EXHIBIT 10.61
SUPPLEMENT NO. 1 TO
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. 1 dated as of April 4, 2002 to the Subsidiary Guarantee
Agreement dated as of June 30, 1999, among each of the subsidiaries listed on
Schedule I thereto (each such subsidiary, individually, a "Subsidiary Guarantor"
and, collectively, the "Subsidiary Guarantors") of DJ ORTHOPEDICS, LLC, a
Delaware limited liability company (the "Borrower"), and WACHOVIA BANK, NATIONAL
ASSOCIATION ("Wachovia"), as collateral agent (the "Collateral Agent") for the
Secured Parties (as defined in the Credit Agreement referred to below).
A. Reference is made to the Credit Agreement dated as of June 30, 1999
(as amended by Amendment No. 1 dated as of May 25, 2000 and Agreement dated as
of July 13, 2000 and as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, DJ Orthopedics, Inc., a
Delaware corporation (successor to Donjoy, LLC), the lenders from time to time
party thereto (the "Lenders"), Wachovia, as Administrative Agent for the Lenders
(in such capacity the "Administrative Agent") and as Collateral Agent, and
JPMorgan Chase Bank. f/k/a The Chase Manhattan Bank, as Syndication Agent and as
Issuing Bank (in such capacity, the "Issuing Bank").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Subsidiary Guarantee Agreement
and the Credit Agreement.
C. The Subsidiary Guarantors have entered into the Subsidiary Guarantee
Agreement in order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit. Pursuant to Section 5.12 of the Credit Agreement, the
Borrower is required to cause each Subsidiary that was not in existence or not a
Subsidiary on the date of the Credit Agreement to enter into the Subsidiary
Guarantee Agreement as a Subsidiary Guarantor upon becoming a Subsidiary that is
a Subsidiary Loan Party. Section 20 of the Subsidiary Guarantee Agreement
provides that additional Subsidiaries of the Borrower may become Subsidiary
Guarantors under the Subsidiary Guarantee Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary (the
"New Subsidiary Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Subsidiary Guarantor under the
Subsidiary Guarantee Agreement in order to induce the Lenders to make additional
Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Subsidiary Guarantor agree
as follows:
SECTION 1. In accordance with Section 20 of the Subsidiary Guarantee
Agreement, the New Subsidiary Guarantor by its signature below becomes a
Subsidiary Guarantor under the Subsidiary Guarantee Agreement with the same
force and effect as if originally named therein as a Subsidiary Guarantor and
the New Subsidiary Guarantor hereby (a) agrees to all the terms and
provisions of the Subsidiary Guarantee Agreement applicable to it as a
Subsidiary Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Subsidiary Guarantor thereunder
are true and correct on and as of the date hereof. Each reference to a
"Subsidiary Guarantor" in the Subsidiary Guarantee Agreement shall be deemed to
include the New Subsidiary Guarantor. The Subsidiary Guarantee Agreement is
hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Subsidiary Guarantor and the
Collateral Agent. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Subsidiary
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Subsidiary Guarantee Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction). The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Subsidiary Guarantee Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it care of the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Collateral Agent for its out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Collateral
Agent have duly executed this Supplement to the Subsidiary Guarantee Agreement
as of the day and year first above written.
DJ ORTHOPEDICS DEVELOPMENT CORPORATION, a
Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: President and CEO
Address: c/o dj Orthopedics, LLC
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Managing Director, Corporate &
Investment Banking
