GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (this "Agreement"), dated as of May
10, 1999, is made between each of the entities listed on Schedule 1 hereto (each
a "Guarantor" and collectively the "Guarantors"), Unilab Corporation, a Delaware
corporation ("Buyer"), and Physician's Clinical Laboratory, Inc., d/b/a
Bio-Cypher Laboratories, a Delaware corporation (the "Company").
Buyer and the Company are parties to the Asset Purchase
Agreement dated as of April 5, 1999 (the "Purchase Agreement"), pursuant to
which the Company proposes to sell substantially all of its assets to Buyer. To
induce Buyer to enter into the Purchase Agreement and as a condition to the
obligations of Buyer to consummate the transactions contemplated thereunder, the
Guarantors have agreed to guarantee, on a several basis, but not on a joint and
several basis, the indemnification obligations of the Company under the Purchase
Agreement on the terms and subject to the conditions set forth herein.
Accordingly, the Guarantors, Buyer and the Company agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Unless otherwise defined, all
capitalized terms used in this Agreement that are defined in the Purchase
Agreement shall have the respective meanings assigned to them in the Purchase
Agreement.
ARTICLE II
THE GUARANTEE
Section 2.01 Guarantee. Subject to the limitations set forth
in Section 2.04 below and the procedures set forth in Section 2.05 below, each
Guarantor, on a several basis but not on a joint and several basis, hereby
guarantees to Buyer the full and punctual payment and performance of (i) all
obligations of the Company to Buyer that may arise under the Second Cash Payment
Amount and Refund Adjustment under Section 2.11(d) and Section 2.12 of the
Purchase Agreement (ii) all obligations of the Company to Buyer that may arise
under Article 11 of the Purchase Agreement; provided, that if Buyer has
exercised its right of set-off pursuant to Section 11.03 of the Purchase
Agreement, the Guarantors shall have no liability under this Agreement for any
breach of Section 5.08 of the Purchase Agreement, (iii) any and all Damages
incurred or suffered by Buyer in connection with or as a result of any efforts
by any Person to challenge the validity, legality or enforceability of the
transactions provided for in the Purchase Agreement on the basis of the adequacy
of the consideration paid to the Company, (iv) any and all Damages incurred or
suffered by Buyer in any way relating to or arising out of or in respect of any
case or other proceeding seeking the liquidation, reorganization or other relief
with respect to the Company or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of the
Company or any substantial part of its property (any such case or other
proceeding, a "Bankruptcy Proceeding") (excluding for purposes of this clause
(iv) any Damages resulting from any delay or other limitation on Buyer's ability
to realize the full benefits contemplated by Sections 2.05 and 2.08 of the
Purchase Agreement), and (v) any and all Damages incurred or suffered by Buyer
in enforcing or obtaining payment of any amounts payable by any Guarantor
hereunder (clauses (i), (ii), (iii), (iv) and (v) collectively the "Guaranteed
Obligations") at such time as those obligations become due and payable in
accordance with the procedures set forth in Section 2.05 of this Agreement.
Section 2.02 Acknowledgments, Waivers and Consents. (a) Each
Guarantor acknowledges that the obligations undertaken by it under this
Agreement involve the guarantee of obligations of Persons other than itself and
that such obligations are absolute and irrevocable. In full recognition and in
furtherance of the foregoing, each Guarantor agrees that, subject to and except
as provided otherwise in the limitations set forth in Section 2.04 below and the
procedures set forth in Section 2.05 below, and without affecting the
enforceability or effectiveness of this Agreement in accordance with its terms
and without affecting, limiting, reducing, discharging or terminating the
respective liability of any Guarantor, or the rights, remedies, powers and
privileges of Buyer under this Agreement, Buyer may, at any time and from time
to time and without notice or demand of any kind or nature whatsoever:
(i) accept or receive (including from any other Guarantor)
partial payments on the Guaranteed Obligations (whether as a result of the
exercise of any right, remedy, power or privilege or otherwise);
(ii) release any Person (including any other Guarantor) from
any personal liability with respect to all or any part of the Guaranteed
Obligations;
(iii) settle, compromise, release, liquidate or enforce upon
such terms and in such manner as Buyer may determine or as applicable law may
dictate all or any part of the Guaranteed Obligations as to the Company;
(iv) proceed against the Company, any Guarantor (but only as
to its Proportionate Share (as defined below) of the Guaranteed Obligations) or
any other Person for or relative to all or any part of the Guaranteed
Obligations and exercise the rights, remedies, powers and privileges of Buyer
under the Purchase Agreement or otherwise in such order and such manner as Buyer
may in its discretion determine, without any necessity first to proceed against
any other Person or to enforce any right, remedy, power or privilege as to any
other Person before commencing to proceed against or otherwise to enforce this
Agreement as to any Guarantor; and
(v) enter into such other transactions or business dealings
with any other Guarantor, the Company, any subsidiary or affiliate of the
Company or any other Person as Buyer may desire.
(b) The enforceability and effectiveness of this Agreement and the
liability of the Guarantors, and the rights, remedies, powers and privileges of
Buyer, under this Agreement shall not be affected, limited, reduced, discharged
or terminated, and each Guarantor hereby expressly waives to the fullest extent
permitted by law any defense now or in the future arising against the Buyer, by
reason of:
(i) any failure of Buyer to file or enforce a claim in any
bankruptcy or other proceeding with respect to the Company or any other
Guarantor;
(ii) any Bankruptcy Proceeding commenced by or against the
Company or a Guarantor, including any discharge of or ban or stay against
collecting all or any part of its Guaranteed Obligation as a result of such
Bankruptcy Proceeding;
(iii) any action taken by Buyer that is authorized by this
Section 2.02 or otherwise in this Agreement or by any other provision of the
Purchase Agreement;
(iv) any extension, renewal, settlement, compromise, waiver or
release in respect of any Guaranteed Obligation, by operation of law or
otherwise;
(v) any modification or amendment of or supplement to the
Purchase Agreement or any related document or agreement pursuant to the terms
and conditions set forth therein;
(vi) the existence of any claim, defense, set-off or other
rights which any Guarantor may have at any time against the Company, Buyer or
any other Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any claim, defense
or other right, remedy, power or privilege that any Guarantor or the Company may
have against Buyer by separate suit or by defense, cross-claim or counterclaim
in an action brought by Buyer under this Agreement or otherwise;
(vii) any change in the partnership or other organizational
existence, structure or ownership of the Company, any Guarantor or any other
Person; or
(viii) the invalidity or unenforceability, in whole or in
part, of the Purchase Agreement or any related document or agreement in
connection with or as a result of any efforts by any Person to challenge the
validity, legality or enforceability of the transactions provided for in the
Purchase Agreement on the basis of the adequacy of the consideration paid to the
Company.
(c) Other than with respect to the procedures provided for in Section
2.05 of this Agreement, each Guarantor expressly waives, for the benefit of
Buyer, all presentments, demands for payment or performance, notices of
nonpayment or nonperformance, protests, notices of protest, notices of dishonor
and all other notices or demands of any kind or nature whatsoever with respect
to the Guaranteed Obligations, and all notices of acceptance of this Agreement
or of the existence, creation or incurring of new or additional Guaranteed
Obligations.
(d) Each Guarantor represents and warrants that it has reviewed the
Purchase Agreement and is fully familiar with the transaction contemplated
thereby. Except as expressly required by the terms hereof, each Guarantor hereby
expressly waives and relinquishes any duty on the part of Buyer (should any such
duty exist) to disclose to any Guarantor any matter of fact or other information
related to the business, operations or condition (financial or otherwise) of the
Company or its properties or to the Purchase Agreement or the transactions
undertaken pursuant thereto or contemplated thereby.
(e) Each Guarantor intends that its rights and obligations shall be
those expressly set forth in this Agreement and that its obligations shall not
be affected, limited, reduced, discharged or terminated by reason of any
principles or provisions of law that conflict with the terms of this Agreement.
(f) The Company and Buyer agree and acknowledge that, in exchange for
the Guarantors' entry into this Agreement, each Guarantor, for itself and on
behalf of the Company, shall have and be entitled to raise and assert, against
Buyer or any other Person that may assert a claim in respect of a Guaranteed
Obligation, any and all rights, remedies, powers, privileges, claims or defenses
(other than set-offs to which there has not been consent by the parties, a
judgment or a final determination in an arbitration) that the Company may have
under the Purchase Agreement or any related document or agreement, and the
Company hereby assigns to the Guarantors any and all such rights, remedies,
powers, privileges, claims and defenses in their entirety.
Section 2.03 Separate Action. Subject to the limitations set
forth in Section 2.04 below and the procedures set forth in Section 2.05 below,
Buyer may bring and prosecute a separate action or actions against any Guarantor
whether or not the Company or any other Guarantor is joined in any such action
or a separate action or actions are brought against the Company or any other
Guarantor for all or any part of the Guaranteed Obligations. The obligations of
each Guarantor under, and the effectiveness of, this Agreement are not
conditioned upon the existence or continuation of any other guarantee of all or
any part of the Guaranteed Obligations.
Section 2.04 Limitation on Guarantee Amount. Notwithstanding
any other provisions of this Agreement, the Guarantors' liability for the
Guaranteed Obligations shall be limited as follows:
(a) (i) the aggregate liability of all of the
Guarantors for payments on account of the Guaranteed Obligations (the
"Aggregate Cap"), shall not exceed for Damages pursuant to claims (A)
as to which notice has been provided to the Company and the Guarantors
prior to the first anniversary of the Closing Date, $15,000,000 minus
an aggregate amount equal to any and all indemnification payments the
Company has paid to, on behalf of or for the benefit of Buyer or any
party indemnified by the Company pursuant to the Purchase Agreement
("Company Payments") on account of such claims and (B) as to which
notice has been provided to the Company and the Guarantors between the
period commencing on the first anniversary of the Closing Date and
ending on the Second Anniversary of the Closing Date, the lesser of (1)
$10,000,000 minus any Company Payments for claims made on or after the
first anniversary of the Closing Date, but prior to the Second
Anniversary of the Closing Date, or (2) $15,000,000 minus the sum of
(x) the aggregate of payments made by the Guarantors and the Company
Payments paid pursuant to clause (A) above and (y) any Company Payments
for claims made on or after the first anniversary of the Closing Date
but prior to the Second Anniversary of the Closing Date, and (ii) the
aggregate liability of each Guarantor on account of Guaranteed
Obligations shall not exceed a total of that Guarantor's Proportionate
Share (as defined in (c) below) of the Aggregate Cap;
(b) the Guarantors shall not be liable for any
Guaranteed Obligations to the extent the aggregate amount of Damages to
which Buyer is entitled (as established pursuant to the procedures set
forth in Section 2.05 below) is less than or equal to $1.0 million (the
"$1.0 million Threshold"); provided, however, that (i) this limitation
shall not apply to any Damages incurred or suffered by the Buyer
arising out of any Excluded Liability or pursuant to Section 2.01(i),
Section 2.01(iii), Section 2.01(iv) or Section 2.01(v) hereof, and (ii)
any Damages paid by any Guarantor pursuant to section (i) of this
proviso shall not be included in the calculation of the $1.0 million
Threshold; and
(c) Each Guarantor's portion of any Guaranteed
Obligations ("Proportionate Share") is set forth as the percentage
listed opposite that Guarantor's name on Schedule I to this Agreement.
(d) No Guarantor shall have any liability with
respect to any claim by Buyer for Damages or any other Guaranteed
Obligation unless it shall have received written notice of such claim
in accordance with the terms hereof prior to the second anniversary of
the Closing Date.
Section 2.05 Procedures. Buyer shall provide each Guarantor
with written notice of all claims for Damages concurrently with and in the same
manner as it provides or is required to provide any such notice to the Company
in accordance with the provisions of Article 11 of the Purchase Agreement,
whereupon the Guarantors will have the same rights as an "Indemnifying Party"
under the Purchase Agreement with respect to such claims. Subject to Section
2.04(d) hereof, failure by Buyer to so notify the Guarantors shall not relieve
any Guarantor from any liability hereunder to the extent such Guarantor is not
prejudiced as a result thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES.
As of the Closing Date, each Guarantor, with respect to
itself, represents and warrants to Buyer that:
Section 3.01 Financial Information. True and complete copies
of the most recent financial statements of such Guarantor, have been delivered
to Buyer and each of same are true, accurate and complete and fairly present in
accordance with GAAP such Guarantor's financial condition as of the dates
thereof and no material and adverse change has occurred in such Guarantor's
financial condition since the respective dates thereof.
Section 3.02 No Violation. Execution, delivery and performance
by such Guarantor of its obligation hereunder, including payment by such
Guarantor of its Proportionate Share of the Guaranteed Obligations will not
constitute a violation of its certificate of incorporation or bylaws or other
constitutive documents, any law, order, regulation, contract or agreement to
which such Guarantor is a party or by which such Guarantor or such Guarantor's
property may be bound.
Section 3.03 No Litigation. There is no litigation now pending
or, to the best of such Guarantor's knowledge threatened in writing, against
such Guarantor which, if adversely decided, would have a material adverse effect
on such Guarantor's financial condition or ability to perform its obligations
under this Agreement.
Section 3.04 Entity Matters. Such Guarantor is duly organized,
validly existing and in good standing under the laws of its state of
organization, has all requisite power and authority to execute and deliver this
Agreement, to conduct its business and to own its property as now conducted or
owned, and is qualified to do business in all jurisdictions where the nature and
extent of its business is such that such qualification is required by law. All
required entity actions and proceedings have been duly taken so as to authorize
the execution, delivery and performance by such Guarantor of this Agreement, and
Oaktree Capital Management, LLC ("OCM") has been duly authorized to execute this
Agreement on behalf of the Guarantor. The execution, delivery and performance by
such Guarantor of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
Governmental Authority.
Section 3.05 Valid and Binding. This Agreement constitutes a
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
Section 3.06 Solvency. After giving effect to its obligations
hereunder, (i) the fair value of the assets of such Guarantor is greater than
the total amount of such Guarantor's liabilities, including without limitation
any and all fixed or contingent, matured or unmatured, disputed and undisputed
liabilities; (ii) such Guarantor is able to pay all of its debts and other
liabilities as the same become due and payable; and (iii) such Guarantor does
not intend to, nor does it believe that it will, incur debts or other
liabilities that would be beyond its ability to pay as such debts and
liabilities become due and payable.
ARTICLE IV
COVENANTS.
So long as this Agreement is in effect and until payment in
full of all of the Guaranteed Obligations, each Guarantor, as to itself, agrees
as follows:
Section 4.01 Notices of Material Events. Such Guarantor will
furnish to Buyer prompt written
notice of the following:
(a) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Guarantor that, if adversely determined, could
reasonably be expected to have a material adverse effect on the
Guarantor's financial condition or its ability to perform its
obligations under this Agreement; and
(b) any other development that results in, or could
reasonably be expected to result in, a material adverse effect on the
Guarantor's financial condition or its ability to perform its
obligations under this Agreement.
Section 4.02 Existence; Conduct of Business. Subject to the
terms of its respective constitutive documents, such Guarantor will do or cause
to be done all things reasonably necessary to preserve, renew and keep in full
force and effect its legal existence and any governmental approvals material to
the conduct of its business.
Section 4.03 Payment of Obligations. Such Guarantor will pay
its obligations that, if not paid, could result in a material adverse effect on
the Guarantor's financial condition or ability to perform its obligations under
this Agreement before any such obligation shall become materially delinquent or
in default, except any such obligation (a) the validity or amount of which
obligation is being contested in good faith by appropriate proceedings, or (b)
with respect to which such Guarantor has set aside on its books adequate
reserves. Each Guarantor shall at all times maintain its assets such that the
fair value thereof is greater than such Guarantor's liabilities and such
Guarantor is able to pay all of its debts and other liabilities as the same
become due and payable.
Section 4.04 Maintenance of Properties; Insurance. Such
Guarantor will: (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
Section 4.05 Compliance with Laws. Such Guarantor will comply
with all governmental laws, rules and regulations applicable to it, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a material adverse effect on the Guarantor's financial
condition or ability to perform its obligations under this Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Limitations on Recourse. Neither OCM nor any
officer, director, member, employee, shareholder, investment manager, director,
representative, fiduciary or controlling person of OCM or of any Guarantor shall
have any personal obligations or liability to Buyer under or in connection with
this Agreement. With respect to obligations of any Guarantor arising hereunder,
Buyer shall look for payment or satisfaction solely to the assets and property
of such Guarantor and not to OCM, any other affiliate of such Guarantor other
than the other Guarantors or OCM, or any officer, director, member, employee,
shareholder, investment manager, director, representative, fiduciary or
controlling person of or investor in OCM or such Guarantor.
Section 5.02 Notices. All notices, requests and other
communications provided for in this Agreement shall be given or made in writing
and delivered by hand or courier service, mailed by certified or registered mail
or sent by telecopy to the intended recipient as specified below or, as to any
party, at such other address as is designated by that party in a notice to each
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given or made upon receipt.
To the Guarantors c/o: Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxx
With a copy to: Milbank, Tweed, Xxxxxx & XxXxxx LLP
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxx Xxxxx/
Xxxxxx X. Xxxxxxx
To Buyer: Unilab Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone:
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxx
With a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
To the Company: Bio-Cypher Laboratories
c/o J. Xxxxxx Xxxxxxxxxx
Westwood Marquis
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx XxXxxx
Buyer hereby agrees that it shall provide to each Guarantor copies of all
notices delivered to the Company pursuant to the Purchase Agreement
simultaneously with its delivery of such notices to the Company; provided,
however, that any failure or delay in providing any such notice to any of the
Guarantors shall only relive such Guarantors of their obligations hereunder to
the extent that any such Guarantor is materially prejudiced by such failure or
delay to notify.
Section 5.03 Reinstatement in Certain Circumstances. Subject
to Section 2.04 hereof, each Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been performed
in full. If at any time any Company Payment is required under applicable law or
court order to be rescinded or must be otherwise restored or returned to the
Company by Buyer, whether pursuant to a Bankruptcy Proceeding or otherwise, each
Guarantor's obligations hereunder with respect the Guaranteed Obligations shall
be reinstated at such time to the extent that such Company Payment is so
rescinded or otherwise restored or returned by Buyer.
Section 5.04 Waiver by Guarantors. Subject to the terms of
each of Section 2.02(f) and Section 2.05 hereof to the fullest extent permitted
by law, each Guarantor irrevocably waives any right, whether legal or equitable,
statutory or non-statutory, to require Buyer to proceed against or take any
action against or any remedy with respect to the Company or any other Person or
make presentment or demand for performance or give any notice of nonperformance
before Buyer may enforce its rights hereunder against any Guarantor.
Section 5.05 Subrogation. Upon making payment with respect to
any Guaranteed Obligation hereunder, the applicable Guarantor shall be
subrogated to the rights of the payee against the Company with respect to such
obligation.
Section 5.06 Waiver. Subject to the procedures set forth in
Section 2.05 of this Agreement, no failure or delay by Buyer in exercising, nor
any single or partial exercise of, any remedy, right, power or privilege under
this Agreement or the Purchase Agreement shall operate as a waiver of that
remedy, right, power or privilege, nor shall any single or partial exercise of
that remedy, right, power or privilege preclude any other or further exercise of
that remedy, right, power or privilege or the exercise of any other remedy,
right, power or privilege. The remedies, rights, powers and privileges provided
by this Agreement are cumulative and not exclusive of any remedies, rights,
powers or privileges provided by the Purchase Agreement or by law.
Section 5.07 Amendments, Etc. No provision of this Agreement
may be waived, modified or supplemented except by an instrument in writing
signed by each of the Guarantors and Buyer.
Section 5.08 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of its parties and their respective
successors and assigns. None of the Guarantors may assign or transfer its rights
or obligations under this Agreement without the prior written consent of Buyer.
Section 5.09 Agreements Superseded. This Agreement supersedes
all prior agreements and understandings, written or oral, among the parties with
respect to the subject matter of this Agreement.
Section 5.10 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of that prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable that provision in any other
jurisdiction.
Section 5.11 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties to the Agreement may execute this
Agreement by signing any such counterpart. Delivery of an executed counterpart
of a signature page to this Agreement by hand or by telecopy shall be effective
as the delivery of a fully executed counterpart of this Agreement.
Section 5.12 Governing Law; Submission to Jurisdiction. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW
YORK. EACH PARTY HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK
STATE COURT SITTING IN NEW YORK CITY, NEW YORK FOR THE PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR IN THE
FUTURE HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
Section 5.13 Waiver of Jury Trial. EACH OF THE GUARANTORS AND
BUYER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 5.14 No Third Party Beneficiaries. The terms and
provisions of this Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and it is not the
intention of the parties to confer third-party beneficiary rights upon any other
Person.
IN WITNESS WHEREOF, the undersigned have executed this
Guarantee Agreement as of the date first above written.
UNILAB CORPORATION,
By:_______________________________
Title:
PHYSICIAN'S CLINICAL LABORATORY, INC.,
By:_______________________________
Title:
GUARANTORS:
OCM OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By:_______________________________
By:_______________________________
OCM OPPORTUNITIES FUND II, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By:_______________________________
By:_______________________________
COLUMBIA/HCA MASTER RETIREMENT TRUST (Separate Account I)
By: Oaktree Capital Management, LLC
Its: Investment Manager
By:_______________________________
By:_______________________________
COLUMBIA/HCA MASTER RETIREMENT TRUST (Separate Account II)
By: Oaktree Capital Management, LLC
Its: Investment Manager
By:_______________________________
By:_______________________________
Schedule I
Fund or Account Percentage
OCM Opportunities Fund, L.P. 54.0%
Columbia/HCA Master Retirement Trust (Separate Account I) 4.0%
OCM Opportunities Fund II, L.P. 41.0%
Columbia/HCA Master Retirement Trust (Separate Account II) 1.0%
