Attached files
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8-K - FORM 8-K - MEDQUIST INC | w84151e8vk.htm |
Exhibit 10.1
Subordinated
Intercompany Note
$19,000,000 | New York, New York | |
Date: August 18, 2011 |
FOR VALUE RECEIVED, CBay Inc. (the Payor), hereby promises to pay Nineteen Million
Dollars ($19,000,000) to the order of MedQuist Inc. (the Payee), on the date two years after
the date hereof, or if such date is not a business day, the next preceding business day (the
Maturity Date), in lawful money of the United States of America, in immediately
available funds at such location as the Payee shall designate, and to pay interest on the unpaid
principal amount hereof at the rates and on the dates specified below.
The Payor further agrees to pay interest to the Payee from the date hereof on the unpaid
principal amount hereof at a rate per annum equal to 15.00% until the Maturity Date, and
thereafter, until payment in full of the principal amount hereof (whether before or after judgment)
at a rate per annum equal to 17.00%. Interest shall be payable on the Maturity Date, on the date of
any prepayment and, after the Maturity Date, on demand.
The Payor may prepay all or a portion of the principal amount of this Note at any time by
giving one business days notice to the Payee; provided that each prepayment shall be in a
minimum amount of $100,000 or a whole multiple thereof and shall be accompanied by payment of
accrued interest to the date of prepayment.
Reference is made to (i) that certain Credit Agreement, dated as of October 1, 2010, among
CBay Inc., a Delaware corporation, MedQuist Inc., a New Jersey Corporation, MedQuist
Transcriptions, Ltd., a New Jersey corporation, MedQuist Holdings Inc., a Delaware corporation, the
lenders party thereto and General Electric Capital Corporation as administrative agent and
collateral agent (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the Credit Agreement), (ii) that certain Senior Subordinated Note
Purchase Agreement, dated as of September 30, 2010, among CBay Inc., MedQuist Inc. and MedQuist
Transcriptions, Ltd. as the issuers, MedQuist Holdings Inc., and BlackRock Kelso Capital
Corporation, Pennantpark Investment Corporation, Citibank, N.A. and THL Credit, Inc. as the
purchasers (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the Note Purchase Agreement) and (iii) that certain Subordination and
Intercreditor Agreement, dated as of October 1, 2010, among Blackrock Kelso Capital Corporation,
PennantPark Investment Corporation, Citibank, N.A., THL Credit, Inc., CBay Inc., MedQuist Inc.,
MedQuist Transcriptions, Ltd. and General Electric Capital Corporation as agent for all senior
lenders party to the Credit Agreement (the Subordination and Intercreditor
Agreement).
Anything in this Note to the contrary notwithstanding, the indebtedness evidenced by this Note
shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter
set forth, to all obligations of the Payor to pay principal, interest or any other amounts owing
under or in connection with the Credit Agreement and the Note Purchase Agreement until the payment
in full in cash of such obligations of the Payor (such obligations and other indebtedness and
obligations in connection with any renewal, refunding, restructuring or refinancing thereof,
including interest thereon accruing after the commencement of any proceedings referred to in clause
(i) below, whether or not such interest is an allowed claim in such proceeding, being hereinafter
collectively referred to as Senior Indebtedness):
(i) in the event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection therewith, relative
to the Payor or to its property, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of the Payor, whether or not involving
insolvency or bankruptcy, then, if an Event of Default has occurred and is continuing
under (and as defined in) either the Credit Agreement or the Note Purchase Agreement, (x)
the holders of Senior Indebtedness shall be paid in full in cash in respect of all amounts
constituting Senior Indebtedness before the Payee is entitled to receive (whether directly
or indirectly), or make any demands for, any payment on account of this Note and (y) until
the holders of Senior Indebtedness are paid in full in cash in respect of all amounts
constituting Senior Indebtedness, any payment or distribution to which the Payee would
otherwise be entitled (other than debt securities of the Payor that are subordinated, to
at least the same extent as this Note, to the payment of all Senior Indebtedness then
outstanding (such securities being hereinafter referred to as Restructured Debt
Securities)) shall be made to the holders of Senior Indebtedness;
(ii) if any Event of Default has occurred and is continuing with respect to any Senior
Indebtedness, then no payment or distribution of any kind or character shall be made by or
on behalf of the Payor or any other Person on its behalf with respect to this Note; and
(iii) if any payment or distribution of any character, whether in cash, securities or
other property (other than Restructured Debt Securities), in respect of this Note shall
(despite these subordination provisions) be received by the Payee in violation of clause
(i) or (ii) before all Senior Indebtedness shall have been paid in full in cash, such
payment or distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness (or their representatives), ratably
according to the respective aggregate amounts remaining unpaid thereon, to the extent
necessary to pay all Senior Indebtedness in full in cash.
To the fullest extent permitted by law, no present or future holder of Senior Indebtedness (or
any of their representatives) shall be prejudiced in its right to enforce the subordination of this
Note by any act or failure to act on the part of the Payor or by any act or failure to act on the
part of such holder or any trustee or agent for such holder. The Payee and the Payor hereby agree
that the subordination of this Note is for the benefit of the Administrative Agent, the Lenders,
the L/C Issuers, any Secured Hedging Counterparty and the Purchasers, and each of the
Administrative Agent, the Lenders, the L/C Issuers, any Secured Hedging Counterparty, and the
Purchasers may proceed to enforce the subordination provisions herein. Anything in this Note to the
contrary notwithstanding, all provisions set forth herein are subject to the terms of the
Subordination and Intercreditor Agreement.
Nothing contained in the subordination provisions set forth above is intended to or will
impair the obligations of the Payor, which are absolute and unconditional, to pay to the Payee
the principal of and interest on this Note as and when due and payable in accordance with its
terms, or is intended to or will affect the relative rights of the Payee and other creditors of
the Payor other than the holders of Senior Indebtedness.
The Payee is hereby authorized to record all loans and advances made by it to the Payor (all
of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books
and records, such books and records constituting prima facie evidence of the accuracy of the
information contained therein.
The Payor hereby waives presentment, demand, protest or notice of any kind in connection
with this Note. All payments under this Note shall be made without offset, counterclaim or
deduction of any kind.
This Note shall be binding upon the Payor and its successors and assigns, and the terms and
provisions of this Note shall inure to the benefit of the Payee and its successors and assigns,
including subsequent holders hereof. The Payors obligations under this Note may not be assigned
without the prior written consent of the Payee.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
[signature pages follow]
CBAY INC., as Payor |
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By: | /s/ Kashyap Joshi | |||
Name: Kashyap Joshi | ||||
Title: V.P. Finance | ||||
MEDQUIST INC. as Payee |
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By: | /s/ Anthony James | |||
Name: Anthony James | ||||
Title: Chief Financial Officer | ||||
[Subordinated Intercompany Note]