EXHIBIT 10.60
SUPPLEMENT NO. 1 TO
THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. 1 dated as of April 4, 2002 to the Indemnity, Subrogation
and Contribution Agreement dated as of June 30, 1999 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Indemnity,
Subrogation and Contribution Agreement"), among DJ ORTHOPEDICS, LLC, a Delaware
limited liability company (the "Borrower"), each subsidiary of the Borrower
listed on Schedule I thereto (the "Guarantors"), and WACHOVIA BANK, NATIONAL
ASSOCIATION ("Wachovia"), as collateral agent (in such capacity, the "Collateral
Agent") for the Secured Parties (as defined in the Credit Agreement referred to
below).
A. Reference is made to (a) 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 further 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"), and (b) the Subsidiary
Guarantee Agreement dated as of June 30, 1999, among the Guarantors and the
Collateral Agent (the "Subsidiary Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution 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, each Subsidiary that was not in existence or not such a
Subsidiary on the date of the Credit Agreement is required to enter into the
Subsidiary Guarantee Agreement as a Guarantor upon becoming a Subsidiary that is
a Subsidiary Loan Party. Section 12 of the Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries of the Borrower may
become Guarantors under the Indemnity, Subrogation and Contribution Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Guarantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Indemnity, Subrogation and Contribution 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 Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New 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 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 signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution 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 the event 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 therein and in the Indemnity, Subrogation and Contribution Agreement
shall not in any way be affected or impaired (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties 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 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it care of the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Indemnity, Subrogation and Contribution
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
------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Corporate &
Investment Banking
