Exhibit 10.9
AMENDMENT No. 2 dated as of July 13, 2004 (this "Amendment"), to the
Amended and Restated Credit Agreement dated as of December 21, 2001, as
amended by Amendment No. 1 dated as of April 30, 2004 (as may be further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among ENDO PHARMACEUTICALS HOLDINGS INC., a Delaware
corporation ("Holdings"), ENDO PHARMACEUTICALS INC., a Delaware
corporation (the "Borrower"), the Lenders party thereto and JPMORGAN CHASE
BANK, as Administrative Agent.
A. The Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement as set forth herein.
B. The undersigned Lenders are willing so to amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
SECTION 1. Amendment to Section 6.04. Section 6.04(l). Section
6.04(l) of the Credit Agreement is hereby amended by deleting such section in
its entirety and replacing it with the following:
"(l) other investments and loans in an aggregate amount not
to exceed $55,000,000 at any time outstanding;"
SECTION 2. Representations and Warranties. Each of Holdings and the
Borrower represents and warrants to the Administrative Agent and to each of the
Lenders that:
(a) This Amendment has been duly authorized, executed and
delivered by it and constitutes a legal, valid and binding obligation of such
party hereto, enforceable against it in accordance with its terms.
(b) After giving effect to this Amendment, the representations and
warranties set forth in Article III of the Credit Agreement are true and correct
in all material respects on and as of the date hereof with the same effect as if
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct as of such earlier date).
(c) After giving effect to this Amendment, no Event of Default or
Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof, when (a) the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of Holdings, the Borrower and the Required Lenders, (b) the
representations and warranties set forth in Section 2 hereof are true and
correct and (c) all fees and expenses required to be paid or reimbursed by the
Borrower pursuant hereto, the Credit Agreement or otherwise, including all
reasonable invoiced fees and expenses of counsel to the Administrative Agent,
shall have been paid or reimbursed, as applicable.
SECTION 4. Credit Agreement. Except as specifically amended hereby,
the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Credit Agreement shall mean the Credit Agreement as
amended hereby. This Amendment shall be a Loan Document for all purposes.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute one agreement. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 7. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx LLP, counsel for the Administrative Agent.
SECTION 8. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
ENDO PHARMACEUTICALS
HOLDINGS INC.,
By: /c/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: EVP & CFO
ENDO PHARMACEUTICALS INC.,
By: /c/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: EVP & CFO
JPMORGAN CHASE BANK,
individually and as Administrative
Agent,
By: /c/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT 1
SIGNATURE PAGE TO
THE ENDO PHARMACEUTICALS
CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution WACHOVIA BANK, NATIONAL ASSOCIATION
by /c/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO
THE ENDO PHARMACEUTICALS
CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution CITICORP NORTH AMERICA, INC.
by /c/ F.R. Xxxx
----------------------
Name: F.R. Xxxx
Title: VP
