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EXHIBIT 10.8
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
GUARANTY OF LEASE
WHEREAS, Smith & Nephew, Inc., a Delaware corporation as Sublandlord,
hereinafter "Sublandlord", and DJ Orthopedic, LLC, a Delaware limited liability
company as Subtenant, hereinafter "Subtenant", are about to execute a document
entitled "Sublease" dated as of June 30, 1999 concerning the premises commonly
known as Parcels H, I, & J of Parcel Map 16, 028 in the City of Vista, San Diego
County, CA wherein Sublandlord will lease the premises to Subtenant, and
WHEREAS, DonJoy, LLC, a Delaware limited liability company, hereinafter
"Guarantors" have a financial interest in Subtenant, and
WHEREAS, Sublandlord would not execute the Sublease if Guarantors did not
execute and deliver to Sublandlord this Guarantee of Lease.
NOW THEREFORE, in consideration of the execution of the foregoing
Sublease by Sublandlord and as a material inducement to Sublandlord to execute
said Sublease, Guarantors hereby jointly, severally, unconditionally and
irrevocably guarantee the prompt payment by Subtenant of all rents and all other
sums payable by Subtenant under said Sublease and the faithful and prompt
performance by Subtenant of each and every one of the terms, conditions and
covenants of said Sublease to be kept and performed by Subtenant.
It is specifically agreed that the terms of the foregoing Sublease may be
modified by agreement between Sublandlord and Subtenant, or by a course of
conduct, and said Sublease may be assigned by Sublandlord or any assignee of
Sublandlord without consent or notice to Guarantors and that this Guaranty shall
guarantee the performance of said Sublease as so modified.
This Guaranty shall not be released, modified or affected by the failure
or delay on the part of Sublandlord to enforce any of the rights or remedies of
the Sublandlord under said Sublease, whether pursuant to the terms thereof or at
law or in equity.
No notice of default need be given to Guarantors, it being specifically
agreed that the guarantee of the undersigned is a continuing guarantee under
which Sublandlord may proceed immediately against Subtenant and/or against
Guarantors following any breach or default by Subtenant or for the enforcement
of any rights which Sublandlord may have as against Subtenant under the terms of
the Sublease or at law or in equity.
Sublandlord shall have the right to proceed against Guarantors hereunder
following any breach or default by Subtenant without first proceeding against
Subtenant and without previous notice to or demand upon either Subtenant or
Guarantors.
Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations relating to this Guaranty or the Sublease, (d) any
right to require the Sublandlord to proceed against the Subtenant or any other
Guarantor or any other person or entity liable to Sublandlord, (e) any right to
require Sublandlord to apply to any default any security deposit or other
security it may hold
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under the Sublease, (f) any right to require Sublandlord to
proceed under any other remedy Sublandlord may have before proceeding against
Guarantors, (g) any right of subrogation.
Guarantors do hereby subrogate all existing or future indebtedness of
Subtenant to Guarantors to the obligations owed to Sublandlord under the
Sublease and this Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that recourse
may be had against his or her separate property for all of the obligations
hereunder.
The obligations of Subtenant under the Sublease to execute and deliver
estoppel statements and financial statements, as therein provided, shall be
deemed to also require the Guarantors hereunder to do and provide the same.
The term "Sublandlord" refers to and means the Sublandlord named in the
Sublease and also Sublandlord's successors and assigns. So long as Sublandlord's
interest in the Sublease, the leased premises or the rents, issues and profits
therefrom, are subject to any mortgage or deed of trust or assignment for
security, no acquisition by Guarantors of the Sublandlord's interest shall
affect the continuing obligation of Guarantors under this Guaranty which shall
nevertheless continue in full force and effect for the benefit of the mortgagee,
beneficiary, trustee or assignee under such mortgage, deed of trust or
assignment and their successors and assigns.
The term "Subtenant" refers to and means the Subtenant named in the
Sublease and also Subtenant's successors and assigns.
In the event any action be brought by said Sublandlord against Guarantors
hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful
party in such action shall pay to the prevailing party therein a reasonable
attorney's fee which shall be fixed by the court.
Executed by "GUARANTORS" as of June 22, DONJOY, LLC, a Delaware limited liability
1999 company
By: /s/ Cyril Talbot III
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Its: V.P., CFO and Secretary
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By: /s/ Leslie H. Cross
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Its: President and CEO
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AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
GUARANTY OF LEASE
WHEREAS, Smith & Nephew, Inc., a Delaware corporation as Sublandlord,
hereinafter "Sublandlord", and DJ Orthopedic, LLC, a Delaware limited liability
company as Subtenant, hereinafter "Subtenant", are about to execute a document
entitled "Sublease" dated as of June 30, 1999 concerning the premises commonly
known as Parcels A, B, C, D, E of Parcel Map 16, 028 in the City of Vista, San
Diego County, CA wherein Sublandlord will lease the premises to Subtenant, and
WHEREAS, DonJoy, LLC, a Delaware limited liability company hereinafter
"Guarantors" have a financial interest in Subtenant, and
WHEREAS, Sublandlord would not execute the Sublease if Guarantors did not
execute and deliver to Sublandlord this Guarantee of Lease.
NOW THEREFORE, in consideration of the execution of the foregoing
Sublease by Sublandlord and as a material inducement to Sublandlord to execute
said Sublease, Guarantors hereby jointly, severally, unconditionally and
irrevocably guarantee the prompt payment by Subtenant of all rents and all other
sums payable by Subtenant under said Sublease and the faithful and prompt
performance by Subtenant of each and every one of the terms, conditions and
covenants of said Sublease to be kept and performed by Subtenant.
It is specifically agreed that the terms of the foregoing Sublease may be
modified by agreement between Sublandlord and Subtenant, or by a course of
conduct, and said Sublease may be assigned by Sublandlord or any assignee of
Sublandlord without consent or notice to Guarantors a nd that this Guaranty
shall guarantee the performance of said Sublease as so modified.
This Guaranty shall not be released, modified or affected by the failure
or delay on the part of Sublandlord to enforce any of the rights or remedies of
the Sublandlord under said Sublease, whether pursuant to the terms thereof or at
law or in equity.
No notice of default need be given to Guarantors, it being specifically
agreed that the guarantee of the undersigned is a continuing guarantee under
which Sublandlord may proceed immediately against Subtenant and/or against
Guarantors following any breach or default by Subtenant or for the enforcement
of any rights which Sublandlord may have as against Subtenant under the terms of
the Sublease or at law or in equity.
Sublandlord shall have the right to proceed against Guarantors hereunder
following any breach or default by Subtenant without first proceeding against
Subtenant and without previous notice to or demand upon either Subtenant or
Guarantors.
Guarantors hereby waive (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations relating to this Guaranty or the Sublease, (d) any
right to require the Sublandlord to proceed against the Subtenant or any other
Guarantor or any other person or entity liable to Sublandlord, (e) any right to
require Sublandlord to apply to any default any security deposit or other
security it may hold
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under the Sublease, (f) any right to require Sublandlord to
proceed under any other remedy Sublandlord may have before proceeding against
Guarantors, (g) any right of subrogation.
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Guarantors do hereby subrogate all existing or future indebtedness of Subtenant
to Guarantors to the obligations owed to Sublandlord under the Sublease and this
Guaranty.
If a Guarantor is married, such Guarantor expressly agrees that recourse
may be had against his or her separate property for all of the obligations
hereunder.
The obligations of Subtenant under the Sublease to execute and deliver
estoppel statements and financial statements, as therein provided, shall be
deemed to also require the Guarantors hereunder to do and provide the same.
The term "Sublandlord" refers to and means the Sublandlord named in the
Sublease and also Sublandlord's successors and assigns. So long as Sublandlord's
interest in the Sublease, the leased premises or the rents, issues and profits
therefrom, are subject to any mortgage or deed of trust or assignment for
security, no acquisition by Guarantors of the Sublandlord's interest shall
affect the continuing obligation of Guarantors under this Guaranty which shall
nevertheless continue in full force and effect for the benefit of the mortgagee,
beneficiary, trustee or assignee under such mortgage, deed of trust or
assignment and their successors and assigns.
The term "Subtenant" refers to and means the Subtenant named in the
Sublease and also Subtenant's successors and assigns.
In the event any action be brought by said Sublandlord against Guarantors
hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful
party in such action shall pay to the prevailing party therein a reasonable
attorney's fee which shall be fixed by the court.
Executed by "GUARANTORS" as of June 22, DONJOY, LLC, a Delaware limited liability
1999 company
By: /s/ Cyril Talbot III
------------------------------
Its: V.P., CFO and Secretary
------------------------------
By: /s/ Leslie H. Cross
------------------------------
Its: President and CEO
------------------------------