CAPITAL CALL AGREEMENT
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CAPITAL CALL AGREEMENT (as amended, supplemented or modified from time
to time, this "Agreement"), dated as of November 23, 1999, made by and among
Kelso & Company, L.P. ("Kelso"), Unilab Corporation (the "Borrower"), and
Bankers Trust Company, as agent (the "Administrative Agent") for the benefit of
the various lenders (the "Lenders") from time to time party to the Credit
Agreement referred to below. Except as otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders, the Administrative Agent and
others have entered into a Credit Agreement, dated as of November 23, 1999 (as
amended, modified or supplemented from time to time, the "Credit Agreement");
WHEREAS, it is a condition precedent to the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower under the
Credit Agreement that Kelso, the Borrower and the Administrative Agent shall
have executed and delivered this Agreement; and
WHEREAS, Kelso and the Borrower will obtain benefits as a result of
the making of Loans to, and the issuance of Letters of Credit for the account
of, the Borrower under the Credit Agreement and, accordingly, desire to execute
and deliver this Agreement in order to satisfy the condition described in the
preceding paragraph;
NOW, THEREFORE, it is agreed:
1. Certain Defined Terms. As used herein, the following terms shall
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have the following meanings:
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Agreement" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Capital Call Amount" shall mean an amount equal to the lesser of (A)
$50,000,000 and (B) that amount necessary to be applied to reduce Consolidated
Debt to result in the Total Leverage Ratio of the Borrower for the Test Period
ending on December 31, 2000 to be less than or equal to 5.00 to 1.00.
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"Capital Call Event" shall mean the Total Leverage Ratio of the
Borrower in respect of the Test Period ending on December 31, 2000 being greater
than 5.00 to 1.00; it being understood and agreed, however, that if the Total
Leverage Ratio of the Borrower for the Test Period ending on December 31, 2000
is less than or equal to 5.00 to 1.00 (without giving effect to the contribution
of the Capital Call Amount), then a Capital Call Event shall not thereafter
occur and this Agreement shall be terminated in accordance with Section 15
hereof.
"Credit Agreement" shall have the meaning provided in the first
recital of this Agreement.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of the Borrower and its Subsidiaries, if any,
as would be required to be reflected on the liability side of a balance sheet of
such Person in accordance with GAAP as determined on a consolidated basis, (ii)
all Indebtedness of the Borrower and its Subsidiaries, if any, of the type
described in clause (vii) of the definition of Indebtedness, (iii) unreimbursed
drawings on all letters of credit issued for the account of the Borrower or any
of its Subsidiaries, if any, and (iv) all Contingent Obligations of the Borrower
and its Subsidiaries, if any, in respect of Indebtedness of other Persons (i.e.,
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Persons other than the Borrower or any of its Subsidiaries, if any) of the type
referred to in preceding clauses (i), (ii) and (iii) of this definition;
provided that for purposes of this definition, the amount available to be
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drawn under letters of credit issued for the account of the Borrower or any of
its Subsidiaries, if any, (other than unreimbursed drawings) shall be excluded
in making any determination of "Consolidated Debt".
"Consolidated EBIT" shall mean, for any period, (A) the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provisions for
taxes based on income, (iii) Consolidated Interest Expense, (iv) amortization or
write-off of deferred financing costs to the extent deducted in determining
Consolidated Net Income, (v) losses on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary losses, (vi) extraordinary,
unusual or nonrecurring gains, losses, income or expense, and the related tax
effects and (vii) any customary and reasonable transaction expenses incurred in
connection with Permitted Acquisitions less (B) the amount for such period of
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gains on sales of assets (excluding sales in the ordinary course of business)
and other extraordinary gains, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for such period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense,
(iii) amortization expense, all as determined on a consolidated basis in
accordance with GAAP and (iv) other non-cash charges to the extent deducted in
arriving at Consolidated EBIT.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Borrower and its Subsidiaries, if any, on a consolidated basis
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
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"Consolidated Net Income" shall mean for any period, the net income
(or loss) of the Borrower and its Subsidiaries, if any, on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP; provided that there shall be excluded (i) the income (or loss) of any
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Person (other than Subsidiaries, if any, of the Borrower) in which any other
Person (other than the Borrower or any of its Subsidiaries, if any) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its Subsidiaries, if any, by such Person
during such period, (ii) other than any calculation on a Pro Forma Basis, the
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income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary, if any, of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, if any, or that Person's assets are
acquired by the Borrower or any of its Subsidiaries, if any, (iii) the income of
any Subsidiary, if any, of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary, if any, of
that income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (iv) Transaction Expenses
and (v) non-cash compensation expense and compensation expense resulting from
the repurchase of any capital stock, options and rights.
"Investment" shall mean a capital contribution to the Borrower by one
or more Qualified Investors in the amount of 100% of the proceeds of the
issuance of the Borrower's common stock or Permitted Preferred Stock to such
Qualified Investors.
"Lenders" shall have the meaning provided in the first paragraph of
this Agreement.
"Permitted Preferred Stock" shall mean preferred stock of the Borrower
so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision,
(ii) do not require the cash payment of dividends and (iii) are otherwise
reasonably satisfactory to Bankers Trust Company and/or Deutsche Bank.
"Pro Forma Basis" shall mean, in connection with the calculation of
the Total Leverage Ratio, the calculation thereof after giving effect on a pro
forma basis to (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to refinance other
outstanding Indebtedness or to finance Permitted Acquisitions) after the first
day of the relevant Test Period as if such Indebtedness had been incurred (and
the proceeds thereof applied) on the first day of the relevant Test Period, (y)
the permanent repayment of any Indebtedness (other than revolving Indebtedness)
after the first day of the relevant Test Period as if such Indebtedness had been
retired or redeemed on the first day of the relevant Test Period and (z) the
Permitted Acquisition, if any, then being consummated as well as any other
Permitted Acquisition consummated after the first day of the relevant Test
Period and on or prior to the date of the respective Permitted Acquisition then
being effected, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or
to finance Permitted
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Acquisitions) incurred or issued after the first day of the relevant Test
Period (whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued
(and the proceeds thereof applied) on the first day of the respective Test
Period and remain outstanding through the date of determination and (y)
(other than revolving Indebtedness) permanently retired or redeemed after
the first day of the relevant Test Period shall be deemed to have been
retired or redeemed on the first day of the respective Test Period and
remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when
same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Permitted Acquisition or any closure or
discontinuation of operations of any facility of the Borrower or its
Subsidiaries for the periods described above, taking into account factually
supportable and identifiable synergies, cost savings and expenses which
have been identified in writing by the chief financial officer of the
Borrower and found reasonable by Bankers Trust Company and/or Deutsche
Bank.
"Proportionate Share" of each Lender at any time shall mean a fraction
(x) the numerator of which is the sum of (I) the aggregate principal amount of
all Loans made by such Lender then outstanding plus (II) the amount (if any) of
such Lender's participation at such time in outstanding Swingline Loans and
Letter of Credit Outstandings and (y) the denominator of which is the sum of (I)
the aggregate principal amount of all Loans then outstanding plus (II) the
aggregate amount of all Letter of Credit Outstandings at such time.
"Qualified Investor" shall mean any Permitted Holder and any other
Person designated by Kelso and reasonably acceptable to the Administrative
Agent.
"Total Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Debt (net of cash and Cash Equivalents) on such date to
Consolidated EBITDA for the Test Period most recently ended (taken as one
accounting period) and ending on such date. All calculations of Consolidated
EBITDA for purposes of determining the Total Leverage Ratio shall be made on a
Pro Forma Basis.
"Test Period" shall mean, for any date of determination, the four
fiscal quarters of the Borrower then last ended (taken as one accounting
period).
2. Required Contributions to the Borrower; etc. (a) Kelso hereby
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absolutely, irrevocably and unconditionally agrees that upon the occurrence of a
Capital Call Event, Kelso will promptly, and in any event no later than April
30, 2001, make or cause to be made an
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Investment in the Borrower in an amount equal to the applicable Capital Call
Amount; provided that if any such Investment in the Borrower cannot be made by
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any reason whatsoever (including the occurrence of an Event of Default under
Section 9.05 of the Credit Agreement), then the Investment shall instead be made
by means of the purchase by the Qualified Investors from each of the Lenders of
a subordinated participation in such Lenders' outstanding Loans (and, to the
extent provided below, such Lenders' participations in outstanding Swingline
Loans and Letter of Credit Outstandings), pro rata among the Lenders based on
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their respective Proportionate Shares at such time, with such participations to
be evidenced by a subordinated participation agreement in form and substance
reasonably satisfactory to the Administrative Agent. In the event that
participations are purchased as provided in this Section 2, then (i) the Total
Unutilized Revolving Commitment pursuant to the Credit Agreement shall
immediately terminate as provided therein and (ii) the participations purchased
from each Lender shall be allocated ratably to the outstanding Loans and
participations in Swingline Loans and Letter of Credit Outstandings of the
various Lenders, although each Lender with a Revolving Commitment shall instead
allocate any amounts received in respect of Swingline Loans or Letter of Credit
Outstandings first to Revolving Loans, with any excess above the amount of
outstanding Revolving Loans to be held by the Administrative Agent as cash
collateral for the participations purchased in outstanding Swingline Loans and
Letter of Credit Outstandings; provided further, that to the extent the
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respective Swingline Loans are repaid by the Borrower or the Letter of Credit
Outstandings are reduced or repaid without requiring the funding by the
respective Lender participating in same (and thereby eliminating the need to use
the collateral for the purchased participation therein), any excess funds on
deposit with the Administrative Agent as a result of the purchase of
participations in such contingent obligations shall be reallocated (at the time
and to the extent the Administrative Agent determines that excess amounts are
then held by it) to purchase participations as otherwise required by the
immediately preceding sentence.
(b) The Borrower hereby acknowledges, confirms and agrees that
immediately upon receipt of the Capital Call Amount it shall apply such amounts
as a mandatory repayment of Loans in accordance with the provisions of Sections
4.02A(f) and (B) of the Credit Agreement.
3. Payments. All payments required to be made pursuant to this
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Agreement shall be made in Dollars and in immediately available funds, and shall
be made on the same basis as provided in Sections 4.03 and 4.04 of the Credit
Agreement.
4. Obligations Independent. The obligations of Kelso hereunder are
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independent of the obligations of any Guarantor which may execute a Guaranty
after the execution and delivery hereof, the Borrower or any other party, and a
separate action or actions may brought and prosecuted against Kelso whether or
not an action is brought against any Guarantor which may execute a Guaranty
after the execution and delivery hereof, the Borrower or any other party and
whether or not any Guarantor which may execute a Guaranty after the execution
and delivery hereof, the Borrower or any other party shall be joined in any such
action or actions. Kelso waives, to the fullest extent permitted by law, the
benefit of statute of limitations affecting its liability hereunder or the
enforcement hereof.
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5. Certain Waivers by Kelso. Kelso hereby waives notice of
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acceptance of this Agreement and notice of any liability to which it may apply,
and waives presentment, demand of payment, protest, notice of dishonor, or
nonpayment of any such liability, suit or taking of other action by the
Borrower, the Administrative Agent or any Lender against, and any other notice
to, Kelso or any other party liable thereon.
6. Actions Relating to Obligations Under Credit Agreement. The
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Administrative Agent or the Lenders (or any of the Lenders) may (except as shall
be required by applicable statute and cannot be waived) at any time and from
time to time without the consent of, or notice to, Kelso, without incurring
responsibility to Kelso, without impairing or releasing the obligations of Kelso
hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, alter or increase any of the Obligations,
any security therefor, or any liability incurred directly or indirectly in
respect thereof;
(b) take and hold security for the payment of the Obligations and
sell, exchange, release, impair, surrender, realize upon or otherwise deal with
in any manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or others or otherwise act or refrain from
acting;
(d) settle or compromise any of the Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower other than the Secured Creditors;
(e) except as otherwise expressly provided herein, apply any sums by
whomever paid or however realized to any liability or liabilities of the
Borrower to the Administrative Agent or the Lenders regardless of what liability
or liabilities of Kelso or the Borrower remain unpaid;
(f) release or substitute any one or more endorsers, guarantors,
Credit Parties or other obligors;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement any of
the Credit Documents or any of such other instruments or agreements;
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(h) act or fail to act in any manner referred to in this Agreement
which may deprive Kelso of any right of subrogation against the Borrower to
recover any payments made pursuant to this Agreement;
(i) pursue its rights and remedies under this Agreement and/or under
any guaranty of all or any part of the Obligations in whatever order, or
collectively, and the Administrative Agent and the Lenders shall be entitled to
Kelso's performance hereunder, notwithstanding any action taken (or not taken)
by the Administrative Agent and the Lenders to enforce any of its rights or
remedies against Kelso or any other Person, for all or any part of the
Obligations or any payment received under this Agreement or any other such
guaranty; and/or
(j) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of Kelso
from its liabilities under this Agreement.
7. Invalidity, Etc., of Obligations. No invalidity, irregularity or
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unenforceability of all or any of the Loans and/or any of the other Obligations
or of any security therefor shall affect, impair or be a defense to this
Agreement, and the obligations of Kelso hereunder shall be absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any circumstance, including, without limitation, any bankruptcy or insolvency
proceeding with respect to Kelso, the Borrower or any of its Subsidiaries, if
any, or any event or circumstance which would constitute a legal or equitable
discharge, except payment in full in cash of all Obligations in accordance with
the Credit Agreement.
8. Representations, Warranties and Agreements. In order to induce
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the Lenders to enter into the Credit Agreement, Kelso makes the following
representations, warranties and agreements:
(i) Kelso is a duly organized and validly existing limited
partnership in good standing under the laws of the State of Delaware and has the
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage.
(ii) Kelso has the power and authority to execute, deliver and
perform the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement. Kelso has duly executed and delivered this Agreement, and this
Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
(iii) Neither the execution, delivery or performance by Kelso of this
Agreement, nor compliance by it with the terms and provisions hereof, nor the
consummation of the transactions contemplated herein, (x) will contravene any
provision of any applicable law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or
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governmental instrumentality, (y) will conflict with or result in any breach of
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of Kelso pursuant
to the terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other material agreement, contract or instrument to which Kelso
is a party or by which it or any of its property or assets is bound or to which
it may be subject or (z) will violate any provision of any of the organizational
documents of Kelso.
(iv) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (x) the execution,
delivery and performance of this Agreement or (y) the legality, validity,
binding effect or enforceability of this Agreement.
(v) There are no actions, suits or proceedings pending or, to the
knowledge of Kelso, threatened (x) with respect to this Agreement or (y) that
could reasonably be expected to (I) materially and adversely effect the
business, operations, property, assets, liabilities or condition (financial or
otherwise) of Kelso or (II) have a material adverse effect on the rights or
remedies of the Lenders or the Administrative Agent hereunder or on the ability
of Kelso to perform its obligations to the Lenders or the Administrative Agent
hereunder.
(vi) Kelso is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property.
(vii) Kelso or the general partner thereof has the right to call cash
capital contributions from the partners of Kelso or its affiliates in amounts,
and at times, sufficient to fund in a timely manner all obligations of Kelso
under this Agreement.
9. Maintain Ability to Fund Obligations. Each of Kelso and the
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general partner thereof agrees to take all action as may be necessary so that,
at all time prior to the satisfaction and release of all obligations of Kelso
under this Agreement pursuant to Section 15 hereof, Kelso and/or the general
partner thereof shall have caused its affiliates to reserve capital in amounts
sufficient to fund in a timely manner all obligations of Kelso under this
Agreement.
10. Capital Call Event of Default. The following shall constitute a
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"Capital Call Event of Default":
Kelso shall commence a voluntary case concerning itself under Title 11
of the United States Code entitled "Bankruptcy," as now or hereafter in effect,
or any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Kelso, and the petition is not controverted within 10 days, or
is not dismissed within 60 days, after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Kelso, or Kelso commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Kelso,
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or there is commenced against Kelso any such proceeding which remains
undismissed for a period of 60 days, or Kelso is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Kelso suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or Kelso makes a general assignment for the
benefit of creditors; or any corporate action is taken by Kelso for the purpose
of effecting any of the foregoing.
11. Waivers of Failures; Delays; Etc. No failure or delay on the
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part of the Administrative Agent, any Lender, Kelso, the Borrower or any other
Credit Party in exercising any right, power or privilege hereunder and no course
of dealing between Kelso, the Administrative Agent, any Lender, the Borrower or
any other Credit Party shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights, powers and remedies herein expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or demand
on Kelso in any case shall entitle Kelso to any other further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or any Lender to any other or further action in any
circumstances without notice or demand.
12. Benefit of Agreement. This Agreement shall be binding upon Kelso
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and the Borrower, and their successors and assigns (including, without
limitation, any executors or administrators) and shall inure to the benefit of
the Administrative Agent and the Lenders and their successors and assigns. Each
of Kelso and the Borrower acknowledges and agrees that this Agreement is made
for the benefit of the Administrative Agent and the Lenders and that the
Administrative Agent and/or the Lenders may enforce all of the obligations of
Kelso and the Borrower hereunder directly against them. Neither Kelso nor the
Borrower may assign any of its rights or obligations hereunder without the
consent of the Required Lenders.
13. Amendments; Waivers. Neither this Agreement nor any provision
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hereof may be changed, modified, amended or waived except with the written
consent of Kelso, the Borrower and the Administrative Agent (with the consent of
the Required Lenders).
14. Notices. All notices and other communication hereunder shall be
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made at the addresses, in the manner and with the effect provided in Section
12.03 of the Credit Agreement, provided that, for this purpose, the address of
Kelso shall be the address specified opposite its signature below.
15. Termination of Agreement. This Agreement shall terminate and be
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of no further force and effect (except to the extent any party's obligations, if
any, arising prior to such time hereunder have not theretofore been fulfilled)
upon the earliest of (i) the date on which the Administrative Agent gives
written notice to Kelso and the Borrower that their obligations under this
Agreement have been fulfilled or terminated, (ii) the date on which all
Commitments and Letters of Credit under the Credit Agreement have been
terminated and all Obligations under the
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Credit Agreement have been repaid in full in cash in accordance with the
requirements of the Credit Agreement, (iii) investments in the aggregate amount
of the applicable Capital Call Amount shall have been made pursuant to Section
2(a) hereof and (iv) the delivery by the Borrower of the audited annual
financial statements for its fiscal year ending December 31, 2000 which
financial statements demonstrate that the Total Leverage Ratio for the Test
Period ending December 31, 2000 was less than or equal to 5.00 to 1.00.
16. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
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Trial. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF KELSO, THE
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BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF KELSO AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH OF KELSO
AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK JURISDICTION OVER SUCH PERSON, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF
THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH PERSON.
EACH OF KELSO AND THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PERSON, AT ITS ADDRESS FOR NOTICES
PURSUANT TO SECTION 12.03 OF THE CREDIT AGREEMENT OR AS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, AS THE CASE MAY BE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. EACH OF KELSO AND THE BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST KELSO OR THE BORROWER IN ANY
OTHER JURISDICTION.
(c) EACH OF KELSO AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE
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COURTS REFERRED TO IN CLAUSE (B) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH PARTY HERETO FURTHER IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY IN ANY COURT OR JURISDICTION, INCLUDING, WITHOUT LIMITATION, THOSE REFERRED
TO IN CLAUSE (B) ABOVE, IN RESPECT OF ANY MATTER ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
17. Costs of Enforcement; Indemnity. (a) Kelso hereby agrees to pay
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all reasonable out-of-pocket costs and expenses of each of the Administrative
Agent and each Lender in connection with the enforcement of this Agreement and
Kelso agrees to pay all out-of-pocket costs and expenses of the Administrative
Agent in connection with any amendment, waiver or consent relating hereto
(including, without limitation, in each case, the reasonable fees and
disbursements of counsel employed by the Administrative Agent and each Lender,
as the case may be).
(b) Kelso hereby agrees to indemnify and hold the Administrative
Agent and each Lender free and harmless from and against all loss, cost, damage,
and expense, by reason of the inaccuracy costs, which it shall at any time have
actually sustained by reason of the inaccuracy or breach of any of the foregoing
representations, warranties and covenants.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Kelso, the Borrower and
the Administrative Agent.
19. Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
Page 12
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered as of the date first above written.
Addresses:
320 Park Avenue KELSO & COMPANY, L.P.
Sixth Floor
New York, New York 10022 By: Kelso & Company, Inc., its
general partner
Telephone: (212) 751-3939
Telecopier: (212) 223-2379 By: James J. Connors II
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Attention: James J. Connors II Title: VP and General Counsel
18448 Oxnard Street UNILAB CORPORATION
Tarzana, CA 91356
Telephone: (818) 758-6611 By: /s/ David C. Weavil
--------------------------------
Telecopier: (818) 757-3809 Title: Chief Executive Officer
Attention: Brian D. Urban
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent for the Lenders
By: /s/ Mary Kay Koyle
-------------------------------
Title: Managing Director
