THE CREDIT
AGREEMENT AND CREDIT DOCUMENTS AS AMENDED HEREBY.
THIS FIRST AMENDMENT IS
LIMITED AS SPECIFIED AND SHALL NOT CONSTITUTE OR BE DEEMED TO CONSTITUTE AN
AMENDMENT, MODIFICATION OR WAIVER OF ANY PROVISION OF THE CREDIT AGREEMENT
EXCEPT AS EXPRESSLY SET FORTH HEREIN.
THIS FIRST AMENDMENT SHALL CONSTITUTE A
CREDIT DOCUMENT UNDER THE TERMS OF THE CREDIT AGREEMENT.
5.3
NO NOVATION.
NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS A
SUBSTITUTION OR NOVATION OF THE LOANS OUTSTANDING UNDER THE CREDIT AGREEMENT,
WHICH SHALL REMAIN OUTSTANDING AFTER THE FIRST AMENDMENT EFFECTIVE DATE.
5.4
EXPENSES.
THE BORROWER AGREES ON DEMAND (I) TO PAY ALL REASONABLE
FEES AND EXPENSES OF COUNSEL TO THE ADMINISTRATIVE AGENT, AND (II) TO REIMBURSE
THE ADMINISTRATIVE AGENT FOR ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES, IN
EACH CASE, IN CONNECTION WITH THE PREPARATION, NEGOTIATION, EXECUTION AND
DELIVERY OF THIS FIRST AMENDMENT AND THE OTHER CREDIT DOCUMENTS DELIVERED IN
CONNECTION HEREWITH.
5.5
SEVERABILITY.
TO THE EXTENT ANY PROVISION OF THIS FIRST AMENDMENT
IS PROHIBITED BY OR INVALID UNDER THE APPLICABLE LAW OF ANY JURISDICTION, SUCH
PROVISION SHALL BE INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY AND ONLY IN ANY SUCH JURISDICTION, WITHOUT PROHIBITING OR
INVALIDATING SUCH PROVISION IN ANY OTHER JURISDICTION OR THE REMAINING
PROVISIONS OF THIS FIRST AMENDMENT IN ANY JURISDICTION.
5.6
SUCCESSORS AND ASSIGNS.
THIS FIRST AMENDMENT SHALL BE BINDING
UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE RESPECTIVE SUCCESSORS
AND PERMITTED ASSIGNS OF THE PARTIES HERETO.
5.7
CONSTRUCTION.
THE HEADINGS OF THE VARIOUS SECTIONS AND
SUBSECTIONS OF THIS FIRST AMENDMENT HAVE BEEN INSERTED FOR CONVENIENCE ONLY AND
SHALL NOT IN ANY WAY AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS
HEREOF.
5.8
COUNTERPARTS.
THIS FIRST AMENDMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, EACH
OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE AN ORIGINAL, BUT ALL OF WHICH
SHALL TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
6
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed by their duly authorized officers as of the date first above written.
DJ ORTHOPEDICS, LLC
By:
Title:
DJ ORTHOPEDICS, INC.
By:
Title:
DJ ORTHOPEDICS CAPITAL
CORPORATION
By:
Title:
DJ ORTHOPEDICS DEVELOPMENT
CORPORATION
By:
Title:
[signatures continued on following pages]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as a
Lender
By:
Title:
[NAME OF INSTITUTION]
By:
Title: