EX-10.1



 





Exhibit 10.1




INCREASE JOINDER AGREEMENT




     THIS INCREASE JOINDER AGREEMENT is entered into as of June ___, 2007 (this “Agreement"), by and
among [NAME OF REVOLVING LENDER] (the “Revolving Lender"), KENDLE INTERNATIONAL INC., an Ohio
corporation (“Borrower"), and UBS AG, STAMFORD BRANCH (“UBS”), as Administrative Agent.



RECITALS:




     WHEREAS, reference is hereby made to the Credit Agreement, dated as of August 16, 2006 (as
amended by that certain First Amendment dated as of December 11, 2006, as further amended by that
certain Second Amendment dated as of March 30, 2007 and as it may be further amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement’’; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among the
Borrower, the Subsidiary Guarantors party thereto, the Lenders party thereto, UBS SECURITIES LLC,
as sole lead arranger and sole bookrunner, UBS LOAN FINANCE LLC, as swingline lender, UBS, as
issuing bank, as administrative agent for the Lenders and as collateral agent for the Secured
Parties, JPMORGAN CHASE BANK, N.A., as syndication agent, and KEYBANK NATIONAL ASSOCIATION, LASALLE
BANK NATIONAL ASSOCIATION and NATIONAL CITY BANK, as co-documentation agents; and



     WHEREAS, subject to the terms and conditions of the Credit Agreement, Borrower may increase
the existing Revolving Commitments by entering into one or more Increase Joinders with Revolving
Lenders.



     NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



     The Revolving Lender party hereto hereby agrees to commit to provide its [new] [increased]
Revolving Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the
conditions set forth below:



     The Revolving Lender (i) confirms that it has received a copy of the Credit Agreement and the
other Loan Documents, together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; and (iii) appoints and authorizes
Administrative Agent, Collateral Agent, Syndication Agent and Co-Documentation Agents to take such
action as agent on its behalf and to exercise such powers under the Credit Agreement and the other
Loan Documents as are delegated to Administrative Agent, Collateral Agent, Syndication Agent and
Co-Documentation Agents, as the case may be, by the terms thereof, together with such powers as are
reasonably incidental thereto.



     The Revolving Lender hereby agrees to make its [new] [increased] Revolving Commitment on the
following terms and conditions:




 









 









	1.	 	Terms. The terms and provisions of the [new] [increased] Revolving Commitments and Revolving
Loans shall be identical to the Revolving Commitments and Revolving Loans.






	2.	 	Credit Agreement Governs. [New] [Increased] Revolving Commitments and Revolving Loans made
thereunder shall be subject to the provisions of the Credit Agreement and the other Loan
Documents.
	 
	3.	 	Borrower’s Certifications. By executing this Agreement, Borrower hereby certifies that:






	 	i.	 	Each of the representations and warranties made by any Loan
Party set forth in Article III of the Credit Agreement or in any other
Loan Document are true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” is true and correct in all respects) on and as of the date
hereof with the same effect as though made on and as of the date hereof, except
to the extent such representations and warranties expressly relate to an
earlier date;
	 
	 	ii.	 	Borrower and each other Loan Party is in compliance in all
material respects with all the terms and provisions set forth in the Credit
Agreement and in each other Loan Document on its part to be observed or
performed, and, at the time of and immediately after giving effect to the [new]
[increased] Revolving Commitment, no Default has occurred and is continuing;
and






	 	iii.	 	neither Borrower nor any Subsidiary is consummating a
Permitted Acquisition on the Increase Effective Date, Borrower will not make
any additional borrowings on the Increase Effective Date and as of the date
of the most recent financial statements delivered pursuant to Section
5.01(a) or (b), Borrower is in compliance with each of the
covenants set forth in Section 6.10 and the Total Leverage Ratio is
at least 0.25:1.0 lower than the applicable Total Leverage Ratio required at
such time pursuant to Section 6.10(a), as evidenced by the calculations set
forth on the attached Officers’ Certificate.






	4.	 	Borrower Covenants. By its execution of this Agreement, Borrower hereby covenants that it
shall make any payments required pursuant to Section 2.13 of the Credit Agreement in
connection with any adjustment of Revolving Loans pursuant to Section 2.19(d) of the
Credit Agreement.






	5.	 	Additional Condition Precedent. In addition to the conditions set forth in Section
2.19 of the Credit Agreement, the [new] [increased] Revolving Commitment of the Revolving
Lender shall not be effective until consummation of a Convertible Debt Issuance by Borrower
and the corresponding repayment of the Term Loans pursuant to Section 2.10(d) of the
Credit Agreement. The Increase Effective Date shall be the date of consummation of such
Convertible Debt Issuance and such corresponding repayment of the Term Loans;
provided, that if such Convertible Debt Issuance has not been consummated prior to the
date that is 90 days from the date hereof, the [new] [increased] Revolving Commitment of the
Revolving Lender shall terminate on such 90th day unless otherwise agreed in
writing by the Revolving Lender.










 









 












	6.	 	Eligible Assignee. By its execution of this Agreement, the Revolving Lender represents and
warrants that it is an Eligible Assignee.






	7.	 	Notice. For purposes of the Credit Agreement, the initial notice address of the Revolving
Lender shall be as set forth below its signature below.






	8.	 	Recordation of the [New] [Increased] Revolving Commitments. Upon the Increase Effective
Date, Administrative Agent will record the [new] [increased] Revolving Commitments made by the
Revolving Lender in the Register.






	9.	 	Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived
except by an instrument or instruments in writing signed and delivered on behalf of each of
the parties hereto.






	10.	 	Entire Agreement. This Agreement, the Credit Agreement and the other Loan Documents
constitute the entire agreement among the parties with respect to the subject matter hereof
and thereof and supersede all other prior agreements and understandings, both written and
verbal, among the parties or any of them with respect to the subject matter hereof.






	11.	 	GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.






	12.	 	Severability. Any term or provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as would be enforceable.






	13.	 	Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same agreement.





[Remainder of page intentionally left blank]




 









 





     IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute
and deliver this Increase Joinder Agreement as of the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF REVOLVING LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Notice Address:	 	 
	 
	 	 	 	 	 	 
	 

	 	[Address]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Telephone:
	 	 	 	 
	 

	 	Facsimile:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	KENDLE INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	Consented to by:	 	 
	 
	 	 	 	 
	UBS AG, STAMFORD BRANCH,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






 









 






SCHEDULE A

TO INCREASE JOINDER AGREEMENT




	 	 	 	 	 
	 	 	Amount of [New] [Increased] Revolving
	Name of Lender	 	Commitment
	 

	 	 	$