EXHIBIT 10.62
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of May 13, 2002, among DJ ORTHOPEDICS DEVELOPMENT CORPORATION (the "New
Guarantor"), a Delaware corporation and a subsidiary of DJ ORTHOPEDICS, LLC, a
Delaware limited liability company (the "Company"), the Company, DJ ORTHOPEDICS
CAPITAL CORPORATION, a Delaware corporation ("DJ Capital", and together with the
Company, the "Issuers"), and DJ ORTHOPEDICS, INC. ("DJO"), a Delaware
corporation, (as successor to DonJoy, L.L.C.) and THE BANK OF NEW YORK, a New
York banking corporation, as trustee under the indenture referred to below (the
"Trustee").
WITNESSETH:
WHEREAS the Issuers and DJO (the "Existing Guarantor") have
heretofore executed and delivered to the Trustee an Indenture (the "Indenture")
dated as of June 30, 1999, providing for the issuance of an aggregate principal
amount of up to $100,000,000 of 12-5/8% Senior Subordinated Notes due 2009 (the
"Securities");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Issuers are required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Issuers' obligations under the
Securities pursuant to a Note Guarantee on the terms and conditions set forth
herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee,
the Issuers and the Existing Guarantor are authorized to execute and deliver
this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Issuers, the Existing Guarantor and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with the Existing Guarantor, to unconditionally guarantee
the Issuers' obligations under the Securities on the terms and subject to the
conditions set forth in Articles 11 and 12 of the Indenture and to be bound by
all other applicable provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first written above.
DJ ORTHOPEDICS DEVELOPMENT CORPORATION
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
DJ ORTHOPEDICS, LLC
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
DJ ORTHOPEDICS CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
DJ ORTHOPEDICS, INC.,
as successor to DONJOY, L.L.C.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
