loan Party’s board of directors or other appropriate governing body approving and
authorizing the execution, delivery and performance of each Loan Document to which such
Loan Party is a party;




          (iv) the Subordination Agreement, duly executed by the initial holders of the
Subordinated Notes, Holdings and the Borrowers;




          (v) (x) interim Consolidated unaudited monthly Financial Statements of Holdings and
its Subsidiaries for each fiscal month ended after June 30, 2010 and on or prior to 45 days
before the Closing Date, each in the form of the monthly Financial Statements as of June
30, 2010 provided to the Administrative Agent prior to the Closing Date, (y) a pro forma
estimated Consolidated balance sheet of Holdings and its Subsidiaries at the Closing Date
after giving effect to the Related Transactions and (z) Holdings’ business plan which shall
include a financial forecast on a quarterly basis for the first twelve months after the
Closing Date and on an annual basis thereafter through 2015 prepared by Holdings’
management; and




          (vi) insurance certificates naming the Administrative Agent as additional insured or
loss payee, as required by Section 7.5.



          (b) Escrow. Each of the documents, instruments and certificates referenced in
Section 3.1(a) (other than the opinions under clause (iv) and payoff letters under
clause (vi) thereof) shall have been executed and delivered into escrow on terms and
conditions reasonably satisfactory to the Administrative Agent.




          (c) Representations and Warranties; No Defaults. After giving pro forma effect to the
Related Transactions as if they had occurred on the Signing Date, the representations and
warranties set forth in any Loan Document shall be true and correct on and as of such date as if
the Signing Date were the Closing Date and no Default shall be continuing.




          (d) Minimum EBITDA; Maximum Leverage. Consolidated EBITDA of Holdings for the twelve
fiscal month period ended on July 31, 2010 shall be no less than $85,000,000. After giving effect
to the Related Transactions, the ratio of Consolidated Total



 
 


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Debt of Holdings as of the Closing Date to Consolidated EBITDA of Holdings for the twelve
fiscal month period ended on July 31, 2010 shall not exceed 3.35 to 1.00, and the ratio of
Consolidated Senior Debt of Holdings as of the Closing Date to Consolidated EBITDA of Holdings for
the twelve fiscal month period ended on July 31, 2010 shall not exceed 2.35 to 1.00.




          (e) Declaration of Recapitalization Dividend. Simultaneously with this Agreement
becoming effective, MedQuist shall have (i) declared the payment of the Recapitalization Dividend
conditioned upon the funding of the Term Loans and the receipt of the proceeds from the issuance of
the Subordinated Notes and (ii) have otherwise taken such other actions as are necessary in order
to be permitted under applicable NASDAQ rules and regulations to pay the Recapitalization Dividend
on the Closing Date.




          Section 3.4 Determinations of Initial Borrowing Conditions. For purposes of
determining compliance with the conditions specified in Sections 3.1 and 3.3, each
Lender shall be deemed to be satisfied with each document and each other matter required to be
satisfactory to such Lender unless, prior to the Closing Date or Signing Date, as applicable, the
Administrative Agent receives notice from such Lender specifying such Lender’s objections and such
Lender has not made available its Pro Rata Share of any Borrowing scheduled to be made on the
Closing Date.




ARTICLE 4

REPRESENTATIONS AND WARRANTIES




          To induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Loan
Documents, Holdings and each Borrower represents and warrants to each of them each of the following
on and as of each date applicable pursuant to Section 3:




          Section 4.1 Corporate Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and, if applicable, in good standing under the laws of the jurisdiction
of its organization, (b) is duly qualified to do business as a foreign entity and in good standing
under the laws of each jurisdiction where such qualification is necessary, except where the failure
to be so qualified or in good standing would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect, (c) has all requisite corporate or similar power and authority to own,
and operate its property and to conduct its business as now or currently proposed to be conducted,
(d) is in compliance with all applicable Requirements of Law except where the failure to be in
compliance would not reasonably be expected to have a Material Adverse Effect and (e) has all
necessary Permits from or by, has made all necessary filings with, and has given all necessary
notices to, each Governmental Authority having jurisdiction, to the extent required for such
ownership, operation or conduct of business, except where the failure to obtain such Permits, make
such filings or give such notices would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; provided, however, that the representations and warranties
under clause (a) and (b) above with respect to the Excluded Foreign Subsidiaries
are limited to the knowledge of the Loan Parties.




          Section 4.2 Loan and Related Documents. (a) Power and Authority. The
execution, delivery and performance by each Loan Party of the Loan Documents and Related Documents
to which it is a party and the consummation of the Related Transactions and other transactions
contemplated therein (i) are within such Loan Party’s corporate or similar powers and, at the time
of execution thereof, have been duly authorized by all necessary corporate and


 
 



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similar action, (ii) do not (A) contravene such Loan Party’s Constituent Documents, (B)
violate any applicable material Requirement of Law in any material respect, (C) conflict with,
contravene, constitute a default or breach under, or result in or permit the termination or
acceleration of, any material Contractual Obligation of any Group Member (including other Related
Documents or Loan Documents) other than those that would not, in the aggregate, have a Material
Adverse Effect, (D) do not materially adversely affect any Permit of such Loan Party other than
those that would not, in the aggregate, have a Material Adverse Effect or (E) result in the
imposition of any Lien (other than a Permitted Lien) upon any property of any Group Member and
(iii) do not require any Permit of, or filing with, any Governmental Authority or any consent of,
or notice to, any Person, other than (A) with respect to the Loan Documents, the filings required
to perfect the Liens created by the Loan Documents, (B) those that have been, or will be prior to
the Closing Date, obtained or made, copies of which have been, or will be prior to the Closing
Date, delivered to the Administrative Agent, and each of which on the Closing Date will be in full
force and effect and (C) except with respect to the borrowing of the Loans, the guarantying of the
Obligations and the granting of Liens under the Loan Documents, those which, if not obtained or
made, would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          (b) Due Execution and Delivery. Each Loan Document and Related Document has been duly
executed and delivered to the other parties thereto by each Loan Party party thereto, is the legal,
valid and binding obligation of such Loan Party and is enforceable against such Loan Party in
accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization or moratorium or similar laws affecting the rights or remedies of creditors
generally and subject to general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).




          (c) Subordinated Note. The Obligations constitute “Senior Debt” or any similar
concept under and as defined in the Subordination Agreement. No other Indebtedness qualifies as
“Senior Debt” or any similar concept under the Subordination Agreement.




          Section 4.3 Ownership of Group Members. Set forth on Schedule 4.3 is a
complete and accurate list showing, as of the Closing Date, for each Group Member other than
Holdings, its jurisdiction of organization, the number of shares of each class of Stock outstanding
on the Closing Date and the number and percentage of the outstanding shares of each such class
owned (directly or indirectly) by any Borrower or Holdings. As of the Closing Date, all
outstanding Stock of each Group Member has been validly issued, is fully paid and non-assessable
(to the extent applicable) and, except in the case of Holdings, is owned beneficially and of record
by a Group Member free and clear of all Liens other than Permitted Liens. As of the Closing Date,
there are no Stock Equivalents with respect to the Stock of any Group Member (other than Holdings).
As of the Closing Date, there are no Contractual Obligations or other understandings to which any
Group Member is a party with respect to (including any restriction on) the issuance, voting, Sale
or pledge of any Stock or Stock Equivalent of any Group Member.




          Section 4.4 Financial Statements. (a) Each of (i) the audited Consolidated balance
sheet of Holdings as at December 31, 2009, and the related Consolidated statements of income,
retained earnings and cash flows of Holdings for the Fiscal Year then ended, certified by KPMG LLP,
and (ii) subject to the absence of footnote disclosure and normal year-end audit adjustments, the
unaudited Consolidated balance sheets of Holdings as at July 31, 2010 and the related Consolidated
statements of income, retained earnings and cash flows of Holdings for the seven (7) months then
ended, copies of each of which have been furnished to the Administrative


 
 



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Agent, fairly present in all material respects the Consolidated financial position, results of
operations and cash flow of the Group Members as at the dates indicated and for the periods
indicated in accordance with GAAP.




          (b) On the Closing Date, (i) none of Holdings or its Subsidiaries has any material liability
or obligation (including Indebtedness, Guaranty Obligations, contingent liabilities and liabilities
for taxes, long-term leases and unusual forward or long-term commitments) that is not reflected in
the Financial Statements referred to in clause (a) above or in the notes thereto and which
is otherwise prohibited by this Agreement and (ii) since the date of the unaudited Financial
Statements referenced in clause (a)(ii) above, there has been no Sale of any material
property of Holdings or its Subsidiaries and no acquisition of any material property.




          (c) The Initial Projections have been prepared by Holdings in light of the past operations of
the business of Holdings and its Subsidiaries and reflect projections for the five-year period
beginning on July 1, 2010 on a quarterly basis through June 30, 2011 and on a year-by-year basis
thereafter. As of the Closing Date, the Initial Projections have been prepared in good faith based
upon assumptions believed by the preparer thereof to be reasonable, it being understood and agreed
that financial projections are not a guarantee of financial performance and actual results may
differ from financial projections and such differences may be material.




          (d) The unaudited Consolidated balance sheet of Holdings (the “Pro Forma Balance
Sheet”) delivered to the Administrative Agent prior to the date hereof, has been prepared as of
July 31, 2010 and reflects as of such date, on a Pro Forma Basis for the Related Transactions the
Consolidated financial condition of Holdings.




          Section 4.5 Material Adverse Effect. Since December 31, 2009, no Material Adverse
Effect has occurred.




          Section 4.6 Solvency. As of the Closing Date, both before and after giving effect to
the Related Transactions, each Loan Party is Solvent. On any date after the Closing Date, both
before and after giving effect to the Loans and Letters of Credit to be made or Issued on such date
and the use of proceeds thereof, the Loan Parties taken as a whole are Solvent.




          Section 4.7 Litigation. There are no pending (or, to the knowledge of any Group
Member, threatened in writing) actions, investigations, suits, proceedings, audits or claims
affecting any Group Member with, by or before any Governmental Authority (x) that would reasonably
be expected to have a Material Adverse Effect or (y) that involve the Loan Documents, the Related
Documents or the Related Transactions.




          Section 4.8 Taxes. Except as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, all Federal, state, local and foreign tax
returns, reports and statements (collectively, the “Tax Returns”) required to be filed by
any Group Member have been filed with the appropriate Governmental Authorities in all jurisdictions
in which such Tax Returns are required to be filed, all such Tax Returns are true and correct, and
all taxes, charges and other impositions reflected therein or otherwise due and payable have been
paid prior to the date on which any Liability may be added thereto for non-payment thereof, in each
case except with respect to matters contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves are maintained on the books of the appropriate Group
Member in accordance with GAAP. As of the Closing Date, no material Tax Return is under audit or
examination by any Governmental Authority and no notice of such an



 
 


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audit or examination or any assertion of any material claim for Taxes has been given or made
by any Governmental Authority. As of the Closing Date, proper and accurate amounts have been
withheld by each Group Member from their respective employees for all periods in material
compliance with the tax, social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the respective Governmental
Authorities. No Group Member has participated in a “listed transaction” within the meaning of
Treasury Regulation Section 1.6011-4(b) or has been a member of an affiliated, combined or unitary
group other than the group of which a Group Member is or was the common parent.




          Section 4.9 Margin Regulations. No Borrower is engaged in the business of extending
credit for the purpose of, and no proceeds of any Loan or other extensions of credit hereunder will
be used for the purpose of, buying or carrying margin stock (within the meaning of Regulation U of
the Federal Reserve Board) or extending credit to others for the purpose of purchasing or carrying
any such margin stock, in each case in contravention of Regulation T, U or X of the Federal Reserve
Board.




          Section 4.10 No Defaults. No Group Member is in default under or with respect to any
Contractual Obligation of any Group Member, other than those that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          Section 4.11 Investment Company Act. No Group Member is an “investment company” as
defined in, or subject to regulation or restrictions under, the Investment Company Act of 1940, as
amended and the rules and regulations promulgated thereunder.




          Section 4.12 Labor Matters. There are no strikes, work stoppages, slowdowns or
lockouts existing, pending (or, to the knowledge of any Group Member, threatened) against or
involving any Group Member, except, for those that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as set forth on Schedule 4.12, as of
the Closing Date, (a) there is no collective bargaining or similar agreement with any union, labor
organization, works council or similar representative covering any employee of any Group Member,
(b) no petition for certification or election of any such representative is existing or pending
with respect to any employee of any Group Member and (c) no such representative has sought
certification or recognition with respect to any employee of any Group Member.




          Section 4.13 ERISA. Each Benefit Plan, and each trust thereunder, intended to qualify
for tax exempt status under Section 401 or 501 of the Code (or other Requirements of Law) has
received a favorable determination letter from the IRS (or other applicable Governmental
Authority), to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code
covering all applicable tax law changes, with respect to such qualification, and nothing has
occurred since the date of such determination that would adversely affect such determination.
Except for those that would not, in the aggregate, be reasonably expected to result in a Material
Adverse Effect, (x) each Benefit Plan is in compliance in form and operation with its terms and
with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no
existing or pending (or to the knowledge of any Group Member, threatened) claims (other than
routine claims for benefits in the normal course), sanctions, actions, lawsuits or other
proceedings or investigation involving any Benefit Plan to which any Group Member has incurred or
otherwise has or could have an obligation or any Liability and (z) no ERISA Event has occurred or
is reasonably expected to occur. On the Closing Date, no ERISA Event has occurred in connection
with which obligations and liabilities (contingent or otherwise) remain


 
 



72









 







outstanding. No Benefit Plan and no other employee benefit plan maintained, sponsored or
contributed to by any Loan Party or ERISA Affiliate is a defined benefit pension plan or is subject
to the minimum funding requirements of Section 412 of the Code or Title IV of ERISA. No Loan Party
or ERISA Affiliate has any obligation to contribute to any Multiemployer Plan, or has within any of
the five calendar years immediately preceding the date this assurance is given, made or accrued an
obligation to make contributions to any Multiemployer Plan. Each Loan Party and each ERISA
Affiliate have made all material contributions to or under each Benefit Plan and Multiemployer Plan
required by law within the applicable time limits prescribed thereby, the terms of such Benefit
Plan or Multiemployer Plan, respectively, or any contract or agreement requiring contributions to a
Benefit Plan or Multiemployer Plan, except where any failure to comply, individually or in the
aggregate, would not reasonably be expected to result in a material liability. There exists no
Unfunded Pension Liability with respect to any Title IV Plan, except as would not reasonably be
expected to result in a material liability.




          Section 4.14 Environmental Matters. Except as set forth on Schedule 4.14, (a)
the operations of each Group Member are and have been in compliance with all applicable
Environmental Laws, including obtaining, maintaining and complying with all Permits required by any
applicable Environmental Law, other than non-compliances that, in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, (b) no Group Member is party to, and
no Group Member and no real property currently (or to the knowledge of any Group Member previously)
owned, leased, subleased, operated or otherwise occupied by or for any Group Member (but solely to
the knowledge of the Group Members with respect to any real property neither occupied by nor owned
by any Group Member) is subject to or the subject of, any Contractual Obligation or any pending
(or, to the knowledge of any Group Member, threatened) order, action, investigation, suit,
proceeding, audit, claim, demand, dispute or notice of violation or of potential liability or
similar notice, in each instance under or pursuant to any Environmental Law, other than those that,
in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (c) no
Group Member has caused or allowed a Release of Hazardous Materials at, to or from any real
property of any Group Member and each such real property is free of contamination by any Hazardous
Materials except for such Release or contamination that would not reasonably be expected to result,
in the aggregate, in a Material Adverse Effect, (d) no Group Member has received any information
request or notice of potential responsibility under CERCLA or similar Environmental Laws, that, in
the aggregate, would be reasonably expected to have a Material Adverse Effect and (e) each Group
Member has made available to the Administrative Agent copies of all existing material environmental
reports, reviews and audits and all documents containing material information pertaining to actual
or potential material Environmental Liabilities, in each case to the extent such reports, reviews,
audits and documents are in their possession, custody or control.




          Section 4.15 Intellectual Property. Each Group Member owns or licenses all
Intellectual Property that is necessary for the operations of its businesses except as, in the
aggregate, would not be reasonably expected to have a Material Adverse Effect. To the knowledge of
each Group Member, (a) the conduct and operations of the businesses of each Group Member does not
infringe, misappropriate or violate any Intellectual Property owned by any other Person and (b) no
other Person has contested any right, title or interest of any Group Member in, or relating to, any
Intellectual Property, other than, in each case, as would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.



 
 



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          Section 4.16 Title; Real Property. Each Group Member has good and valid fee simple
title to all owned real property and valid leasehold interests in all leased real property, and
owns or leases all personal property necessary for the conduct of its business except as would not
reasonably be expected to have a Material Adverse Effect, and none of such property is subject to
any Lien except Permitted Liens. As of the Closing Date, no Group Member owns any fee simple
interest in any real Property.




          Section 4.17 Full Disclosure. All of the representations or warranties made by any
Loan Party or any of their respective Subsidiaries in the Loan Documents as of the date such
representations and warranties were made or deemed made, and all of the information other than the
Projections and general economic or specific industry information that has been made available to
the Secured Parties by or on behalf of any Group Member or any of their respective Subsidiaries
(including the information contained in any Financial Statement or Disclosure Document), when taken
as a whole and after giving effect to all supplements previously made thereto, was, when furnished,
complete and correct in all material respects and did not, when furnished, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the circumstances under which
such statements were made. All projections that are part of such information (including those set
forth in any Projections delivered subsequent to the Signing Date) have been prepared in good faith
based upon assumptions believed by the preparer thereof to be reasonable at the time made and at
the time such projections are made available (it being understood and agreed that financial
projections are not a guarantee of financial performance and actual results may differ from
financial projections and such differences may be material).




          Section 4.18 Anti-Terrorism Laws. No Group Member and, to the knowledge of each Group
Member, no joint venture or subsidiary thereof is in violation in any material respects of any
United States Requirements of Law relating to terrorism, sanctions or money laundering, including
the United States Executive Order No. 13224 on Terrorist Financing and the Patriot Act.




          Section 4.19 Material Agreements. Except for matters which, either individually or in
the aggregate, would not reasonably be expected to result in a Material Adverse Effect, each
Material Agreement (a) is in full force and effect, unless it has expired at the end of its stated
term or been replaced by an agreement or agreements not materially less favorable to the Loan
Parties than the Material Agreement which it replaces and (b) has not been amended or modified
(other than amendments or modifications permitted by Section 8.11(c)).




          Section 4.20 Health Care Matters. Except as would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect, each Group Member, and any Person acting on their
behalf, is in compliance in all respects with all Health Care Laws applicable to it, its products
and its properties or other assets or its business or operation.




          Section 4.21 Health Care Permits. Except as would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect, (a) each Group Member, and any Person acting on
their behalf, has in effect all material health care Permits necessary for it to own, lease or
operate its properties and other assets and to carry on its business and operations as presently
conducted, (b) all such Permits are in full force and effect and there exists no default under, or
violation of, any such Permit, (c) no condition exists or event has occurred which, in itself or
with the giving of notice or lapse of time or both, has resulted or would result in the suspension,
revocation, impairment, forfeiture or non-renewal of any such Permit and (d) there is



 
 


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no material claim that any such Permit is not in full force and effect, and no presently
existing circumstance exists or event has occurred which could reasonably be expected to result in
a material violation of the Health Care Laws. As of the Closing Date, Schedule 4.21 sets
forth an accurate, complete and current list of all material health care Permits with respect to
the business of each Group Member.




          Section 4.22 Exclusion. Except as would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect, none of the Group Members, nor any Person acting on behalf of
any Group Member has been, or has been threatened to be, (i) excluded from any Governmental Payor
Program pursuant to 42 U.S.C. § 1320a-7b and related regulations, (ii) “suspended” or “debarred”
from selling products to the U.S. government or its agencies pursuant to the Federal Acquisition
Regulation, relating to debarment and suspension applicable to federal government agencies
generally (42 C.F.R. Subpart 9.4), or other applicable laws or regulations, (iii) debarred,
disqualified, suspended or excluded from participation in Medicare, Medicaid or any other health
care program or is listed on the General Services Administration list of excluded parties, nor is
any such debarment, disqualification, suspension or exclusion threatened or pending, or (iv) made a
party to any other action by any Governmental Authority that may prohibit it from selling products
or providing services to any governmental or other purchaser pursuant to any federal, state or
local laws or regulations.




          Section 4.23 HIPAA. Except as would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect, each Group Member is in compliance with all applicable federal,
state and local laws and regulations regarding the privacy and security of health information and
electronic transactions, including HIPAA, and the provisions of all business associate agreements
(as such term is defined by HIPAA) to which it is a party and has implemented adequate policies,
procedures and training designed to assure continued compliance and to detect non-compliance.
Except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, to
the extent applicable to any Loan Party and for so long as (1) any Loan Party is a “covered entity”
as defined in 45 C.F.R. § 160.103, (2) any Loan Party is a “business associate” as defined in 45
C.F.R. § 160.103, (3) any Loan Party is subject to or covered by the HIPAA Administrative
Requirements codified at 45 C.F.R. Parts 160 & 162 (the “Transactions Rule”) and/or the HIPAA
Security and Privacy Requirements codified at 45 C.F.R. Parts 160 & 164 (the “Privacy and Security
Rules”), and/or (4) any Loan Party sponsors any “group health plans” as defined in 45 C.F.R. §
160.103, such Loan Party has: (i) completed thorough and detailed surveys, audits, inventories,
reviews, analyses and/or assessments, including risk assessments, (collectively “Assessments”) of
all material areas of its business and operations subject to HIPAA and/or that could be materially
and adversely affected by the failure of such Loan Party, or any Person acting on behalf of any
Loan Party, as the case may be, to the extent these Assessments are appropriate or required for
such Loan Party to be in compliance with HIPAA; (ii) developed a detailed plan and time line for
becoming in compliance with HIPAA (a “HIPAA Compliance Plan”); and (iii) implemented those
provisions of its HIPAA Compliance Plan necessary to ensure that such Loan Party is in compliance
with HIPAA.




ARTICLE 5

FINANCIAL COVENANTS




          Each of Holdings and each Borrower agrees with the Lenders, the L/C Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other than any
Contingent Loan Document Obligations) or any Commitment remains outstanding:



 
 


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          Section 5.1 Maximum Consolidated Senior Leverage Ratio. Holdings shall not have,
on the last day of each Fiscal Quarter set forth below, a Consolidated Senior Leverage Ratio
greater than the maximum ratio set forth opposite such Fiscal Quarter:




	 	 	 
	 	 	MAXIMUM CONSOLIDATED
	FISCAL QUARTER ENDING	 	SENIOR LEVERAGE RATIO
	September 30, 2010
	 	3.00:1.00
	December 31, 2010
	 	2.75:1.00
	March 31, 2011
	 	2.60:1.00
	June 30, 2011
	 	2.35:1.00
	September 30, 2011
	 	2.15:1.00
	December 31, 2011
	 	2.15:1.00
	March 31, 2012
	 	2.00:1.00
	June 30, 2012
	 	1.70:1.00
	September 30, 2012
	 	1.60:1.00
	December 31, 2012
	 	1.50:1.00
	March 31, 2013
	 	1.40:1.00
	June 30, 2013
	 	1.20:1.00
	September 30, 2013
	 	1.10:1.00
	December 31, 2013
	 	1.10:1.00
	March 31, 2014
	 	1.10:1.00
	June 30, 2014 and thereafter
	 	1.00:1.00






          Section 5.2 Maximum Consolidated Total Leverage Ratio. Holdings shall not have, on
the last day of each Fiscal Quarter set forth below, a Consolidated Total Leverage Ratio greater
than the maximum ratio set forth opposite such Fiscal Quarter:




	 	 	 
	 	 	MAXIMUM CONSOLIDATED
	FISCAL QUARTER ENDING	 	TOTAL LEVERAGE RATIO
	September 30, 2010
	 	4.00:1.00
	December 31, 2010
	 	4.00:1.00
	March 31, 2011
	 	3.75:1.00
	June 30, 2011
	 	3.50:1.00
	September 30, 2011
	 	3.25:1.00
	December 31, 2011
	 	3.00:1.00
	March 31, 2012
	 	3.00:1.00
	June 30, 2012
	 	2.70:1.00






 






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	 	 	MAXIMUM CONSOLIDATED
	FISCAL QUARTER ENDING	 	TOTAL LEVERAGE RATIO
	September 30, 2012
	 	2.60:1.00
	December 31, 2012
	 	2.50:1.00
	March 31, 2013
	 	2.40:1.00
	June 30, 2013
	 	2.20:1.00
	September 30, 2013
	 	2.10:1.00
	December 31, 2013
	 	2.00:1.00
	March 31, 2014
	 	2.00:1.00
	June 30, 2014
	 	1.75:1.00
	September 30, 2014
	 	1.70:1.00
	December 31, 2014
	 	1.65:1.00
	March 31, 2015
	 	1.60:1.00
	June 30, 2015 and thereafter
	 	1.50:1.00






          Section 5.3 Minimum Consolidated Interest Coverage Ratio. Holdings shall not have, on
the last day of each Fiscal Quarter set forth below, a Consolidated Interest Coverage Ratio for the
four (4) Fiscal Quarter period ending on such day less than the minimum ratio set forth opposite
such Fiscal Quarter:




	 	 	 
	FISCAL QUARTER ENDING	 	MINIMUM CONSOLIDATED 
INTEREST COVERAGE RATIO
	September 30, 2010
	 	2.75:1.00
	December 31, 2010
	 	2.75:1.00
	March 31, 2011
	 	2.75:1.00
	June 30, 2011
	 	3.00:1.00
	September 30, 2011
	 	3.25:1.00
	December 31, 2011
	 	3.25:1.00
	March 31, 2012
	 	3.50:1.00
	June 30, 2012
	 	3.50:1.00
	September 30, 2012
	 	3.75:1.00
	December 31, 2012
	 	3.75:1.00
	March 31, 2013 and thereafter
	 	4.00:1.00






 








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ARTICLE 6

REPORTING COVENANTS




          Each of Holdings and each Borrower agrees with the Lenders, the L/C Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other than any Contingent
Loan Document Obligations) or any Commitment remains outstanding:




          Section 6.1 Financial Statements. The Borrowers shall deliver to the Administrative
Agent (who will distribute the same to the Lenders promptly upon its receipt thereof) each of the
following in a format reasonably satisfactory to the Administrative Agent:




          (a) Monthly Reports. Within 30 days after the end of each month, the internal
Consolidated unaudited balance sheet of each of MedQuist and CBay as of the close of such fiscal
month and related Consolidated statements of income and cash flow for such fiscal month and that
portion of the Fiscal Year ending as of the close of such fiscal month, setting forth in
comparative form the figures for the corresponding period in the prior Fiscal Year (after the first
anniversary of the Closing Date) prepared for management and consistent with past practice.




          (b) Quarterly Reports. As soon as available, and in any event within 45 days after
the end of each Fiscal Quarter of each Fiscal Year (i) ending before the MedQuist Consolidation
Date, the Consolidated unaudited balance sheet of Holdings, the Consolidated unaudited balance
sheet of MedQuist and all eliminations necessary to reconcile such balance sheets and (ii) ending
on or after the MedQuist Consolidation Date, the Consolidated unaudited balance sheet of Holdings,
in each case as of the close of such Fiscal Quarter, and including related Consolidated statements
of income and cash flow for such Fiscal Quarter and that portion of the Fiscal Year ending as of
the close of such Fiscal Quarter, setting forth in comparative form (x) the figures for the
corresponding period in the prior Fiscal Year (after the first anniversary of the Closing Date) and
(y) the figures for the corresponding period set forth in the most recent corresponding Projections
received by the Administrative Agent pursuant to Section 6.1(f), in each case certified by
a Responsible Officer of the Borrower Representative as fairly presenting in all material respects
the Consolidated financial position, results of operations and cash flow of Holdings and/or
MedQuist, as applicable, as at the dates indicated and for the periods indicated in accordance with
GAAP (subject to the absence of footnote disclosure and normal year-end audit adjustments).




          (c) Annual Reports. As soon as available, and in any event within 90 days after the
end of each Fiscal Year (i) ending before the MedQuist Consolidation Date, the Consolidated balance
sheet of Holdings and the Consolidated balance sheet of MedQuist and (ii) ending on or after the
MedQuist Consolidation Date, the Consolidated balance sheet of Holdings, in each case as of the end
of such year and including related Consolidated statements of income, stockholders’ equity and cash
flow for such Fiscal Year, each prepared in accordance with GAAP, together with an opinion of the
Group Members’ Accountants that such Consolidated Financial Statements fairly present in all
material respects the Consolidated financial position, results of operations and cash flow of
Holdings and/or MedQuist, as applicable, as at the dates indicated and for the periods indicated
therein in accordance with GAAP without qualification as to the scope of the audit or as to going
concern or other similar qualification, it being understood that the Borrowers may satisfy the
requirements of this clause (c) by delivery, in the manner provided in Section
11.11(a), of their annual reports on Form 10-K (or any successor form), as filed with the
Securities and Exchange Commission.




 








78









 








          (d) Compliance Certificate. Together with each delivery of any Financial Statement
pursuant to clause (b) or (c) above, a Compliance Certificate duly executed by a
Responsible Officer of the Borrower Representative that, among other things, (i) if delivered
together with any Financial Statement pursuant to clause (c) above, includes the
calculations used in determining Excess Cash Flow, (ii) if delivered together with any Financial
Statements pursuant to clauses (b) or (c) above, (A) demonstrates compliance with
each financial covenant contained in Article 5 and (B) contains a detailed calculation of
Additional Available Cash as of the date of such Financial Statements including any reduction
thereof described in clauses (v) and (vi) of the definition thereof, and (iii) states that no
Default is continuing as of the date of delivery of such Compliance Certificate or, if a Default is
continuing, states the nature thereof and the action that the Borrowers propose to take with
respect thereto.




          (e) Corporate Chart and Other Collateral Updates. Together with each delivery of any
Financial Statement pursuant to clause (c) above, a certificate by a Responsible Officer of
the Borrower Representative that (i) the Corporate Chart attached thereto (or the last Corporate
Chart delivered pursuant to this clause (e)) is correct and complete as of the date of such
Compliance Certificate, (ii) there has been no material change in the information provided in
Schedule 3, Schedule 4, Schedule 5 or Schedule 6 to the Guaranty
and Security Agreement since the date of the execution of this Agreement or the last Compliance
Certificate delivered pursuant to this clause (e), as applicable, or, if there has been a
material change in such information, complete and correct supplements to such Schedules have been
delivered to the Administrative Agent or are attached to such certificate, and (iii) if any term of
any Constituent Document of any Group Member has been modified on or prior to the date of delivery
of such Compliance Certificate in accordance with Section 8.11, complete and correct copies
of all documents evidencing such modification have been delivered to the Administrative Agent or
are attached to such certificate.




          (f) Additional Projections. As soon as available and in any event not later than 30
days after the beginning of each Fiscal Year, (i) forecasts prepared by management of the Borrowers
including in such forecasts (A) a projected Consolidated balance sheet, income statement and
statement of cash flows and (B) a statement of all of the material assumptions on which such
forecasts are based for each Fiscal Quarter in such Fiscal Year containing substantially the same
type of financial information as that contained in the Initial Projections.




          (g) Audit Reports, Management Letters, Etc. Together with each delivery of any
Financial Statement for any Fiscal Year pursuant to clause (c) above, copies of each
management letter, audit report or similar letter or report received by any Group Member from any
independent registered certified public accountant (including the Group Members’ Accountants) in
connection with such Financial Statements or any audit thereof, each certified to be complete and
correct copies by a Responsible Officer of the Borrower Representative as part of the Compliance
Certificate delivered in connection with such Financial Statements.




          (h) Insurance. Together with each delivery of any Financial Statement for any Fiscal
Year pursuant to clause (c) above, each in form and substance reasonably satisfactory to
the Administrative Agent and certified as complete and correct by a Responsible Officer of the
Borrower Representative as part of the Compliance Certificate delivered in connection with such
Financial Statements, a summary of all material insurance coverage maintained as of the date
thereof by any Group Member.




 






79









 








          (i) Government Contracts. At the time of delivery of each of the annual Financial
Statements delivered pursuant to Section 6.1(c), (i) a listing of government contracts of
Borrower subject to the Federal Assignment of Claims Act of 1940, and (ii) a list of any
applications for the registration of any Patent, Trademark or Copyright filed by any Loan Party
with the United States Patent and Trademark Office, the United States Copyright Officer or any
similar office or agency in the prior Fiscal Quarter.




          (j) Other. Reasonably promptly after request, such documents and information with
respect to the business, property, condition (financial or otherwise), legal, financial or
corporate or similar affairs or operations of any Loan Party (and during the continuance of a
Default, any Group Member) as the Administrative Agent or such Lender through the Administrative
Agent may from time to time reasonably request.




          Section 6.2 Other Events. The Borrower Representative shall give the Administrative
Agent notice (who will distribute the same to the Lenders promptly upon its receipt thereof) of
each of the following (which may be made by telephone if promptly confirmed in writing) promptly
after any Responsible Officer of any Loan Party knows:




          (a) (i) the occurrence or existence of any Default or Event of Default and (ii) any event that
such Responsible Officer believes would reasonably be expected to have a Material Adverse Effect,
specifying, in each case, the nature and anticipated effect thereof and any action proposed to be
taken in connection therewith;




          (b) any event (other than any event involving loss or damage to property) reasonably expected
to result in a mandatory payment of the Obligations pursuant to Section 2.8, stating the
material terms and conditions of such transaction and estimating the Net Cash Proceeds thereof;




          (c) the commencement of any action, investigation, suit or proceeding by or before any
Governmental Authority brought against any Group Member that would reasonably be expected to have a
Material Adverse Effect;




          (d) notice of any material civil or criminal investigation or the commencement of proceedings
before any Governmental Authority alleging a material violation of any Health Care Laws;




          (e) the acquisition of any real property with a fair market value in excess of $2,000,000
owned by any Loan Party;




          (f) any default under (after the expiration of any cure period with respect to such default
and after giving effect to any written waiver of such default) any Subordinated Note Document; and




          (g) any material default under any Material Agreement (after the expiration of any cure period
with respect to such default and after giving effect to any written waiver of such default) or any
termination of any Material Agreement, other than a termination in connection with the replacement
thereof with an agreement or agreements not materially less favorable to the Loan Parties.




 






80









 







Each notice pursuant to this Section shall be in electronic form accompanied by a statement by a
Responsible Officer on behalf of the Borrower Representative setting forth details of the
occurrence referred to therein, and stating what action the Borrowers or other Person proposes to
take with respect thereto and at what time.




          Section 6.3 Copies of Notices and Reports. The Borrower Representative shall promptly
deliver to the Administrative Agent (who will distribute the same to the Lenders promptly upon its
receipt thereof) copies of each of the following: (a) all reports that Holdings transmits to its
security holders generally, (b) all periodic reports and reports on Form 8-K that any Group Member
files with the Securities and Exchange Commission and (c) all material documents transmitted or
received pursuant to, or in connection with, any Related Document.




          Section 6.4 Labor Matters. The Borrower Representative shall give the Administrative
Agent notice (who will distribute the same to the Lenders promptly upon its receipt thereof) of
each of the following (which may be made by telephone if promptly confirmed in writing), promptly
after, and in any event within 30 days after any Responsible Officer of any Loan Party knows: (a)
the commencement of any material labor dispute to which any Group Member is a party, including any
strikes, lockouts or other disputes relating to any of such Person’s plants and other facilities
and (b) the incurrence by any Group Member of any Worker Adjustment and Retraining Notification Act
or related or similar liability incurred with respect to the closing of any plant or other facility
of any such Person (other than, in the case of this clause (b), those that would not, in
the aggregate, be reasonably expected to have a Material Adverse Effect).




          Section 6.5 ERISA-Related Information. The Borrower Representative shall supply to
the Administrative Agent:




          (a) promptly and in any event within 15 days after any ERISA Affiliate files a Schedule B (or
such other schedule as contains actuarial information) to IRS Form 5500 in respect of a Title IV
Plan with Unfunded Pension Liabilities, a copy of such IRS Form 5500 (including the Schedule B);




          (b) promptly and in any event within 30 days after any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a certificate of the chief financial officer of the ERISA
Affiliate describing such ERISA Event and the action, if any, proposed to be taken with respect to
such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA
Event and any notices received by such ERISA Affiliate from the PBGC or any other governmental
agency with respect thereto; provided that, in the case of ERISA Events under paragraph (g) of the
definition thereof, the 30-day period set forth above shall be a 10-day period, and, in the case of
ERISA Events under paragraph (e) of the definition thereof, in no event shall notice be given later
than the occurrence of the ERISA Event; and




          (c) promptly and in any event within 30 days after the adoption of, or the commencement of
contributions to, any Benefit Plan subject to Section 412 of the Code or Title IV of ERISA by any
ERISA Affiliate, or the adoption of any amendment to a Benefit Plan subject to Section 412 of the
Code or Title IV of ERISA which results in a material increase in contribution obligations of any
ERISA Affiliate, a detailed written description thereof from the chief financial officer of such
ERISA Affiliate.




 







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ARTICLE 7

AFFIRMATIVE COVENANTS




          Each of Holdings and each Borrower agrees with the Lenders, the L/C Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other than any Contingent
Loan Document Obligations) or any Commitment remains outstanding:




          Section 7.1 Maintenance of Corporate Existence. Each Group Member shall preserve and
maintain its legal existence, except in the consummation of transactions expressly permitted by
Sections 8.4 and 8.7.




          Section 7.2 Compliance with Laws, Etc. Each Group Member shall comply with all
applicable Requirements of Law, except for such failures to comply that would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.




          Section 7.3 Payment of Obligations. Each Group Member shall pay or discharge before
they become delinquent (a) all material claims, taxes, assessments, charges and levies imposed by
any Governmental Authority and (b) all other material lawful claims that if unpaid would, by the
operation of applicable Requirements of Law, become a Lien upon any property of any Group Member,
except, in each case, for those whose amount or validity is being contested in good faith by proper
proceedings diligently conducted and for which adequate reserves are maintained on the books of the
appropriate Group Member in accordance with GAAP.




          Section 7.4 Maintenance of Property. Each Group Member shall maintain and preserve
(a) in good working order and condition all of its property necessary in the conduct of its
business and (b) all rights, Permits, licenses, approvals and privileges necessary, used or useful,
whether because of its ownership, lease, sublease or other operation or occupation of property or
other conduct of its business, and shall make all necessary or appropriate filings with, and give
all required notices to, Government Authorities, except for such failures to maintain and preserve
the items set forth in clauses (a) and (b) above that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          Section 7.5 Maintenance of Insurance. Each Group Member shall (a) maintain or cause
to be maintained in full force and effect all policies of insurance with respect to the property
and businesses of the Group Members (including policies of life, fire, theft, product liability,
public liability, Flood Insurance, property damage, other casualty, employee fidelity, workers’
compensation, business interruption and employee health and welfare insurance) with financially
sound and reputable insurance companies or associations (in each case that are not Affiliates of
any Borrower) of a nature and providing such coverage as is sufficient and as is customarily
carried by businesses of the size and character of the business of the Group Members, and
(b) cause all such insurance relating to any property or business of any Loan Party to name the
Administrative Agent on behalf of the Secured Parties as additional insured or loss payee, as
appropriate and to provide that insurer will provide 30 days’ prior notice of any cancellation
thereof to the Administrative Agent. Notwithstanding the requirement in subsection (a) above,
Federal Flood Insurance shall not be required for (x) real property not located in a Special Flood
Hazard Area, or (y) real property located in a Special Flood Hazard Area in a community that does
not participate in the National Flood Insurance Program.




 






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          Section 7.6 Keeping of Books. The Group Members shall keep proper Consolidated books
of record and account, in which full, true and correct entries shall be made in accordance with
GAAP and all other applicable Requirements of Law of all material financial transactions and the
assets and business of the Group Members.




          Section 7.7 Access to Books and Property. Each Loan Party (and during the continuance
of a Default, each Group Member) shall permit the Administrative Agent and its Related Persons, as
often as reasonably requested, at any reasonable time during normal business hours, with reasonable
advance notice and with the following right of inspection not to be exercised more frequently than
two (2) separate times during any Fiscal Year of Holdings (except that, during the continuance of
an Event of Default, no such notice shall be required and the Administrative Agent may exercise all
rights hereunder (including the right of inspection) at any and all times during the continuance
thereof) to (a) visit and inspect the property of each Loan Party (and during the continuance of a
Default, each Group Member) and examine and make copies of and abstracts from, the corporate (and
similar), financial, operating and other books and records of each Loan Party (and during the
continuance of a Default, each Group Member), (b) discuss the affairs, finances and accounts of
each Loan Party (and during the continuance of a Default, each Group Member) with any officer or
director of any Loan Party (and during the continuance of a Default, any Group Member) and (c)
communicate directly with any registered certified public accountants (including the Group Members’
Accountants) of any Loan Party (and during the continuance of a Default, each Group Member);
provided, the Loan Parties shall not be responsible for costs and expenses more than twice
per year unless an Event of Default has occurred and is continuing. Each Lender may accompany the
Administrative Agent on any visit or inspection once during any Fiscal Year of Holdings at the
reasonable expense of the Loan Parties and at such Lender’s own expense for any additional visit or
inspection during such Fiscal Year. Each Loan Party (and during the continuance of a Default, each
Group Member) shall authorize their respective registered certified public accountants (including
the Group Members’ Accountants) to communicate directly with the Administrative Agent and its
Related Persons and to disclose to the Administrative Agent and its Related Persons all financial
statements and other documents and information as they might have and the Administrative Agent
reasonably requests with respect to any Loan Party (and during the continuance of a Default, any
Group Member).




          Section 7.8 Environmental. Each Group Member shall comply with, and maintain its real
property, whether owned, leased, subleased or otherwise operated or occupied, in compliance with,
all applicable Environmental Laws (including by implementing any Remedial Action necessary for such
Group Member to achieve such compliance or that is required by orders and directives of any
Governmental Authority) except for failures to comply or maintain that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Without limiting the foregoing, if an
Event of Default is continuing or if the Administrative Agent at any time has a reasonable basis to
believe that there exist violations of Environmental Laws by any Group Member or that there exist
any Environmental Liabilities, in each case, that would have, in the aggregate, a Material Adverse
Effect, then each Group Member shall, promptly upon receipt of request from the Administrative
Agent, cause the performance of, and allow the Administrative Agent and its Related Persons access
to such real property for the purpose of conducting, such reasonable environmental audits and
assessments, including subsurface sampling of soil and groundwater, and cause the preparation of
such reports, in each case as the Administrative Agent may from time to time reasonably request.
Such audits, assessments and reports, to the extent not conducted by the Administrative Agent or
any of its Related Persons, shall be conducted and prepared by reputable environmental consulting
firms




 








83









 







reasonably acceptable to the Administrative Agent and shall be in form and scope reasonably
acceptable to the Administrative Agent.




          Section 7.9 Use of Proceeds. The proceeds of the Loans shall be used by the Borrowers
(and, to the extent distributed to them by the Borrowers, each other Group Member) solely (a) to
consummate the Related Transactions, the Exchange Offer and for the payment of related transaction
costs, fees and expenses, (b) for the payment of transaction costs, fees and expenses incurred in
connection with the Loan Documents and the transactions contemplated therein and (c) for working
capital and general corporate and similar purposes.




          Section 7.10 Additional Collateral and Guaranties. To the extent not delivered to the
Administrative Agent on or before the Closing Date (including in respect of after-acquired property
and Persons that become Subsidiaries of any Loan Party after the Closing Date), each Group Member
shall, promptly, do each of the following, unless otherwise agreed by the Administrative Agent:




          (a) deliver to the Administrative Agent such modifications to the terms of the Loan Documents
(or, to the extent applicable as determined by the Administrative Agent, such other documents), in
each case in form and substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems necessary or advisable in order to ensure the following:





          (i) (A) each Subsidiary of any Loan Party that has entered into Guaranty Obligations
with respect to any Indebtedness of the Borrowers and (B) each Wholly Owned Subsidiary of
any Loan Party shall guaranty, as primary obligor and not as surety, the payment of the
Obligations of the Borrowers; and




          (ii) each Loan Party (including any Person required to become a Guarantor pursuant to
clause (i) above) shall effectively grant to the Administrative Agent, for the
benefit of the Secured Parties, a valid and enforceable security interest in substantially
all of its property as security for the Obligations of such Loan Party, either by
supplement to the Guaranty and Security Agreement or by separate agreement on substantially
the same terms;


provided, however, that, unless the Borrowers and the Administrative Agent
otherwise agree, in no event shall (x) any Excluded Foreign Subsidiary be required to guaranty the
payment of any Obligation, (y) the Loan Parties, individually or collectively, be required to
pledge in excess of 65% of the outstanding Voting Stock of any Excluded Foreign Subsidiary or (z) a
security interest be required to be granted on any property of any Excluded Foreign Subsidiary as
security for any Obligation;




          (b) deliver to the Administrative Agent all certificates representing all Securities pledged
and required to be delivered pursuant to the documents delivered pursuant to clause (a)
above, together with undated powers or endorsements duly executed in blank;




          (c) upon the reasonable request of the Administrative Agent, deliver to it (x) appraisals that
the Administrative Agent or any Lender determines are required to comply with FIRREA, (y) within 45
days of receipt of notice from the Administrative Agent that real property of the Loan Parties
which is subject to a Mortgage is located in a Special Flood Hazard Area, Federal Flood Insurance
as required by Section 7.5, and (z) a Mortgage, in each case on any real




 







84









 







property with a fair market value in excess of $2,000,000 owned by any Loan Party, together
with all Mortgage Supporting Documents relating thereto;




          (d) use commercially reasonable efforts to deliver to the Administrative Agent landlord
waivers for any additional locations where the books and records of the Loan Parties are located;




          (e) reasonably promptly upon the request by the Administrative Agent, take all other actions
necessary or advisable to ensure the validity or continuing validity of any guaranty for any
Obligation or any Lien securing any Obligation, to perfect, maintain, evidence or enforce any Lien
securing any Obligation or to ensure such Liens have the same priority as that of the Liens on
similar Collateral set forth in the Loan Documents as in effect on the Closing Date, including the
filing of UCC financing statements in such jurisdictions as may be required by the Loan Documents
or applicable Requirements of Law or as the Administrative Agent may otherwise reasonably request;
and




          (f) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent
customary legal opinions relating to the matters described in this Section 7.10, which
opinions shall be in form and substance and from counsel reasonably satisfactory to, the
Administrative Agent.




          Section 7.11 Controlled Deposit Accounts and Controlled Securities Accounts. No later
than forty-five days after the Closing Date, or such later date to which the Administrative Agent
may agree in writing, each Loan Party shall (a) deposit all of its cash in deposit accounts that
are Controlled Deposit Accounts, provided, however, that each Group Member may
maintain zero-balance accounts for the purpose of managing local disbursements and may maintain
payroll, withholding tax and other fiduciary accounts and (b) deposit all of its Cash Equivalents
in securities accounts that are Controlled Securities Accounts, in each case except for cash and
Cash Equivalents the aggregate value of which does not exceed $250,000 at any time.




          Section 7.12 Compliance Program. The Group Members shall continue to maintain a
compliance program related to their obligations as a “business associate” of “covered entities,” as
such terms are defined by HIPAA, including employee training and policies and procedures on the
appropriate use and disclosure of protected health information. The Group Members shall revise and
update such compliance program, as appropriate, to take into account any changes in law or
regulation affecting such program in any material respect.




          Section 7.13 Interest Rate Contracts. The Borrower shall, within 90 days after the
Closing Date, enter into and thereafter maintain Interest Rate Contracts on terms and with
counterparties reasonably satisfactory to the Administrative Agent, to provide protection against
fluctuation of interest rates until the second anniversary of the Closing Date for a notional
amount that, when added to the aggregate principal amount of Consolidated Total Debt of Holdings
bearing interest at a fixed rate, equals at least 50% of the aggregate principal amount of the
Consolidated Total Debt of Holdings (excluding Revolving Loans and Swingline Loans).




          Section 7.14 Post Closing Covenant.




          (a) Not later than thirty days after the Closing Date, or such later date to which the
Administrative Agent may agree in writing, the Loan Parties shall have delivered to the




 








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Administrative Agent a copy of each Constituent Document of CBay India that is on file with
any Governmental Authority in India, certified as of a recent date by such Governmental Authority.




          (b) Not later than forty-five days after the Closing Date, or such later date to which the
Administrative Agent may agree in writing, the Loan Parties shall have complied with the
requirements of Section 7.11.




          (c) Not later than forty-five days after the Closing Date, or such later date to which the
Administrative Agent may agree in writing, the Loan Parties shall have complied with the
requirements of Section 7.10(d) with respect to locations where books and records of the
Loan Parties are maintained.




ARTICLE 8

NEGATIVE COVENANTS




          Each of Holdings and each Borrower agrees with the Lenders, the L/C Issuers and the
Administrative Agent to each of the following, as long as any Obligation (other than any Contingent
Loan Document Obligations) or any Commitment remains outstanding:




          Section 8.1 Indebtedness. No Group Member shall incur or otherwise remain liable with
respect to, any Indebtedness except for the following:




          (a) the Obligations;




          (b) Indebtedness existing on the Signing Date and set forth on Schedule 8.1, together
with any Permitted Refinancing thereof;




          (c) Indebtedness consisting of Capitalized Lease Obligations (other than with respect to a
lease entered into as part of a Sale and Leaseback Transaction) and purchase money Indebtedness to
finance the acquisition, repair, improvement or construction of fixed or capital assets of such
Group Member, in each case incurred by any Group Member (other than Holdings) together with any
Permitted Refinancing thereof; provided, however, that (i) the aggregate
outstanding principal amount of all such Indebtedness permitted under this clause (c) does
not exceed $5,000,000 (plus $1,000,000 per Fiscal Year occurring after the 2010 Fiscal Year) at any
one time and (ii) the principal amount of such Indebtedness does not exceed the lower of the cost
or fair market value (calculated at the time an acquisition, repair, improvement or construction is
made) of the property so acquired or built or of such repairs or improvements financed, whether
directly or through a Permitted Refinancing, with such Indebtedness;




          (d) Capitalized Lease Obligations incurred by any Group Member (other than Holdings) arising
under Sale and Leaseback Transactions involving the sale of assets permitted hereunder in reliance
upon Sections 8.4(d) or (e);




          (e) Indebtedness owed by one Group Member to any other Group Member to the extent that the
resulting Investment held by the payee of such Indebtedness constitutes a Permitted Investment
under Section 8.3(e);




 








86









 








          (f) (i) obligations under Interest Rate Contracts entered into to comply with Section
7.13 and (ii) obligations under Hedging Agreements entered into in the Ordinary Course of
Business and not for speculation;




          (g) Guaranty Obligations of any Group Member with respect to Indebtedness of any Group Member
(except with respect to Permitted Refinancings, for which Guaranty Obligations are permitted only
to the extent set forth in the definition thereof), to the extent that such Guaranty constitutes a
Permitted Investment under Section 8.3(e);




          (h) Indebtedness of any Group Member (other than Holdings) in respect of performance bonds,
bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar
obligations, in each case, that are incurred in the Ordinary Course of Business and not in
connection with the borrowing of money or Hedging Agreement;




          (i) Indebtedness of any Group Member consisting of (i) obligations to pay insurance premiums,
or (ii) take or pay obligations contained in supply agreements, in each case, with such obligations
arising in the Ordinary Course of Business and not in connection with the borrowing of money or
Hedging Agreements;




          (j) Indebtedness evidenced by the Subordinated Notes;




          (k) unsecured Indebtedness of any Group Member representing deferred compensation to
employees, consultants or independent contractors of a Group Member incurred in the Ordinary Course
of Business, or of a Person whose liability for such compensation has been assumed pursuant to a
Permitted Acquisition;




          (l) Indebtedness in respect of automatic clearing house arrangements, employee issued credit
or purchase cards and overdraft protections, in each case, incurred in the Ordinary Course of
Business by any Group Member, provided that (i) such Indebtedness (other than credit or
purchase cards) is extinguished within ten (10) Business Days of its incurrence and (ii) such
Indebtedness in respect of credit or purchase cards is extinguished within sixty (60) days of its
incurrence;




          (m) Indebtedness of Excluded Foreign Subsidiaries, provided that such Indebtedness is
for working capital or general corporate purposes in an aggregate principal amount not to exceed
$7,000,000 at any time outstanding;




          (n) to the extent constituting Indebtedness, any earn-out or similar obligations of any Group
Member incurred in connection with Permitted Acquisitions;




          (o) Indebtedness, and any Permitted Refinancing thereof, (i) of a Person which became a Group
Member after the Closing Date that existed at the time such Person became a Group Member, provided
that such Indebtedness was not incurred in contemplation of such Person becoming a Group Member or
(ii) otherwise incurred in connection with a Permitted Acquisition and subordinated to the
Obligations on terms and conditions reasonably acceptable to the Administrative Agent;
provided, however, that all such Indebtedness under this clause (o) shall not
exceed $5,000,000 in the aggregate at any time outstanding;




          (p) other Indebtedness of any Group Member (other than Holdings) not exceeding in the
aggregate at any time outstanding $1,500,000;




 






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          (q) Indebtedness of Holdings or MedQuist owing to former officers, directors, consultants and
employees (or any spouses, ex-spouses or estates of any of the foregoing) of a Group Member
incurred in connection with the repurchase of Stock and Stock Equivalents of Holdings or MedQuist
that have been issued to such Persons, provided that the amount of such Indebtedness
pursuant to this clause (q) shall not exceed an aggregate outstanding principal balance of
$5,000,000 at any time, and the Indebtedness pursuant to this clause (q) shall be
subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative
Agent; and




          (r) all customary premiums (if any), interest (including post-petition interest), fees,
expenses, charges and additional or contingent interest on Indebtedness described in each of
Sections 8.1(a) through (q) above.




          Section 8.2 Liens. No Group Member shall incur, maintain or otherwise suffer to exist
any Lien upon or with respect to any of its property, whether now owned or hereafter acquired,
except for the following:




          (a) Liens created pursuant to any Loan Document;




          (b) Customary Permitted Liens of Group Members;




          (c) Liens existing on the Signing Date and set forth on Schedule 8.2;




          (d) Liens on the property of any Group Member (other than Holdings) securing Indebtedness of
such Group Member permitted hereunder in reliance upon Section 8.1(c); provided,
however, that (i) such Liens exist prior to the acquisition of, or attach substantially
simultaneously with, or within 90 days after, the acquisition, repair, improvement or construction
of, such property financed, whether directly or through a Permitted Refinancing, by such
Indebtedness and (ii) such Liens do not extend to any property of any Group Member other than the
property (and proceeds thereof) acquired or built, or the improvements or repairs, financed,
whether directly or through a Permitted Refinancing, by such Indebtedness;




          (e) Liens on the property of Group Members securing the Permitted Refinancing of any
Indebtedness secured by any Lien on such property permitted hereunder in reliance upon clause
(c) or (d) above or this clause (e) without any change in the property subject
to such Liens;




          (f) Liens with respect to the Property of any Excluded Foreign Subsidiary securing
Indebtedness of such Excluded Foreign Subsidiary that is permitted under Section 8.1(m);




          (g) Liens with respect to Indebtedness permitted under Section 8.1(e) and (g),
provided that (i) such Liens shall be expressly subordinated in all respects to the Liens
securing the Obligations on terms reasonably satisfactory to the Administrative Agent, (ii) any
Indebtedness owing by a Loan Party to a Person who is not a Loan Party shall not be secured at any
time and (iii) any Guaranty Obligation of a Subsidiary that is not a Loan Party may not be secured
by Property of any other Loan Party;




          (h) Liens on Property which is the subject of a Capitalized Lease Obligation permitted by
Section 8.1(d);




 








88









 








          (i) Liens on Property acquired in connection with a Permitted Acquisition that was subject to
such Lien prior to such Permitted Acquisition to the extent such Lien was not made in connection
with or in contemplation of such Permitted Acquisition and which only secures Indebtedness
permitted to be assumed in connection with such Permitted Acquisition or any Permitted Refinancing
thereof; and




          (j) Liens on Property of Group Members not otherwise permitted by this Section 8.2 so
long as the aggregate principal amount of Indebtedness and other obligations secured thereby does
not exceed $1,000,000 at any time.




          Section 8.3 Investments. No Group Member shall make or maintain any Investment except
for the following:




          (a) Investments existing on the Signing Date and set forth on Schedule 8.3;




          (b) Investments in cash and Cash Equivalents;




          (c) (i) endorsements for collection or deposit in the Ordinary Course of Business consistent
with past practice, (ii) extensions of trade credit arising or acquired in the Ordinary Course of
Business and (iii) Investments acquired in connection with the settlement of delinquent accounts
arising in the Ordinary Course of Business, in connection with the bankruptcy or reorganization of
suppliers or customers or as security for such claims, or upon the foreclosure by a Loan Party of
its Lien with respect to any secured Investment;




          (d) Investments by Loan Parties made as part of a Permitted Acquisition and Investments held
by any Person acquired as part of a Permitted Acquisition (and not made in connection with or in
contemplation of such Permitted Acquisition);




          (e) Investments by (i) any Loan Party in or to any other Loan Party (other than Holdings,
except to the extent such Investment could be made as a Restricted Payment to Holdings), (ii) any
Loan Party in or to a Group Member which is not a Loan Party not to exceed, for all such
Investments, (x) $4,000,000 in the aggregate outstanding at any time when the Consolidated Total
Leverage Ratio of Holdings is equal to or greater than 1.50:1.00 and (y) $4,000,000 plus Additional
Available Cash at any time when the Consolidated Total Leverage Ratio of Holdings is less than
1.50:1.00 or (iii) a Group Member who is not a Loan Party to another Group Member; provided
that (x) if the Investments described in foregoing clauses (i) or (ii) are
extensions of credit evidenced by notes, such notes shall be pledged and delivered to the
Administrative Agent, for the benefit of the Secured Parties and (y) any Investment constituting an
extension of credit to a Loan Party described in clause (i) or (iii), is expressly
subordinated to the repayment of the Obligations;




          (f) loans and advances to officers, directors, consultants and employees of a Group Member
(i) to finance the purchase of Stock and Stock Equivalents of Holdings or
MedQuist, provided that the amount of such loans and advances used to acquire such Stock
and Stock Equivalents shall not exceed an aggregate outstanding principal balance of $500,000 at
any time, (ii) for reasonable and customary business related travel expenses, entertainment
expenses and moving expenses, and similar expenses, in each case, incurred in the Ordinary Course
of Business and with loans and advances for all such expenses not to exceed $500,000 in the
aggregate outstanding at any time, and (iii) for additional purposes not contemplated by clause
(i)




 







89









 







or (ii) above, provided that the aggregate principal amount at any time
outstanding with respect to this clause 8.3(f)(iii) shall not exceed $500,000;




          (g) Investments received as the non-cash portion of consideration received in connection with
transactions permitted pursuant to Sections 8.4(a), (d) or (e);
provided that the aggregate principal amount at any time outstanding with respect to such
Investments received under Section 8.4(a) shall not exceed $1,000,000;




          (h) Investments made to repurchase or retire Stock or Stock Equivalents of Holdings (or any
direct or indirect parent thereof) or MedQuist in accordance with Section 8.5(d);




          (i) Guarantees by a Group Member of leases (other than of Capital Leases) or of other
obligations that do not constitute Indebtedness, in each case, entered into in the Ordinary Course
of Business;




          (j) Guarantees permitted under Section 8.1;




          (k) advances made in connection with purchases of goods or services in the Ordinary Course of
Business;




          (l) deposits of cash made in the Ordinary Course of Business to secure performance of
operating leases;




          (m) Investments in Hedging Agreements and Interest Rate Contracts permitted under Section
8.1(f);




          (n) Investments in the common Stock of MedQuist made in connection with the Exchange Offer;
and




          (o) other Investments not exceeding (i) $2,000,000 in the aggregate since the Signing Date
plus (ii) Additional Available Cash to the extent the Consolidated Total Leverage Ratio of Holdings
both before and after giving effect to such Investment is less than 1.50:1.00.




          Section 8.4 Asset Sales. No Group Member shall Sell any of its Property (other than
cash), enter into any Sale and Leaseback Transaction or (other than with respect to Holdings) issue
shares of its own Stock, except for the following:




          (a) In each case to the extent entered into in the Ordinary Course of Business (i) obsolete,
worn-out, used or surplus Property to the extent such Property is not necessary for the operation
of the Group Members’ businesses; (ii) inventory, equipment and goods sold; and (iii) cash and Cash
Equivalents;




          (b) (i) any Sale of any property by (A) any Loan Party to any other Loan Party
(other than Holdings, except to the extent that such property could be distributed as a Restricted
Payment to Holdings) and (B) any Group Member that is not a Loan Party to any other Group Member
that is not a Loan Party, (ii) any Sale by any Loan Party to a Group Member that is not a Loan
Party and any Sale by a Group Member that is not a Loan Party to any Loan Party provided that all
such Sales do not exceed in the aggregate (x) $1,000,000 for all such sales made at any time when
the Consolidated Total Leverage Ratio of Holdings is equal to or greater than 1.5:1.0, (y)
$5,000,000 for all such sales made at any time when the Consolidated Total Leverage




 







90









 







Ratio of Holdings is equal to or greater than 1.0:1.0 and less than 1.5:1.0 and (z)
$10,000,000 for all such sales at any time when the Consolidated Total Leverage Ratio of Holdings
is less than 1.0:1.0, and provided further that to the extent any such Sale under this clause
(ii) is not for fair market value, the resulting Investment by such Loan Party constitutes a
Permitted Investment under Sections 8.3(e) or (o), (iii) any Restricted Payment by
any Group Member permitted pursuant to Section 8.5 and (iv) any distribution by Holdings of
the proceeds of Restricted Payments from any other Group Member to the extent permitted in
Section 8.5;




          (c) (i) any Sale or issuance by Holdings of its own Stock, (ii) any Sale or issuance by any
Group Member of its own Stock to any Loan Party, or by any Group Member that is not a Loan Party to
another Group Member that is not a Loan Party to the extent that the resulting Investment is a
Permitted Investment under Section 8.3(e); provided, however, that the
proportion of the Stock of any Group Member (both on an outstanding and fully-diluted basis) held
by the Loan Parties, taken as a whole, and pledged to the Administrative Agent is not reduced as a
result of such Sale or issuance and (iii) to the extent necessary to satisfy any Requirement of Law
in the jurisdiction of incorporation of any Group Member, any Sale or issuance by such Group Member
of its own Stock constituting directors’ qualifying shares or nominal holdings;




          (d) dispositions of Property not otherwise permitted hereunder that are made for fair market
value; provided, that (i) at the time of any disposition, no Default or Event of Default
shall exist or shall result from such disposition, (ii) not less than 75% of the aggregate sales
price from such disposition shall be paid in cash or Cash Equivalents, (iii) the aggregate fair
market value of all Property so sold by the Group Members, together, shall not exceed in any Fiscal
Year the greater of (x) one percent (1%) of the total assets of the Group Members reflected on the
Financial Statements delivered to the Administrative Agent in accordance with Section 6.1
for the preceding Fiscal Year, and (y) $2,500,000 and (iv) after giving effect to such disposition,
the Loan Parties are in compliance on a pro forma basis with the covenants set forth in Article
5, recomputed for the most recent Fiscal Quarter for which Financial Statements have been
delivered;




          (e) other dispositions of Property the fair market value of which shall not exceed, in the
aggregate, $500,000;




          (f) any (i) sale or discounting of accounts receivable arising in the Ordinary Course of
Business in connection with the compromise or collection thereof and (ii) involuntary sale,
transfer, assignment or other disposition resulting from a Property Loss Event upon the receipt of
the applicable net proceeds for such Property Loss Event;




          (g) licenses, sublicenses, leases or subleases granted in the Ordinary Course of Business not
interfering with the business of the Group Members in any material respect;




          (h) Property to the extent that (i) such Property is exchanged for credit against the purchase
price of similar replacement Property or (ii) the proceeds of such disposition are promptly applied
to the purchase price of such replacement Property, in each case, provided that to the
extent the Property being transferred constitutes Collateral, such replacement Property shall be
made subject to the Liens arising under the Loan Documents;




          (i) the Group Members may effect any transaction permitted by Section 8.3, 8.5
or 8.7;




 






91









 








          (j) lease of any tangible Property and licensing or contribution of Intellectual Property
pursuant to joint marketing arrangements with other Persons, in each case, in the Ordinary Course
of Business;




          (k) the RCM Sale;




          (l) the A-Life Sale; and




          (m) dispositions of any Property between or among the Group Members as a substantially
concurrent interim disposition in connection with a disposition of such Property otherwise
permitted pursuant to clauses (a) through (k) above.




          Section 8.5 Restricted Payments. No Group Member shall declare, pay or make any
Restricted Payment except for the following (and Holdings shall not use the proceeds of any
Restricted Payment made in reliance under clause (c) below other than as set forth in such
clause (c)):




          (a) Restricted Payments (i) by a Loan Party to any Loan Party other than Holdings (except as
otherwise permitted under any other clause of this Section 8.5) and (ii) by any Group
Member that is not a Loan Party to any Group Member;




          (b) dividends and distributions declared and paid on the common Stock of any Group Member
ratably to the holders of such common Stock and payable only in common Stock of such Group Member;




          (c) cash dividends or distributions on the Stock of the Group Members (other than Holdings) to
Holdings paid and declared solely for the purpose of funding the following:





     (i) payments by Holdings in respect of taxes then due and owing by Holdings in
respect of the other Group Members;




     (ii) ordinary operating expenses of Holdings; provided, however, that the
amount of such cash dividends paid in any Fiscal Year shall not exceed $6,000,000
in the aggregate;




     (iii) payments with respect to withholding or similar taxes payable or
expected to be payable by or with respect to any present or former employee,
director, manager or consultant (or their respective Affiliates, estates or
immediate family members) for any repurchases of Stock or Stock Equivalents in
Holdings including deemed repurchases in connection with the exercise of stock
options, provided in each case that payments made under this clause (iii)
shall not exceed $500,000 in the aggregate; and




     (iv) to pay the consideration necessary to consummate any Permitted
Acquisition in accordance with the agreements evidencing such Permitted
Acquisition;



 







92









 







provided, however, that no action that would otherwise be permitted hereunder in
reliance upon this clause (c) (other than clause (i) or (ii) above) shall
be permitted if a Default is then continuing or would result therefrom;




          (d) the Group Members may redeem, acquire, retire or repurchase (and the Group Members may
declare and pay cash Restricted Payments to another Group Member (or any direct or indirect parent
thereof), the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of
Stock or Stock Equivalents of Holdings or any Excluded Foreign Subsidiary (or any options or
warrants or stock appreciation rights issued with respect to any of such Stock or Stock
Equivalents) (or to allow Holdings (or any direct or indirect parent thereof) or any Excluded
Foreign Subsidiary to so redeem, retire, acquire or repurchase its Stock or Stock Equivalents) held
by current or former officers, managers, consultants, directors and employees (or their respective
spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of
a Group Member (or any direct or indirect parent thereof), with the proceeds of cash Restricted
Payments from a Group Member, upon the death, disability, retirement or termination of employment
of any such Person or otherwise in accordance with any stock option or stock appreciation rights
plan, any management, director and/or employee stock ownership or incentive plan, stock
subscription plan, employment termination agreement or any other employment agreements or equity
holders’ agreement; provided that





     (i) no Default or Event of Default has occurred and is continuing or would
arise as a result of such Restricted Payment;




     (ii) the aggregate Restricted Payments permitted in any fiscal year of
Holdings shall not exceed $5,000,000; and




     (iii) with respect to any redemption of Stock or Stock Equivalents in an
Excluded Foreign Subsidiary or Stock or Stock Equivalents held by current or former
officers, managers, consultants, directors and employees (or their respective
spouses, former spouses, successors, executors, administrators, heirs, legatees or
distributees) of an Excluded Foreign Subsidiary, such Restricted Payment shall be
funded solely by such Excluded Foreign Subsidiary or with the proceeds of an
Investment in such Excluded Subsidiary permitted under Section 8.3 hereof;



          (e) Holdings may redeem in whole or in part any of its Stock or Stock Equivalents for another
class of Stock or Stock Equivalents of Holdings or rights to acquire Stock or Stock Equivalents in
Holdings, provided that (i) the funds used to effect such redemption shall be provided
solely from concurrent equity contributions or issuances of new shares of Holdings’ Stock or Stock
Equivalents and (ii) any terms and provisions material to the interests of the Secured Parties,
when taken as a whole, contained in such other class of Stock or Stock Equivalents are at least as
advantageous to the Secured Parties as those contained in the Stock or Stock Equivalents redeemed
thereby; and




          (f) Restricted Payments by the Group Members to fund Investments permitted by Sections
8.3(e) or (o);




          (g) cash dividends and distributions by any Group Member to fund indemnification payments owed
by Holdings to selling shareholders under stockholders or registration rights agreements entered
into in connection with the Exchange Offer or the Holdings




 







93









 







IPO or owed by Holdings under the Sponsor Consulting Agreement; provided, that at the
time of any such dividend or distribution, no Default or Event of Default shall exist or shall
result therefrom;




          (h) repurchases of Stock of selling shareholders other than CBay in connection with the
Exchange Offer or the Holdings IPO for consideration not to exceed $5,000,000 in the aggregate;
provided, that at the time of any such repurchase, no Default or Event of Default shall
exist or shall result therefrom;




          (i) cash dividends and distributions by any Group Member to fund Holdings’ obligation arising
under the Sponsor Consulting Agreement to reimburse Sponsor and Lehman for out-of-pocket expenses
not to exceed $250,000 per Fiscal Year; provided, that at the time of any such dividend or
distribution, no Default or Event of Default shall exist or shall result therefrom; and




          (j) other Restricted Payments by the Group Members not to exceed $500,000 in the aggregate
during the term of this Agreement plus, to the extent the Consolidated Total Leverage Ratio of
Holdings is less than 1.00:1.00 both before and after giving effect to such Restricted Payment and
any Indebtedness incurred in connection therewith, Additional Available Cash; provided,
that at the time any such Restricted Payment is made no Default or Event of Default shall exist or
shall result therefrom.




          Section 8.6 Prepayments of Indebtedness Under Subordinated Notes. No Group Member
shall (a) prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
date thereof any Indebtedness evidenced by Subordinated Note Documents, (b) set apart any property
for such purpose, whether to a sinking fund, a similar fund or otherwise, or (c) make any payment
in violation of any subordination provisions applicable thereto; provided, however,
that each Group Member may, in each case to the extent permitted under the Subordination Agreement,
(i) make regularly scheduled or otherwise required repayments or redemptions of Indebtedness
evidenced by Subordinated Note Documents and (ii) to the extent no Default or Event of Default
exists or would result therefrom, make optional prepayments or redemptions of Indebtedness
evidenced by Subordinated Note Documents with Additional Available Cash to the extent that the
Consolidated Total Leverage Ratio of Holdings is less than 1.50:1.00 prior to giving effect to any
such prepayment or redemption.




          Section 8.7 Fundamental Changes. No Group Member shall merge, consolidate or
amalgamate with any Person, or liquidate or dissolve, except for the following:




          (a) to consummate any Permitted Acquisition;




          (b) a Loan Party may merge, amalgamate or consolidate with, or dissolve or liquidate into any
other Loan Party (other than Holdings), or may merge, amalgamate or consolidate with any other
Person that is incorporated or otherwise organized under the laws of a state of the United States
of America, provided that (i) a Borrower shall be the continuing or surviving entity, or if
a Borrower is not involved with such merger, amalgamation or consolidation, such Guarantor or such
other Person, as the case may be, shall be the continuing or surviving entity, (ii) if such other
Person constitutes the continuing or surviving entity, it shall have become a Guarantor
simultaneously with such transaction and satisfied the requirements of Section 7.10,
(iii) no Default or Event of Default shall have occurred and be continuing at the date of such
merger, amalgamation, consolidation, dissolution or liquidation or would result




 







94









 







therefrom and (iv) the Administrative Agent shall have a first priority Lien on all of the
Stock and all Stock Equivalents on a fully diluted basis in the surviving Borrower, Guarantor or
such other Person and on all Property of the surviving Borrower or Guarantor or to the extent
required by Section 7.10, such other Person;




          (c) Holdings may merge, amalgamate or consolidate with, or dissolve or liquidate into, any
other Loan Party; provided that (i) no Default or Event of Default shall have occurred and
be continuing at the date of such merger, amalgamation consolidation, dissolution or liquidation or
would result therefrom, (ii) Holdings shall be the surviving entity and after giving effect to such
merger, amalgamation consolidation, dissolution or liquidation Holdings shall be in compliance with
the requirements of Section 8.8(b) and (iii) the requirements of Section 7.10 shall
have been satisfied;




          (d) any Excluded Foreign Subsidiary may merge, amalgamate or consolidate with, or dissolve or
liquidate into, another Excluded Foreign Subsidiary, provided that no Default or Event of
Default shall have occurred and be continuing at the date of such merger, amalgamation
consolidation, dissolution or liquidation or would result therefrom and the requirements of
Section 7.10 shall have been satisfied;




          (e) any Guarantor (other than Holdings) may merge, amalgamate or consolidate with or into any
Group Member that is not a Loan Party; provided that if such Guarantor is not the surviving
entity or the surviving entity has not satisfied the requirements of Section 7.10, such
merger, amalgamation or consolidation shall be deemed to be an “Investment” and subject to the
limitations set forth in Section 8.3(e) or (o);




          (f) any Group Member (other than Holdings or a Borrower) may liquidate or dissolve if (x) the
Borrowers determine in good faith that such liquidation or dissolution is in the best interests of
the Borrowers and is not materially disadvantageous to the Lenders and (y) to the extent such Group
Member is a Guarantor, any Property not otherwise disposed of or transferred in accordance with
Sections 8.3 or 8.4, or, in the case of any such business of such Group Member
discontinued, such business, shall be transferred to, or otherwise owned or conducted by, another
Guarantor or a Borrower after giving effect to such liquidation or dissolution




          (g) Holdings may convert to a Delaware corporation pursuant to the provisions of Section 265
of the Delaware Corporation Law; and




          (h) to the extent not otherwise permitted by this Section 8.7, the Group Members may
consummate (i) a merger, dissolution, liquidation, consolidation or amalgamation, the purpose of
which is to effect a disposition permitted pursuant to Section 8.4 or (ii) a merger the
purpose of which is to effect an Investment permitted pursuant to Section 8.3,
provided that, in each case, (x) no Default or Event of Default would result from the
consummation thereof, (y) if such merger, dissolution, liquidation, consolidation or amalgamation
undertaken to effect an Investment pursuant to clause (ii) above involves a Borrower or a
Guarantor, such Borrower, or if a Borrower is not involved, such Guarantor, shall be the continuing
or surviving entity and (z) the parties shall have satisfied the requirements of Section
7.10.




          Section 8.8 Change in Nature of Business. (a) No Group Member (other than Holdings)
shall engage in any material line of business substantially different from those lines of business
carried on by it on the Signing Date or any business reasonably related thereto, complementary
thereto, ancillary thereto or a reasonable extension thereof.




 








95









 








          (b) Holdings, and prior to the MedQuist Consolidation Date, MedQuist, shall not engage in any
business activities or own any Property other than (i) ownership of the Stock and Stock Equivalents
of its Subsidiaries or as permitted under Section 8.3, (ii) activities incidental to
maintenance of its corporate existence or as otherwise permitted under this Agreement (including
the payment of tax payables and other corporate overhead expenses), (iii) the Related Transactions,
the Exchange Offer and the Holdings IPO, (iv) performing its obligations incidental to any of the
foregoing under the Loan Documents, other Indebtedness permitted by this Agreement and
documentation entered into in connection with the Related Transactions, the Exchange Offer, the
Holdings IPO or any Permitted Acquisition or Investment permitted by Section 8.3, (v)
entering into and consummating transactions expressly permitted under this Agreement and (vi)
making Restricted Payments permitted by Section 8.5.




          Section 8.9 Transactions with Affiliates. No Group Member shall, except as otherwise
expressly permitted herein, enter into any other transaction with, or for the benefit of, any
Affiliate of any Borrower that is not a Loan Party (including Guaranty Obligations with respect to
any obligation of any such Affiliate), except for:




          (a) transactions expressly permitted by this Agreement;




          (b) transactions among Loan Parties;




          (c) transactions among Group Members that are not Loan Parties;




          (d) tax sharing arrangements on customary terms entered into among the Group Members to
provide for the allocation of the tax liability to be discharged with a Restricted Payment under
Section 8.5(c)(i);




          (e) any issuance of Stock or Stock Equivalents in Holdings, or other payments, awards or
grants in cash or Stock or Stock Equivalents of Holdings pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the board of directors of
Holdings and in accordance with Requirements of Law, and any issuance of Stock of MedQuist upon the
exercise of stock options existing on the Signing Date;




          (f) employment and severance arrangements and health, disability and similar insurance or
benefit plans between Group Members and their respective directors, officers, employees (including
management and employee benefit plans or agreements, subscription agreements or similar agreements
pertaining to the repurchase of Stock and Stock Equivalents pursuant to put/call rights or similar
rights with current or former employees, officers or directors and stock option or incentive plans
and other compensation arrangements) in the Ordinary Course of Business or as otherwise approved by
the board of directors of the applicable Group Member;




          (g) payment of reasonable compensation to officers and employees for actual services rendered
to Group Members (other than an Excluded Foreign Subsidiary unless such payment is funded solely by
such Excluded Foreign Subsidiary or with the proceeds of an Investment in such Excluded Foreign
Subsidiary permitted under Section 8.3 hereof) in the Ordinary Course of Business;




          (h) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities
provided on behalf of, directors, managers, consultants (other than Sponsor or its




 







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Affiliates), officers and employees of Group Members in the Ordinary Course of Business to the
extent attributable to the ownership or operation of any Group Member (other than an Excluded
Foreign Subsidiary unless such payment is funded solely by such Excluded Foreign Subsidiary or with
the proceeds of an Investment in such Excluded Foreign Subsidiary permitted under Section
8.3);




          (i) the Related Transactions, the Exchange Offer, the Holdings IPO and the payment of expenses
(subject to the limitations set forth in clauses (j) and (k) below with respect to
the expenses described therein) with respect thereto;




          (j) reimbursement of expenses of selling shareholders by Holdings required under stockholders
or registration rights agreements entered into in connection with the Exchange Offer or the
Holdings IPO in an aggregate amount not to exceed $2,500,000; provided, that at the time of
any such payment, no Default or Event of Default shall exist or shall result therefrom;




          (k) payments by Holdings to the Sponsor or directors of Holdings designated by the Sponsor
required under agreements to be entered into by Holdings in connection with the Exchange Offer or
the Holdings IPO in an aggregate amount not to exceed $12,000,000; provided, that at the
time of any such payment, no Default or Event of Default shall exist or shall result therefrom;




          (l) transactions pursuant to permitted agreements in existence or contemplated on the Signing
Date and set forth on Schedule 8.9 or any amendment thereto to the extent such an amendment
is not adverse, taken as a whole, to the Secured Parties in any material respect;




          (m) Restricted Payments permitted under Section 8.5;




          (n) mergers, consolidations, amalgamations, liquidations and dissolutions permitted under
Section 8.7;




          (o) Investments permitted by Section 8.3;




          (p) payments to the Sponsor or Lehman in the Stock of Holdings under the Sponsor Consulting
Agreement to satisfy the remaining fees payable thereunder;




          (q) payments to Sponsor or shareholders of any Group Member to the extent such payments could
be made as Restricted Payments under Sections 8.5(g), (h) and (i); and




          (r) all other transactions entered into pursuant to the reasonable requirements of the
business of such Group Member upon fair and reasonable terms substantially as favorable to such
Group Member as would be obtained in a comparable arm’s length transaction with a Person not an
Affiliate of any Group Member.




          Section 8.10 Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted
Payments. No Group Member shall incur or otherwise suffer to exist or become effective any
Contractual Obligation limiting the ability of (a) any Subsidiary of Holdings to make Restricted
Payments to, or loans or advances to, or repay Indebtedness or Sell property to, any Group Member
which is a direct or indirect parent entity of such Subsidiary or (b) any Group Member to incur or
suffer to exist any Lien upon any property of any Group Member, whether




 







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now owned or hereafter acquired, securing any of its Obligations (including any “equal and
ratable” clause and any similar Contractual Obligation requiring, when a Lien is granted on any
property, another Lien to be granted on such property or any other property), except, for each of
clauses (a) and (b) above, (i) in connection with any document or instrument
governing Liens permitted pursuant to Section 8.2(d) (provided that any such restriction
contained therein relates only to the Property or Properties subject to such permitted Liens), (ii)
Contractual Obligations that exist on the Signing Date and (to the extent not otherwise permitted
by this Section 8.10 are listed on Schedule 8.10 hereto) any refinancings and
extensions of any such Contractual Obligations if the terms and conditions thereof, taken as a
whole, do not materially expand the scope of such limitation, (iii) Contractual Obligations
representing Indebtedness of a Group Member that is not a Guarantor to the extent such Indebtedness
is permitted by Section 8.1, (iv) Contractual Obligations that are customary provisions in
joint venture agreements and other similar agreements applicable to joint ventures permitted under
this Agreement, that is applicable solely to such joint venture, (v) Contractual Obligations that
are binding on a Group Member at the time such Group Member first becomes a Group Member, so long
as such Contractual Obligations were not entered into in contemplation of such Person becoming a
Group Member, (vi) Contractual Obligations that arise pursuant to agreements entered into with
respect to any sale, transfer, lease or other disposition of Property or a Person permitted by
Section 8.4 and apply solely to the Property or Person to be so sold, transferred, leased
or otherwise disposed of, (vii) Contractual Obligations that are customary restrictions on leases,
subleases, licenses or asset sale agreements otherwise permitted hereby so long as such
restrictions relate only to the Property subject thereto, (viii) Contractual Obligations that are
customary provisions restricting subletting or assignment of any lease governing a leasehold
interest of a Group Member, (ix) Contractual Obligations that are customary provisions restricting
assignment of an agreement entered into in the Ordinary Course of Business, (x) customary net worth
provisions contained in real property leases entered into by a Group Member, so long as the
Borrowers have determined in good faith that such net worth provisions could not reasonably be
expected to impair the ability of the Group Members to meet their respective ongoing obligations
and (xi) restrictions contained in the Loan Documents.




          Section 8.11 Modification of Certain Documents. No Group Member shall do any of the
following:




          (a) waive or otherwise modify any term of any Constituent Document of any Loan Party
(including the terms of any of their outstanding Stock or Stock Equivalents), except for those
modifications and waivers that do not adversely affect the interests of the Lenders;




          (b) waive or otherwise modify any term of any Subordinated Note Document if the effect thereof
is to (i) increase the yield other than as expressly permitted under the Subordination Agreement,
(ii) change the due dates for principal or interest, other than to extend such dates, (iii) modify
any default or event of default, other than to delete it or make it less restrictive, (iv) add any
covenant with respect thereto, (v) modify any subordination provision, (vi) modify any redemption
or prepayment provision, other than to extend the dates therefor or to reduce the premiums payable
in connection therewith or (vii) increase any obligation of any Group Member or confer additional
rights to the holders of the Subordinated Notes in a manner materially adverse to any Group Member
or any Secured Party;




          (c) waive or otherwise modify any term of any Material Agreement except for those
modifications and waivers that would not reasonably be expected to have a Material Adverse Effect;
and




 






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          (d) permit any Indebtedness (other than the Obligations) to qualify as “Senior Debt” or any
similar concept under the Subordinated Note Documents or permit the Obligations to cease qualifying
as such.




          Section 8.12 Fiscal Year. No Group Member shall change its Fiscal Year or its method
for determining Fiscal Quarters or fiscal months.




          Section 8.13 Margin Regulations. No Group Member shall use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry margin stock (within the meaning of
Regulation U of the Federal Reserve Board) in contravention of Regulation U of the Federal Reserve
Board.




          Section 8.14 Compliance with ERISA. No ERISA Affiliate shall cause or suffer to exist
(a) any event that could result in the imposition of a Lien with respect to any Title IV Plan or
Multiemployer Plan or (b) any other ERISA Event, that would, in the aggregate, be reasonably
expected to have a Material Adverse Effect. No Group Member shall cause or suffer to exist any
event that could result in the imposition of a Lien with respect to any Benefit Plan.




          Section 8.15 Hazardous Materials. No Group Member shall cause or allow any Release of
any Hazardous Material at, to or from any real property owned, leased, subleased or otherwise
operated or occupied by any Group Member that would violate any Environmental Law, form the basis
for any Environmental Liabilities, other than such violations, Environmental Liabilities and
effects that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




Notwithstanding anything contained in this Article 8, during the period commencing on the
Signing Date until, but excluding, the Closing Date, the Group Members shall not be obligated to
comply with the covenants in this Article 8 to the extent such covenants would result in a
breach of or cause a default under any other Contractual Obligation to which the Group Members are
party which was (i) in place on the Signing Date, (ii) not entered into in contemplation of
entering into this Agreement or the other Loan Documents and (iii) not a Contractual Obligation to
which only the Group Members are a party.




ARTICLE 9

EVENTS OF DEFAULT




          Section 9.1 Definition. Each of the following shall be an Event of Default:




          (a) the Borrowers shall fail to pay (i) any principal of any Loan or any L/C Reimbursement
Obligation when the same becomes due and payable or (ii) any interest on any Loan, any fee under
any Loan Document or any other Obligation (other than those set forth in clause (i) above)
and, in the case of this clause (ii), such non-payment continues for a period of five
(5) days after the due date therefor; or




          (b) any representation, warranty or certification made or deemed made by any Loan Party (or
any Responsible Officer thereof) in any Loan Document shall prove to have been incorrect in any
material respect (without duplication of any materiality qualifier contained herein or therein)
when made or deemed made; or




 







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          (c) any Loan Party shall fail to comply with (i) any provision of Article 5 (Financial
Covenants), Section 6.2(a)(i) (Other Events), Section 7.1 (Maintenance of Corporate
Existence), Section 7.9 (Use of Proceeds) or Article 8 (Negative Covenants), (ii)
any provision of Section 6.1 (Financial Statements) if, in the case of this clause
(ii), such failure shall remain unremedied for 15 days after the earlier of (A) the date on
which a Responsible Officer of any Loan Party becomes aware of such failure and (B) the date on
which notice thereof shall have been given to the Borrower Representative by the Administrative
Agent or (iii) any other provision of any Loan Document if, in the case of this clause
(iii), such failure shall remain unremedied for 30 days after the earlier of (A) the date on
which a Responsible Officer of any Loan Party becomes aware of such failure and (B) the date on
which notice thereof shall have been given to the Borrower Representative by the Administrative
Agent; or




          (d) (i) any Group Member shall fail to make any payment when due (whether due because of
scheduled maturity, required prepayment provisions, acceleration, demand or otherwise) on any
Indebtedness of any Group Member (other than the Obligations or any Hedging Agreement) and, in each
case, such failure relates to Indebtedness having a principal amount of $5,000,000 or more, (ii)
any other event shall occur or condition shall exist under any Contractual Obligation relating to
any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness, (iii) any such Indebtedness shall become or be
declared to be due and payable, or be required to be prepaid, redeemed, defeased or repurchased in
full prior to the stated maturity thereof or the holder thereof has the right to require such
redemption, defeasance or repurchase or (iv) any default has occurred under any Subordinated Note
Documents (after giving effect to all notice and cure periods with respect thereto; or




          (e) (i) any Group Member shall generally not pay its debts as such debts become due, shall
admit in writing its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors, (ii) any proceeding shall be instituted by or against any Group Member
seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any
similar order, in each case under any Requirement of Law relating to bankruptcy, insolvency or
reorganization or relief of debtors or seeking the entry of an order for relief or the appointment
of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, other similar
official or other official with similar powers, in each case for it or for any substantial part of
its property and, in the case of any such proceedings instituted against (but not by or with the
consent of) any Group Member, either such proceedings shall remain undismissed or unstayed for a
period of 60 days or more or any action sought in such proceedings shall occur (including without
limitation any entry of an order for relief in any such proceeding) or (iii) any Group Member shall
take any corporate or similar action to authorize any action described in clause (i) or
(ii) above; or




          (f) one or more judgments, orders or decrees (or other similar process) shall be rendered
against any Group Member (i)(A) in the case of monetary judgments, orders and decrees, involving an
aggregate amount (excluding amounts adequately covered by insurance payable to any Group Member, to
the extent the relevant insurer has not denied coverage therefor) in excess of $5,000,000 or (B) in
the case of non-monetary judgments, that would have, in the aggregate, a Material Adverse Effect
and (ii)(A) enforcement proceedings shall have been commenced by any creditor upon any such
judgment, order or decree or (B) such judgment, order or decree shall not have been vacated or
discharged for a period of 45 consecutive days and there




 






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shall not be in effect (by reason of a pending appeal or otherwise) any stay of enforcement
thereof; or




          (g) except pursuant to a valid, binding and enforceable termination or release permitted under
the Loan Documents and executed by the Administrative Agent or as otherwise expressly permitted
under any Loan Document, (i) any material provision of any Loan Document shall, at any time after
the delivery of such Loan Document, fail to be valid and binding on, or enforceable (other than
pursuant to the express terms thereof) against, or shall be revoked or repudiated by any Loan Party
party thereto, (ii) any Loan Document purporting to grant a Lien to secure any Obligation shall, at
any time after the delivery of such Loan Document, fail to create a valid and enforceable Lien on
any Collateral with an aggregate value in excess of $500,000 purported to be covered thereby or
such Lien shall fail or cease to be a perfected Lien with the priority required in the relevant
Loan Document (other than as a result of the failure of the Administrative Agent to take any action
within its control) or (iii) any contractual subordination provision in any Subordinated Note
Document shall, in whole or in part, terminate or otherwise fail or cease to be valid and binding
on, or enforceable against, any holder of the Subordinated Notes, (or such holder shall so state in
writing), or any Group Member shall state in writing that any of the events described in clause
(i), (ii) or (iii) above shall have occurred; or




          (h) any Material Agreement shall be terminated for any reason unless (i) such Material
Agreement is replaced with an agreement that is not materially less favorable to the Group Members,
(ii) existing Material Agreements provide substantially the same benefits as such terminated
Material Agreement as are necessary for the proper conduct of such Group Member’s business as
conducted as of the date of such termination, (iii) such Group Member has an alternative source of
obtaining such benefits (including by internal development) or (iv) the termination of such
Material Agreement could not reasonably be expected to have a Material Adverse Effect; or




          (i) any Holding Company shall incur any Indebtedness or issue any Stock or Stock Equivalent
and use the proceeds of such incurrence or issuance to make dividend, payment or other distribution
with respect to the holders of its Stock or Stock Equivalents;




          (j) there shall occur any Change of Control; or




          (k) either (i) one or more ERISA Events shall have occurred, (ii) there is or arises an
Unfunded Pension Liability with respect to any Title IV Plan, or (iii) there is or arises any
potential Withdrawal Liability, if any ERISA Affiliate were to withdraw completely from one or more
Multiemployer Plans, and the liability of any ERISA Affiliate contemplated by the foregoing
clauses (i), (ii) and (iii), either individually or in the aggregate, has
had, or would reasonably be expected to have, a Material Adverse Effect.




          Section 9.2 Remedies. During the continuance of any Event of Default, the
Administrative Agent may, and, at the request of the Required Lenders, shall, in each case by
notice to the Borrower Representative and in addition to any other right or remedy provided under
any Loan Document or by any applicable Requirement of Law, do each of the following: (a) declare
all or any portion of the Revolving Credit Commitments terminated, whereupon the Revolving Credit
Commitments shall immediately be reduced by such portion or, in the case of a termination in whole,
shall terminate together with any obligation any Lender may have hereunder to make any Loan and any
L/C Issuer may have hereunder to Issue any Letter of Credit or (b) declare immediately due and
payable all or part of any Obligation (including any accrued




 






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but unpaid interest thereon), whereupon the same shall become immediately due and payable,
without presentment, demand, protest or further notice or other requirements of any kind, all of
which are hereby expressly waived by Holdings and each Borrower (and, to the extent provided in any
other Loan Document, other Loan Parties); provided, however, that, effective
immediately upon the occurrence of the Events of Default specified in Section 9.1(e)(ii),
(x) the Revolving Credit Commitment of each Lender to make Loans and the commitment of each L/C
Issuer to Issue Letters of Credit shall each automatically be terminated and (y) each Obligation
(including in each case any accrued all accrued but unpaid interest thereon) shall automatically
become and be due and payable, without presentment, demand, protest or further notice or other
requirement of any kind, all of which are hereby expressly waived by Holdings and each Borrower
(and, to the extent provided in any other Loan Document, any other Loan Party).




          Section 9.3 Actions in Respect of Letters of Credit. At any time (i) upon the
Revolving Credit Termination Date, (ii) after the Revolving Credit Termination Date when the
aggregate funds on deposit in L/C Cash Collateral Accounts shall be less than 102% of the
L/C Obligations for all Letters of Credit at such time and (iii) as required by
Section 2.12, the Borrowers shall pay to the Administrative Agent in immediately available
funds at the Administrative Agent’s office referred to in Section 11.11, for deposit in a
L/C Cash Collateral Account, the amount required so that, after such payment, the aggregate funds
on deposit in the L/C Cash Collateral Accounts equals or exceeds 102% of the L/C Obligations for
all Letters of Credit at such time (not to exceed, in the case of clause (iii) above, the
payment to be applied pursuant to Section 2.12 to provide cash collateral for Letters of
Credit).




          Section 9.4 Cash Collateral Accounts. The Administrative Agent shall not have any
responsibility for, or bear any risk of loss of, any investment or income of any funds in any Cash
Collateral Account. From time to time after funds are deposited in any Cash Collateral Account,
the Administrative Agent may apply funds then held in such Cash Collateral Account to the payment
of Obligations in accordance with Section 2.12. No Group Member and no Person claiming on
behalf of or through any Group Member shall have any right to demand payment of any funds held in
any Cash Collateral Account at any time prior to the termination of all Commitments and the payment
in full of all Obligations and, in the case of L/C Cash Collateral Accounts, the termination of all
outstanding Letters of Credit.




ARTICLE 10

THE ADMINISTRATIVE AGENT




          Section 10.1 Appointment and Duties. (a) Appointment of Administrative
Agent. Each Lender and each L/C Issuer hereby appoints GE Capital (together with any successor
Administrative Agent pursuant to Section 10.9) as the Administrative Agent hereunder and
authorizes the Administrative Agent to (i) execute and deliver the Loan Documents and accept
delivery thereof on its behalf from any Group Member, (ii) take such action on its behalf and to
exercise all rights, powers and remedies and perform the duties as are expressly delegated to the
Administrative Agent under such Loan Documents and (iii) exercise such powers as are reasonably
incidental thereto.




          (b) Duties as Collateral and Disbursing Agent. Without limiting the generality of
clause (a) above, the Administrative Agent shall have the sole and exclusive right and
authority (to the exclusion of the Lenders and L/C Issuers), and is hereby authorized, to (i) act
as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to




 





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all
payments and collections arising in connection with the Loan Documents (including in any proceeding
described in Section 9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding),
and each Person making any payment in connection with any Loan Document to any Secured Party is
hereby authorized to make such payment to the Administrative Agent, (ii) file and prove claims and
file other documents necessary or desirable to allow the claims of the Secured Parties with respect
to
any Obligation in any proceeding described in Section 9.1(e)(ii) or any other
bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf
of such Secured Party), (iii) act as collateral agent for each Secured Party for purposes of the
perfection of all Liens created by such agreements and all other purposes stated therein, (iv)
manage, supervise and otherwise deal with the Collateral, (v) take such other action as is
necessary or desirable to maintain the perfection and priority of the Liens created or purported to
be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document,
exercise all remedies given to the Administrative Agent and the other Secured Parties with respect
to the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise
and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment, consent or waiver; provided,
however, that the Administrative Agent hereby appoints, authorizes and directs each Lender
and L/C Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders and the L/C
Issuers for purposes of the perfection of all Liens with respect to the Collateral, including any
deposit account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender
or L/C Issuer, and may further authorize and direct the Lenders and the L/C Issuers to take further
actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the
Collateral subject thereto to the Administrative Agent, and each Lender and L/C Issuer hereby
agrees to take such further actions to the extent, and only to the extent, so authorized and
directed.




          (c) Limited Duties. Under the Loan Documents, the Administrative Agent (i) is acting
solely on behalf of the Lenders and the L/C Issuers (except to the limited extent provided in
Section 2.14(b) with respect to the Register and in Section 10.11), with duties
that are entirely administrative in nature, notwithstanding the use of the defined term
“Administrative Agent”, the terms “agent”, “administrative agent” and “collateral agent” and
similar terms in any Loan Document to refer to the Administrative Agent, which terms are used for
title purposes only, (ii) is not assuming any obligation under any Loan Document other than as
expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender, L/C
Issuer or any other Secured Party and (iii) shall have no implied functions, responsibilities,
duties, obligations or other liabilities under any Loan Document, and each Lender and L/C Issuer
hereby waives and agrees not to assert any claim against the Administrative Agent based on the
roles, duties and legal relationships expressly disclaimed in clauses (i) through
(iii) above.




          Section 10.2 Binding Effect. Each Lender and each L/C Issuer agrees that (i) any
action taken by the Administrative Agent or the Required Lenders (or, if expressly required hereby,
a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii)
any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders
(or, where so required, such greater proportion) and (iii) the exercise by the Administrative Agent
or the
Required Lenders (or, where so required, such greater proportion) of the powers set forth
herein or therein, together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Secured Parties.




 






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          Section 10.3 Use of Discretion. (a) No Action without Instructions. The
Administrative Agent shall not be required to exercise any discretion or take, or to omit to take,
any action, including with respect to enforcement or collection, except any action it is required
to take or omit to take (i) under any Loan Document or (ii) pursuant to instructions from the
Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion
of the Lenders).




          (b) Right Not to Follow Certain Instructions. Notwithstanding clause (a)
above, the Administrative Agent shall not be required to take, or to omit to take, any action
(i) unless, upon demand, the Administrative Agent receives an indemnification satisfactory to it
from the Lenders (or, to the extent applicable and acceptable to the Administrative Agent, any
other Secured Party) against all Liabilities that, by reason of such action or omission, may be
imposed on, incurred by or asserted against the Administrative Agent or any Related Person thereof
or (ii) that is, in the opinion of the Administrative Agent or its counsel, contrary to any Loan
Document or applicable Requirement of Law.




          Section 10.4 Delegation of Rights and Duties. The Administrative Agent may, upon any
term or condition it specifies, delegate or exercise any of its rights, powers and remedies under,
and delegate or perform any of its duties or any other action with respect to, any Loan Document by
or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any
Secured Party). Any such Person shall benefit from this Article 10 to the extent provided
by the Administrative Agent.




          Section 10.5 Reliance and Liability. (a) The Administrative Agent may, without
incurring any liability hereunder, (i) treat the payee of any Note as its holder until such Note
has been assigned in accordance with Section 11.2(b), (ii) rely on the Register to the
extent set forth in Section 2.14, (iii) consult with any of its Related Persons and,
whether or not selected by it, any other advisors, accountants and other experts (including
advisors to, and accountants and experts engaged by, any Loan Party) and (iv) rely and act upon any
document and information (including those transmitted by Electronic Transmission) and any telephone
message or conversation, in each case believed by it to be genuine and transmitted, signed or
otherwise authenticated by the appropriate parties.




          (b) None of the Administrative Agent and its Related Persons shall be liable for any action
taken or omitted to be taken by any of them under or in connection with any Loan Document, and each
Lender, L/C Issuer, Holdings and each Borrower hereby waive and shall not assert (and Holdings and
each Borrower shall cause each other Loan Party to waive and agree not to assert) any right, claim
or cause of action based thereon, except to the extent of liabilities resulting primarily from the
gross negligence or willful misconduct of the Administrative Agent or, as the case may be, such
Related Person (each as determined in a final, non-appealable judgment by a court of competent
jurisdiction) in connection with the duties expressly set forth herein. Without limiting the
foregoing, the Administrative Agent:





          (i) shall not be responsible or otherwise incur liability for any action or omission
taken in reliance upon the instructions of the Required Lenders or for the actions or
omissions of any of its Related Persons selected with reasonable care (other than
employees, officers and directors of the Administrative Agent, when acting on behalf of the
Administrative Agent);



 






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          (ii) shall not be responsible to any Secured Party for the due execution, legality,
validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be created under or
in connection with, any Loan Document;




          (iii) makes no warranty or representation, and shall not be responsible, to any
Secured Party for any statement, document, information, representation or warranty made or
furnished by or on behalf of any Related Person or any Loan Party in connection with any
Loan Document or any transaction contemplated therein or any other document or information
with respect to any Loan Party, whether or not transmitted or (except for documents
expressly required under any Loan Document to be transmitted to the Lenders) omitted to be
transmitted by the Administrative Agent, including as to completeness, accuracy, scope or
adequacy thereof, or for the scope, nature or results of any due diligence performed by the
Administrative Agent in connection with the Loan Documents; and




          (iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any provision of any Loan Document, whether any condition set forth in any
Loan Document is satisfied or waived, as to the financial condition of any Loan Party or as
to the existence or continuation or possible occurrence or continuation of any Default or
Event of Default and shall not be deemed to have notice or knowledge of such occurrence or
continuation unless it has received a notice from the Borrower Representative, any Lender
or L/C Issuer describing such Default or Event of Default clearly labeled “notice of
default” (in which case the Administrative Agent shall promptly give notice of such receipt
to all Lenders);


and, for each of the items set forth in clauses (i) through (iv) above, each
Lender, L/C Issuer, Holdings and each Borrower hereby waives and agrees not to assert (and Holdings
and each Borrower shall cause each other Loan Party to waive and agree not to assert) any right,
claim or cause of action it might have against the Administrative Agent based thereon.




          Section 10.6 The Administrative Agent Individually. The Administrative Agent and its
Affiliates may make loans and other extensions of credit to, acquire Stock and Stock Equivalents
of, engage in any kind of business with, any Loan Party or Affiliate thereof as though it were not
acting as the Administrative Agent and may receive separate fees and other payments therefor. To
the extent the Administrative Agent or any of its Affiliates makes any Loan or otherwise becomes a
Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be
subject to the same obligations and liabilities as any other Lender and the terms “Lender”,
“Revolving Credit Lender”, “Term Loan Lender”, “Required Lender”, “Required Revolving Lender” and
“Required Term Lender” and any similar terms shall, except where otherwise expressly provided in
any Loan Document, include, without limitation, the Administrative Agent or such Affiliate, as the
case may be, in its individual capacity as Lender,
Revolving Credit Lender, Term Loan Lender or as one of the Required Lenders, Required
Revolving Lenders or Required Term Lenders, respectively.




          Section 10.7 Lender Credit Decision. Each Lender and each L/C Issuer acknowledges
that it shall, independently and without reliance upon the Administrative Agent, any Lender or L/C
Issuer or any of their Related Persons or upon any document (including the Disclosure Documents)
solely or in part because such document was transmitted by the Administrative Agent or any of its
Related Persons, conduct its own independent investigation of




 






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the financial condition and affairs
of each Loan Party and make and continue to make its own credit decisions in connection with
entering into, and taking or not taking any action under, any Loan Document or with respect to any
transaction contemplated in any Loan Document, in each case based on such documents and information
as it shall deem appropriate. Except for documents expressly required by any Loan Document to be
transmitted by the Administrative Agent to the Lenders or L/C Issuers, the Administrative Agent
shall not have any duty or responsibility to provide any Lender or L/C Issuer with any credit or
other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party that may come in
to the possession of the Administrative Agent or any of its Related Persons.




          Section 10.8 Expenses; Indemnities. (a) Each Lender agrees to reimburse the
Administrative Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party) promptly upon demand for such Lender’s Pro Rata Share with respect to the Facilities of any
reasonable costs and expenses (including fees, charges and disbursements of financial, legal and
other advisors and Other Taxes paid in the name of, or on behalf of, any Loan Party) that may be
incurred by the Administrative Agent or any of its Related Persons in connection with the
preparation, syndication, execution, delivery, administration, modification, consent, waiver or
enforcement (whether through negotiations, through any work-out, bankruptcy, restructuring or other
legal or other proceeding or otherwise) of, or legal advice in respect of its rights or
responsibilities under, any Loan Document.




          (b) Each Lender further agrees to indemnify the Administrative Agent and each of its Related
Persons (to the extent not reimbursed by any Loan Party), from and against such Lender’s aggregate
Pro Rata Share with respect to the Facilities of the Liabilities (including taxes, interests and
penalties imposed for not properly withholding or backup withholding on payments made to on or for
the account of any Lender) that may be imposed on, incurred by or asserted against the
Administrative Agent or any of its Related Persons in any matter relating to or arising out of, in
connection with or as a result of any Loan Document, any Related Document or any other act, event
or transaction related, contemplated in or attendant to any such document, or, in each case, any
action taken or omitted to be taken by the Administrative Agent or any of its Related Persons under
or with respect to any of the foregoing; provided, however, that no Lender shall be
liable to the Administrative Agent or any of its Related Persons to the extent such liability has
resulted from the gross negligence, bad faith or willful misconduct of the Administrative Agent or,
as the case may be, such Related Person, as determined by a court of competent jurisdiction in a
final non-appealable judgment or order.




          Section 10.9 Resignation of the Administrative Agent or L/C Issuer. (a) The
Administrative Agent may resign at any time by delivering notice of such resignation to the
Lenders and the Borrower Representative 30 days prior to the effective date of resignation set
forth in such notice; provided, however, that such notice requirement shall be
waived to the extent the Administrative Agent is deemed to have resigned pursuant to Section
2.18(c). If the Administrative Agent delivers any such notice, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If, within 30 days after the retiring
Administrative Agent having given notice of resignation, no successor Administrative Agent has been
appointed, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent from among the Lenders (provided such Lender accepts such
appointment). Each appointment under this clause (a) shall be subject to the prior consent
of the Borrowers,




 






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which may not be unreasonably withheld but shall not be required during the
continuance of a Default.




          (b) Effective immediately upon its resignation, (i) the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents, (ii) the Lenders shall assume
and perform all of the duties of the Administrative Agent until a successor Administrative Agent
shall have accepted a valid appointment hereunder, (iii) the retiring Administrative Agent and its
Related Persons shall no longer have the benefit of any provision of any Loan Document other than
with respect to any actions taken or omitted to be taken while such retiring Administrative Agent
was, or because such Administrative Agent had been, validly acting as the Administrative Agent
under the Loan Documents and (iv) subject to its rights under Section 10.3, the retiring
Administrative Agent shall take such action as may be reasonably necessary to assign to the
successor Administrative Agent its rights as the Administrative Agent under the Loan Documents.
Effective immediately upon its acceptance of a valid appointment as the Administrative Agent, a
successor Administrative Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Administrative Agent under the Loan Documents.




          (c) Any L/C Issuer may resign at any time by delivering notice of such resignation to the
Administrative Agent, effective on the date set forth in such notice. Upon such resignation, the
L/C Issuer shall remain an L/C Issuer and shall retain its rights and obligations in its capacity
as such (other than any obligation to Issue Letters of Credit but including the right to receive
fees or to have Lenders participate in any L/C Reimbursement Obligation thereof) with respect to
Letters of Credit issued by such L/C Issuer prior to the date of such resignation and shall
otherwise be discharged from all other duties and obligations under the Loan Documents.




          Section 10.10 Release of Collateral or Guarantors. Each Lender and L/C Issuer hereby
consents to the release and hereby directs the Administrative Agent to release (or, in the case of
clause (b)(ii) below, release or subordinate) the following:




          (a) any Subsidiary of Holdings from its guaranty of any Obligation of any Loan Party if all of
the Securities of such Subsidiary owned by any Group Member are Sold in a Sale permitted under the
Loan Documents (including pursuant to a waiver or consent) to a Person that is not a Group Member;
and




          (b) any Lien held by the Administrative Agent for the benefit of the Secured Parties against
(i) any Collateral that is Sold by a Loan Party in a Sale permitted by the Loan Documents
(including pursuant to a valid waiver or consent), to a Person that is not a Group Member, (ii) any
property subject to a Lien permitted hereunder in reliance upon Section 8.2(d) or
(e) and (iii) all of the Collateral and all Loan Parties, upon in the case of this
clause (iii), (A)
termination of the Commitments, (B) payment and satisfaction in full of all Loans, all L/C
Reimbursement Obligations and all other Obligations that the Administrative Agent has been notified
in writing by the holder of such Obligation are then due and payable or will become due and payable
as a result of the termination of the Credit Agreement or the release of Liens under the Loan
Documents, (C) deposit of cash collateral with respect to all L/C Obligations and other asserted
contingent Obligations (or, in the case of any L/C Obligations, a back-up letter of credit has been
issued) in amounts and on terms and conditions and with parties satisfactory to the Administrative
Agent and each Indemnitee that is owed such Obligations and (D) to the extent requested by the
Administrative Agent, receipt by the Administrative Agent of liability releases




 






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from the Loan
Parties each in form and substance reasonably acceptable to the Administrative Agent.



Each Lender and L/C Issuer hereby directs the Administrative Agent, and the Administrative Agent
hereby agrees, upon receipt of reasonable advance notice from the Borrower Representative, to
execute and deliver or file such documents and to perform other actions reasonably necessary to
release the guaranties and Liens when and as directed in this Section 10.10.




          Section 10.11 Additional Secured Parties. The benefit of the provisions of the Loan
Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be
available to any Secured Party that is not a Lender or L/C Issuer as long as, by accepting such
benefits, such Secured Party agrees, as among the Administrative Agent and all other Secured
Parties, that such Secured Party is bound by (and, if requested by the Administrative Agent, shall
confirm such agreement in a writing in form and substance acceptable to the Administrative Agent)
this Article 10, Section 11.8 (Right of Setoff), Section 11.9
(Sharing of Payments) and Section 11.20 (Confidentiality) and the decisions
and actions of the Administrative Agent and the Required Lenders (or, where expressly required by
the terms of this Agreement, a greater proportion of the Lenders) to the same extent a Lender is
bound; provided, however, that, notwithstanding the foregoing, (a) such Secured
Party shall be bound by Section 10.8 only to the extent of Liabilities, costs and expenses
with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party,
in which case the obligations of such Secured Party thereunder shall not be limited by any concept
of Pro Rata Share or similar concept, (b) except as set forth specifically herein, each of the
Administrative Agent, the Lenders and the L/C Issuers shall be entitled to act at its sole
discretion, without regard to the interest of such Secured Party, regardless of whether any
Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the
Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any
duty or liability to such Secured Party or any such Obligation and (c) except as set forth
specifically herein, such Secured Party shall not have any right to be notified of, consent to,
direct, require or be heard with respect to, any action taken or omitted in respect of the
Collateral or under any Loan Document.




          Section 10.12 Joint Lead Arrangers, Bookrunners and Other Agents. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the
Joint Lead Arrangers, Bookrunners, Documentation Agent and Syndication Agent shall not have any
duties or responsibilities, nor shall the Joint Lead Arrangers, Bookrunners, Documentation Agent or
Syndication Agent have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Joint Lead Arrangers, Bookrunners, Documentation Agent or
Syndication Agent. At any time that any Lender serving (or whose Affiliate is serving) as a Joint
Lead Arranger, Bookrunner, Documentation Agent or Syndication Agent shall have transferred to any
other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan
Commitment, such Lender (or an Affiliate of such Lender acting as a Joint Lead Arranger, a
Bookrunner, Documentation Agent or Syndication Agent, shall be deemed to have concurrently resigned
as such Joint Lead Arranger, Bookrunner, Documentation Agent and/or Syndication Agent.




 






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ARTICLE 11

MISCELLANEOUS




          Section 11.1 Amendments, Waivers, Etc. (a) No amendment or waiver of any provision
of any Loan Document (other than the Fee Letter, the Control Agreements, the L/C Reimbursement
Agreements and the Secured Hedging Agreements) and no consent to any departure by any Loan Party
therefrom shall be effective unless the same shall be in writing and signed (1) in the case of an
amendment, consent or waiver to grant a new Lien for the benefit of the Secured Parties or
extending an existing Lien over additional property, by the Administrative Agent and the Borrowers
or (2) in the case of any other amendment, waiver or consent, by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and the Borrowers or, in the case of
any Loan Documents other than this Agreement, the applicable Loan Party or Loan Parties;
provided, however, that no amendment, consent or waiver described in
clause (2) above shall, unless in writing and signed by each Lender directly affected
thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other
Person the signature of which is otherwise required pursuant to any Loan Document, do any of the
following:





          (i) increase the Commitment of such Lender (it being understood that a waiver of any
condition precedent set forth in Article 3, or waiver of any Default or Event of
Default, mandatory prepayment or mandatory reduction of the Commitments, shall not
constitute an increase of the Commitment of any Lender);




          (ii) reduce (including through release, forgiveness, assignment or otherwise) (A) the
principal amount of, the interest rate on, any outstanding Loan owing to such Lender, (B)
any fee or accrued interest payable to such Lender hereunder or (C) any L/C Reimbursement
Obligation; provided, however, that this clause (ii) does not apply
to (x) any reduction in incremental interest or fees payable pursuant to Sections
2.9(c) or 2.11(b) during the continuance of an Event of Default or to any
payment of any such incremental interest or fees or (y) any modification to any financial
covenant set forth in Article 5 or in any definition set forth therein or
principally used therein;




          (iii) waive or postpone any scheduled maturity date or other scheduled date fixed for
the payment, in whole or in part, of principal of or interest on any Loan or fee owing to
such Lender or for the termination of such Lender’s Revolving Credit Commitment;
provided, however, that this clause (iii) does not apply to any
change to mandatory prepayments, including those required under Section 2.8;




          (iv) except as provided in Section 10.10, release all or substantially all of
the Collateral or all or substantially all of the Guarantors from their guaranty of the
Obligations of the Borrowers;




          (v) reduce or increase the proportion of Lenders required for the Lenders (or any
subset thereof) to take any action hereunder or change the definition of the terms
“Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or




          (vi) amend Section 11.9 (Sharing of Payments), Section 2.12
(Application of Payments) or this Section 11.1;



 






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it being agreed that all Lenders shall be deemed to be directly affected by an amendment, consent
or waiver of the type described in the preceding clauses (v) and (vi), and
provided, further, that (x)(A) any waiver of any payment applied pursuant to
Section 2.12(b) (Application of Mandatory Prepayments) to, and any modification of
the application of any such payment to, (1) the Term Loans shall require the consent of the
Required Term Lenders and (2) the Revolving Credit Outstandings shall require the consent of the
Required Revolving Lenders, (B) any change to the definition of the term “Required Term Lender”
shall require the consent of the Required Term Lenders and (C) any change to the definition of the
term “Required Revolving Lender” shall require the consent of the Required Revolving Lenders and
(y) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of,
or any payment to, the Administrative Agent (or otherwise modify any provision of
Article 10 or the application thereof), the Swingline Lender, any L/C Issuer or any SPV
that has been granted an option pursuant to Section 11.2(f) unless in writing and signed by
the Administrative Agent, the Swingline Lender, such L/C Issuer or, as the case may be, such SPV in
addition to any signature otherwise required and (z) the consent of the Borrowers shall not be
required to change any order of priority set forth in Section 2.12(b) and (c). To
the extent any Secured Hedging Agreement is provided or arranged by the Administrative Agent or an
Affiliate thereof or any Lender or an Affiliate thereof, no amendment, modification or waiver of
this Agreement or any Loan Document altering the ratable treatment of Obligations arising under
such Secured Hedging Agreement resulting in such Obligations being junior in right of payment to
principal of the Loans or resulting in Obligations owing to any Secured Hedging Counterparty being
unsecured (other than releases of Liens in accordance with the terms hereof, including upon payment
in full in cash of all Obligations (other than Contingent Loan Document Obligations) and
termination of all Commitments) shall be effective without the written consent of the
Administrative Agent or such Lender, as applicable. Notwithstanding the foregoing or anything else
set forth herein to the contrary, no Sponsor Affiliated Lender shall have any voting or consent
rights with respect to any matter under or with respect to any Loan Document or constitute a
“Lender”, “Term Loan Lender” or a “Revolving Credit Lender” (or be, or have its Loans and
Commitments, included in the determination of “Required Lenders”, “Required Term Lenders”,
“Required Revolving Lenders” or “Lenders directly affected”) under or with respect to any
provisions in any Loan Document governing voting or consent rights, provided that (A) the
Commitment of a Sponsor Affiliated Lender may not be increased or extended, (B) the principal of a
Sponsor Affiliated Lender’s Loans may not be reduced or forgiven, and (C) the interest rate
applicable to Obligations owing to a Sponsor Affiliated Lender may not be reduced in such a manner
that by its terms affects such Lender more adversely than other Lenders in such Facility, in each
case without the consent of such Lender.




          (b) Each waiver or consent under any Loan Document shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same,
similar or other circumstances. No failure on the part of any Secured Party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right.




          Section 11.2 Assignments and Participations; Binding Effect. (a) Binding
Effect. This Agreement shall become effective when it shall have been executed by Holdings,
the Borrowers and the Administrative Agent and when the Administrative Agent shall have been
notified by each Lender and L/C Issuer that such Lender or L/C Issuer has executed it.




 






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Thereafter,
it shall be binding upon and inure to the benefit of, but only to the benefit of, Holdings, the
Borrowers (in each case except for Article 10), the Administrative Agent, each Lender and
L/C Issuer and, to the extent provided in Section 10.11, each other Indemnitee and Secured
Party and, in each case, their respective successors and permitted assigns. Except as expressly
provided in any Loan Document (including in Section 10.9), none of Holdings, the Borrowers,
any L/C Issuer or the Administrative Agent shall have the right to assign any rights or obligations
hereunder or any interest herein.




          (b) Right to Assign. Each Lender may sell, transfer, negotiate or assign all or a
portion of its rights and obligations hereunder (including all or a portion of its Revolving Credit
Commitments and its rights and obligations with respect to Loans and Letters of Credit) to (i) any
existing Lender other than a Non-Funding Lender or Impacted Lender, (ii) any Affiliate or Approved
Fund of any existing Lender which is under common control with such Lender (other than a
Non-Funding Lender or Impacted Lender) or (iii) any other Person (each an “Eligible
Assignee”); provided, however, that no assignment shall be permitted without
the approval (which approval shall not be unreasonably withheld or delayed or required with respect
to any sale, transfer or assignment of the Term Loans under clauses (i) or (ii)
above) of (A) the Administrative Agent and (B) in the absence of an Event of Default, the
Borrowers; provided, further, however, that (x) for each Facility, the
aggregate outstanding principal amount (determined as of the effective date of the applicable
Assignment) of the Loans, Revolving Credit Commitments and L/C Obligations subject to any such Sale
shall be in a minimum amount of $1,000,000, unless such Sale is made to an existing Lender or an
Affiliate or Approved Fund of an existing Lender, is of the assignor’s entire interest in such
Facility or is made with the prior consent of the Borrowers and the Administrative Agent, (y) such
Sales by Lenders who are Non-Funding Lenders due to clause (a) of the definition of
Non-Funding Lenders shall be subject to the Administrative Agent’s prior written consent in all
instances, unless in connection with such Sale, such Non-Funding Lender cures, or causes the cure
of, its Non-Funding Lender status as contemplated in Section 2.2(c)(iv) and (z) in no event
shall Sponsor Affiliated Lenders be permitted to acquire or hold more than 10% of the outstanding
Term Loans in the aggregate or any of the Revolving Credit Commitments, Revolving Loans or L/C
Obligations. No sale shall be made to a Group Member or an Affiliate of a Group Member (other than
a Sponsor Affiliated Lender), and the Administrative Agent’s refusal to accept a Sale to a Group
Member or an Affiliate of a Group Member (other than a Sponsor Affiliated Lender), a holder of a
Subordinated Note or any Affiliate of such a holder, or to any Person that would be a Non-Funding
Lender or an Impacted Lender, or the imposition of conditions or limitations (including limitations
on voting) upon Sales to such Persons, shall not be deemed to be unreasonable. Sponsor Affiliated
Lenders shall have no rights to receive notice of, attend or participate in any meetings with other
Lenders or the Administrative Agent, receive information requested or prepared on behalf of the
Agent and other Lender, or otherwise have any rights of a Lender hereunder, other than the
right to receive payments required hereunder.




          (c) Procedure. The parties to each Sale made in reliance on clause (b) above
(other than those described in clause (e) or (f) below) shall execute and deliver
to the Administrative Agent an Assignment via an electronic settlement system designated by the
Administrative Agent (or if previously agreed with the Administrative Agent, via a manual execution
and delivery of the assignment) evidencing such Sale, together with any existing Note subject to
such Sale (or any affidavit of loss therefor acceptable to the Administrative Agent), any tax forms
required to be delivered pursuant to Section 2.17(f) and payment of an assignment fee in
the amount of $3,500; provided that (1) if a Sale by a Lender is made to an Affiliate or an




 






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Approved Fund of such assigning Lender, then no assignment fee shall be due in connection with such
Sale, and (2) if a Sale by a Lender is made to an assignee that is not an Affiliate or Approved
Fund of such assignor Lender, and concurrently to one or more Affiliates or Approved Funds of such
assignee, then only one assignment fee of $3,500 shall be due in connection with such Sale. Upon
receipt of all the foregoing, and conditioned upon such receipt and, if such assignment is made in
accordance with Section 11.2(b)(iii), upon the Administrative Agent (and the Borrowers, if
applicable) consenting to such Assignment, from and after the effective date specified in such
Assignment, the Administrative Agent shall record or cause to be recorded in the Register the
information contained in such Assignment.




          (d) Effectiveness. Subject to the recording of an Assignment by the Administrative
Agent in the Register pursuant to Section 2.14(b), (i) the assignee thereunder shall become
a party hereto and, to the extent that rights and obligations under the Loan Documents have been
assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a
Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii)
the assignor thereunder shall, to the extent that rights and obligations under this Agreement have
been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving
the termination of the Revolving Credit Commitments and the payment in full of the Obligations) and
be released from its obligations under the Loan Documents, other than those relating to events or
circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or
the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents,
such Lender shall cease to be a party hereto except that each Lender agrees to remain bound by
Article 10, Section 11.8 (Right of Setoff) and Section 11.9
(Sharing of Payments) to the extent provided in Section 10.11 (Additional
Secured Parties)).




          (e) Grant of Security Interests. In addition to the other rights provided in this
Section 11.2, each Lender may grant a security interest in, or otherwise assign as
collateral, any of its rights under this Agreement, whether now owned or hereafter acquired
(including rights to payments of principal or interest on the Loans), to (A) any federal reserve
bank (pursuant to Regulation A of the Federal Reserve Board) or any central bank, without notice to
the Administrative Agent or (B) any holder of, or trustee for the benefit of the holders of, such
Lender’s Securities by notice to the Administrative Agent; provided, however, that
no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon
(unless
such foreclosure is made through an assignment in accordance with clause (b) above),
shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of
any of its obligations hereunder.




          (f) Participants and SPVs. In addition to the other rights provided in this
Section 11.2, each Lender may, (x) with notice to the Administrative Agent, grant to an SPV
the option to make all or any part of any Loan that such Lender would otherwise be required to make
hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto
shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign
to such Lender the right to receive payment with respect to any Obligation and (y) without notice
to or consent from the Administrative Agent or the Borrowers or Borrower




 






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Representative, sell
participations to one or more Persons in or to all or a portion of its rights and obligations under
the Loan Documents (including all its rights and obligations with respect to the Term Loans,
Revolving Loans and Letters of Credit); provided, however, that, whether as a
result of any term of any Loan Document or of such grant or participation, (i) no such SPV or
participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans
hereunder, and, except as provided in the applicable option agreement, none shall be liable for any
obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and
obligations of the Loan Parties and the Secured Parties towards such Lender, under any Loan
Document shall remain unchanged and each other party hereto shall continue to deal solely with such
Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such
participant and SPV shall be entitled to the benefit of Sections 2.16 (Breakage Costs;
Increased Costs; Capital Requirements) and 2.17 (Taxes), but only to the extent
such participant or SPV delivers the tax forms such Lender is required to collect pursuant to
Section 2.17(f) and then only to the extent of any amount to which such Lender would be
entitled in the absence of any such grant or participation and (B) each such SPV may receive other
payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to
the extent provided in the applicable option agreement and set forth in a notice provided to the
Administrative Agent by such SPV and such Lender; provided, however, that in no
case (including pursuant to clause (A) or (B) above) shall an SPV or participant
have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV
or participant shall not be required (either directly, as a restraint on such Lender’s ability to
consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan
Document or to exercise or refrain from exercising any powers or rights such Lender may have under
or in respect of the Loan Documents (including the right to enforce or direct enforcement of the
Obligations), except for those described in clauses (ii) and (iii) of
Section 11.1(a) with respect to amounts, or dates fixed for payment of amounts, to which
such participant or SPV would otherwise be entitled and, in the case of participants, except for
those described in Section 11.1(a)(iv) (or amendments, consents and waivers with respect to
Section 10.10 to release all or substantially all of the Collateral). Each Lender that
sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Borrowers, maintain a register on which it enters the name and address of each participant and the
principal amounts (and stated interest) of each participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”). The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender shall treat each person whose
name is recorded in the Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary.




          Section 11.3 Costs and Expenses. Any action taken by any Loan
Party under or with respect to any Loan Document, even if required under any Loan Document or
at the request of any Secured Party, shall be at the expense of such Loan Party, and no Secured
Party shall be required under any Loan Document to reimburse any Loan Party or Group Member
therefor except as expressly provided therein. In addition, the Borrowers agree to pay or
reimburse upon demand (a) the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred by it or any of its Related Persons in connection with the investigation,
development, preparation, negotiation, syndication, execution, interpretation or administration of,
any modification of any term of or termination of, any Loan Document, any commitment or proposal
letter therefor executed prior to the date hereof, any other document prepared in connection
therewith or the consummation and administration of any transaction contemplated therein (including
fees, charges and disbursements of legal counsel to the Administrative Agent or such Related
Persons, periodic insurance review expenses and expenses related to Intralinks®




 






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or any
other E-System), (b) the Administrative Agent for all reasonable costs and expenses incurred by it
or any of its Related Persons in connection with internal audit reviews, field examinations and
Collateral examinations done with the prior consent of the Borrower Representative unless an Event
of Default exists (which shall be reimbursed, in addition to the out-of-pocket costs and expenses
of such examiners, at the per diem rate per individual charged by the Administrative Agent for its
examiners), (c) each of the Administrative Agent, its Related Persons and each L/C Issuer for all
costs and expenses incurred in connection with (i) any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”, (ii) the enforcement or preservation
of any right or remedy under any Loan Document, any Obligation, with respect to the Collateral or
any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in,
or the taking of any other action with respect to, any proceeding (including any bankruptcy or
insolvency proceeding) related to any Group Member, Loan Document, Obligation or Related
Transaction (or the response to and preparation for any subpoena or request for document production
relating thereto), including fees and disbursements of counsel and (d) fees and disbursements of
one law firm on behalf of all Lenders (other than the Administrative Agent) incurred in connection
with any matters referred to in clause (c) above.




          Section 11.4 Indemnities. (a) The Borrowers agree to indemnify, hold harmless and
defend the Administrative Agent, each Lender, each L/C Issuer, each Person that each L/C Issuer
causes to Issue Letters of Credit hereunder and each of their respective Related Persons (each such
Person being an “Indemnitee”) from and against all Liabilities (including brokerage
commissions, fees and other compensation) that may be imposed on, incurred by or asserted against
any such Indemnitee in any matter relating to or arising out of, in connection with or as a result
of (i) any Loan Document, any Related Document, any Disclosure Document, any Obligation (or the
repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or
the use of any Letter of Credit, any Related Transaction, or any securities filing of, or with
respect to, any Group Member, (ii) any commitment letter, proposal letter or term sheet in
connection with any of the foregoing and any Contractual Obligation entered into in connection with
any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding in connection with any of the foregoing, whether or not brought by
any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and
including reasonable and documented attorneys’ fees in any case), whether or not any such
Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any
securities or commercial law or regulation or any other Requirement of Law or theory thereof,
including common law, equity, contract, tort or otherwise, or (iv) any other act, event or
transaction related,
contemplated in or attendant to any of the foregoing (collectively, the “Indemnified
Matters”); provided, however, that the Borrowers shall not have any liability
under this Section 11.4 to any Indemnitee with respect to any Indemnified Matters, to the
extent such liability has resulted from the gross negligence, bad faith or willful misconduct of
such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable
judgment or order. Any amounts payable under this Section shall be without duplication of
any amounts payable in respect of Taxes under Section 2.17.




          (b) Without limiting the foregoing, “Indemnified Matters” includes all Environmental
Liabilities, including those arising from, or otherwise involving, any property of any Related
Person or any actual, alleged or prospective damage to property or natural resources or harm or
injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such
property or natural resource or any property on or contiguous to any real property of any Related
Person, whether or not, with respect to any such Environmental Liabilities, any Indemnitee is a
mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest
to any Related Person or the owner, lessee or operator of any property of




 






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any Related Person
through any foreclosure action, in each case except to the extent such Environmental Liabilities
(i) are incurred solely following foreclosure by any Secured Party or following any Secured Party
having become the successor-in-interest to any Loan Party and (ii) are attributable solely to acts
of such Indemnitee.




          Section 11.5 Survival. Any indemnification or other protection provided to any
Indemnitee pursuant to any Loan Document (including pursuant to Section 2.17
(Taxes), Section 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), Article 10 (The Administrative Agent), Section 11.3
(Costs and Expenses), Section 11.4 (Indemnities) or this
Section 11.5) shall (A) survive the termination of the Commitments and the payment in full
of other Obligations and (B) inure to the benefit of any Person that at any time held a right
thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and permitted assigns.




          Section 11.6 Limitation of Liability for Certain Damages. In no event shall any
Indemnitee be liable on any theory of liability for any special, indirect, consequential or
punitive damages (including any loss of profits, business or anticipated savings). Holdings and
each Borrower hereby waives, releases and agrees (and shall cause each other Loan Party to waive,
release and agree) not to sue upon any such claim for any special, indirect, consequential or
punitive damages, whether or not accrued and whether or not known or suspected to exist in its
favor.




          Section 11.7 Lender-Creditor Relationship. The relationship between the Lenders, the
L/C Issuers and the Administrative Agent, on the one hand, and the Loan Parties, on the other hand,
is solely that of lender and creditor. No Secured Party has any fiduciary relationship or duty to
any Loan Party arising out of or in connection with, and there is no agency, tenancy or joint
venture relationship between the Secured Parties and the Loan Parties by virtue of, any Loan
Document or any transaction contemplated therein.




          Section 11.8 Right of Setoff. Each of the Administrative Agent, each Lender, each L/C
Issuer and each Affiliate (including each branch office thereof) of any of them is hereby
authorized, without notice or
demand (each of which is hereby waived by Holdings and each Borrower), at any time and from
time to time during the continuance of any Event of Default and to the fullest extent permitted by
applicable Requirements of Law, to set off and apply any and all deposits (whether general or
special, time or demand, provisional or final) at any time held and other Indebtedness, claims or
other obligations at any time owing by the Administrative Agent, such Lender, such L/C Issuer or
any of their respective Affiliates to or for the credit or the account of Holdings or the Borrowers
against any Obligation of any Loan Party now or hereafter existing, whether or not any demand was
made under any Loan Document with respect to such Obligation and even though such Obligation may be
unmatured. Each of the Administrative Agent, each Lender and each L/C Issuer agrees promptly to
notify the Borrower Representative and the Administrative Agent after any such setoff and
application made by such Lender or its Affiliates; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and application. The
rights under this Section 11.8 are in addition to any other rights and remedies (including
other rights of setoff) that the Administrative Agent, the Lenders and the L/C Issuers and their
Affiliates and other Secured Parties may have.




 






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          Section 11.9 Sharing of Payments, Etc. If any Lender, directly or through an
Affiliate or branch office thereof, obtains any payment of any Obligation of any Loan Party
(whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of
any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other
than pursuant to Sections 2.16 (Breakage Costs; Increased Costs; Capital
Requirements), 2.17 (Taxes) and 2.18 (Substitution of Lenders)
and such payment exceeds the amount such Lender would have been entitled to receive if all payments
had gone to, and been distributed by, the Administrative Agent in accordance with the provisions of
the Loan Documents, such Lender shall purchase for cash from other Secured Parties such
participations in their Obligations as necessary for such Lender to share such excess payment with
such Secured Parties to ensure such payment is applied as though it had been received by the
Administrative Agent and applied in accordance with this Agreement (or, if such application would
then be at the discretion of the Borrowers, applied to repay the Obligations in accordance
herewith); provided, however, that (a) if such payment is rescinded or otherwise
recovered from such Lender or L/C Issuer in whole or in part, such purchase shall be rescinded and
the purchase price therefor shall be returned to such Lender or L/C Issuer without interest and (b)
such Lender shall, to the fullest extent permitted by applicable Requirements of Law, be able to
exercise all its rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of
such participation. If a Non-Funding Lender receives any such payment as described in the previous
sentence, such Lender shall turn over such payments to the Administrative Agent in an amount that
would satisfy the cash collateral requirements set forth in Section 2.2(c). For the
avoidance of doubt, this Section shall not apply to assignments and participations to the
extent allowed under this Agreement.




          Section 11.10 Marshaling; Payments Set Aside. No Secured Party shall be under any
obligation to marshal any property in favor of any Loan Party or any other party or against or in
payment of any Obligation. To the extent that any Secured Party receives a payment from any
Borrower, from the proceeds of the Collateral, from the exercise of its rights of setoff, any
enforcement action or otherwise, and such payment is subsequently, in whole or in part,
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefor,
shall be revived and continued in full force and effect as if such payment had not occurred.




          Section 11.11 Notices. (a) Addresses. All notices, demands, requests,
directions and other communications required or expressly authorized to be made by this Agreement
shall, whether or not specified to be in writing but unless otherwise expressly specified to be
given by any other means, be given in writing and (i) addressed to (A) if to Holdings or any
Borrower, to MedQuist, Inc. as Borrower Representative, Attention: Mark Sullivan, General Counsel,
1000 Bishops Gate Blvd., Suite 300, Mt. Laurel, New Jersey 08054, Tel: (856) 206-4210, Fax: (856)
206-4211, with copy to Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York
10017, Attention: Marissa C. Wesely Tel: (212) 455-7173, Fax: (212) 455-2502, (B) if to the
Administrative Agent or the Swingline Lender, to General Electric Capital Corporation, 500 West
Monroe, Chicago, IL 60661, Attention: MedQuist Account Manager, Tel: (312) 441-7976, Fax: (866)
524-4721, with copy to General Electric Capital Corporation, Two Bethesda Metro Center, Suite 600,
Bethesda, MD 20814 Attention: Noah Hochstadt, Senior Counsel and Vice President, Tel: (301)
664-9893, Fax: (866) 398-9582 and (C) otherwise to the party to be notified at its address
specified opposite its name on the signature page of any applicable Assignment, (ii) posted to
Intralinks® (to the extent such




 






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system is available and set up by or at the direction of
the Administrative Agent prior to posting) in an appropriate location by uploading such notice,
demand, request, direction or other communication to www.intralinks.com, faxing it to 866-545-6600
with an appropriate bar-coded fax coversheet or using such other means of posting to
Intralinks® as may be available and reasonably acceptable to the Administrative Agent
prior to such posting, (iii) posted to any other E-System set up by or at the direction of the
Administrative Agent in an appropriate location or (iv) addressed to such other address as shall be
notified in writing (A) in the case of the Borrowers, the Administrative Agent and the Swingline
Lender, to the other parties hereto and (B) in the case of all other parties, to the Borrowers and
the Administrative Agent. Transmission by electronic mail (including E-Fax, even if transmitted to
the fax numbers set forth in clause (i) above) shall not be sufficient or effective to
transmit any such notice under this clause (a) unless such transmission is an available
means to post to any E-System. Notwithstanding the foregoing, materials required to be delivered
pursuant to Sections 6.1(a), 6.1(b), 6.1(c) and 6.3 shall be deemed
delivered to the Administrative Agent (and deemed distributed to the Lenders by the Administrative
Agent) on the date on which Holdings or the Borrowers cause such materials to be posted on the
Internet at www.sec.gov or at such other website identified by the Borrower Representative in a
written notice to the Administrative Agent and the Lenders and that is accessible by the Lenders
without charge.




          (b) Effectiveness. All communications described in clause (a) above and all
other notices, demands, requests and other communications made in connection with this Agreement
shall be effective and be deemed to have been received (i) if delivered by hand, upon personal
delivery, (ii) if delivered by overnight courier service, one (1) Business Day after delivery to
such courier service, (iii) if delivered by mail, when deposited in the mails, (iv) if delivered by
facsimile (other than to post to an E-System pursuant to clause (a)(ii) or (a)(iii)
above), upon sender’s receipt of confirmation of proper transmission, and (v) if delivered by
posting to any E-System, on the later of the date of such posting in an appropriate location and
the date access to such posting is given to the recipient thereof in accordance with the standard
procedures applicable to such E-System; provided, however, that no communications
to the Administrative Agent pursuant to Article 2 or Article 10 shall be effective
until received by the Administrative Agent.




          Section 11.12 Electronic Transmissions. (a) Authorization. Subject to the
provisions of Section 11.11(a), each of the Administrative Agent, the Borrowers, the
Lenders, the L/C Issuers and each of their Related Persons is authorized (but not required) to
transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions
in connection with any Loan Document and the transactions contemplated therein. Each of Holdings,
each Borrower and each Secured Party hereby acknowledges and agrees, and Holdings and each Borrower
shall cause each other Group Member to acknowledge and agree, that the use of Electronic
Transmissions is not necessarily secure and that there are risks associated with such use,
including risks of interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the transmission of Electronic Transmissions.




          (b) Signatures. Subject to the provisions of Section 11.11(a), (i)(A) no
posting to any E-System shall be denied legal effect merely because it is made electronically,
(B) each E-Signature on any such posting shall be deemed sufficient to satisfy any requirement for
a “signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a
“writing”, in each case including pursuant to any Loan Document, any applicable provision of any
UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global




 






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and
National Commerce Act and any substantive or procedural Requirement of Law governing such subject
matter, (ii) each such posting that is not readily capable of bearing either a signature or a
reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or
logically associating with such posting, an E-Signature, upon which each Secured Party and Loan
Party may rely and assume the authenticity thereof, (iii) each such posting containing a signature,
a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same
effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto
agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature
on any such posting under the provisions of any applicable Requirement of Law requiring certain
documents to be in writing or signed; provided, however, that nothing herein shall
limit such party’s or beneficiary’s right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.




          (c) Separate Agreements. All uses of an E-System shall be governed by and subject to,
in addition to Section 11.11 and this Section 11.12, separate terms and conditions
posted or referenced in such E-System and related Contractual Obligations executed by Secured
Parties and Group Members in connection with the use of such E-System.




          (d) Limitation of Liability. All E-Systems and Electronic Transmissions shall be
provided “as is” and “as available”. None of the Administrative Agent or any of its Related
Persons warrants the accuracy, adequacy or completeness of any E-Systems or Electronic
Transmission, and each disclaims all liability for errors or omissions therein. No warranty of any
kind is made by the Administrative Agent or any of its Related Persons in connection with any
E-Systems or Electronic Communication, including any warranty of merchantability, fitness for a
particular purpose, non-infringement of third-party rights or freedom from viruses or other code
defects. Holdings, each Borrower and each Secured Party agrees (and Holdings and each Borrower
shall cause each other Loan Party to agree) that the Administrative Agent has no responsibility for
maintaining or providing any equipment, software, services or any testing required in connection
with any Electronic Transmission or otherwise required for any E-System.




          Section 11.13 Governing Law. This Agreement, each other Loan Document that does not
expressly set forth its applicable
law, and the rights and obligations of the parties hereto and thereto shall be governed by,
and construed and interpreted in accordance with, the law of the State of New York.




          Section 11.14 Jurisdiction. (a) Submission to Jurisdiction. Any legal
action or proceeding with respect to any Loan Document shall be brought exclusively in the courts
of the State of New York located in the City of New York, Borough of Manhattan, or of the United
States of America for the Southern District of New York and, by execution and delivery of this
Agreement, each party hereto hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts; provided that nothing in this
Agreement shall limit the right of the Administrative Agent to commence any proceeding in the
federal or state courts of any other jurisdiction to the extent the Administrative Agent determines
that such action is necessary or appropriate to exercise its rights or remedies under the Loan
Documents. The parties hereto (and, to the extent set forth in any other Loan Document, each other
Loan Party) hereby irrevocably waive any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, that any of them may now or hereafter have to the
bringing of any such action or proceeding in such jurisdictions.




 






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          (b) Service of Process. Holdings and each Borrower (and, to the extent set forth in
any other Loan Document, each other Loan Party) hereby irrevocably waives personal service of any
and all legal process, summons, notices and other documents and other service of process of any
kind and consents to such service in any suit, action or proceeding brought in the United States of
America with respect to or otherwise arising out of or in connection with any Loan Document by any
means permitted by applicable Requirements of Law, including by the mailing thereof (by registered
or certified mail, postage prepaid) to the address of the Borrower Representative specified in
Section 11.11 (and shall be effective when such mailing shall be effective, as provided
therein). Holdings and each Borrower (and, to the extent set forth in any other Loan Document,
each other Loan Party) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.




          Section 11.15 Waiver of Jury Trial. Each party hereto hereby irrevocably waives trial
by jury in any suit, action or proceeding with respect to, or directly or indirectly arising out
of, under or in connection with, any Loan Document or the transactions contemplated therein or
related thereto (whether founded in contract, tort or any other theory). Each party hereto (A)
certifies that no other party and no Related Person of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (B) acknowledges that it and the other parties hereto have been induced to
enter into the Loan Documents, as applicable, by the mutual waivers and certifications in this
Section 11.15.




          Section 11.16 Severability. Any provision of any Loan Document being held
illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision
not held illegal, invalid or unenforceable, any other provision of any Loan Document or any part of
such provision in any other jurisdiction.




          Section 11.17 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
Signature pages may be detached from multiple separate counterparts and attached to a single
counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or
Electronic Transmission shall be as effective as delivery of a manually executed counterpart
hereof.




          Section 11.18 Entire Agreement. The Loan Documents embody the entire agreement of the
parties and supersede all prior agreements and understandings relating to the subject matter
thereof and any prior letter of interest, commitment letter, fee letter, confidentiality and
similar agreements involving any Loan Party and any of the Administrative Agent, any Lender or any
L/C Issuer or any of their respective Affiliates relating to a financing of substantially similar
form, purpose or effect. In the event of any conflict between the terms of this Agreement and any
other Loan Document, the terms of this Agreement shall govern (unless such terms of such other Loan
Documents are necessary to comply with applicable Requirements of Law, in which case such terms
shall govern to the extent necessary to comply therewith).




          Section 11.19 Use of Name. Holdings and each Borrower agrees, and shall cause each
other Loan Party to agree, that it shall not, and none of its Affiliates shall, issue any press
release or other public disclosure (other than any document required to be filed with any
Governmental Authority under the securities laws) using the name, logo or otherwise referring to




 






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GE
Capital or of any of its Affiliates, without at least two (2) Business Days’ prior notice to GE
Capital and without the prior consent of GE Capital except to the extent required to do so under
applicable Requirements of Law.




          Section 11.20 Non-Public Information; Confidentiality. (a) Each Lender and
L/C Issuer acknowledges and agrees that it may receive material non-public information hereunder
concerning the Loan Parties and their Affiliates and Securities and agrees to use such information
in compliance with all relevant policies, procedures and Contractual Obligations and applicable
Requirements of Laws (including United States federal and state security laws and regulations).




          (b) Each Lender, L/C Issuer and the Administrative Agent agrees to use all reasonable efforts
to maintain, in accordance with its customary practices, the confidentiality of information
obtained by it pursuant to any Loan Document and designated in writing by any Loan Party as
confidential, except that such information may be disclosed (i) with the Borrower Representative’s
consent, (ii) to Related Persons of such Lender, L/C Issuer or the Administrative Agent, as the
case may be, or to any Person that any L/C Issuer causes to Issue Letters of Credit hereunder, that
are advised of the confidential nature of such information and are instructed to keep such
information confidential, (iii) to the extent such information presently is or hereafter becomes
available to such Lender, L/C Issuer or the Administrative Agent, as the case may be, on a
non-confidential basis from a source other than any Loan Party, (iv) to the extent disclosure is
required by applicable Requirements of Law or other legal process or requested or demanded by any
Governmental Authority, (v) to the extent necessary or customary for inclusion in league table
measurements or in any tombstone or other advertising materials (and the Loan Parties consent to
the publication of such tombstone or other advertising materials by the Administrative Agent, any
Lender, any L/C Issuer or any of their Related Persons), (vi) to the National Association of
Insurance Commissioners or any similar organization, any examiner or any nationally recognized
rating agency or otherwise to the extent consisting of general portfolio information that does not
identify borrowers, (vii) to current or prospective assignees, SPVs,
grantees of any option described in Section 11.2(f) or participants, direct or
contractual counterparties to any Hedging Agreement permitted hereunder and to their respective
Related Persons, in each case to the extent such assignees, participants, counterparties or Related
Persons agree to be bound by provisions substantially similar to the provisions of this
Section 11.20 and (viii) in connection with the exercise of any remedy under any Loan
Document. In the event of any conflict between the terms of this Section 11.20 and those
of any other Contractual Obligation entered into with any Loan Party (whether or not a Loan
Document), the terms of this Section 11.20 shall govern.




          Section 11.21 Patriot Act Notice. Each Lender subject to the USA Patriot Act of 2001
(31 U.S.C. 5318 et seq.) (the “Patriot Act”) hereby notifies the Borrowers that,
pursuant to Section 326 thereof, such Lender is required to obtain, verify and record information
that identifies each Borrower, including the name and address of such Borrower and other
information allowing such Lender to identify such Borrower in accordance with such act.




ARTICLE 12

CROSS-GUARANTY




          Section 12.1 Cross-Guaranty. Each Borrower hereby agrees that such Borrower is
jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the
Administrative Agent and the Lenders and their respective successors and assigns, the full




 






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and
prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all
Obligations owed or hereafter owing to Agent and the Lenders by each other Borrower
(“Guaranteed Obligations”). Each Borrower agrees that its guaranty obligation hereunder is
a continuing guaranty of payment and performance and not of collection, that its obligations under
this Article 12 shall not be discharged until payment and performance, in full, of the
Obligations has occurred, and that its obligations under this Article 12 shall be absolute
and unconditional, irrespective of, and unaffected by:




          (a) the genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement, any other Loan Document or any other agreement, document or instrument
to which any Borrower is or may become a party;




          (b) the absence of any action, against any Person other than such Borrower, to enforce this
Agreement (including this Article 12) or any other Loan Document or the waiver or consent
by the Administrative Agent and the Lenders with respect to any of the provisions thereof;




          (c) the existence, value or condition of, or failure to perfect its Lien against, any security
for the Obligations or any action, or the absence of any action, by the Administrative Agent and
the Lenders in respect thereof (including the release of any such security);




          (d) the insolvency of any Loan Party; or




          (e) any other action or circumstances that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.



Each Borrower shall be regarded, and shall be in the same position, as principal debtor with
respect to the Guaranteed Obligations.




          Section 12.2 Waivers by Borrowers. Each Borrower expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in equity, or
otherwise, to compel the Administrative Agent or the Lenders to marshal assets or to proceed in
respect of the Obligations guaranteed hereunder against any other Loan Party, any other party or
against any security for the payment and performance of the Guaranteed Obligations before
proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among
each Borrower, the Administrative Agent and the Lenders that the foregoing waivers are of the
essence of the transaction contemplated by this Agreement and the other Loan Documents and that,
but for the provisions of this Article 12 and such waivers, the Administrative Agent and
the Lenders would decline to enter into this Agreement.




          Section 12.3 Benefit of Guaranty. Each Borrower agrees that the provisions of this
Article 12 are for the benefit of the Administrative Agent and the Lenders and their
respective successors, transferees, endorsees and assigns, and nothing herein contained shall
impair, as between any other Borrower and the Administrative Agent or the Lenders, the obligations
of such other Borrower under the Loan Documents.




          Section 12.4 Subordination of Subrogation, Etc. Notwithstanding anything to the
contrary in this Agreement or in any other Loan Document, and except as set forth in Section
12.7, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations
any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution,




 






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indemnification or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Obligations are paid in full in cash and the applicable
preference period has passed. Each Borrower acknowledges and agrees that this subordination is
intended to benefit the Administrative Agent and the Lenders and shall not limit or otherwise
affect such Borrower’s liability hereunder or the enforceability of this Article 12, and
that the Administrative Agent, the Lenders and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this Section 12.4.




          Section 12.5 Election of Remedies. If the Administrative Agent or any Lender may,
under applicable law, proceed to realize its benefits under any of the Loan Documents giving the
Administrative Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by
any other Person, either by judicial foreclosure or by non judicial sale or enforcement, the
Administrative Agent or any Lender may, at its sole option, determine which of its remedies or
rights it may pursue without affecting any of its rights and remedies under this Article
12. If, in the exercise of any of its rights and remedies, the Administrative Agent or any
Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency
judgment against any Borrower or any other Person, whether because of any applicable laws
pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by
the Administrative Agent or such Lender and waives any claim based upon such action, even if such
action by the Administrative Agent or such Lender shall result in a full or partial loss of any
rights of subrogation that such Borrower might otherwise have had but for such action by the
Administrative Agent or such Lender. Any election of remedies that results in the denial or
impairment of the right of the Administrative
Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any
other Borrower’s obligation to pay the full amount of the Obligations. In the event the
Administrative Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private
sale permitted by law or the Loan Documents, the Administrative Agent or such Lender may bid all or
less than the amount of the Obligations and the amount of such bid need not be paid by the
Administrative Agent or such Lender but shall be credited against the Obligations. The amount of
the successful bid at any such sale, whether the Administrative Agent, Lender or any other party is
the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral
and the difference between such bid amount and the remaining balance of the Obligations shall be
conclusively deemed to be the amount of the Obligations guaranteed under this Article 12,
notwithstanding that any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which the Administrative Agent or any Lender might
otherwise be entitled but for such bidding at any such sale.




          Section 12.6 Limitation. Notwithstanding any provision herein contained to the
contrary, each Borrower’s liability under this Article 12 (which liability is in any event
in addition to amounts for which such Borrower is primarily liable under Article 2) shall
be limited to an amount not to exceed as of any date of determination the greater of:




          (a) the net amount of all Loans advanced to any other Borrower under this Agreement and then
re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and




          (b) the amount that could be claimed by the Administrative Agent and the Lenders from such
Borrower under this Article 12 without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or




 






122









 







common law after taking into
account, among other things, such Borrower’s right of contribution and indemnification from each
other Borrower under Section 12.7.




          Section 12.7 Contribution with Respect to Guaranty Obligations.




          (a) To the extent that any Borrower shall make a payment under this Article 12 of all
or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable)
(a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or
concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have
paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the
same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined
immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following
payment in full in cash of the Obligations, termination of the Commitments and the passage of the
applicable preference period, such Borrower shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Borrower for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment.




          (b) As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to
the maximum amount of the claim that could then be recovered from
such Borrower under this Article 12 without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.




          (c) This Section 12.7 is intended only to define the relative rights of the Borrowers
and nothing set forth in this Section 12.7 is intended to or shall impair the obligations
of the Borrowers, jointly and severally, to pay any amounts as and when the same shall become due
and payable in accordance with the terms of this Agreement, including Section 12.1.
Nothing contained in this Section 12.7 shall limit the liability of any Borrower to pay the
Loans made directly or indirectly to such Borrower and accrued interest, Fees and expenses with
respect thereto for which such Borrower shall be primarily liable.




          (d) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Borrowers to which such contribution and indemnification
is owing.




          (e) The rights of the indemnifying Borrowers against other Loan Parties under this Section
12.7 shall be exercisable upon the full and payment of the Obligations, the termination of the
Commitments and the passage of the applicable preference period.




          Section 12.8 Liability Cumulative. The liability of the Borrowers under this
Article 12 is in addition to and shall be cumulative with all liabilities of each Borrower
to the Administrative Agent and the Lenders under this Agreement and the other Loan Documents to
which such Borrower is a party or in respect of any Obligations or obligation of the other
Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or
creating such other liability specifically provides to the contrary.




[SIGNATURE PAGES FOLLOW]



 






123









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	CBAY INC.

    AS BORROWER

 	 
	 	By:  	/s/ Clyde Swoger	 
	 	 	Name:  	Clyde Swoger	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	MEDQUIST INC.

    AS BORROWER

 	 
	 	By:  	/s/ Mark Sullivan	 
	 	 	Name:  	Mark Sullivan	 
	 	 	Title:  	General Counsel	 
	 
	 	MEDQUIST TRANSCRIPTIONS, LTD.

    AS BORROWER

 	 
	 	By:  	/s/ Mark Sullivan	 
	 	 	Name:  	Mark Sullivan	 
	 	 	Title:  	General Counsel	 
	 
	 	CBAYSYSTEMS HOLDINGS LIMITED

    AS HOLDINGS

 	 
	 	By:  	/s/ Clyde Swoger	 
	 	 	Name:  	Clyde Swoger	 
	 	 	Title:  	Chief Financial Officer	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION

   AS THE ADMINISTRATIVE AGENT, L/C

   ISSUER, SWINGLINE LENDER AND LENDER

 	 
	 	By:  	/s/ Brent Shepherd	 
	 	 	Name:  	Brent Shepherd	 
	 	 	Title:  	Duly Authorized Signatory	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	OTHER LENDERS:







SUNTRUST BANK, as Lender

 	 
	 	By:  	/s/ J. Ben Cumming	 
	 	 	Name:  	J. Ben Cumming 	 
	 	 	Title:  	Vice President	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ING CAPITAL LLC, as Lender

 	 
	 	By:  	/s/ Mike Garvin	 
	 	 	Name:  	Mike Garvin	 
	 	 	Title:  	Managing Director	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	REGIONS BANK, as Lender

 	 
	 	By:  	/s/ Kay Yarbrough	 
	 	 	Name:  	Kay Yarbrough	 
	 	 	Title:  	Vice President	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CAPITALSOURCE BANK, as Lender

 	 
	 	By:  	/s/ J. Stephen Klose	 
	 	 	Name:  	J. Stephen Klose 	 
	 	 	Title:  	Bank Officer	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	ROYAL BANK
OF CANADA, as Lender

 	 
	 	By:  	/s/ Mustafa S. Topiwalla	 
	 	 	Name:  	Mustafa S. Topiwalla	 
	 	 	Title:  	Authorized Signatory	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH
THIRD BANK, as Lender

 	 
	 	By:  	/s/ Jeffrey A. Thieman	 
	 	 	Name:  	Jeffrey A. Thieman	 
	 	 	Title:  	Vice President	 
	 




 












 






	 	 	 	 	 



	 	 	 	 	 
	 	MIHI LLC,
as Lender

 	 
	 	By:  	/s/
Thomas Morgan Edwards	 
	 	 	Name:  	Thomas Morgan Edwards	 
	 	 	Title:  	Managing Director	 
	 
	 
	 	By:  	/s/
Stephen MeLos	 
	 	 	Name:  	Stephen MeLos	 
	 	 	Title:  	Managing Director	 
	 




 












 





Schedule I




Commitments




“Revolving Credit Commitments”





	 	 	 	 	 

	General Electric Capital Corporation:
	 	$	8,611,111.11	 
	 
	 	 	 	 
	SunTrust Bank:
	 	$	4,444,444.44	 
	 
	 	 	 	 
	Regions Bank:
	 	$	2,777,777.78	 
	 
	 	 	 	 
	ING Capital LLC
	 	$	2,777,777.78	 
	 
	 	 	 	 
	CapitalSource Bank:
	 	$	2,500,000.00	 
	 
	 	 	 	 
	Royal Bank of Canada:
	 	$	2,222,222.22	 
	 
	 	 	 	 
	MIHI LLC:
	 	$	0.00	 
	 
	 	 	 	 
	Fifth Third Bank:
	 	$	1,666,666.67	 
	 
	 	 	 	 
	“Term Loan Commitments”
	 	 	 	 
	 
	 	 	 	 
	General Electric Capital Corporation:
	 	$	56,388,888.89	 
	 
	 	 	 	 
	SunTrust Bank:
	 	$	35,555,555.56	 
	 
	 	 	 	 
	Regions Bank:
	 	$	22,222,222.22	 
	 
	 	 	 	 
	ING Capital LLC
	 	$	22,222,222.22	 
	 
	 	 	 	 
	CapitalSource Bank:
	 	$	20,000,000.00	 
	 
	 	 	 	 
	Royal Bank of Canada:
	 	$	17,777,777.78	 
	 
	 	 	 	 
	MIHI LLC:
	 	$	12,500,000.00	 
	 
	 	 	 	 
	Fifth Third Bank:
	 	$	13,333,333.33