DEPOSIT FACILITY AGREEMENT
This Deposit Facility Agreement (the "Agreement") is effective as of March 01,
2001 (the "Effective Date").
Between
MedQuist CM, Corporation, a company incorporated under the laws of Delaware with
its registered address at 000 Xxxxxxxx Xxx., 0xx Xxxxx, Xxxxxxxxxx, XX 00000
(hereinafter referred to as the "Depositor").
And
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, a company incorporated under the
laws of Delaware, with its registered office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000-0000 (hereinafter referred to as "Philips")
In this Agreement, the Depositor and Philips are referred to individually as
"Party" and collectively as "Parties".
WHEREAS the Depositor has requested and Philips has agreed to accept deposit
from the Depositor as hereinafter provided for the purpose of optimising the
returns on any temporary excess liquidity it might have from time to time.
NOW THEREFORE, in consideration of the mutual terms and conditions hereinafter
appearing, the Parties hereby agree as follows:
1. Purpose of Deposit
The Depositor deposits the amount stated in Article 2 herein below to Philips
for the purpose of optimising the returns on any temporary excess liquidity it
might have from time to time.
2. Deposit Facility
The Depositor shall make available to Philips, as of the Effective Date, a
deposit facility amounting in maximum to One Hundred and Fifty Million Dollars
(USD 150,000,000) (hereinafter referred to as "the Facility"), upon the terms
and conditions as laid down in this Agreement.
3. Availability
Subject to Article 9 of this Agreement, the Facility expires on February 20th,
2002 (hereinafter referred to as "the Expiry Date"). As from the Expiry Date, no
further deposit (hereinafter referred to as "Deposit" or "Deposits" as the case
may be) can be made. All unpaid Deposits and interest accrued thereon shall
become immediately due and payable on the Expiry Date.
4. Procedure for Deposits
(a) The Depositor shall notify Philips in writing of any Deposit it wishes
to place with Philips (hereinafter referred to as "the Notice"), each
Notice to be received by Philips two (2) business days (or less, if
mutually agreed upon) prior to the first day that the Deposit is to be
placed. Each Notice shall specify the amount of the Deposit, the first
day of the term of the Deposit, and, subject to Article 7(a) of this
Agreement, the interest period of the Deposit. On the first day of the
term specified for each Deposit, the Depositor will credit the full
amount of the Deposit to Philips' bank account specified by Philips in
freely transferable same day funds. All Notices shall be substantially
in the form as attached hereto as Schedule I.
(b) Deposits can only be made in United States Dollars. Each request for a
Deposit placement shall be for a sum of at least Fifty Thousand Dollars
(USD 50,000) or in integral multiples thereof.
(c) Philips may refuse in its absolute and sole discretion any Deposit by
the Depositor. If Philips accepts a Deposit, it shall promptly send the
Depositor a written confirmation of the Deposit.
5. Repayment
(a) Repayment of the principal amount of a Deposit by Philips shall take
place at the end of each interest period for such Deposit, unless:
(i) it is withdrawn prior to the end of each interest period in
accordance with the Article 6 of this Agreement; or,
(ii) the duration of the Deposit is extended to the subsequent
interest period in accordance with Article 5 (c) of this
Agreement.
(b) Final withdrawal shall in no event be later than the Expiry Date.
(c) Subject to Article 5(b) herein above, the Depositor may request that
any Deposit be rolled over. In such circumstances, the Depositor shall
submit a Request for Rollover to Philips to be received by Philips not
later than two business days (or less, if mutually agreed upon) prior
to the maturity date of such Deposit (hereinafter referred to as "the
Request"). Each Request shall specify the amount of the Deposit, the
first day of the term of the Deposit, and, subject to Article 7(a) of
this Agreement, the interest period of the Deposit. Articles 5(b) and
5(c) of this Agreement apply mutatis mutandis.
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6. Early Withdrawal
The Depositor may request for an early withdrawal, prior to the end of the
interest period, of any Deposit or any part of it amounting to Fifty Thousands
Dollars (USD 50,000) or a whole multiple of that amount, without premium or
penalty at any time, other than as set forth in this Article 6, if it gives
Philips not less than two (2) business days' written notice of the Deposit to be
withdrawn and the date and amount of the early withdrawal.
Any such early withdrawal must be accompanied by the aggregate of the present
value of the accrued interest on the amount withdrawn minus the difference, as
determined by Philips, if such difference is a positive number, between the
present value of (i) the amount of interest which would be payable by Philips if
it had to borrow such amount at LIBOR (as defined in Article 7(f) of this
Agreement) determined on the second business day prior the date of withdrawal
and (ii) the amount of interest which would be payable by Philips over such
amount during the period from the date of withdrawal until the end of the
relevant interest if such amount had not been withdrawn.
Any notice of intention to make an early withdrawal shall be irrevocable for the
Depositor.
7. Interest
(a) Each Deposit shall bear interest calculated by reference to successive
interest periods, determined as hereinafter provided, each of which
shall, subject to Article 3, have a duration of a period of between 1
day and 365 days, to be agreed between the Depositor and Philips.
(b) The Depositor shall notify its selection as to the duration of each
interest period in the Notice, provided that if the Depositor fails to
give notice of its selection of the duration of an interest period,
such interest duration shall be one week.
(c) Each subsequent interest period shall commence on the last day of the
preceding interest period.
(d) If any interest period would otherwise end on a day, which is not a
business day, that interest period shall be extended to the next
succeeding business day.
(e) No interest period shall extend beyond the Expiry Date.
(f) The rate of interest applicable to each Deposit for each interest
period relative thereto shall be (a) the rate per annum which is equal
to the London Interbank Best Offer rate of the British Bankers
Association as displayed on Bloomberg for United States Dollars at or
about 11.00 a.m. (London time) as being the rate at which deposits in
the relevant currency of like amounts and term are offered in the
London Interbank market ("LIBOR") on the second business days prior to
the commencement of such interest period minus a margin of 0.125%.
(g) Interest will be calculated on the basis of a year consisting of 360
days and the number of days actually elapsed (as opposed to business
days), and shall be payable on the last day of each interest period.
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8. Termination Events
The Depositor may terminate the Facility if a Termination Event occurs, upon
which event the Depositor may demand immediate repayment from Philips of all
Deposits and interest accrued. A Termination Event occurs if:
(a) Philips fails to repay any or all Deposits when due (including accrued
interest thereon) or if Philips is otherwise in material default in
respect of any of its obligations under this Agreement, and Philips
fails to remedy this default within five (5) business days after being
notified thereof by Depositor; or
(b) Philips has a winding up petition filed against it or becomes bankrupt
or insolvent or has a receiving order made against it or compounds with
creditors or commences to be wound up or intends to carry on its
business under a receiver, trustee or manager for the benefit of its
creditors or goes into liquidation or in any way ceases to trade.
9. Conditions Precedent
This Agreement and the rights and obligations created hereunder shall be subject
to Philips being provided the counterpart of this Agreement, duly executed by
the Depositor thereby confirming its agreement with all the terms and conditions
therein.
10. Representations and Warranties
Each Party represents and warrants that it is a company validly existing under
the laws of the State in which it was incorporated, and has the power and
authority to enter into, exercise its rights, and perform and comply with all
its obligations under and/or pursuant to this Agreement. Each Party further
represents and warrants that all actions, conditions, consents and other things
required to be taken, fulfilled, obtained and done in order to enable such Party
to lawfully enter into, exercise its rights, and perform and comply with all its
obligations under and/or pursuant to this Agreement, and in order to ensure that
such obligations are legally binding upon and enforceable against such Party,
have been fully, duly, unconditionally and irrevocably taken, fulfilled,
obtained and done.
11. Costs and Taxes
The costs, taxes, stamp duties and similar charges (hereinafter collectively
referred to as "Taxes") arising out of the signing and execution of this
Agreement and/or related to the payment of interest or principal of the Deposit
shall be borne by the Depositor.
12. Payments
(a) All payments to be made under this Agreement shall be made free and
clear of and without any deductions or withholdings whatsoever and
shall be made on the due dates herein specified. If the due date is not
a business day, the payment shall be made on the business day
immediately following that day.
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(b) All payments by Philips shall be made to the account specified by the
Depositor from time to time.
13. No Assignment
Neither Party to this Agreement shall assign any of its rights and/or
obligations hereunder without the prior written consent of the other Party,
which consent shall not unreasonably withheld.
14. Successors and Assigns
In this Agreement, where the context so requires or admits, the expressions "the
Depositor" and "Philips" shall include the Parties' respective
successors-in-title and permitted assigns.
15. Notices
All notices required to be given shall be given by way of courier or by fax to
the Parties at their addresses herein above referred to, or to such other
addresses as the Parties may notify in writing to each other from time to time.
Notices shall, except as otherwise provided herein, be deemed duly given (i) in
the case of courier after the elapse of three business days after the date of
posting, and (ii) in the case of fax, after the elapse of twelve hours from the
time of faxing.
16. Business Day
All references in this Agreement to "business days" shall mean calendar days on
which the banks in Xxx Xxxx Xxxx, Xxxxx xx Xxx Xxxx, XXX are open for ordinary
business.
17. No Waiver
For the avoidance of doubt, no failure by the Depositor at any time, or from
time to time, to enforce or require the strict keeping and performance of any of
the terms or conditions of this Agreement shall affect or impair the right of
the Depositor at any time to avail itself of such remedies as it may have for
any breach of such terms or conditions.
18. Severability
Each of the rights and obligations contained in this Agreement shall be deemed
to be distinct and severable terms to the extent that if one or more of such
rights and obligations shall be or be declared or become void or unenforceable,
then the remaining rights and obligations shall (unless the effect is to
frustrate the fundamental basis of this Agreement) continue in force and effect.
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19. Governing Law and Jurisdiction
This Agreement shall be governed by the laws of the State of New York. All
disputes arising out of and in connection with this Agreement shall be submitted
to the exclusive jurisdiction of the competent courts in Xxx Xxxx Xxxx, Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America.
IN WITNESS WHEREOF THE AUTHORISED REPRESENTATIVES OF THE DEPOSITOR AND PHILIPS
HAVE SIGNED THIS AGREEMENT AS OF THE EFFECTIVE DATE.
The Depositor,
MedQuist CM, Corporation
............................................... ...........................
Xxxx Xxxxx, Secretary & Treasurer Date
............................................... ...........................
Xxxxx Xxx Xxxxxx, President Date
Philips,
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION
............................................... ...........................
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Schedule I
Form of Notice
[Letterhead MedQuist CM, Inc.]
To: Philips Electronics North America Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Date: __________________
Dear Sirs,
Reference is made to the Deposit Facility Agreement between MedQuist CM, Inc.
("MedQuist CM") and Philips Electronics North America Corporation ("Philips")
dated _____________, hereinafter the "Agreement".
Pursuant to Article 4(a) of the Agreement, we inform you that we wish to place a
Deposit with you specified as follows:
Amount of the Deposit: USD.............
First day of the term of the Deposit: ................
Interest period of the Deposit: ............days
If you accept this Deposit, please confirm acceptance in accordance with Article
4(c) of the Agreement as soon as possible.
Yours faithfully,
___________________________ [MedQuist CM]
_____________________________
_____________________________ [specify name(s)]
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