JPMorgan - KASE

Company) in respect of, Equity Interests of the Company (other than Disqualified Stock); (v) any
dividend, distribution or other payment by any Restricted Subsidiary on shares of its Equity
Interests that is paid pro rata to all holders of such Equity Interests; (vi) dividends required to be
paid by the terms of the charters of HKM and HOP, respectively, for (X) HKM (as in effect on the
Issue Date) on 292,483 shares of preferred stock, par value of 20 Tenge per share, of HKM issued
and outstanding on the Issue Date and (Y) HOP (as in effect on the Issue Date) on 394,500 shares
of preferred stock, par value of 1 Tenge per share, of HOP issued and outstanding on the Issue
Date; (vii) to the extent of Excess Proceeds remaining after the Company’s compliance with the
covenant described in “Description of the Notes — Repurchase at the Option of Holders — Asset
Sales” and to the extent required by the indenture or other agreement or instrument pursuant to
which any Indebtedness subordinated to the Notes was issued, a repurchase of such subordinated
Indebtedness pursuant to such an offer to purchase relating to such a disposition of assets; (viii)
upon a Change of Control to the extent required by the indenture or other agreement or
instrument pursuant to which Indebtedness subordinated to the Notes was issued, a repurchase
of such subordinated Indebtedness pursuant to an offer to purchase, provided that the Issuer and
the Company are then in compliance with the covenant described in “Description of the Notes —
Repurchase at the Option of Holders — Change of Control” and all amounts owing in respect of
the Notes pursuant to such covenant have been paid in full; and (ix) any Restricted Payments in
an aggregate amount not to exceed $75.0 million, so long as at the time of and in connection
with any such Restricted Payment the Company would have been able to satisfy the requirement
of clause (b) of the first paragraph of this covenant; provided that in the case of any transaction
described in clauses (i) through (ix) no Default or Event of Default will have occurred and be
continuing immediately after such transaction. In determining the aggregate amount of
Restricted Payments made after the date of the Indenture, 100% of the amounts expended
pursuant to the foregoing clauses (i) (unless already deducted in determining the amount of
Restricted Payments previously paid upon a declaration of such dividend), (ii), (iii), (iv)(Y), (v) (to
the extent that such dividends, distributions or other payments are not paid out of the Net
Income of the applicable Restricted Subsidiary for the year in which such dividend, distribution,
or payment occurs) and (vi) shall be included in such calculation and none of the amounts
expended pursuant to the foregoing clauses (iv)(X), (vii) and (ix) shall be included in such
calculation.
As of the Issue Date, all of the Company’s Subsidiaries will be Restricted Subsidiaries. The Board
of Directors of the Company may designate any present or future Subsidiary (other than the
Issuer, HKM, HOP and Valsera) to become an Unrestricted Subsidiary if such designation would
not cause a Default. For purposes of making such determination, all outstanding Investments by
the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated will be deemed to be Restricted Payments at the time of such designation and will
reduce the amount available for Restricted Payments under the first paragraph of this covenant.
Such designation will only be permitted if such Restricted Payment would be permitted at such
time and such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) will be the greater of (i) book value or
(ii) Fair Market Value on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant
to the Restricted Payment. Not later than the date of making any Restricted Payment, the
Company will deliver to the Trustee an Officers’ Certificate stating that such Restricted Payment
is permitted and setting forth the basis upon which the calculations required by this covenant
were computed, which calculations may be based upon the Company’s latest available internal
financial statements.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture will provide that the Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Indebtedness) and that the Company will not issue any
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