Contract
Exhibit 10.26
EXECUTION VERSION
AMENDMENT NO. 3 dated as of February 18, 2011 (this “Amendment”), to the Credit Agreement dated as of November 20, 2007, as amended by Amendment No. 1 dated as of January 14, 2010 and Amendment No. 2 dated as of October 7, 2010 (the “Credit Agreement”), among DJO FINANCE LLC (f/k/a REABLE THERAPEUTICS FINANCE LLC), a Delaware limited liability company (the “Company”), DJO HOLDINGS LLC (f/k/a REABLE THERAPEUTICS HOLDINGS LLC), a Delaware limited liability company (“Holdings”), CREDIT SUISSE AG (f/k/a Credit Suisse), as Administrative Agent, Collateral Agent, Swing Line Lender and an L/C Issuer and each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”).
A. Pursuant to the Credit Agreement, the Lenders have extended credit to the Company.
B. The Company has requested that the Lenders agree to amend the Credit Agreement in the manner set forth herein in order to modify the Total Leverage Ratio set forth in Section 7.02(i) and Section 7.03(h) of the Credit Agreement, compliance with which is required as a condition to the making of a Permitted Acquisition and the related incurrence of Indebtedness pursuant to such sections.
C. The Lenders are willing to so amend the Credit Agreement, on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the premises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined in this Amendment have the meanings assigned thereto in the Credit Agreement. The provisions of Section 1.02 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis. As used herein, the following terms shall have the meanings set forth below:
SECTION 2. Amendments to Credit Agreement. (a) Section 7.02(i)(E) of the Credit Agreement is hereby amended by replacing “6:00:1” therein with “7:00:1”.
(b) Section 7.03(h) of the Credit Agreement is hereby amended replacing “6:00:1” therein with “7:00:1”.
SECTION 3. Other Agreements. The parties hereto hereby acknowledge and agree that (i) as of the Amendment Effective Date, the acquisition of Elastic Therapy, LLC (f/k/a Elastic Therapy, Inc.) by DJO, LLC shall be deemed to be a Permitted Acquisition made pursuant to Section 7.02(i) of the Credit Agreement and shall no longer constitute an investment made pursuant to Section 7.02(n) thereof and (ii) no certification pursuant to Section 7.02(i) shall be required in connection therewith. The Company hereby represents and warrants that immediately after giving effect to the acquisition of
Elastic Therapy, LLC, the Total Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the Test Period immediately preceding the acquisition of Elastic Therapy LLC was not greater than 7.00:1.
SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Company represents and warrants to each of the Lenders and the Administrative Agent that, after giving effect to this Amendment, (a) the representations and warranties of the Company and each other Loan Party contained in Article V of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects on and as of the Amendment Effective Date (as defined below); provided that, to the extent that such representations and warranties expressly relate to a specified earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and (b) no Default or Event of Default has occurred and is continuing.
SECTION 5. Amendment Fee. The Company agrees to pay to the Administrative Agent, for the account of each Lender that executes and delivers a copy of this Amendment to the Administrative Agent (or its counsel) at or prior to 12:00 noon, New York City time, on February 18, 2011, an amendment fee (the “Amendment Fees”) in an amount equal to 0.20% of the sum of the aggregate principal amount of such Lender’s Term Loans outstanding as of such date and the Revolving Credit Commitment (whether used or unused) of such Lender as of such date; provided, that the Company shall have no liability for any such Amendment Fees if this Amendment does not become effective in accordance with Section 6 below. Such Amendment Fees shall be payable in immediately available funds on, and subject to the occurrence of, the Amendment Effective Date, shall not be subject to setoff or counterclaim, and shall be in addition to any other fees or amounts referred to in Section 6 below.
SECTION 6. Effectiveness. This Amendment shall become effective as of the date (the “Amendment Effective Date”) on which the Administrative Agent shall have received (a) counterparts of this Amendment that, when taken together, bear the signatures of (i) the Company, (ii) Holdings, and (iii) the Required Lenders, and (b) (i) the Amendment Fees, (ii) any fees separately agreed in writing by the Company and Credit Suisse Securities (USA) LLC and (iii) to the extent invoiced (such invoice to be received by the Company no later than one Business Day prior to the Amendment Effective Date), reimbursement or payment of all reasonable and documented out of pocket costs and expenses of the Administrative Agent and its Affiliates required by Section 10.04 of the Credit Agreement or by any other Loan Document to be reimbursed or paid by the Company in connection with this Amendment.
SECTION 7. Effect of this Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 8. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
SECTION 9. GOVERNING LAW. (a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AMENDMENT.
(c) Each party to this Amendment irrevocably consents to service of process in the manner provided for notices in Section 10.02 of the Credit Agreement. Nothing in this Amendment will affect the right of any party to this Amendment to serve process in any other manner permitted by law.
SECTION 10. Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
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/s/ XXXXXX X. XXXXX | |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
EVP & CFO |
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DJO HOLDINGS LLC, | ||
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/s/ XXXXXX X. XXXXX | |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
EVP & CFO |
[Amendment No. 3 to the Credit Agreement]
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (formerly known as Credit Suisse, Cayman Islands Branch), as Administrative Agent, | ||
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/s/ XXXXXX X. XXXXX | |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Managing Director |
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/s/ XXXXXXXXXXX ROO DAY | |
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Name: |
Xxxxxxxxxxx Roo Day |
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Title: |
Vice President |
[Amendment No. 3 to the Credit Agreement- DJO]
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SIGNATURE PAGE TO AMENDMENT NO. 3 | |||
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DATED AS OF THE DATE FIRST WRITTEN | |||
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ABOVE, TO THE DJO FINANCE LLC CREDIT AGREEMENT | |||
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For any Lender requiring a second signature line: | |||
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