exv10w4









EXECUTION
VERSION




Exhibit 10.4




      




GUARANTY AGREEMENT




Dated as of September 30, 2010



among



CBAYSYSTEMS HOLDINGS LIMITED,



MEDQUIST IP LLC,



MEDQUIST CM LLC.



MEDQUIST OF DELAWARE, INC.



and



Each Other Guarantor

From Time to Time Party Hereto



and



BLACKROCK KELSO CAPITAL CORPORATION,



PENNANTPARK INVESTMENT CORPORATION



CITIBANK, N.A

         and



THL CREDIT, INC.



AS PURCHASERS


 





 










 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINED TERMS
	 	 	2	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	2	 
	Section 1.2 Certain Other Terms
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II GUARANTY
	 	 	3	 
	 
	 	 	 	 
	Section 2.1 Guaranty
	 	 	3	 
	Section 2.2 Limitation of Guaranty
	 	 	3	 
	Section 2.3 Contribution
	 	 	3	 
	Section 2.4 Authorization; Other Agreements
	 	 	3	 
	Section 2.5 Guaranty Absolute and Unconditional
	 	 	4	 
	Section 2.6 Waivers
	 	 	5	 
	Section 2.7 Reliance
	 	 	5	 
	 
	 	 	 	 
	ARTICLE III [RESERVED]
	 	 	5	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	5	 
	 
	 	 	 	 
	Section 4.1 Jurisdiction of Organization; Chief Executive Office
	 	 	6	 
	Section 4.2 Intellectual Property
	 	 	6	 
	Section 4.3 Representations and Warranties of the Note Purchase Agreement
	 	 	6	 
	 
	 	 	 	 
	ARTICLE V COVENANTS
	 	 	6	 
	 
	 	 	 	 
	Section 5.1 Compliance with Note Purchase Agreement
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VI REMEDIAL PROVISIONS
	 	 	6	 
	 
	 	 	 	 
	Section 6.1 Direct Obligation
	 	 	6	 
	 
	 	 	 	 
	ARTICLE VII [RESERVED]
	 	 	7	 
	 
	 	 	 	 
	ARTICLE VIII MISCELLANEOUS
	 	 	7	 
	 
	 	 	 	 
	Section 8.1 Independent Obligations
	 	 	7	 
	Section 8.2 No Waiver by Course of Conduct
	 	 	7	 
	Section 8.3 Amendments in Writing
	 	 	7	 
	Section 8.4 Additional Guarantors; Joinder Agreements
	 	 	7	 
	Section 8.5 Notices
	 	 	7	 
	Section 8.6 Successors and Assigns
	 	 	8	 
	Section 8.7 Counterparts
	 	 	8	 
	Section 8.8 Severability
	 	 	8	 
	Section 8.9 Governing Law
	 	 	8	 
	Section 8.10 Waiver of Jury Trial
	 	 	8	 






i









 






GUARANTY AND SECURITY AGREEMENT





ANNEXES AND SCHEDULES




Annex 1 Form of Joinder Agreement




Schedule 1 Jurisdiction of Organization; Chief Executive Office








ii









 








          This Agreement and the rights and obligations evidenced hereby are subordinate in the manner and to
the extent set forth in that certain subordination and Intercreditor Agreement (the “Subordination
Agreement”) among BlackRock Kelso Capital Corporation (“BKC”),
PennantPark Investment Corporation (“Pennant”), Citibank, N.A.
(“Citibank”), THL Credit, Inc. (“THL” and together with BKC, Pennant and
Citibank, the “Purchasers”), 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 “Issuers”) and General Electric Capital
Corporation (“Agent”), to the indebtedness (including interest) owed by the Issuers pursuant to
that certain Credit Agreement dated as of October 1, 2010 among the Issuers, Agent and the lenders
from time to time party thereto, as such Credit Agreement has been and hereafter may be amended,
supplemented or otherwise modified from time to time and to indebtedness refinancing the
indebtedness under that agreement as contemplated by the Subordination Agreement; and each holder
of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the provisions of
the Subordination Agreement.




          GUARANTY AGREEMENT, dated as of September 30, 2010, by CBaySystems Holdings Limited, a company
incorporated in the British Virgin Islands (“Holdings”), MedQuist IP LLC, a Delaware
limited liability company (“MedQuist IP”), MedQuist CM LLC, a Delaware limited liability
company (“MedQuist CM”) and MedQuist of Delaware, Inc., a Delaware
corporation (“MedQuist Delaware”), Mirrus Systems, Inc., a Delaware corporation (“Mirrus”),
CBay Systems and Services Inc., a Delaware corporation (“Services”), AMSPlus, Inc., a
Massachusetts corporation (“AMS”) and each of the other entities listed on the signature pages
hereof or that becomes a party hereto pursuant to Section 8.4 (together with CBaySystems,
MedQuist CM, MedQuist IP, MedQuist Delaware, Mirrus, Services and AMS, the “Guarantors”),
in favor of BlackRock Kelso Capital Corporation, a Delaware corporation (“BKC”),
PennantPark Investment Corporation, a Maryland corporation (“Pennant”), Citibank, N.A., a
national association (“Citibank”) and THL Credit, Inc., a
Delware corporation (“THL” and together with BKC, Pennant and Citibank, “Purchasers”).




W I T N E S S E T H:




          WHEREAS, pursuant to the Senior Subordinated Note Purchase Agreement, dated as of September
30, 2010 (as the same may be modified from time to time, the “Note Purchase Agreement”),
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 “Issuers”), Holdings, and
the Purchasers, the Issuers have agreed to sell and Purchases have agreed to purchase from Issuers
the 13.0% Senior Subordinated Notes due October 2016 (each, a “Note” and collectively,
the “Notes”), in an aggregate principal amount equal to $85,000,000;




          WHEREAS, each Guarantor (other than the Issuers) has agreed to guaranty the Obligations (as
defined in the Note Purchase Agreement) of the Issuers;




          WHEREAS, each Guarantor will derive substantial direct and indirect benefits from the sale of
the Notes under the Note Purchase Agreement; and




GUARANTY AGREEMENT









 









 











          WHEREAS, it is a condition precedent to the obligation of the Purchasers to purchase the Notes
under the Note Purchase Agreement that the Guarantors shall have executed and delivered this
Agreement to the Purchasers;




          NOW, THEREFORE, in consideration of the premises and to induce the Purchasers to enter into
the Note Purchase Agreement and to induce the Purchasers to purchase the Notes thereunder, each
Guarantor hereby agrees with the Purchasers as follows:




ARTICLE I




DEFINED TERMS



     Section 1.1 Definitions. (a) Capital terms used herein without definition are used as defined
in the Note Purchase Agreement.



          (b) The following terms have the meanings given to them in the UCC and terms used herein
without definition that are defined in the UCC have the meanings given to them in the UCC (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“account”, “account debtor”, “as-extracted collateral”, “certificated
security”, “chattel paper”, “commercial tort claim”, “commodity
contract”, “deposit account”, “electronic chattel paper”, “equipment”,
“farm products”, “fixture”, “general intangible”, “goods”,
“health-care-insurance receivable”, “instruments”, “inventory”,
“investment property”, “letter-of-credit right”, “proceeds”, “record”, “securities account”, “security”, “supporting obligation” and
“tangible chattel paper”.




          (c) The following terms shall have the following meanings:




          “Affiliate
Guarantor” means any Guarantor that is not a direct or indirect parent company of
the Issuers.




          “Agreement” means this Guaranty Agreement.




          “Guaranteed Obligations” has the meaning set forth in
Section 2.1.




          “Guarantor” has the meaning set forth in the preamble
hereto.




          “Guaranty” means the guaranty of the Guaranteed Obligations made by the Guarantors
as set forth in this Agreement.




          “Subsidiary Guarantor” means any Guarantor that is a Subsidiary of any Issuer.




          “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.




     Section 1.2 Certain Other Terms. (a) The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such terms. The terms
“herein”, “hereof” and similar terms refer to this Agreement as a whole and not
to any particular Article, Section or clause in this Agreement. References herein to an Annex,
Schedule, Article,



2









 




Section or clause refer to the appropriate Annex or Schedule to, or Article, Section or clause in
this Agreement.




          (b) Interpretation of the Note Purchase Agreement is applicable to this Agreement as and to
the extent set forth therein.




ARTICLE II




GUARANTY



     Section 2.1 Guaranty. To induce the Purchasers to purchase the Notes, each
Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, the full and punctual payment when due, whether at stated
maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance
with any Note Document, all of the Obligations of the Issuers whether existing on the date hereof
or hereinafter incurred or created (the “Guaranteed Obligations”). This Guaranty by each
Guarantor hereunder constitutes a guaranty of payment and not of collection.



     Section 2.2 Limitation of Guaranty. Any term or provision of this Guaranty or
any other Note Document to the contrary notwithstanding, the maximum aggregate amount for which any
Affiliate Guarantor or Subsidiary Guarantor shall be liable hereunder shall not exceed the maximum
amount for which such Affiliate Guarantor or Subsidiary Guarantor can be liable without rendering
this Guaranty or any other Note Document, as it relates to such Affiliate Guarantor or Subsidiary
Guarantor, subject to avoidance under applicable Requirements of Law relating to fraudulent
conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act and Section 548 of title 11 of the United States Code or any applicable
provisions of comparable Requirements of Law) (collectively, “Fraudulent Transfer Laws”). Any analysis of the provisions of this Guaranty for purposes of Fraudulent Transfer Laws shall
take into account the right of contribution established in Section 2.3 and, for purposes of
such analysis, give effect to any discharge of intercompany debt as a result of any payment made
under the Guaranty.



     Section 2.3 Contribution. To the extent that any Subsidiary Guarantor shall
be required hereunder to pay any portion of any Guaranteed Obligation exceeding the greater of (a)
the amount of the economic benefit actually received by such Subsidiary Guarantor from the sale of
the Notes and other Obligations and (b) the amount such Subsidiary Guarantor would otherwise have
paid if such Subsidiary Guarantor had paid the aggregate amount of the Guaranteed Obligations
(excluding the amount thereof repaid by the Issuers and Holdings) in the same proportion as such
Subsidiary Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate
net worth of all the Subsidiary Guarantors on such date, then such Guarantor shall be reimbursed by
such other Subsidiary Guarantors for the amount of such excess, pro rata, based on the respective
net worth of such other Subsidiary Guarantors on such date.



     Section 2.4 Authorization; Other Agreements. The Purchasers are hereby
authorized, without notice to or demand upon any Guarantor and without discharging or otherwise
affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder,
from time to time, to do each of the following:



3









 





          (a) (i) modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the
time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed
Obligation or any Note Document;




          (b) apply to the Guaranteed Obligations any sums by whomever paid or however realized to any
Guaranteed Obligation in such order as provided in the Note Documents;




          (c) refund at any time any payment received by any Purchaser in respect of any Guaranteed
Obligation;




          (d) (i) add, release or substitute any one or more other Guarantors, makers or endorsers of
any Guaranteed Obligation or any part thereof and (ii) otherwise deal in any manner with the
Issuers and any other Guarantor, maker or endorser of any Guaranteed Obligation or any part
thereof; and




          (e) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.



Nothing in this Section 2.4 shall be construed to modify the requirements of Section 11.1
of the Note Purchase Agreement (or any similar provision in any other Note Document) for
effectiveness of any amendment or modification of or supplement to any Note Document.




     Section 2.5 Guaranty Absolute and Unconditional. Each Guarantor hereby waives
and agrees not to assert any defense (other than indefeasible payment in full of the Guaranteed
Obligations in cash or other immediately available funds), whether arising in connection with or in
respect of any of the following or otherwise, and hereby agrees that its obligations under this
Guaranty are irrevocable, absolute and unconditional and shall not be discharged as a result of or
otherwise affected by any of the following (which may not be pleaded and evidence of which may not
be introduced in any proceeding with respect to this Guaranty, in each case except as otherwise
agreed in writing by the Purchasers):



          (a) the invalidity or unenforceability of any obligation of any Issuers or any other Guarantor
under any Note Document or any other agreement or instrument relating thereto (including any
amendment, consent or waiver thereto), or guaranty of, any Guaranteed Obligation or any part
thereof;




          (b) the absence of (i) any attempt to collect any Guaranteed Obligation or any part thereof
from any Issuer or any other Guarantor or other action to enforce the same or (ii) any action to
enforce any Note Document;




          (c) [Reserved.];




          (d) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation
or dissolution by or against any Issuer, any other Guarantor or any
of the Issuers’ other
Subsidiaries or any procedure, agreement, order, stipulation, election, action or omission
thereunder, including any discharge or disallowance of, or bar or stay against collecting, any
Guaranteed Obligation (or any interest thereon) in or as a result of any such proceeding; or




          (e) [Reserved.];




4









 





          (f) any other defense, setoff, counterclaim or any other circumstance that might otherwise
constitute a legal or equitable discharge of any Issuer, any other
Guarantor or any of the Issuers’
other Subsidiaries, in each case other than the payment in full of the Guaranteed Obligations.




     Section 2.6 Waivers. Each Guarantor hereby unconditionally and irrevocably
waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence,
promptness, presentment, requirements for any demand or notice hereunder including any of the
following: (a) any demand for payment or performance and protest and notice of protest, (b) any
notice of acceptance, (c) any presentment, demand, protest or further notice or other requirements
of any kind with respect to any Guaranteed Obligation (including any accrued but unpaid interest
thereon) becoming immediately due and payable and (d) any other notice in respect of any Guaranteed
Obligation or any part thereof, and any defense arising by reason of any disability or other
defense of any Issuer or any other Guarantor (other than indefeasible payment in full of the
Guaranteed Obligations in cash or other immediately available funds). Each Guarantor further
unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of
subrogation or any right of reimbursement or contribution or similar right against any Issuer or
any other Guarantor by reason of any Note Document or any payment made thereunder or (y) assert any
claim, defense, setoff or counterclaim it may have against any other Note Party or set off any of
its obligations to such other Note Party against obligations of such Note Party to such Guarantor,
in each case at any time during which an Event of Default has occurred and is continuing, until
indefeasible payment in full of the Guaranteed Obligations (other than any Contingent Note Document
Obligations) in cash or other immediately available funds and termination of all Commitments. No
obligation of any Guarantor hereunder shall be discharged other than by payment in full of the
Guaranteed Obligations.



     Section 2.7 Reliance. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of each Issuer, each other Guarantor and any
other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all
other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part
thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that no Purchaser
shall have any duty to advise any Guarantor of information known to it regarding such condition or
any such circumstances. In the event any Purchaser, in its sole discretion, undertakes at any time
or from time to time to provide any such information to any Guarantor, such Purchaser shall be
under no obligation to (a) undertake any investigation not a part of its regular business routine,
(b) disclose any information that such Purchaser, pursuant to accepted or reasonable commercial
finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of
such information or any other information to any Guarantor.



ARTICLE III




[RESERVED]



ARTICLE IV



REPRESENTATIONS AND WARRANTIES



          To induce the Purchasers to enter into the Note Documents, each Guarantor hereby represents
and warrants each of the following to the Purchasers:





5









 








     Section 4.1 Jurisdiction of Organization; Chief Executive Office. Such
Guarantor’s jurisdiction of organization, legal name and organizational identification number, if
any, and the location of such Guarantor’s chief executive office or sole place of business, in each
case as of the Closing Date, is specified on Schedule 1 and, if different, such
Schedule 1 also lists all jurisdictions of incorporation, legal names and locations of such
Guarantor’s chief executive office or sole place of business for the five years preceding the date
hereof.



     Section 4.2 Intellectual Property. Except as would not be expected to have,
individually or in the aggregate, a Material Adverse Effect: (a) on the Closing Date, all Material
Intellectual Property owned by such Guarantor is valid, in full force and effect, subsisting,
unexpired and enforceable, and no such Material Intellectual Property has been abandoned by such
Guarantor; (b) no breach or default of any material IP License shall be caused by any of the
following, and none of the following shall limit or impair the ownership, use, validity or
enforceability of, or any rights of such Guarantor in, any Material Intellectual Property: (i) the
consummation of the transactions contemplated by any Note Document or (ii) any holding, decision,
judgment or order rendered by any Governmental Authority; (c) to such Guarantor’s knowledge, no
Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any
Material Intellectual Property of such Guarantor; and (d) such Guarantor, and to such Guarantor’s
knowledge each other party thereto, is not in breach or default of any IP License.



     Section 4.3 Representations and Warranties of the Note Purchase Agreement. The
representations and warranties as to such Guarantor and its Subsidiaries made by the Issuers in
Article IV (Representations and Warranties) of the Note Purchase Agreement are true and
correct on each date as required by Section 3.1(f) of the Note Purchase Agreement.



ARTICLE V




COVENANTS



          Each Guarantor agrees with the Purchasers to the following, as long as any Obligation or
Commitment remains outstanding (other than any Contingent Note Document Obligation) and, in each
case, unless the Required Purchasers otherwise consent in writing:




     Section 5.1 Compliance with Note Purchase Agreement. Such Guarantor agrees to
comply with all covenants and other provisions applicable to it under the Note Purchase Agreement,
including Sections 2.17 (Taxes), 11.3 (Costs and Expenses) and
11.4 (Indemnities) of the Note Purchase Agreement and agrees to the same submission
to jurisdiction as that agreed to by the Issuers in the Note Purchase Agreement.



ARTICLE VI




REMEDIAL PROVISIONS



     Section 6.1 Direct Obligation. The Purchasers shall not be required to make
any demand upon, or pursue or exhaust any right or remedy against, any Guarantor, any other Note
Party or any other Person with respect to the payment of the Obligations or any direct or indirect
guaranty thereof. All of the rights and remedies of the Purchasers under any Note Document shall be
cumulative, may be exercised individually or concurrently and not exclusive of any other rights or
remedies provided by any Requirement of Law. To the extent it may lawfully do so,



6









 





each Guarantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and
covenants not to assert against the Purchasers, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a surety, now or
hereafter existing, arising out of the exercise by them of any rights hereunder.




ARTICLE VII




[RESERVED]



ARTICLE VIII



MISCELLANEOUS



     Section 8.1 Independent Obligations. The obligations of each Guarantor
hereunder are independent of and separate from the Guaranteed Obligations. If any Guaranteed
Obligation is not paid when due, or upon any Event of Default, the Purchasers may, at their sole
election, proceed directly and at once, without notice, against any Guarantor to collect and
recover the full amount of any Guaranteed Obligation then due, without first proceeding against any
other Guarantor or any other Note Party and without first joining any other Guarantor or any other
Note Party in any proceeding.



     Section 8.2 No Waiver by Course of Conduct. No Purchaser shall by any act
(except by a written instrument pursuant to Section 8.3), delay, indulgence, omission or otherwise
be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default. No failure to exercise, nor any delay in exercising, on the part of any
Purchaser, any right, power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A waiver by any Purchaser
of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right
or remedy that such Purchaser would otherwise have on any future occasion.



     Section 8.3 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in accordance with
Section 11.1 of the Note Purchase Agreement; provided, however, that
annexes to this Agreement may be supplemented (but no existing provisions may be modified) through
Joinder Agreements, in substantially the form of Annex 1, in each case, duly executed by
the Purchasers and each Guarantor directly affected thereby.



     Section 8.4 Additional Guarantors; Joinder Agreements. If, at the option of
the Issuer Representative or as required pursuant to Section 7.10 of the Note Purchase
Agreement, any Issuer shall cause any Subsidiary that is not a Guarantor to become a Guarantor
hereunder, such Subsidiary shall execute and deliver to the Purchasers a Joinder Agreement
substantially in the form of Annex 1 and shall thereafter for all purposes be a party hereto and
have the same rights, benefits and obligations as a Guarantor party hereto on the Closing Date.



     Section 8.5 Notices. All notices, requests and demands to or upon the
Purchasers or any Guarantor hereunder shall be effected in the manner provided for in Section
11.11 of the Note Purchase Agreement; provided, however, that any such notice,
request or demand to or upon any Guarantor shall be addressed to the Issuer Representative’s notice
address set forth in such Section 11.11.



7









 





     Section 8.6 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of each Purchaser and their
successors and assigns; provided, however, that no Guarantor may assign, transfer
or delegate any of its rights or obligations under this Agreement without the prior written consent
of the Required Purchasers.



     Section 8.7 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 by Electronic Transmission shall be as effective as delivery of a manually executed
counterpart hereof.



     Section 8.8 Severability. Any provision of this Agreement 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 this Agreement or any part of such
provision in any other jurisdiction.



     Section 8.9 Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.



     Section 8.10
 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 NOTE 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 this agreement by the mutual waivers and certifications in this Section 8.10.



[SIGNATURE PAGES FOLLOW]





8











 




          IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	 	CBAYSYSTEMS HOLDINGS LIMITED

    as Guarantor

 	 
	 	By:  	/s/ Clyde Swoger
 	 
	 	 	Name:  	Clyde Swoger 	 
	 	 	Title:  	CFO 	 
	 
	 	MEDQUIST IP LLC

    as Guarantor

 	 
	 	By:  	/s/ Mark R. Sullivan
 	 
	 	 	Name:  	Mark R. Sullivan 	 
	 	 	Title:  	President 	 
	 
	 	MEDQUIST CM LLC

as Guarantor

 	 
	 	By:  	/s/ Mark R. Sullivan
 	 
	 	 	Name:  	Mark R. Sullivan 	 
	 	 	Title:  	President 	 
	 
	 	MEDQUIST OF DELAWARE, INC.

as Guarantor

 	 
	 	By:  	/s/ Mark R. Sullivan
 	 
	 	 	Name:  	Mark R. Sullivan 	 
	 	 	Title: Secretary 	 
	 
	 	AMSPLUS, INC.

as Guarantor

 	 
	 	By:  	/s/ Jan Lenaghan
 	 
	 	 	Name:  	Jan Lenaghan 	 
	 	 	Title:  	CFO 	 
	 



Signature Page to Guaranty Agreement



 









 





	 	 	 	 	 
	 	MIRRUS SYSTEMS, INC.

    as Guarantor

 	 
	 	By:  	/s/ Kashyap Joshi
 	 
	 	 	Name:  	Kashyap Joshi 	 
	 	 	Title: V.P. FINANCE 	 
	 
	 	CBAY SYSTEMS AND SERVICES INC.

    as Guarantor

 	 
	 	By:  	/s/ Kashyap Joshi
 	 
	 	 	Name:  	Kashyap Joshi 	 
	 	 	Title: V.P. FINANCE 	 
	 



Signature Page to Guaranty Agreement



 









 





					
	 	




ACCEPTED AND AGREED

as of the date first above written:





BLACKROCK KELSO CAPITAL CORPORATION,

By: BLACKROCK KELSO CAPITAL ADVISORS LLC,

its Investment Manager,

as Purchaser

 	 
	 	By:  	/s/ Michael B. Lazar
 	 
	 	 	Name:  	Michael B. Lazar 	 
	 	 	Title:  	Chief Operating Officer 	 
	 



Signature Page to Guaranty Agreement



 









 





					
	 	




PENNANTPARK INVESTMENT CORPORATION,

as Purchaser

 	 
	 	By:  	/s/ Arthur Penn
 	 
	 	 	Name:  	Arthur Penn 	 
	 	 	Title:  	CEO 	 
	 



Signature Page to Guaranty Agreement



 









 





					
	 	




CITIBANK, N.A., as Purchaser

 	 
	 	By:  	/s/ Michael P. Girondo
 	 
	 	 	Name:  	Michael P. Girondo 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Guaranty Agreement



 









 





					
	 	




THL CREDIT, INC., as Purchaser

 	 
	 	By:  	/s/ Hunter Stropp
 	 
	 	 	Name:  	Hunter Stropp 	 
	 	 	Title:  	Co-President 	 
	 



Signature Page to Guaranty Agreement




 











 






	FORM OF JOINDER AGREEMENT





          This JOINDER AGREEMENT, dated as of                           , 20     , is delivered pursuant to Section
8.4 of the Guaranty Agreement, dated as of September 30, 2010, by CBaySystems Holdings Limited,
a company incorporated in the British Virgin Islands (“Holdings”), MedQuist IP LLC, a
Delaware limited liability company (“MedQuist IP”), MedQuist CM LLC, a Delaware limited
liability company (“MedQuist CM”) and MedQuist of Delaware, Inc. Inc., a Delaware
corporation (“MedQuist Delaware”), Mirrus Systems, Inc., a Delaware corporation (“Mirrus”), CBay Systems and Services Inc., a Delaware corporation (“Services”), AMSPlus, Inc., a
Massachusetts corporation (“AMS”) and each of the other entities listed on the signature pages
thereto or that becomes a party thereto pursuant to Section 8.4 (together with CBaySystems,
MedQuist CM, MedQuist IP, MedQuist Delaware, Mirrus, Services and AMS, the “Guarantors”),
in favor of Blackrock Kelso Capital Corporation, a Delaware
corporation (“BKC”), PennantPark
Investment Corporation, a Maryland corporation (“Pennant”), CITIBANK, N.A., a national
association (“Citibank”), and THL Credit, Inc. (“THL” and together with BKC,
Pennant and Citibank, the “Purchasers”) (the “Guaranty Agreement”). Capitalized
terms used herein without definition are used as defined in the Guaranty Agreement.




          By executing and delivering this Joinder Agreement, the undersigned, as provided in
Section 8.4 of the Guaranty Agreement, hereby becomes a party to the Guaranty Agreement as
a Guarantor thereunder with the same force and effect as if originally named as a Guarantor therein
and, without limiting the generality of the foregoing, expressly assumes all obligations and
liabilities of a Guarantor thereunder. The undersigned hereby agrees to be bound as a Guarantor for
the purposes of the Guaranty Agreement.




          The
information set forth in Annex 1-A is hereby added to the information set forth in
Schedule 1 to the Guaranty Agreement. By acknowledging and agreeing to this Joinder
Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Guaranty
Agreement.




          The undersigned hereby represents and warrants, on behalf of itself, that each of the
representations and warranties contained in Article IV of the Guaranty Agreement applicable
to it and its rights is true and correct on and as the date hereof as if made on and as of such
date.




          IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and
delivered as of the date first above written.




	 	 	 	 	 
	 	[ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AGREEMENT





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ACKNOWLEDGED AND AGREED

as of the date first above written:




BLACKROCK KELSO CAPITAL CORPORATION

as Purchaser




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



PENNANTPARK INVESTMENT CORPORATION

     as Purchaser



By: PennantPark Investment Advisers, LLC




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	CITIBANK, N.A.

     as Purchaser

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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	 	THL CREDIT, INC.

     as Purchaser

 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




GUARANTY AGREEMENT





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