exv10w5






Exhibit 10.5




SUBORDINATION AND INTERCREDITOR AGREEMENT 




     THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Agreement”) is entered into as of this
October 1, 2010, by and among 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 (collectively, the “Subordinated Creditors”), 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 “Companies”), and General Electric Capital Corporation, a Delaware
corporation, as Agent for all Senior Lenders party to the Senior Credit Agreement described below.



R E C I T A L S




     A. The Companies, Agent and Senior Lenders (as hereinafter defined) have entered into a Credit
Agreement of even date herewith (as the same may be amended, supplemented or otherwise modified
from time to time, the “Senior Credit Agreement”) pursuant to which, among other things, Senior
Lenders have agreed, subject to the terms and conditions set forth in the Senior Credit Agreement,
to make certain loans and financial accommodations to the Companies. All of the Companies’
obligations to Agent and Senior Lenders under the Senior Credit Agreement and the other Senior Debt
Documents (as hereinafter defined) are secured by liens on and security interests in substantially
all of the now existing and hereafter acquired real and personal property of each Company (the
“Collateral”).



     B. The Companies and the Subordinated Creditors have entered into a Senior Subordinated Note
Purchase Agreement, dated as of September 30, 2010 (as the same may be amended, supplemented or
otherwise modified from time to time as permitted hereunder, the “Subordinated Note Purchase
Agreement”) pursuant to which the Subordinated Creditors are extending credit to the Companies as
evidenced by Subordinated Promissory Notes in the aggregate principal amount of $85,000,000 (as the
same may be amended, supplemented or otherwise modified from time to time as permitted hereunder,
the “Subordinated Notes”).



     C. As an inducement to and as one of the conditions precedent to the agreement of Agent and
Senior Lenders to consummate the transactions contemplated by the Senior Credit Agreement, Agent
and Senior Lenders have required the execution and delivery of this Agreement by the Subordinated
Creditors and the Companies in order to set forth the relative rights and priorities of Agent,
Senior Lenders and the Subordinated Creditors under the Senior Debt Documents and the Subordinated
Debt Documents (as hereinafter defined).



     NOW, THEREFORE, in order to induce Agent and Senior Lenders to consummate the transactions
contemplated by the Senior Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby agree as follows:


1. Definitions. The following terms shall have the following meanings in this Agreement:





 









 









     “Additional Available Cash” shall have the meaning set forth in the Senior Credit
Agreement.




     “Agent” means General Electric Capital Corporation, as Agent for the Senior Lenders,
or any other Person appointed by the holders of the Senior Debt as administrative agent for
purposes of the Senior Debt Documents and this Agreement.




     “Bank Product Obligations” shall have the meaning set forth in the Senior Credit
Agreement as in effect on the date hereof.




     “Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, as amended
from time to time and any successor statute and all rules and regulations promulgated thereunder.




     “Consolidated Total Leverage Ratio” shall have the meaning set forth in the Senior
Credit Agreement.




     “Designated IPO Proceeds Amount” shall have the meaning set forth in the Senior Credit
Agreement.




     “Distribution” means, with respect to any indebtedness or obligation, (a) any payment
or distribution by any Person of cash, securities or other property, by set-off or otherwise, on
account of such indebtedness or obligation, (b) any redemption, purchase or other acquisition of
such indebtedness or obligation by any Person or (c) the granting of any lien or security interest
to or for the benefit of the holders of such indebtedness or obligation in or upon any property of
any Person; provided, however, that “Distribution” shall not include (i) the accretion of any
interest on and with respect to the Subordinated Notes to the extent permitted hereunder and (ii)
Reorganization Securities.




     “Enforcement Action” means (a) to take from or for the account of any Company or any
guarantor of the Subordinated Debt, by set-off or in any other manner, the whole or any part of any
moneys which may now or hereafter be owing by any Company or any such guarantor with respect to the
Subordinated Debt, (b) to sue for payment of, or to initiate or participate with others in any
suit, action or proceeding against any Company or any such guarantor to (i) enforce payment of or
to collect the whole or any part of the Subordinated Debt or (ii) commence judicial enforcement of
any of the rights and remedies under the Subordinated Debt Documents or applicable law with respect
to the Subordinated Debt, (c) to accelerate the Subordinated Debt, (d) to exercise any put option
or to cause any Company or any such guarantor to honor any redemption or mandatory prepayment
obligation under any Subordinated Debt Document or (e) take any action under the provisions of any
state or federal law, including, without
limitation, the Uniform Commercial Code, or under any contract or agreement, to enforce, foreclose
upon, take possession of or sell any property or assets of any Company or any such guarantor;
provided, however, that the term Enforcement Action shall not include (i) the initiation or
maintenance of any suit or action by a Subordinated Creditor



 









 






solely to the extent necessary to prevent the running of any applicable statute of limitations or
similar permanent restriction on claims, or (ii) sending a Subordinated Debt Default Notice to any
Obligor.




     “GECC Loan Documents” means the Senior Credit Agreement and all other agreements,
documents and instruments executed from time to time in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time.




     “Group Member” shall have the meaning set forth in the Senior Credit Agreement.




     “Holdings” means 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 IPO” shall have the meaning set forth in the Senior Credit Agreement.




     “Letter of Credit” shall have the meaning set forth in the Senior Credit Agreement.




     “Liens” shall have the meaning set forth in the Senior Credit Agreement.




     “Net Cash Proceeds” shall have the meaning set forth in the Senior Credit Agreement.




     “Obligors” shall mean the Borrower and Guarantors (each as defined in the Senior
Credit Agreement).




     “Paid in Full” means, with respect to the Senior Debt, all Senior Debt (excluding (i)
contingent indemnification obligations for which no claim has been made, and (ii) contingent Bank
Product Obligations and Secured Hedging Obligations not yet due and payable or becoming due and
payable upon termination of commitments and repayment of all Senior Debt under Senior Debt
Documents) has been paid in full in cash, all letter of credit reimbursement obligations have been
cash collateralized in an amount equal to 102% of the aggregate stated amount of all outstanding
letters of credit on terms reasonably acceptable to the Senior Agent, and the termination of all
commitments to lend under the Senior Debt Documents.




     “Permitted Refinancing” means any refinancing of the Senior Debt under the GECC Loan
Documents provided that the financing documentation entered into by the
Companies in connection with such Permitted Refinancing constitute Permitted Refinancing Senior
Debt Documents.




     “Permitted Refinancing Senior Debt Documents” means any financing documentation which
replaces the GECC Loan Documents and pursuant to which the



 









 






Senior Debt under the GECC Loan Documents are refinanced, as such financing documentation may be
amended, supplemented or otherwise modified from time to time in compliance with this Agreement,
but specifically excluding any such financing documentation to the extent that it contains, either
initially or by amendment or other modification, any material terms, conditions, covenants or
defaults other than those which (a) then exist in the GECC Loan Documents or (b) could be included
in the GECC Loan Documents by an amendment or other modification that would not be prohibited by
the terms of this Agreement.




     “Permitted Subordinated Debt Payments” means (i) regularly scheduled payments of
interest in cash or in kind on the Subordinated Debt due and payable on a non-accelerated basis in
accordance with the terms of the Subordinated Debt Documents as in effect on the date hereof or as
modified in accordance with the terms of this Agreement, and payment of interest in kind on any
incremental default rate, (ii) to the extent no Senior Default exists or would result therefrom,
optional prepayments or redemptions of Subordinated Debt 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, (iii) reasonable and customary fees, expenses,
costs and indemnities (including closing fees and expenses paid on the date hereof) constituting
Subordinated Debt as and when due and payable under the Subordinated Note Purchase Agreement, (iv)
receipt of Reorganization Securities, and (v) payment of the principal of the Subordinated Debt on
the final scheduled maturity date of the Subordinated Debt.




     “Person” means any natural person, corporation, general or limited partnership,
limited liability company, firm, trust, association, government, governmental agency or other
entity, whether acting in an individual, fiduciary or other capacity.




     “Proceeding” means any voluntary or involuntary insolvency, bankruptcy, receivership,
custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other officer with similar powers or any other
proceeding for the liquidation, dissolution or other winding up of a Person.




     “Record Subordinated Creditors” means those Subordinated Creditors holding
Subordinated Notes that are either a party to this Agreement or have executed an agreement
substantially identical to this Agreement and delivered such agreement to Agent pursuant to
Section 2.7(a).




     “Reorganization Securities” shall mean any debt or equity securities of the
Company or any other Person that are distributed to the Subordinated Creditors in respect of the
Subordinated Debt pursuant to a confirmed plan of reorganization or adjustment (or any debt or
equity securities issued in a Proceeding pursuant to an order of a bankruptcy court in satisfaction
of all or a portion thereof) and that are subordinated in right of payment to the Senior Debt (or
any debt or equity securities issued in substitution of all or any portion of the Senior Debt) to
the same extent as the Subordinated Debt is



 









 






subordinated to the Senior Debt pursuant to such supplements to or modifications to this
Agreement between the Subordinated Creditors and Agent as Agent may reasonably request to
reflect the continued subordination of the Reorganization Securities to the Senior Debt.




     “Required Subordinated Creditors” means, at any time, Subordinated Creditors
that hold more than 50% of the outstanding principal amount of the Subordinated Notes at
such time.




     “Secured Hedging Obligations” means all obligations of any Company arising under or
with respect to any Secured Hedging Agreement.




     “Senior Covenant Default” means any “Event of Default” under the Senior Debt
Documents (other than a Senior Payment Default).




     “Senior Debt” means all obligations, liabilities and indebtedness of every nature of
any Company or any guarantor from time to time owed under the Senior Debt Documents, the Secured
Hedging Obligations and the Bank Product Obligations, including, without limitation, the principal
amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and
expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and
from time to time hereafter owing, due or payable, whether before or after the filing of a
Proceeding under the Bankruptcy Code together with (a) any amendments, modifications, renewals or
extensions thereof to the extent not prohibited by the terms of this Agreement and (b) any interest
accruing thereon after the commencement of a Proceeding, without regard to whether or not such
interest is an allowed claim; provided, however, that in no event shall the principal amount of the
Senior Debt (specifically excluding the Secured Hedging Obligations and Bank Product Obligations)
exceed the sum of (i) the principal amount of the loans and any unfunded loan commitments under the
Senior Credit Agreement as in effect on the date hereof reduced by the amount of any prepayments
and repayments and commitment reductions under the Senior Credit Agreement to the extent that such
payments and reductions may not be reborrowed (specifically excluding, however, any such repayments
and commitment reductions occurring in connection with any Permitted Refinancing), plus (ii)
$33,500,000 (the “Maximum Senior Principal Amount”). Senior
Debt shall be considered to be outstanding whenever any loan commitment under the Senior
Debt Document is outstanding. Notwithstanding the foregoing, no Sponsor Affiliated Lender
(as defined in the Senior Credit Agreement as in effect on the date hereof) or Group Member
shall be entitled to the benefits of this
Agreement as a holder of Senior Debt, except that to the extent that a Sponsor Affiliated
Lender (x) holds no more than ten percent (10%) of the combined principal amount of the
term loan obligations under the Senior Debt Documents determined at the time such
obligation under the Senior Debt Documents and (y) is subject, in relation to such
obligations under the Senior Debt Documents, to the voting and other restrictions as set
forth in the last sentence of Section 11.2(b) of the Senior Credit Agreement as in effect
on the date hereof.



 









 






     “Senior Debt Documents” means the GECC Loan Documents and, after the
consummation of any Permitted Refinancing, the Permitted Refinancing Senior Debt Documents.




     “Senior Default” means any Senior Payment Default or Senior Covenant Default.




     “Senior Default Notice” means a written notice from Agent to the Subordinated Creditors
pursuant to which the Subordinated Creditors are notified of the occurrence of a Senior Default,
which notice incorporates a reasonably detailed description of such Senior Default.




     “Senior Lenders” means the holders of the Senior Debt.




     “Senior Payment Default” means any “Event of Default” under the Senior Debt
Documents resulting from the failure of any Company to pay, on a timely basis, any
principal, interest, fees or other obligations under the Senior Debt Documents, including,
without limitation, any default in payment of Senior Debt after acceleration thereof.




     “Subordinated Debt” means all of the obligations of any Company or any guarantor to
the Subordinated Creditors evidenced by or incurred pursuant to the Subordinated Debt Documents.




     “Subordinated Debt Default” means a default in the payment of the Subordinated Debt or
in the performance of any term, covenant or condition contained in the Subordinated Debt Documents
or any other occurrence permitting the Subordinated Creditors to accelerate the payment of, or put
or cause the redemption of, all or any portion of the Subordinated Debt.




     “Subordinated Debt Default Notice” means a written notice from the Subordinated
Creditors or any Company to Agent pursuant to which Agent is notified of the occurrence of a
Subordinated Debt Default, which notice incorporates a reasonably detailed description of such
Subordinated Debt Default.




     “Subordinated Debt Documents” means the Subordinated Notes, the Subordinated Note
Purchase Agreement, any guaranty with respect to the Subordinated Debt and all other documents,
agreements and instruments now existing or hereinafter
entered into evidencing or pertaining to all or any portion of the Subordinated Debt.


2. Subordination.




     2.1 Subordination of Subordinated Debt to Senior Debt. Each Company covenants and
agrees, and each Subordinated Creditor by its acceptance of the Subordinated Debt Documents
(whether upon original issue or upon transfer or assignment) likewise covenants and agrees,
notwithstanding anything to the contrary contained in any of the Subordinated Debt Documents, that
the payment of any and all of the Subordinated Debt shall be



 









 




subordinate and subject in right and time of payment, to the extent and in the manner hereinafter
set forth, to the prior payment in full in cash of all Senior Debt. Each holder of Senior Debt,
whether now outstanding or hereafter created, incurred, assumed or guaranteed, shall be
deemed to
have acquired Senior Debt in reliance upon the provisions contained in this Agreement.




     2.2 Liquidation, Dissolution, Bankruptcy. In the event of any Proceeding involving any
Company or any Subsidiary of any Company:




     (a) All Senior Debt shall first be Paid in Full before any Distribution, whether in
cash, securities or other property, shall be made to the Subordinated Creditors on account
of any Subordinated Debt.




     (b) Any Distribution, whether in cash, securities or other property which would
otherwise, but for the terms hereof, be payable or deliverable in respect of the
Subordinated Debt shall be paid or delivered directly to Agent (to be held and/or applied
by Agent in accordance with the terms of the Senior Debt Documents) until all Senior Debt
is Paid in Full. Each Subordinated Creditor irrevocably authorizes, empowers and directs
any debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or
other Person having authority, to pay or otherwise deliver all such Distributions to Agent.
Each Subordinated Creditor also irrevocably authorizes and empowers Agent, in the name of
such Subordinated Creditor, to demand, sue for, collect and receive any and all such
Distributions.




     (c) Each Subordinated Creditor agrees not to initiate, prosecute or participate in any
claim, action or other proceeding challenging the enforceability, validity, perfection or
priority of the Senior Debt or any liens and security interests securing the Senior Debt.




     (d) Each Subordinated Creditor authorizes, empowers and appoints Agent its agent and
attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the
failure of such Subordinated Creditor promptly to do so prior to 15 days before the
expiration of the time to file any such proof of claim and (ii) vote such claim in any such
Proceeding upon the failure of such
Subordinated Creditor to do so prior to 5 days before the expiration of the time to vote
any such claim; provided Agent shall have no obligation to execute, verify, deliver, file
and/or vote any such proof of claim.




     (e) The Senior Debt shall continue to be treated as Senior Debt and the provisions of
this Agreement shall continue to govern the relative rights and priorities of Senior
Lenders and the Subordinated Creditors even if all or part of the Senior Debt or the
security interests securing the Senior Debt are subordinated, set aside, avoided,
invalidated or disallowed in connection with any such Proceeding, and this Agreement shall
be reinstated if at any time any payment of any of the Senior Debt is rescinded or must
otherwise be returned by any holder of Senior Debt or any representative of such holder.



     2.3 Subordinated Debt Payment Restrictions.



 









 






     (a) Notwithstanding the terms of the Subordinated Debt Documents, each Company hereby
agrees that it may not make, directly or indirectly, and each Subordinated Creditor hereby
agrees that it will not accept, any Distribution with respect to the Subordinated Debt
until the Senior Debt is Paid in Full other than Permitted Subordinated Debt Payments
subject to the terms of subsection 2.2 of this Agreement; provided, however, that each
Company and each Subordinated Creditor further agree that no Permitted Subordinated Debt
Payment may be made by any Company, directly or indirectly, or accepted by any Subordinated
Creditor if, at the time of such payment:




     (i) a Senior Payment Default exists and such Senior Payment Default shall not
have been cured or waived; or




     (ii) subject to paragraph (d) of this subsection 2.3, (A) the Record
Subordinated Creditors shall have received a Senior Default Notice from Agent or
all Senior Lenders stating that a Senior Covenant Default exists or would be
created by the making of such payment, (B) each such Senior Covenant Default shall
not have been cured or waived and (C) 180 days shall not have elapsed since the
date such Senior Default Notice was received.




     (b) The Companies may resume Permitted Subordinated Debt Payments (and may make any
Permitted Subordinated Debt Payments missed due to the application of paragraph (a) of this
subsection 2.3) in respect of the Subordinated Debt or any judgment with respect thereto:




     (i) in the case of a Senior Payment Default referred to in clause (i) of
paragraph (a) this subsection 2.3, upon a cure or waiver thereof; or




     (ii) in the case of a Senior Covenant Default referred to in
clause (ii) of paragraph (a) of this subsection 2.3, upon the earlier to occur
of (A) the cure or waiver of all such Senior Covenant Defaults or (B) the
expiration of such period of 180 days.




     (c) No Senior Default shall be deemed to have been waived for purposes of this
subsection 2.3 unless and until the Companies shall have received a written waiver from
Agent or all requisite Senior Lenders as specified in the applicable Senior Debt Documents.




     (d) Notwithstanding any provision of this subsection 2.3 to the contrary:




     (i) the Companies shall not be prohibited from making, and the Subordinated
Creditors shall not be prohibited from receiving, Permitted Subordinated Debt
Payments under clause (ii) of paragraph (a) of this subsection 2.3 for more than an
aggregate of 180 days within any period of 360 consecutive days;



 









 






     (ii) no Senior Covenant Default existing on the date any Senior Default Notice
is given pursuant to clause (ii) of paragraph (a) of this subsection 2.3 shall,
unless the same shall have ceased to exist for a period of at least 45 consecutive
days, be used as a basis for any subsequent such notice (for purposes of this
paragraph, breaches of the same financial covenant for consecutive periods shall
constitute separate and distinct
Senior Covenant Defaults);




     (iii) no more than two (2) Senior Default Notices may be given in any period
of 360 consecutive days and no more than five (5) Senior Default Notices may be
given during the term of this Agreement; and




     (iv) the failure of any Company to
make any Distribution with respect to the Subordinated Debt by reason of the
operation of this subsection 2.3 shall not be construed as preventing the
occurrence of a Subordinated Debt Default under the applicable Subordinated Debt
Documents.



     2.4 Subordinated Debt Standstill Provisions.




     (a) Until the Senior Debt is Paid in Full, the Subordinated Creditors shall not,
without the prior written consent of Agent, take any Enforcement Action with respect to the
Subordinated Debt, until the earliest to occur of the following and in any event no earlier
than five (5) days after Agent’s receipt of written notice of Subordinated Creditors’
intention to take any such Enforcement Action (each, a “Standstill Period”):




     (i) acceleration of the Senior Debt;




     (ii) the passage of 120 days from the delivery of a Subordinated Debt Default Notice
to Agent if any Subordinated Debt Default described therein shall not have been cured or
waived within such period:




     (iii) the commencement of a Proceeding against any Company: or




     (iv) the initiation by the Agent or the Senior Lenders of any foreclosure, suit, action or
proceeding with respect to a material portion (individually or in the aggregate) of the
Collateral.




Notwithstanding the foregoing, the Subordinated Creditors may (i) file proofs of claim against
any Company in any Proceeding involving such Company and (ii) deliver notice to the Obligors of an
election by the Required Subordinated Creditors to institute the default rate of interest to the
extent permitted pursuant to the Subordinated Note Documents; provided that such incremental
default interest is paid in kind and not in cash. Any Distributions or other proceeds of any
Enforcement Action obtained by any
Subordinated Creditor shall in any event be held in trust by it for the benefit of Agent
and Senior Lenders and promptly be paid or delivered to Agent for the benefit of Senior
Lenders in the form received until all Senior Debt is Paid in Full.



 









 






The parties hereto acknowledge and agree that each Standstill Period shall relate to a
specific Subordinated Debt Default and upon the termination of such Standstill Period pursuant to
the terms described above, the Subordinated Creditors may take any Enforcement Action under and
pursuant to the Subordinated Debt Documents with respect to such Subordinated Debt Default (unless
such Subordinated Debt Default is cured or waived) whether or not a subsequent Standstill Period
may be in place with respect to another Subordinated Debt Default.




     (b) Notwithstanding anything contained herein to the contrary, if following the acceleration
of the Senior Debt by Senior Lenders such acceleration is rescinded (whether or not any existing
Senior Default has been cured or waived), then all Enforcement Actions taken by the Subordinated
Creditors shall likewise be rescinded if such Enforcement Action is based solely on clause (i) of
paragraph (a) of this subsection 2.4.



     2.5 Incorrect Payments. If any Distribution on account of the Subordinated Debt not
permitted to be made by the Companies or accepted by the Subordinated Creditors under this
Agreement is made and received by any Subordinated Creditor, such Distribution shall not be
commingled with any of the assets of such Subordinated Creditor, shall be held in trust by such
Subordinated Creditor for the benefit of Agent and Senior Lenders and shall be promptly paid over
to Agent for application (in accordance with the Senior Debt Documents) to the payment of the
Senior Debt then remaining unpaid, until all of the Senior Debt is Paid in Full.



     2.6 Subordination of Liens and Security Interests; Agreement Not to Contest;
Agreement to Release Liens. Until the Senior Debt has been Paid in Full, any liens and security
interests of any Subordinated Creditor in the Collateral which may exist in breach of the
Subordinated Creditors’ agreement pursuant to subsection 3.2(f) or subsection 4.1 of this Agreement
shall be and hereby are subordinated for all purposes and in all respects to the liens and security
interests of Agent and Senior Lenders in the Collateral, regardless of the time, manner or order of
perfection of any such liens and security interests. Each Subordinated Creditor agrees that it
will not at any time contest the validity, perfection, priority or enforceability of the Senior
Debt, the Senior Debt Documents, or the liens and security interests of Agent and Senior Lenders in
the Collateral securing the Senior Debt. In the event that any Subordinated Creditor obtains any
liens or security interests in the Collateral, such Subordinated Creditor shall (or shall cause its
agent) to promptly execute and deliver to Agent such termination statements and releases as Agent
shall request to effect the release of the liens and security interests of such Subordinated
Creditor in such Collateral. In furtherance of the foregoing, each Subordinated Creditor hereby
irrevocably appoints Agent its attorney-in-fact, with full authority in the place and stead of such
Subordinated Creditor and in the name of such Subordinated Creditor or otherwise, to execute and
deliver any document or instrument which such Subordinated Creditor may be required to deliver
pursuant to this subsection 2.6.



     2.7 Sale, Transfer or other Disposition of Subordinated Debt.




     (a) The Subordinated Creditors shall not sell, assign, pledge, dispose of or otherwise
transfer all or any portion of the Subordinated Debt or any Subordinated Debt



 









 






Document: (i) without giving contemporaneous written notice of such action to Agent, and
(ii) unless, prior to the consummation of any such action, the transferee thereof shall
execute and deliver to Agent an agreement substantially identical to this Agreement,
providing for the continued subordination of the Subordinated Debt to the Senior Debt as
provided herein and for the continued effectiveness of all of the rights of Agent and
Senior Lenders arising under this Agreement and providing an address for notices hereunder.




     (b) Notwithstanding the failure of any transferee to execute or deliver an agreement
substantially identical to this Agreement, the subordination effected hereby shall survive
any sale, assignment, pledge, disposition or other transfer of all or any portion of the
Subordinated Debt, and the terms of this Agreement shall be binding upon the successors and
assigns of the Subordinated Creditors, as provided in Section 9 hereof.



     2.8 Legends. Until the termination of this Agreement in accordance with Section 15
hereof, the Subordinated Creditors will cause to be clearly, conspicuously and prominently inserted
on the face of the Subordinated Notes and any other Subordinated
Debt Document, as well as any renewals or replacements thereof, the following legend:




     “This instrument 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”) dated as of October 1, 2010 among Blackrock Kelso
Capital Corporation, PennantPark Investment Corporation, Citibank, N.A., and THL Credit,
Inc., 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 “Companies”) and General Electric
Capital Corporation (“Agent”), to the indebtedness (including interest) owed by the
Companies pursuant to that certain Credit Agreement dated as of October 1, 2010 among the
Companies, 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.”


3. Modifications.




     3.1 Modifications to Senior Debt Documents. Senior Lenders may at any time and from
time to time without the consent of or notice to the Subordinated Creditors, without incurring
liability to the Subordinated Creditors and without impairing or releasing the obligations of the
Subordinated Creditors under this Agreement, change the manner or place of payment or extend the
time of payment of or renew or alter any of the terms of the Senior Debt, or amend or modify in any
manner the Senior Debt Documents; provided that Senior Lenders shall not amend or modify the Senior
Debt Documents to (a) increase the principal amount of the Senior Debt (except as permitted by the
definition of Senior Debt herein), (b) increase the interest rate margins, letter of credit fees
and unused revolving commitment fees (including the imposition of any interest rate floors or any



 









 




increases thereof) with respect to the Senior Debt (excluding the Secured Hedging Obligations and
Bank Product Obligations) by more than 200 basis points per annum, excluding the imposition of a
default rate of interest in accordance with the terms of the Senior Debt Documents, (c) extend the
final maturity of the Senior Debt (as set forth in the GECC Loan Documents in effect on the date
hereof) by more than one year, (d) shorten the scheduled amortization of any portion of the Senior
Debt (as set forth in the GECC Loan Documents in effect on the date hereof), (e) expressly prohibit
or restrict payment of the Subordinated Debt in a manner that is more restrictive than as at the
date hereof, (f) add any new or make more restrictive any negative covenant, financial covenant or
“Event of Default” under any Senior Debt Document except to the extent, prior to or concurrently
with any such change, the Companies have offered to amend or modify the Subordinated Debt Documents
to modify or add the same negative covenant,
financial covenant or “Event of Default” to the extent the corresponding provisions of the Senior
Debt Documents have been amended or modified with appropriate differences in covenant levels and
thresholds consistent with the differences existing on the date hereof between the Senior Debt
Documents and the Subordinated Debt Documents; provided, that the Company shall not be required to
offer such changes to the Subordinated Debt Documents to the extent such changes to the Senior Debt
Documents relate to collateral, collateral reporting, revolving loans, borrowing base formulas or
other provisions that have no comparable provisions in the Subordinated Debt Documents or (g)
amend, modify or supplement the Senior Debt Documents in a manner that would cause or allow (x) any
principal outstanding under the Senior Debt Documents held by any Sponsor Affiliated Lender
(whether held directly or indirectly through an assignment, participation or otherwise) to exceed
the limitations set forth in the last sentence of the definition of Senior Debt or have voting or
other rights under the Senior Debt Documents in contravention of the last sentence of the
definition of Senior Debt or (y) any Group Member or an Affiliate of a Group Member (other than a
Sponsor Affiliated Lender in accordance with clause (x) above) to own or hold any Senior Debt
(whether directly or indirectly through an assignment, participation or otherwise).




     3.2 Modifications to Subordinated Debt Documents. Until the Senior Debt has been Paid
in Full, and notwithstanding anything to the contrary contained in the Subordinated Debt Documents,
the Subordinated Creditors shall not, without the prior written consent of Agent, agree to any
amendment, modification or supplement to the Subordinated Debt Documents the effect of which is to
(a) increase the maximum principal amount of the Subordinated Debt, or increase the rate of
interest paid in cash on any of the Subordinated Debt by more than 200 basis points or the total
rate of interest paid in cash or in kind on any of the Subordinated Debt by more than 500 basis
points, (b) change the dates upon which payments of principal or interest on the Subordinated Debt
are due, (c) change or add any event of default or any covenant with respect to the Subordinated
Debt (except as provided in Section 3.1 above), (d) change any redemption or prepayment provisions
of the Subordinated Debt, (e) alter the subordination provisions with respect to the Subordinated
Debt, including, without limitation, subordinating the Subordinated Debt to any other indebtedness,
(f) take any liens or security interests in any assets of the Companies or any guarantor of the
Subordinated Debt or (g) change or amend any other term of the Subordinated Debt Documents if such
change or amendment would result in a Senior Default.



4. Representations and Warranties.




 









 








     4.1 Representations and Warranties of Subordinated Creditors. Each Subordinated
Creditor hereby represents and warrants to Agent and Senior Lenders that as of the date hereof: (a)
such Subordinated Creditor is either a corporation, limited partnership or limited liability
company and is duly formed and validly existing under the laws of the State of its formation; (b)
such Subordinated Creditor has the power and authority to enter into, execute, deliver and carry
out the terms of this Agreement, all of which have been duly authorized by all proper and necessary
action; (c) the execution of this Agreement by such Subordinated Creditor will not violate or
conflict with the
organizational documents of such Subordinated Creditor, any material agreement binding upon such
Subordinated Creditor or any law, regulation or order or require any consent or approval which has
not been obtained; (d) this Agreement is the legal, valid and binding obligation of such
Subordinated Creditor, enforceable against such Subordinated Creditor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by
equitable principles; (e) the Subordinated Creditors are the sole owners, beneficially and of
record, of the Subordinated Debt Documents and the Subordinated Debt; and (f) the Subordinated Debt
is, and at all times prior to the termination of this Agreement shall remain, an unsecured
obligation of the Companies.



     4.2 Representations and Warranties of Agent. Agent hereby represents and warrants to
the Subordinated Creditors that as of the date hereof: (a) Agent is a corporation duly formed and
validly existing under the laws of the State of Delaware; (b) Agent has the power and authority to
enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly
authorized by all proper and necessary action, and each Lender executing the Credit Agreement has
authorized Agent to execute this Agreement on their behalf; (c) the execution of this Agreement by
Agent will not violate or conflict with the organizational documents of Agent, any material
agreement binding upon Agent or any law, regulation or order or require any consent or approval
which has not been obtained; and (d) this Agreement is the legal, valid and binding obligation of
Agent, enforceable against Agent in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally or by equitable principles.


5. Subrogation. Subject to the payment in full in cash of all Senior Debt and the
termination of all lending commitments under the Senior Debt Documents, the Subordinated Creditors
shall be subrogated to the rights of Agent and Senior Lenders to receive Distributions with respect
to the Senior Debt until the Subordinated Debt is paid in full. Each Subordinated Creditor agrees
that in the event that all or any part of a payment made with respect to the Senior Debt is
recovered from the holders of the Senior Debt in a Proceeding or otherwise, any Distribution
received by such Subordinated Creditor with respect to the Subordinated Debt at any time after the
date of the payment that is so recovered, whether pursuant to the right of subrogation provided for
in this Agreement or otherwise, shall be deemed to have been received by such Subordinated Creditor
in trust as property of the holders of the Senior Debt and such Subordinated Creditor shall
forthwith deliver the same to the Agent for the benefit of the Senior Lenders for application to
the Senior Debt until the Senior Debt is Paid in Full. A Distribution made pursuant to this
Agreement to Agent or Senior Lenders which otherwise would have been made to the Subordinated
Creditors is not, as between the Companies and the Subordinated Creditors, a payment by the
Companies to or on account of the Senior Debt.




 









 







6. Modification. Any modification or waiver of any provision of this Agreement, or
any consent to any departure by any party from the terms hereof, shall not be effective in any
event unless the same is in writing and signed by Agent and Required Subordinated Creditors, and
then such modification, waiver or consent shall be effective only in the specific instance and for
the specific purpose given. Any notice to or demand on any party hereto in any event not
specifically required hereunder shall not entitle the party receiving such notice or demand to any
other or further notice or demand in the same, similar or other circumstances unless specifically
required hereunder.



7. Further Assurances. Each party to this Agreement promptly will execute and deliver such
further instruments and agreements and do such further acts and things as may be reasonably
requested in writing by any other party hereto that may be necessary or desirable in order to
effect fully the purposes of this Agreement.



8. Notices. Unless otherwise specifically provided herein, any notice delivered under this
Agreement shall be in writing addressed to the respective party as set forth below and may be
personally served, telecopied or sent by overnight courier service or certified or registered
United States mail and shall be deemed to have been given (a) if delivered in person, when
delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a business
day before 4:00 p.m. (Chicago time) or, if not, on the next succeeding business day; (c) if
delivered by overnight courier, one business day after delivery to such courier properly addressed;
or (d) if by United States mail, four business days after deposit in the United States mail,
postage prepaid and properly addressed.





 









 








     Notices shall be addressed as follows:


If to Subordinated Creditors, to the addresses set forth on the signature pages of the Subordinated Creditors to this Agreement.



If to the Companies:



MedQuist, Inc., as Borrower Representative 

1000 Bishops Gate Blvd., Suite 300

Mt. Laurel, New Jersey 08054

Attention: Mark Sullivan, General Counsel

Telecopy: 856) 206-4211



With a copy to:



Simpson Thacher & Bartlett LLP 

425 Lexington Avenue 

New York, New York 10017

Attention: Marissa C. Wesely

Telecopy: (212) 455-2502



If to Agent or Senior Lenders:



General Electric Capital Corporation

500 West Monroe Street

Chicago, Illinois 60661




Attention:   Account Manager — MedQuist

                    Corporate Finance

Telecopy:    (866) 524-4721



With a copy to:



General Electric Capital Corporation

Two Bethesda Metro Center, Suite 600

Bethesda, Maryland 20814

Attention:  Senior Counsel

Telecopy:  (866) 398-9582



or in any case, to such other address as the party addressed shall have previously designated by
written notice to the serving party, given in accordance with this Section 8.



9. Successors and Assigns. This Agreement shall inure to the benefit of, and shall be
binding upon, the respective successors and assigns of Agent, Senior Lenders, the Subordinated
Creditors and the Companies. To the extent permitted under the Senior Debt Documents, Senior
Lenders may, from time to time, without notice to the Subordinated Creditors, assign or transfer
any or all of the Senior Debt or any interest therein to any Person and, notwithstanding any such





 











 




assignment or transfer, or any subsequent assignment or transfer, the Senior Debt shall,
subject to the terms hereof, be and remain Senior Debt for purposes of this Agreement, and every
permitted assignee or transferee of any of the Senior Debt or of any interest therein shall, to the
extent of the interest of such permitted assignee or transferee in the Senior Debt, be entitled to
rely upon and be the third party beneficiary of the subordination provided under this Agreement and
shall be entitled to enforce the terms and provisions hereof to the same extent as if such assignee
or transferee were initially a party hereto.



10. Relative Rights. This Agreement shall define the relative rights of Agent, Senior
Lenders and the Subordinated Creditors. Nothing in this Agreement shall (a) impair, as among the
Companies, Agent and Senior Lenders and as between the Companies and the Subordinated Creditors,
the obligation of the Companies with respect to the payment of the Senior Debt and the Subordinated
Debt in accordance with their respective terms or (b) affect the relative rights of Agent, Senior
Lenders or the Subordinated Creditors with respect to any other creditors of the Companies.



11. Subordinated Creditors Purchase Option 




     11.1 Purchase Notice. Upon the Record Subordinated Creditors’ receipt of a notice from
the Agent (the “Agent’s Notice”) that the Senior Debt has been accelerated, in part or in whole,
the Subordinated Creditors (or any number of them) shall have the option, but not the obligation,
to purchase all, but not less than all, of the Senior Debt owing to the Senior Lenders from the
Senior Lenders, and assume all, but not less than all, of the then existing funding commitments
under the Senior Debt Documents by giving a written notice (the “Purchase Notice”) to the Agent no
later than the 5th Business Day after receipt by the Subordinated Creditors of the Agent’s Notice.
A Purchase Notice once delivered shall be irrevocable. To the extent more than one Subordinated
Creditor timely delivers a Purchase Notice to the Agent, unless otherwise agreed to among such
purchasing Subordinated Creditors, any sale pursuant thereto shall be pro rata based on the
purchasing Subordinated Creditors then Subordinated Debt outstandings.



     11.2 Purchase Option Closing. On the date specified as the closing date by the
purchasing Subordinated Creditor in the Purchase Notice (which shall not be less than 3 Business
Days nor more than 5 Business Days, after the receipt by the Agent of the Purchase Notice), the
Senior Lenders shall sell to such Subordinated Creditors, and such Subordinated Creditors shall
purchase from the Senior Lenders, all, but not less than all, of the Senior Debt, and the Senior
Lenders shall assign to the purchasing Subordinated Creditors, and the purchasing Subordinated
Creditors shall assume from the Senior Lenders all, but not less than all, of the then existing
funding commitments under the Senior Debt Documents.



     11.3 Purchase Price. Such purchase and sale shall be made by execution and delivery by
the applicable Senior Lenders of an Assignment Agreement in the form attached to the Senior Debt
Documents, and shall be conditioned upon (i) the Agents, L/C Issuers and Swingline Lenders being
replaced and released from their obligations under the Senior Debt Documents, including without
limitation deposit account control agreements and collateral access agreements. Upon the date of
such purchase and sale, the purchasing Subordinated Creditors shall (a) pay to the Agent for the
benefit of the Senior Lenders as the purchase price therefor the sum of the full amount of all the
Senior
Debt then outstanding and (b) furnish cash collateral to the Agent with respect to the
outstanding Letters of Credit under the Senior Debt and in such amounts as are required under the



 









 




Senior Debt Documents. Such purchase price and cash collateral shall be remitted by wire transfer
of immediately available funds to such bank account of the Agent, as the Agent may designate in
writing to the purchasing Subordinated Creditors for such purpose. Interest and fees shall be
calculated to but excluding the business day on which such purchase and sale shall occur only if
the amounts so paid by the purchasing Subordinated Creditors to the bank account designated by the
Agent are received in such bank account prior to 2:00 p.m. (New York City time).




     11.4. Nature of Sale. Such purchase and sale shall be expressly made without
representation or warranty of any kind by the Senior Lenders and all other holders of Senior Debt
as to the Senior Debt or otherwise and without recourse to the Senior Lenders and all other holders
of Senior Debt, except for representations and warranties from each Senior Lender as to the
following: (a) that such Senior Lender owns the Senior Debt free and clear of any Liens, and (b)
such Senior Lender has the full right and power to assign its Senior Debt and such assignment has
been duly authorized by all necessary corporate action by such Senior Lender.


12. Conflict. In the event of any conflict between any term, covenant or condition of this
Agreement and any term, covenant or condition of any of the Subordinated Debt Documents, the
provisions of this Agreement shall control and govern.



13. Headings. The paragraph headings used in this Agreement are for convenience only and
shall not affect the interpretation of any of the provisions hereof.



14. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.



15. Severability. In the event that any provision of this Agreement is deemed to be
invalid, illegal or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court or governmental authority, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby, and the affected provision shall be modified to the minimum extent permitted by
law so as most fully to achieve the intention of this Agreement.



16. Continuation of Subordination; Termination of Agreement. This Agreement shall remain in
full force and effect until all Senior Debt has been Paid in Full and all lending commitments under
the Senior Debt Documents have terminated, after which this Agreement shall terminate without
further action on the part of the parties hereto.



17. Applicable Law. This Agreement shall be governed by and shall be construed and enforced
in accordance with the internal laws of the State of New York, without regard to conflicts of law
principles.



18. CONSENT TO JURISDICTION. EACH SUBORDINATED CREDITOR AND EACH COMPANY HEREBY CONSENTS TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE SOUTHERN DISTRICT OF THE STATE OF
NEW YORK AND IRREVOCABLY AGREES
THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH SUBORDINATED




 









 








CREDITOR AND EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH SUBORDINATED CREDITOR AND EACH COMPANY
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS
MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE
SUBORDINATED CREDITORS AND EACH COMPANY AT THEIR RESPECTIVE ADDRESSES SET FORTH IN THIS AGREEMENT
AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN ANY
LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING TO THIS AGREEMENT,
ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF THE SUBORDINATED CREDITORS, THE COMPANIES OR ANY
OF THEIR RESPECTIVE AFFILIATES SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF SUCH
SUBORDINATED CREDITOR OR SUCH COMPANY, AS APPLICABLE, FOR PURPOSES OF ALL APPLICABLE LAW OR COURT
RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT
TRIAL OR OTHERWISE). EACH SUBORDINATED CREDITOR AND EACH COMPANY AGREES THAT AGENT’S OR ANY SENIOR
LENDER’S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE INDIVIDUALS AS
IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF ANY OF THEM MAY BE USED IN THAT
PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION. EACH SUBORDINATED CREDITOR AND EACH COMPANY IN ANY
EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION
PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED BY AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS
(WHETHER IN TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING TO
THE DISPUTE.



19. WAIVER OF JURY TRIAL. EACH SUBORDINATED CREDITOR, EACH COMPANY AND AGENT HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT, ANY OF THE SUBORDINATED DEBT DOCUMENTS OR ANY OF THE SENIOR DEBT DOCUMENTS. EACH
SUBORDINATED CREDITOR, EACH COMPANY AND AGENT ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT AND THE SENIOR
DEBT DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
EACH SUBORDINATED CREDITOR, EACH COMPANY AND AGENT WARRANTS AND REPRESENTS THAT EACH HAS HAD THE
OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.




(Signature page follows)







 









 








     IN WITNESS WHEREOF, the Subordinated Creditors, the Companies and Agent have caused this Agreement
to be executed as of the date first above written.



	 	 	 	 	 
	 	AGENT:



GENERAL ELECTRIC CAPITAL CORPORATION, a

Delaware corporation, as Agent

 	 
	 	By:  	/s/  Brent Shepherd
 	 
	 	 	Its: Brent Shepherd 	 
	 	 	Duly Authorized Signatory 	 



 









 






	 	 	 	 	 
	 	SUBORDINATED CREDITORS:



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 	 
	 
	 	Address for Notices:



BlackRock Kelso Capital Corporation

40 East 52nd Street, 21st Floor

New York, NY 10022

Attention: Stephen Sachman

Tel: (212) 810-5787

Fax: (212) 810-5801



with a copy to:

Goodwin Procter LLP

The New York Times Building

620 Eighth Avenue, New York

NY 10018-1405

Attention: Bruce Rader, Esq.

Tel: (212) 813-8800

Fax: (212) 355-3333

 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	PENNNANTPARK INVESTMENT

CORPORATION, as Purchaser

 	 
	 	By:  	/s/ Arthur Penn
 	 
	 	 	Name:  	Arthur Penn 	 
	 	 	Title:  	CEO 	 
	 
	 	Address for Notices:

590 Madison Avenue, 15th Floor

New York, NY 10022

Attention: John Skvarla

Telecopy: (212) 905-1075



With a copy to:



BNY Mellon Investment Servicing (US) Inc.

400 Bellevue Parkway

Wilmington, DE 19809

Attn: William Grant

Telecopy: (302) 791-2262

 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A., as Purchaser

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

390 Greenwhich Street, 7th Floor

New York, NY 10013

Attention: Michael Girondo

Telecopy: (646) 291-1852

 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THL CREDIT, INC., as Purchaser

 	 
	 	By:  	/s/ Hunter Stropp
 	 
	 	 	Name:  	Hunter Stropp 	 
	 	 	Title:  	Co-President 	 
	 
	 	Address for Notices:

c/o THL Credit Advisors LLC

100 Federal Street

31st Floor

Boston, MA 02110

Attn: Christopher J. Flynn, Managing Director

Telecopy: (877) 946-9274

 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 
	 	COMPANIES:



CBAY INC.

 	 
	 	By:  	/s/
Clyde Snoger	 
	 	 	Name:  	Clyde Snoger	 
	 	 	Title:  	CFO	 
	 
	 	MEDQUIST INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MEDQUIST TRANSCRIPTIONS, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMPANIES:



CBAY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MEDQUIST INC.

 	 
	 	By:  	/s/
Mark Sullivan 	 
	 	 	Name:  	Mark Sullivan 	 
	 	 	Title:  	General Counsel 	 
	 
	 	MEDQUIST TRANSCRIPTIONS, LTD.

 	 
	 	By:  	/s/
Mark Sullivan 	 
	 	 	Name:  	Mark Sullivan	 
	 	 	Title:  	General Counsel