Senior Indenture (2017)Full Document 

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Kadmon Holdings, Inc.

as the Company

and

[ ]

as Trustee



Senior Indenture

Dated as of [ ], [ ]











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TABLE OF CONTENTS



Page


Definitions and Incorporation by Reference

Definitions1

Other Definitions4

Incorporation by Reference of Trust Indenture Act5

Rules of Construction5


The Securities

Form and Dating6

Execution and Authentication6

Amount Unlimited; Issuable in Series8

Denomination and Date of Securities; Payments of Interest10

Registrar and Paying Agent; Agents Generally11

Paying Agent to Hold Money in Trust11

Transfer and Exchange12

Replacement Securities14

Outstanding Securities15

Temporary Securities15

Cancellation16

CUSIP Numbers16

Defaulted Interest16

Series May Include Tranches16


Redemption

Applicability of Article17

Notice of Redemption; Partial Redemptions17

Payment of Securities Called for Redemption18

Exclusion of Certain Securities from Eligibility for Selection for Redemption19

Mandatory and Optional Sinking Funds19


Covenants

Payment of Securities21

Maintenance of Office or Agency22

Securityholders’ Lists23

Certificate to Trustee23

Reports by the Company23

Additional Amounts23


Successor Corporation

When Company May Merge, Etc24

Successor Substituted24

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Default and Remedies

Events of Default25

Acceleration26

Other Remedies27

Waiver of Past Defaults27

Control by Majority27

Limitation on Suits28

Rights of Holders to Receive Payment28

Collection Suit by Trustee28

Trustee May File Proofs of Claim29

Application of Proceeds29

Restoration of Rights and Remedies30

Undertaking for Costs30

Rights and Remedies Cumulative30

Delay or Omission not Waiver30


Trustee

General31

Certain Rights of Trustee31

Individual Rights of Trustee32

Trustee’s Disclaimer33

Notice of Default33

Reports by Trustee to Holders33

Compensation and Indemnity33

Replacement of Trustee34

Acceptance of Appointment by Successor35

Successor Trustee By Merger, Etc36

Eligibility36

Money Held in Trust36


Satisfaction and Discharge of Indenture; Unclaimed Moneys

Satisfaction and Discharge of Indenture37

Application by Trustee of Funds Deposited for Payment of Securities38

Repayment of Moneys Held by Paying Agent38

Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years38

Defeasance and Discharge of Indenture38

Defeasance of Certain Obligations40

Reinstatement41

Indemnity41

Excess Funds41

Qualifying Trustee41


Amendments, Supplements and Waivers

Without Consent of Holders42

With Consent of Holders42

Revocation and Effect of Consent43

Notation on or Exchange of Securities44

Trustee to Sign Amendments, Etc44

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Conformity with Trust Indenture Act44


Miscellaneous

Trust Indenture Act of 193944

Notices45

Certificate and Opinion as to Conditions Precedent46

Statements Required in Certificate or Opinion46

Evidence of Ownership46

Rules by Trustee, Paying Agent or Registrar46

Payment Date Other Than a Business Day46

Governing Law47

No Adverse Interpretation of Other Agreements47

Successors47

Duplicate Originals47

Separability47

Table of Contents, Headings, Etc47

Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability47

Judgment Currency47

Waiver of Jury Trial48

Force Majeure48

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SENIOR INDENTURE, dated as of [ , ], between Kadmon Holdings, Inc., a Delaware corporation, as the Company, and [ ], as Trustee.

RECITALS OF THE COMPANY

WHEREAS, the Company has duly authorized the issue from time to time of its senior debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;

NOW, THEREFORE:

In consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities or of any and all series thereof as follows:

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Definitions and Incorporation by Reference

a. Definitions.

Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

Agent” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.

Board Resolution” means one or more resolutions of the board of directors of the Company or any authorized committee thereof, certified by the secretary or an assistant secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.

Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York, with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to Securities denominated in a specified currency other than United States dollars, in the principal financial center of the country of the specified currency.

Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

Company” means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to ‎Article 5 of this Indenture and thereafter means the successor.

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Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be administered, which office is, at the date of this Indenture, located at [ ].

Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.

Depositary” means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Company pursuant to ‎Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.

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