Exhibit 4.4


 


EXECUTION COPY


 




 





GUARANTY


 


dated as of


 


November 20, 2007


 


among


 


REABLE THERAPEUTICS FINANCE LLC (to be renamed DJO FINANCE LLC), 

as Borrower,


 


REABLE THERAPEUTICS HOLDINGS LLC (to be renamed DJO HOLDINGS LLC), 

as Holdings,


 


and


 


CERTAIN SUBSIDIARIES OF HOLDINGS 

IDENTIFIED HEREIN,


 


and


 


CREDIT SUISSE,

as Collateral Agent




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01. Credit Agreement

  	
  1

  
	
  SECTION 1.02. Other Defined Terms

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  Guaranty

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. Guaranty

  	
  2

  
	
  SECTION 2.02. Guaranty of Payment

  	
  3

  
	
  SECTION 2.03. No Limitations

  	
  3

  
	
  SECTION 2.04. Reinstatement

  	
  4

  
	
  SECTION 2.05. Agreement To Pay; Subrogation

  	
  4

  
	
  SECTION 2.06. Information

  	
  4

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. Indemnity and Subrogation

  	
  4

  
	
  SECTION 3.02. Contribution and Subrogation

  	
  5

  
	
  SECTION 3.03. Subordination

  	
  5

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01. Notices

  	
  6

  
	
  SECTION 4.02. Waivers; Amendment

  	
  6

  
	
  SECTION 4.03. Collateral Agent’s Fees and Expenses;
  Indemnification

  	
  7

  
	
  SECTION 4.04. Successors and Assigns

  	
  7

  
	
  SECTION 4.05. Survival of Agreement

  	
  7

  
	
  SECTION 4.06. Counterparts; Effectiveness; Several Agreement

  	
  8

  
	
  SECTION 4.07. Severability

  	
  8

  
	
  SECTION 4.08. Right of Set-Off

  	
  8

  
	
  SECTION 4.09. Governing Law; Jurisdiction; Consent to Service
  of Process

  	
  9

  
	
  SECTION 4.10. WAIVER OF JURY TRIAL

  	
  9

  
	
  SECTION 4.11. Headings

  	
  10

  



 


i

















 


	
  SECTION 4.12. Security Interest Absolute

  	
  10

  
	
  SECTION 4.13. Termination or Release

  	
  10

  
	
  SECTION 4.14. Additional Restricted Subsidiaries and
  Intermediate Holding Companies

  	
  11

  



 


ii

















 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  Subsidiary
  Parties

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit I

  	
  Form of
  Guaranty Supplement

  



 


iii

















 


GUARANTY dated
as of November 20,
2007 among REABLE THERAPEUTICS FINANCE
LLC (to be renamed DJO FINANCE LLC), a Delaware limited liability company (the “Borrower”), REABLE THERAPEUTICS HOLDINGS LLC (to be renamed
DJO HOLDINGS LLC), a Delaware limited liability company (“Holdings”),  the Subsidiaries of Holdings from
time to time party hereto and CREDIT SUISSE, as Collateral Agent.


 


Reference is
made to the Credit Agreement dated as of November 20, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),  among the
Borrower,  Holdings, 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”).
The Lenders have agreed to extend credit to the Borrower subject to the
terms and conditions set forth in the Credit Agreement. The Guarantors may receive,
directly or indirectly, a portion of the proceeds of the Loans under the Credit
Agreement and will derive substantial direct and indirect benefits from the
transactions contemplated by the Credit Agreement. It is a condition precedent
to the making of Loans and the issuance of Letters of Credit by the Lenders
under the Credit Agreement and the entry by any Lender or Affiliate of a Lender
in its capacity as a provider of cash management services into Cash
Management Obligations and Hedge Banks into Secured Hedge Agreements from time
to time that the Guarantors shall have executed and delivered this Agreement. Holdings
and the Subsidiary Parties are affiliates of the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant to
the Credit Agreement and are willing to execute and deliver this Agreement in
order to induce the Lenders to extend such credit. Accordingly, the parties
hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.
Credit Agreement.


 


(a)                                  Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Credit Agreement.


 


(b)                                 The
rules of construction specified in Article I of the Credit Agreement
also apply to this Agreement.


 


SECTION 1.02.
Other Defined Terms. As used in this Agreement, the following terms have
the meanings specified below:


 


“Agreement” means this Guaranty.


 


“Bankruptcy Law” means any proceeding of the type referred to
in Section 8.01(f) of the Credit Agreement or Title 11, U.S. Code, or
any similar foreign, federal or state law for the relief of debtors.


 

















 


“Borrower” has the meaning assigned to such term in the
preliminary statement of this Agreement.


 


“Claiming Party” has the meaning assigned to such term in Section 3.02.


 


“Collateral Agent”  means Credit Suisse, in its capacity
as collateral agent under any of the Loan Documents, or any successor
collateral agent.


 


“Contributing Party”  has the meaning assigned to
such term in Section 3.02.


 


“Credit Agreement” has the meaning assigned to such term in
the preliminary statement of this Agreement.


 


“Guarantor”  means Holdings (in the
absence of any Intermediate Holding Company), any Intermediate Holding Company
that becomes a party to this Agreement after the Closing Date, and each
Subsidiary Party.


 


“Guaranty Supplement”  means an instrument in the form of
Exhibit I hereto.


 


“Holdings”  has the meaning assigned to
such term in the preliminary statement of this Agreement.


 


“Subordinated Obligations” has the meaning assigned to such term
in Section 3.03.


 


“Subsidiary Parties” means (a) those Subsidiaries identified on Schedule I
and (b) each other Restricted Subsidiary that becomes a party to this
Agreement as a Subsidiary Party after the Closing Date.


 


ARTICLE II



Guaranty


 


SECTION 2.01.
Guaranty.


 


(a)                                  Each
Guarantor absolutely, irrevocably, and unconditionally guarantees, jointly with
the other Guarantors and severally, as a primary obligor and not merely as a
surety, the due and punctual payment and performance of the Obligations. Each
of the Guarantors further agrees that the Obligations may be extended or
renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligation. Each
of the Guarantors waives presentment to, demand of payment from and protest to
the Borrower or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.


 


(b)                                 The
Collateral Agent (by its acceptance of this Agreement), the other Secured
Parties and the Guarantors hereby irrevocably agree that the Obligations of
each Guarantor hereunder, and the security interest in the assets of each
Guarantor granted under the 


 


2

















 


Collateral
Documents at any time shall be limited to the maximum amount as will result in
the Obligations of such Guarantor under this Agreement not constituting a
fraudulent transfer or fraudulent conveyance or being voidable under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act, or any similar
foreign, federal or state law or in any proceeding of the type referred to Section 8.01(f) of
the Credit Agreement, to the extent the Act, law or proceeding is applicable to
this Agreement or to the Obligations of each Guarantor hereunder.


 


SECTION 2.02.
Guaranty of Payment. Each of the Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Collateral Agent or any other Secured Party to any security held for the
payment of the Obligations, or to any balance of any deposit account or credit
on the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other Person.


 


SECTION 2.03.
No Limitations.


 


(a)                                  Except
for termination of a Guarantor’s obligations hereunder as expressly provided in
Section 4.13, the obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations, or otherwise. Any and all payments made by
the Guarantor under or in respect of this Agreement or any other Loan Document
shall be made, in accordance with Section 3.01 of the Credit Agreement. Without
limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by (i) the
failure of the Collateral Agent or any other Secured Party to assert any claim
or demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise; (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any
Loan Document or any other agreement, including with respect to any other
Guarantor under this Agreement; (iii) the release of, or any impairment
of, or failure to perfect any Lien on or security interest in, any security
held by the Collateral Agent or any other Secured Party for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in
any manner or to any extent vary the risk of any Guarantor or otherwise operate
as a discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash  of all the Obligations). Each
Guarantor expressly authorizes the Secured Parties to take and hold security
for the payment and performance of the Obligations, to exchange, waive or
release any or all such security (with or without consideration), to enforce or
apply such security and direct the order and manner of any sale thereof in
their sole discretion or to release or substitute any one or more other
guarantors or obligors upon or in respect of the Obligations, all without
affecting the obligations of any Guarantor hereunder.


 


(b)                                 To
the fullest extent permitted by applicable law, each Guarantor waives any
defense based on or arising out of any defense of the Borrower or any other
Loan Party or the enforceability of the Obligations, or any part thereof from  any cause, or the cessation from
any cause of the liability of the Borrower or any other Loan Party, other than
the indefeasible 


 


3

















 


payment in
full in cash of all the Obligations. The Collateral Agent and the other Secured
Parties may in accordance with the terms of the Collateral Documents, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security
in lieu of foreclosure, compromise or adjust any part of the Obligations,
make any other accommodation with the Borrower or any other Loan Party or
exercise any other right or remedy available to them against the Borrower or
any other Loan Party, without affecting or impairing in any way the liability
of any Guarantor hereunder except  to the
extent the Obligations have been fully and indefeasibly paid in full in cash. To
the fullest extent permitted by applicable law, each Guarantor waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other Loan Party, as the case may be, or any security.


 


SECTION 2.04.
Reinstatement. Each of the Guarantors agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation, is
rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy, insolvency or reorganization of the Borrower, any other Loan Party or otherwise.


 


SECTION 2.05.
Agreement To Pay; Subrogation. In furtherance of the foregoing and not
in limitation of any other right that the Collateral Agent or any other Secured
Party has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Collateral Agent for distribution to
the Secured Parties in cash the amount of such unpaid Obligation. Upon payment
by any Guarantor of any sums to the Collateral Agent as provided above, all
rights of such Guarantor against the Borrower or any .other Loan
Party arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subject to Article III.


 


SECTION 2.06.
Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s and each other Loan Party’s financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations, and the nature, scope and extent of the risks
that such Guarantor assumes and incurs hereunder, and agrees that none of the
Collateral Agent or the other Secured Parties will have any duty to advise such
Guarantor of information known to it or any of them regarding such
circumstances or risks.


 


ARTICLE III



Indemnity, Subrogation and Subordination


 


SECTION 3.01.
Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Guarantors may have under applicable law (but
subject to Section 3.03), the Borrower agrees that in the event a payment
of an obligation shall be made by any Guarantor under this Agreement, the
Borrower shall indemnify such Guarantor for the full 


 


4

















 


amount of such payment and such
Guarantor shall be subrogated to the rights of the Person to whom such payment
shall have been made to the extent of such payment.


 


SECTION 3.02. Contribution
and Subrogation. Each Guarantor (a “Contributing
Party”) agrees (subject to Section 3.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation and such other Guarantor (the “Claiming
Party”)  shall not have
been fully indemnified by the Borrower as provided in Section 3.01, the
Contributing Party shall indemnify the Claiming Party in an amount equal to the
amount of such payment, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Party on the date hereof
and the denominator shall be the
aggregate net worth of all the Contributing Parties together with the net worth
of the Claiming Party on the date hereof (or, in the case of any
Guarantor becoming a party hereto pursuant to Section 4.14, the date of
the Guaranty Supplement hereto executed and delivered by such Guarantor). Any
Contributing Party making any payment to a Claiming Party pursuant to this Section 3.02
shall be subrogated to the rights of such Claiming
Party to the extent of such payment.


 


SECTION 3.03.
Subordination.


 


(a)                                  Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantors
under Sections 3.01 and 3.02 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to
the indefeasible payment in full in cash of the Obligations. No failure on the part of
the Borrower or any Guarantor to
make the payments required by Sections 3.01 and 3.02 (or any other payments
required under applicable law or otherwise) shall in any respect limit the obligations  and liabilities of
any Guarantor with respect to its obligations hereunder, and each Guarantor
shall remain liable for the full amount of
the obligations of such Guarantor hereunder.


 


(b)                                 The
Borrower and each Guarantor hereby agrees that upon the occurrence and during
the continuance of an Event of Default and after notice from the Collateral
Agent all Indebtedness owed by it to the Borrower or any Subsidiary shall be
fully subordinated to the indefeasible payment in full in cash of the
Obligations.


 


(c)                                  Each
Guarantor hereby subordinates any and all
debts, liabilities and other obligations owed to such Guarantor by each
other Loan Party in respect of .any
payment by any Guarantor under this Agreement (the “Subordinated Obligations”) to the Obligations to the extent
and in the manner hereinafter set forth in this Section 3.03.


 


(d)                                 Prohibited
Payments, Etc. Except during the continuance of an Event of Default and
after notice from the Collateral Agent, each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any Event of Default and after notice
from the Collateral Agent, however, unless the Collateral Agent otherwise
agrees, no Guarantor shall demand, accept or take any action to collect any
payment on account of the
Subordinated Obligations.


 


5

















 


(e)                                  Prior
Payment of Obligations. In any proceeding under any Bankruptcy Law relating
to any other Loan Patty, each Guarantor agrees that the Secured Parties shall be entitled to receive
payment in full in cash of all Obligations before such Guarantor receives
payment of any Subordinated Obligations.


 


(f)                                    Turn-Over.
After the occurrence and during the continuance of any Event of Default, each
Guarantor shall, if the Collateral Agent so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee
for the Secured Parties and deliver such payments to the Collateral Agent on
account of the Obligations, together with any necessary endorsements or other
instruments of transfer, but
without reducing or affecting in any manner the liability of such Guarantor
under the other provisions of this Agreement.


 


(g)                                 Collateral
Agent Authorization. After the occurrence and during the continuance of any
Event of Default and after notice, the Collateral Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Obligations, and (ii) to require each Guarantor (A) to collect
and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to the Collateral Agent for application to
the Obligations.


 


ARTICLE IV



Miscellaneous


 


SECTION 4.01.
Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given
as provided in Section 10.02 of the Credit Agreement. All communications
and notices hereunder to Holdings, any Intermediate Holding Company or any
Subsidiary Party shall be given to it in care of the Borrower as provided in Section 10.02
of the Credit Agreement.


 


SECTION 4.02.
Waivers; Amendment.


 


(a)                                  No
failure or delay by the Administrative Agent, the Collateral Agent, any L/C
Issuer or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Collateral Agent, the L/C
Issuers and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section 4.02,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, the Collateral Agent, any Lender or any L/C Issuer may have
had notice 


 


6

















 


or knowledge
of such Default at the time. No notice or demand on any Loan Party in any case
shall entitle any Loan Party to any other or further notice or demand in
similar or other circumstances.


 


(b)                                 Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Collateral Agent and the Loan Party or Loan Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 10.01 of the Credit Agreement.


 


SECTION 4.03.
Collateral Agent’s Fees and Expenses; Indemnification.


 


(a)                                  The
parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its expenses incurred hereunder as provided in Section 10.04
of the Credit Agreement.


 


(b)                                 Without
limitation of its indemnification obligations under the other Loan Documents,
the Guarantors agree to indemnify the Collateral Agent and the other
Indemnitees (as defined in Section 10.05 of the Credit Agreement) against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including Attorney Costs for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of the execution, delivery or performance of this
Agreement or any claim, litigation, investigation or proceeding relating to any
of the foregoing agreements or instruments contemplated hereby, whether or not
any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or, related expenses resulted from
the gross negligence or wilful misconduct of such Indemnitee or of any
Affiliate, director, officer, employee, counsel, agent or attorney-in-fact of
such Indemnitee.


 


(c)                                  Any
such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Collateral Documents. The
provisions of this Section 4.03 shall remain operative and in full force
and effect regardless of the termination of this Agreement. or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 4.03 shall be payable within 10
days of written demand therefor.


 


SECTION 4.04. Successors
and Assigns. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the permitted successors
and assigns of such party; and all covenants, promises and agreements by or on
behalf of any Guarantor or the Collateral Agent that are contained in this
Agreement-shall bind and inure to the benefit of their respective successors and assigns.


 


SECTION 4.05.
Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in  the
certificates or other instruments prepared or delivered in connection with or
pursuant to this 


 


7

















 


Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any Lender or on its behalf and notwithstanding that the Administrative
Agent, the Collateral Agent, any L/C Issuer or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended under the Credit Agreement, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under any Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated.


 


SECTION 4.06.
Counterparts; Effectiveness; Several Agreement. This Agreement may be
executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an
executed signature page to this Agreement by facsimile transmission or
other electronic transmission (i.e. a “PDF” or “TIF”) shall be as effective as
delivery of a manually signed counterpart of this Agreement. This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan Party shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such Loan
Party and the Collateral Agent and their respective permitted successors and
assigns, and shall inure to the benefit of such Loan Party, the Collateral
Agent and the other Secured Parties and their respective, successors and
assigns, except that no Loan Party shall have the right to assign or transfer
its rights or obligations hereunder or any interest herein (and any such
assignment or transfer shall be void) except as expressly contemplated by this
Agreement or the Credit Agreement. This Agreement shall be construed as a
separate agreement with respect to each Loan Party and may be amended,
modified, supplemented, waived or released with respect to any Loan Party
without the approval of any other Loan Party and without affecting the
obligations of any other Loan Party hereunder.


 


SECTION 4.07.
Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof, and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate 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 4.08.
Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of
Default, each Lender and its Affiliates  is
authorized at any time and from time to time, without prior notice to the
Borrower or any other Loan Party, any such notice being waived by the Borrower
and each Loan Party to the fullest extent permitted by applicable Law, to
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other Indebtedness at any time
owing by, such Lender and its Affiliates to or for the credit or the account of
the respective Loan Parties against any and all obligations owing to such Lender and its Affiliates
hereunder or any other Loan Document, now or hereafter existing, 


 


8

















 


irrespective of whether or not
such Lender or Affiliate shall have made demand under this Agreement or any
other Loan Document and although such obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and
the Collateral Agent after any such set off and application made by such
Lender; provided that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of
each Lender under this Section 4.08 are in addition to other rights and
remedies (including other rights of setoff) that such Lender may have.


 


SECTION 4.09.
Governing Law; Jurisdiction; Consent to Service of Process.


 


(a)                                  This
Agreement shall be governed by and construed in accordance with the law of the
State of New York.


 


(b)                                 Each
of the Loan Parties hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York City and of the United States District
Court for the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Collateral Agent, any L/C Issuer or
any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Document against any Guarantor, or its
properties in the courts of any jurisdiction.


 


(c)                                  Each
of the Loan Parties hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which
it may now or  hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section 4.09. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


(d)                                 Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 4.01. Nothing in this Agreement or any other Loan Document will affect the right of
any party to this Agreement to  serve process in any other manner
permitted  by law.


 


SECTION 4.10.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY 


 


9

















 


(WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.10.


 


SECTION 4.11. Headings.
Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.


 


SECTION 4.12.
Security Interest Absolute. All rights of the Collateral Agent and each
Lender hereunder and all obligations of each Guarantor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Obligations, or
any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document, any other agreement or instrument, (c) any
release or amendment or waiver of or consent under or departure from any
guarantee guaranteeing all or any of the Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Guarantor in respect of the Obligations or this Agreement.


 


SECTION 4.13.
Termination or Release.


 


(a)                                  This
Agreement and the Guaranties made herein shall terminate with respect to all
Obligations when all the outstanding Obligations have been indefeasibly paid in
full (other than Obligations under any Secured Hedge Agreement, Cash Management
Obligations and contingent indemnification obligations not then due and
payable) and the Lenders have no further commitment to lend under the Credit
Agreement, the L/C Obligations have been reduced to zero (unless the L/C
Obligations shall have been collateralized on terms and conditions reasonably
satisfactory to the relevant L/C Issuer following termination of the
Commitments) and the L/C Issuers have no further obligations to issue Letters
of Credit under the Credit Agreement.


 


(b)                                 A
Subsidiary Party shall automatically be released from its obligations hereunder
upon the consummation of any transaction permitted by the Credit Agreement as a
result of which such Subsidiary Party ceases to be a Subsidiary of the
Borrower; provided that the Required Lenders shall
have consented to such transaction (to the extent required by the Credit
Agreement) and the terms of such consent did not provide otherwise.


 


(c)                                  Holdings
shall automatically be released from its obligations hereunder upon the
execution and delivery by any Intermediate Holding Company of the Guaranty
Supplement and its becoming a Guarantor hereunder.


 


10

















 


(d)                                 In
connection with any termination or release pursuant to paragraphs (a), (b) or
(c), the Collateral Agent shall execute and deliver to any Guarantor, at such
Guarantor’s expense all documents that such Guarantor shall reasonably request
to evidence such termination or release. Any execution and delivery of
documents pursuant to this Section 4.13 shall be without recourse to or
warranty by the Collateral Agent.


 


(e)                                  Notwithstanding
anything to contrary set forth in this Agreement, each Cash Management Bank and
each Hedge Bank by the acceptance of the benefits under this Agreement hereby
acknowledge and agree that (i) the guaranties granted under this Agreement
of the Obligations of any Loan Party and its Subsidiaries under any Secured
Hedge Agreement and the Cash Management Obligations shall be automatically
released upon termination of the Commitments and payment in full of all other
Obligations, in each case, unless the Obligations under the Secured Hedge
Agreement or the Cash Management Obligations are due and payable at such time
(it being understood and agreed that this Agreement and the guaranties granted
herein shall survive solely as to such due and payable Obligations and until
such time as such due and payable Obligations have been paid in full) and (ii) any
release of a Guarantor effected in the manner permitted by this Agreement shall
not require the consent of any Hedge Bank or Cash  Management
Bank.


 


SECTION 4.14.
Additional Restricted Subsidiaries and Intermediate Holding Companies. Pursuant
to Section 6.11 of the Credit Agreement, any Intermediate Holding Company
and certain Restricted Subsidiaries of the Loan Parties that were not in
existence or not Restricted Subsidiaries on the date of the Credit Agreement
are required to enter in this Agreement as Guarantors and, in the case of such
Restricted Subsidiaries, Subsidiary Parties, upon becoming Restricted
Subsidiaries or an Intermediate Holding Company. Upon execution and delivery by
the Collateral Agent and a Restricted Subsidiary or Intermediate Holding Company
of a Guaranty Supplement, such Restricted Subsidiary or
Intermediate Holding Company shall become a Guarantor and, in the case of such
Restricted Subsidiary, a Subsidiary Party hereunder with the same force and
effect as if originally named as a Guarantor or a Subsidiary Party, as
applicable, herein. The execution and delivery of any such instrument shall not
require the consent of any other Loan Party hereunder. The rights and
obligations of each Loan Party hereunder shall remain in full force and effect
notwithstanding the addition of any new Loan Party as a party to this
Agreement.


 


[Remainder of Page Intentionally
Blank]


 


11

















 


IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.


 


	
   

  	
  REABLE THERAPEUTICS HOLDINGS LLC,  

  as Holdings,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Harry L. Zimmerman

  
	
   

  	
   

  	
    Title:

  	
  Executive Vice President, General 

  Counsel, Secretary and Assistant 

  Treasurer

  
					



 


[DJO Guaranty]


 

















 


	
   

  	
  REABLE THERAPEUTICS LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  REABLE THERAPEUTICS FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL PARTNERS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL ASSET CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  ENCORE MEDICAL GP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPI, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPI CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  EMPICARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  IOMED, LLC,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Harry L. Zimmerman

  
	
   

  	
   

  	
    Title:

  	
  Executive Vice President, General 

  Counsel, Secretary and Assistant 

  Treasurer

  
						



 


[DJO Guaranty]


 

















 


	
   

  	
  DJO INCORPORATED 

  

  DJO, LLC,

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    /s/ Donald M. Roberts

  	
   

  
	
   

  	
   

  	
    Name: 

  	
  Donald M. Roberts

  
	
   

  	
   

  	
    Title:

  	
  Senior Vice President and General 

  Counsel

  
					



 


[DJO Guaranty]


 

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS 

  BRANCH,  

  as Collateral Agent,

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Judith E. Smith

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Judith E. Smith

  	
   

  
	
   

  	
   

  	
    Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Doreen Barr

  	
   

  
	
   

  	
   

  	
    Name: 

  	
  Doreen Barr

  	
   

  
	
   

  	
   

  	
    Title:

  	
  Vice President

  	
   

  
						



 


[DJO Guaranty]


 

















 


IN WITNESS
WHEREOF, for the purposes of Section 3.01, 3.03(b), and 4.08, the
undersigned has executed this Guaranty as of the date first written above.


 


	
   

  	
  REABLE THERAPEUTICS FINANCE LLC, 

  as Borrower,

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
    /s/ Harry L. Zimmerman

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Harry L. Zimmerman

  
	
   

  	
   

  	
    Title:

  	
  Executive Vice President, General 

  Counsel, Secretary and Assistant 

  Treasurer

  
					



 


[DJO Guaranty]


 

















 


Schedule I


 


SUBSIDIARY PARTIES


 




	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  






 

















 


Exhibit I to the 


Guaranty


 


SUPPLEMENT NO.    dated
as of [•],  to the Guaranty dated as of November 20,
2007 among REABLE THERAPEUTICS FINANCE
LLC (to be renamed DJO FINANCE LLC), a Delaware limited liability company (the “Borrower”), REABLE THERAPEUTICS HOLDINGS LLC (to be renamed
DJO HOLDINGS LLC), a Delaware limited liability company (“Holdings”),  the Subsidiaries of Holdings from
time to time party hereto and CREDIT SUISSE, as Collateral Agent.


 


A.                                   Reference
is made to the Credit Agreement dated as of November 20, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),  among the
Borrower,  Holdings, 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”).


 


B.                                     Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guaranty referred to
therein.


 


C.                                     The
Guarantors, have entered into the Guaranty in order to induce the
Lenders to make Loans and the L/C Issuers to issue Letters of Credit. Section 4.14
of the Guaranty provides that any Intermediate Holding Company or additional
Restricted Subsidiaries of the Borrower may become Guarantors and, in the
case of such Restricted Subsidiaries, Subsidiary Parties under the Guaranty by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Intermediate Holding Company or Restricted Subsidiary (the “New
Guarantor”)  is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor and, in the case of any such Restricted Subsidiary,
a Subsidiary Party under the Guaranty in order to induce the Lenders to make
additional Loans and the L/C Issuers 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 4.14 of the Guaranty, the New Guarantor by its
signature below becomes a Guarantor and a Subsidiary Party, as applicable, with
the same force and effect as if originally named therein a Guarantor and a Subsidiary Party,
as applicable,  and the  New Guarantor hereby (a) agrees
to all the terms and provisions of the Guaranty applicable to it as a
Subsidiary Party and Guarantor, as applicable, thereunder and (b) represents
and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and  as of the date hereof. Each
reference to a “Guarantor” in the Security Agreement shall be deemed to include
the New Guarantor. The Guaranty 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 (and by different parties
hereto on different 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
a counterpart of this Supplement that bears the signature of the New
Guarantor and
the Collateral Agent has executed a counterpart hereof. Delivery of an
executed signature page to
this Supplement by facsimile
transmission or other electronic transmission (i.e. a “PDF” or a “TIF”) shall
be as effective as delivery of a
manually signed counterpart of this Supplement.


 


SECTION 4.
Except as expressly supplemented hereby, the Guaranty 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 Guaranty shall not in any way be affected or impaired thereby (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 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 4.01 of the Guaranty.


 


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.


 


[Remainder of Page Intentionally
Blank]


 


2

















 


IN WITNESS
WHEREOF, the New Guarantor and the Collateral Agent have duly executed this
Supplement to the Guaranty as of the day and year first above written.


 


	
   

  	
  [NAME OF NEW GUARANTOR],

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS 

  BRANCH,  

  as Collateral Agent,

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Title:

  	
   

  	
   

  



 


[DJO Guaranty Supplement]