KSE, UK, INC

LONDON 3726997 v2 (2K)
KSE, UK, INC.
AND
DEUTSCHE BANK LUXEMBOURG S.A.
DEED POLL CONSTITUTING £394,048,000
FLOATING RATE GUARANTEED UNSECURED
LOAN NOTES 2016
CLIFFORD CHANCE LLP
70-40485392

LONDON 3726997 v2 (2K)
CONTENTS
Clause Page
1. Interpretation .................................................................................................................. 1
2. Constitution of the Notes ............................................................................................... 3
3. Redemption and Interest ................................................................................................ 4
4. Certificates ..................................................................................................................... 4
5. Register .......................................................................................................................... 4
6. Guarantee ....................................................................................................................... 5
7. Substitution .................................................................................................................... 6
8. Obligations of the Company and the Guarantor ............................................................ 7
9. Modification (etc.) of the Deed ...................................................................................... 7
10. Governing Law and Jurisdiction .................................................................................... 8
Schedule 1 CERTIFICATE AND CONDITIONS ................................................................................ 9
Schedule 2 PROVISIONS AS TO REGISTRATION, TRANSFER, TRANSMISSION, ETC. ..................... 19
Schedule 3 PROVISIONS AS TO MEETINGS OF NOTEHOLDERS ................................................... 21
Schedule 4 FORM OF DEMAND NOTICE .................................................................................... 29
70-40485392

THIS DEED POLL is made on ______________________2011
BETWEEN:
(1) KSE, UK, INC., a corporation incorporated in the State of Delaware, whose
registered office is at 1209 Orange Street, Wilmington, New Castle, Delaware 19801,
the United States of America (the "Company"); and
(2) DEUTSCHE BANK LUXEMBOURG S.A., a company incorporated under the laws
of the Grand Duchy of Luxembou
(the "Guarantor").
WHEREAS:
(A) The Notes are to be issued by the Company as consideration for the acquisition by the
Company of shares in Arsenal Holdings plc.
(B) The Company by a resolution of its board of directors passed on 9 April 2011 created
£394,048,000 floating rate guaranteed unsecured loan notes 2016 to be constituted
under this Deed.
(C) The Guarantor is to guarantee certain of the Company's obligations under this Deed.
THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 In this Deed (including the Recitals):
LONDON 3726997 v2 (2K)
"Act" means the Companies Act 2006;
"Board" means the board of directors of the Company from time to time;
"business day" means a day other than a Saturday or Sunday on which clearing banks
are open for business in London, New York and Luxembourg;
"clear days" means, in relation to a period of notice, that period excluding the day
when the notice is given or deemed to be given and the day for which it is given or on
which it is to take effect;
"Company's Group" means the Company and any company which is, on or at any
time after the date of this Deed, a subsidiary undertaking or parent undertaking of the
Company or a subsidiary undertaking of a parent undertaking of the Company;
"Conditions" means the conditions of the Notes in the form set out in Schedule 1 as
they may from time to time be modified in accordance with the provisions of this
Deed;
"Extraordinary Resolution" means a resolution passed at a meeting of the
Noteholders duly convened and held in accordance with the provisions of Schedule 3
by:
- 1 -
70-40485392

LONDON 3726997 v2 (2K)
(a) a majority consisting of not less than three-fourths of the persons voting at the
meeting upon a show of hands; or
(b) if a poll is demanded, by a majority consisting of not less than three-fourths of
the votes given on the poll;
"hard copy form" is to be construed in accordance with section 1168 of the Act;
"in writing" means in hard copy form or, to the extent permitted by the Act or this
Deed or the Conditions, in any other form including electronic form;
"Noteholder" means a person for the time being entered in the Register as the holder
of a Note;
"Notes" means the £394,048,000 floating rate guaranteed unsecured loan notes 2016
originally constituted by this Deed, and a reference to a "Note" is a reference to any
one of such Notes;
"Offer" means the offer to be made by the Company to acquire (on the terms set out
in the Offer Document) Arsenal Holdings plc;
"Offer Document" means the offer document to be issued by the Company in
connection with the Offer;
"parent undertaking" is to be construed in accordance with section 1162 (and
Schedule 7) of the Act as they are in force on the date of this Deed;
"Register" means the register of Noteholders referred to in clause 5;
"Registered Office" means the registered office for the time being of the Company;
"Restricted Jurisdiction" means any jurisdiction in which an offer of the Notes
would constitute a violation of relevant laws or require registration of the Notes;
"Restricted Overseas Person" means a person (including an individual, partnership,
unincorporated syndicate, limited liability company, unincorporated organisation,
trust, trustee, executor, administrator or other legal representative) in, or resident in,
the United States or any other Restricted Jurisdiction, or a US person;
"Securities Act" means the United States Securities Act of 1933;
"subsidiary undertaking" is to be construed in accordance with section 1162 (and
Schedule 7) of the Act as they are in force on the date of this Deed;
"US" or "United States" means the United States of America, its territories and
possessions, any State of the United States and the District of Columbia; and
"US person" means a US person as defined in Regulation S of the Securities Act as it
is in force on the date of this Deed.
1.2 In this Deed, a reference to:
- 2 -
70-40485392

LONDON 3726997 v2 (2K)
1.2.1 any statutory provision or statute includes all modifications thereto and all
re-enactments (with or without modification) thereof and all subordinate
legislation made thereunder, in each case for the time being in force, except
where the context requires otherwise;
1.2.2 a person includes a reference to that person's legal personal representatives
and successors or to a body corporate, association or partnership;
1.2.3 a clause, paragraph or schedule, unless the context otherwise requires, is a
reference to a clause or a paragraph of or a schedule to this Deed and a
reference to a condition is a reference to one of the Conditions; and
1.2.4 an "outstanding Note" is any Note unless:
(a) it has been redeemed in full;
(b) it has been purchased under Condition 3.5; or
(c) it is held by a person for the benefit of the Company or a member for
the time being of the Company's Group.
1.3 The ejusdem generis principle of construction shall not apply to this Deed.
Accordingly, general words shall not be given a restrictive meaning by reason of their
being preceded or followed by words indicating a particular class of acts, matters or
things or by examples falling within the general words. Any phrase introduced by the
terms "other", "including", "include" and "in particular" or any similar expression
shall be construed as illustrative and shall not limit the sense of the words preceding
those terms.
1.4 The headings in this Deed do not affect its interpretation.
1.5 "Pounds", "sterling" and "£" denote the lawful currency of the United Kingdom.
1.6 "US dollars" denote the lawful currency of the United States.
2. CONSTITUTION OF THE NOTES
2.1 The principal amount of the original Notes constituted by this Deed is limited to
£394,048,000.
2.2 The Notes may be issued in amounts or integral multiples of £1.
2.4 The Board may issue the Notes to such persons and at such times as it may decide
subject to the terms of this Deed and the Offer Document.
2.5 The Notes are held subject to the Conditions which are binding on the Company, the
Guarantor, the Noteholders and any person claiming through or under any of them.
The Conditions shall have the same effect as if they were set out in this Deed.
- 3 -
70-40485392

3. REDEMPTION AND INTEREST
3.1 As and when a Note is due to be redeemed in accordance with this Deed and the
Conditions, the Company shall pay to the relevant Noteholder, in accordance with the
provisions of Condition 6, the principal amount of the Note at par together with
accrued interest (after deduction of tax) up to but excluding the date of redemption.
3.2 Until a Note is redeemed in accordance with this Deed and the Conditions, the
Company shall pay to the relevant Noteholder interest (after deduction of tax) on the
principal amount of the Note in accordance with Condition 2.
4. CERTIFICATES
4.1 A person on becoming a Noteholder is entitled without charge to one certificate for
the total principal amount of Notes registered in his name.
4.2 The Notes are non-transferable save by operation of law or in accordance
with Schedule 2.
4.3 The Company is not bound to:
LONDON 3726997 v2 (2K)
4.3.1 register more than four persons as joint holders of a Note; or
4.3.2 issue more than one certificate for a Note held jointly by two or more persons
and delivery of a certificate to one joint holder is sufficient delivery to all joint
holders.
4.4 A certificate shall be:
4.4.1 substantially in the form set out in Schedule 1 and shall have the Conditions
endorsed on it; and
4.4.2 signed by or on behalf of, or executed by, the Company in accordance with its
articles of association for the time being or in such other manner as may be
permitted by statute.
5. REGISTER
5.1 The Company shall keep the Register at the offices of Capita Registrars of The
Registry, 34 Beckenham Road, Beckenham, Kent BR2 0QW and enter in it:
5.1.1 the name and address of each Noteholder;
5.1.2 the date on which each person was registered as a Noteholder;
5.1.3 the principal amount of each Note held by a Noteholder;
5.1.4 the serial number of each certificate issued and the date of its issue; and
5.1.5 the date on which a person ceased to be a Noteholder.
5.2 The Company shall enter in the Register each change to the information specified in
clause 5.1.
- 4 -
70-40485392

5.3 A Noteholder may inspect the Register from 9.00 a.m. to 5.00 p.m. on any business
day and may require a copy of it or any part of it at the cost of the Noteholder. The
Company may close the Register during such periods (not exceeding 30 days in total
in any year) and at such times as the Board may decide.
6. GUARANTEE
6.1 For the period commencing on the date on which the first Note is issued and ending
on the date falling 18 months thereafter (the "Guarantee Period"), the Guarantor
irrevocably and unconditionally guarantees to the Noteholders the due and punctual
payment by the Company (in sterling only and not any other currency) of (i) all
principal payable in respect of the Notes and (ii) interest payable in respect of the
Notes up to a maximum aggregate amount of £7,000,000 less the aggregate amount of
all payments made to any Noteholder in respect of interest from time to time and/or
amounts due to be paid to any Noteholder following receipt by the Guarantor of a
signed demand for payment in the form set out in Schedule 4 hereto (duly completed)
in respect of interest from time to time (the "Cap"). During the Guarantee Period the
Guarantor shall pay to the Noteholders from time to time within 30 days of a demand
being made by the Noteholders hereunder (and in accordance with Condition 7) a sum
of money which the Company is at any time liable to pay to the Noteholders in
respect of principal on and subject to the Cap contained in this clause 6.1 not being
exceeded, interest on the Notes and which has not been paid by the Company at the
time the demand is made. The Guarantor's obligations under this clause are primary
obligations and not those of a mere surety.
6.2 The Guarantor's obligations under clause 6.1 are continuing obligations and are not
satisfied, discharged or affected by an intermediate payment or settlement of account
by, or a change in the constitution or control of, or merger or consolidation with any
person of, or the insolvency of, or bankruptcy, winding up or analogous proceedings
relating to, the Company.
6.3 The liabilities of the Guarantor under clause 6.1 are not affected by an arrangement
which the Noteholders (or any of them) may make with the Company or with another
person which (but for this clause) might operate to diminish or discharge the liability
of or otherwise provide a defence to a surety.
6.4 Without affecting the generality of clause 6.3, the Noteholders may at any time they
think fit and without reference to the Guarantor:
LONDON 3726997 v2 (2K)
6.4.1 grant a time for payment or grant another indulgence or agree to an
amendment, variation, waiver or release in respect of an obligation of the
Company under this Deed;
6.4.2 give up, deal with, vary, exchange or abstain from perfecting or enforcing
other securities or guarantees held by the Noteholders;
6.4.3 discharge a party to other securities or guarantees held by the Noteholders and
realise all or any of those securities or guarantees; and
- 5 -
70-40485392

LONDON 3726997 v2 (2K)
6.4.4 compound with, accept compositions from and make other arrangements with
the Company or a person or persons liable on other securities or guarantees
held or to be held by the Noteholders,
but nothing in this clause shall affect the liability of the Guarantor under clause 6.
6.5 So long as the Company is under an actual or contingent obligation to pay any
principal or interest in respect of the Notes the Guarantor: (i) shall not exercise a right
which it may at any time have by reason of the performance of its obligations under
clause 6.1 to be or be kept indemnified by the Company, to claim a contribution from
another surety of the obligations of the Company or to take the benefit (in whole or in
part and by way of subrogation or otherwise) of any of the Noteholders' rights under
this Deed or in respect of the Notes or of any other security taken by the Noteholders
in connection with this Deed or in respect of the Notes; but (ii) notwithstanding subclause
(i) above, shall not be restricted in exercising any rights that it may have
against the Company under any contractual arrangement between the Guarantor and
the Company, including, without limitation, any reimbursement right that the
Guarantor may have against the Company.
6.6 The liabilities of the Guarantor under clause 6.1 are not affected by the avoidance of
any assurance, security or payment or any release, settlement or discharge which is
given or made on the faith of any assurance, security or payment, in either case, under
an enactment relating to bankruptcy or insolvency.
6.7 The Guarantor waives any right it may have of first requiring the Noteholders (or any
of them or any trustee or agent on their behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from the
Guarantor under this clause 6
D
7. SUBSTITUTION
7.1 Subject to the prior written consent of the Guarantor, at any time the Company (or any
previous Substituted Debtor under this clause) may without the consent of the
Noteholders substitute any member or members of the Company's Group (the
"Substituted Debtor") as the principal debtor or debtors under the Notes and this
Deed or any instrument expressed to be supplemental hereto in place of the Company
(or any such previous Substituted Debtor) if the Company. the Substituted Debtor and
the Guarantor shall execute a supplemental deed (a "Specified Deed"). The Specified
Deed shall be executed in such form as the Company (or any previous Substituted
Debtor) and the Substituted Debtor may agree save that the Specified Deed shall
include a provision that the Substituted Debtor agrees to perform and be bound by the
terms of this Deed, all deeds supplemental to this Deed and all documents issued
under this Deed from the date of execution of the Specified Deed as if the Substituted
Debtor had originally been named in those deeds and documents as the Company. A
copy of the Specified Deed shall be available for inspection at the offices of Clifford
Chance LLP of 10 Upper Bank Street, London E14 5JJ from 9.00 a.m. to 5.00 p.m. on
any business day by the Noteholders.
7.2 Upon execution of the Specified Deed:
- 6 -
70-40485392

LONDON 3726997 v2 (2K)
7.2.1 the Substituted Debtor is deemed to be a party to this Deed, all deeds
supplemental to this Deed and all documents issued under this Deed in
substitution for the Company (or any such previous Substituted Debtor) as if
the Substituted Debtor had originally been named in those deeds and
documents as the Company; and
7.2.2 the Company (and any such previous Substituted Debtor) shall be released and
discharged from all further performance under this Deed (other than
clause 7.3), all deeds supplemental to this Deed and all documents issued
under this Deed and all claims and liabilities whatsoever in respect of those
deeds and documents.
7.3 Within 28 days of the execution of the Specified Deed, the Company shall notify the
Noteholders that the Substituted Debtor has substituted the Company (or any such
previous Substituted Debtor) as the principal debtor under the Notes.
7.4 Neither the Company nor the Substituted Debtor (or any previous Substituted Debtor)
is liable for any tax or increase in tax of a Noteholder which arises in connection with
the substitution.
8. OBLIGATIONS OF THE COMPANY AND THE GUARANTOR
8.1 The Company and the Guarantor agree with each Noteholder to comply with their
obligations under this Deed.
8.2 This Deed inures for the benefit of each Noteholder and a Noteholder may sue for the
compliance by the Company or the Guarantor with its obligations under this Deed in
relation to each Note held by the Noteholder.
8.3 The Company shall give the Guarantor and such affiliate of the Guarantor as the
Guarantor may reasonably direct in writing notice of each Note to be issued by the
Company in a form reasonably satisfactory to the Guarantor containing details of
(i) the proposed day of issuance of a Note; (ii) the amount of the proposed Note and
(iii) the payee of the proposed Note in each case not later than 2.00 p.m. New York
time at least three business days prior to the issuance of such Note.
8.4 The Company shall use all reasonable endeavours to procure that details of all
elections to receive Notes pursuant to the Offer Document (whether electronic or
otherwise) shall be provided to the Guarantor and such affiliate of the Guarantor as
the Guarantor may reasonably direct in writing as soon as is reasonably practicable
upon receipt of details of such elections in such form and to such email address,
address or fax number as the Guarantor shall reasonably request in writing.
9. MODIFICATION (ETC.) OF THE DEED
9.1 The Company and the Guarantor may (by deed expressed to be supplemental to this
Deed) from time to time modify, abrogate or vary the provisions of this Deed and/or
the rights of the Noteholders under this Deed on terms previously sanctioned by an
Extraordinary Resolution, including in any manner described in paragraph 20
of Schedule 3.
- 7 -
70-40485392

9.2 Without prejudice to clause 9.1, the Company and the Guarantor may (by deed
expressed to be supplemental to this Deed) from time to time modify, abrogate or
vary the provisions of this Deed without the sanction of an Extraordinary Resolution
or the consent of the Noteholders if such change would not (in the reasonable opinion
of the Board) be prejudicial to the interests of the Noteholders or if such amendment
is of a formal, minor or technical nature or is made to correct a manifest error in its
terms.
9.3 The Company shall endorse on this Deed a memorandum of execution of any deed
supplemental to this Deed. However, the failure to do so shall not affect the validity
of any deed supplemental to this Deed.
10. GOVERNING LAW AND JURISDICTION
10.1 This Deed and all non-contractual or other matters or obligations arising out of or in
connection with it are governed by, and shall be construed in accordance with,
English law.
10.2 The courts of England shall have exclusive jurisdiction to settle any dispute arising
from or in connection with this Deed, its Conditions or the Notes (a "Dispute")
including a dispute regarding the existence, validity or termination of this Deed, its
Conditions or the Notes or relating to any non-contractual or other obligation or
matter arising out of or in connection with this Deed, its Conditions or the Notes or
the consequences of their nullity.
10.3 The Company, the Guarantor and each Noteholder agree that the courts of England
are the most appropriate and convenient forum to settle any Dispute and, accordingly,
that they will not argue to the contrary.
10.4 Notwithstanding clause 10.2, this clause does not prevent the Company from taking
proceedings relating to a Dispute (except as against the Guarantor) ("Proceedings") in
any other courts with jurisdiction. To the extent allowed by law, the Company may
take concurrent Proceedings in any number of jurisdictions (except as against the
Guarantor).
10.5 The Company and the Guarantor each agrees that the documents which start any
Proceedings and any other documents required to be served in relation to those
Proceedings may be served on Clifford Chance Secretaries Limited (for the attention
of Tim Lewis/Kelly Mundy), whose registered office is currently at 10 Upper Bank
Street, London, E14 5JJ, on its/his behalf and in accordance with Condition 9
(Notices), and the Company and the Guarantor irrevocably appoints Clifford Chance
Secretaries Limited as his agent to accept service of Proceedings. These documents
may, however, be served in any other manner allowed by law. This clause applies to
all Proceedings wherever started.
LONDON 3726997 v2 (2K)
- 8 -
70-40485392

Certificate No. [ ] Amount £[ ]
LONDON 3726997 v2 (2K)
SCHEDULE 1
CERTIFICATE AND CONDITIONS
KSE, UK, Inc. (the "Company")
(Incorporated in the State of Delaware, USA)
£ 394,048,000 FLOATING RATE GUARANTEED UNSECURED LOAN NOTES 2016
This is to certify that [ ] is/are the registered holder(s) of £[amount] in principal amount of
the £394,048,000 floating rate guaranteed unsecured loan notes 2016 (the "Notes") as
constituted by a deed poll (the "Deed") dated [ ] 2011 and made by the Company and the
Guarantor (the "Guarantor"). The Notes are issued with the benefit of and subject to the
provisions contained in the Deed and the Conditions endorsed on this certificate. Words and
expressions defined in the Deed shall, unless the context otherwise requires, have the same
meanings in this certificate.
Interest is payable on the Notes in accordance with Condition 2. The Notes are redeemable
in accordance with Condition 3.
The Notes are non-transferable save by operation of law or in accordance with Schedule 2 of
the Deed and no application has been or will be made to any investment exchange for the
Notes to be listed or dealt in.
The Notes are guaranteed (as to principal only and subject to the terms of the Deed, interest)
by the Guarantor. The right of a Noteholder (under clause 6 of the Deed) to demand payment
from the Guarantor is subject to the Guarantor receiving a demand in writing from the
Noteholder in accordance with Condition 7.
A copy of the Deed is available for inspection at the offices of Clifford Chance LLP, 10
Upper Bank Street, London, E14 5JJ.
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
AND MAY NOT BE OFFERED, SOLD, RESOLD, DELIVERED OR DISTRIBUTED
(DIRECTLY OR INDIRECTLY) IN OR INTO THE UNITED STATES (EXCEPT IN
TRANSACTIONS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT) OR ANY OTHER RESTRICTED
JURISDICTION NOR TO NOR FOR THE ACCOUNT OR BENEFIT OF ANY
RESTRICTED OVERSEAS PERSON UNLESS, IN RELATION TO ANY US
PERSON, THE NOTES ARE REGISTERED UNDER THE SECURITIES ACT OR
THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
- 9 -
70-40485392

The Notes are governed by English law.
signed by or on behalf of the Company
________________________________
By:
Title:
Issued on [ ] 2011
LONDON 3726997 v2 (2K)
- 10 -
70-40485392

1. STATUS OF THE NOTES
LONDON 3726997 v2 (2K)
CONDITIONS
1.1 The Notes are issued in amounts of integral multiples of £1 and are non-transferable
save by operation of law or in accordance with Schedule 2 of the Deed.
1.2 The Notes constitute direct, general and unconditional obligations of the Company
which:
1.2.1 rank pari passu among themselves; and
1.2.2 at all times rank at least pari passu with all other future unsecured obligations
of the Company, except for those obligations as may be preferred by law.
2. INTEREST
2.1 Interest on the Notes is payable in arrears on 30 June and 31 December in each year
(or in either case if not a business day, on the next business day) (each an "Interest
Payment Date") in respect of the period (an "Interest Period") starting on the
previous Interest Payment Date and ending on the day before the next Interest
Payment Date. The first interest on the Notes is payable on the first Interest Payment
Date following the date of issue of the Notes and is in respect of the period starting on
the date of issue of the Notes and ending on the day before that first Interest Payment
Date. Subject to Condition 2.6, the last interest on the Notes is payable on the Final
Redemption Date (as such term is defined in Condition 3.2) and is in respect of:
2.1.1 interest accrued during the Interest Period immediately preceding the Interest
Period in which the Final Redemption Date falls; and
2.1.2 interest accrued during the period commencing on the Interest Payment Date
immediately preceding the Final Redemption Date and ending on the day
before the Final Redemption Date.
For the avoidance of doubt, interest shall not be payable on the Interest Payment Date
immediately preceding the Final Redemption Date. Each of these interest periods in
respect of the first and the last interest on the Notes is also called an "Interest
Period".
2.2 The rate of interest on the Notes for each Interest Period will be the rate per annum
which is 0.25 per cent. below LIBOR. "LIBOR" means, for any Interest Period, the
rate per annum for deposits in sterling which is the offered rate for 12 month sterling
deposit which appears on Reuters Page LIBOR01 (or on any successor or substitute
page or service providing rate quotations comparable to those currently provided on
such page for purposes of providing quotations of interest rates applicable to sterling
deposits in the London interbank market) at or about 11.00 a.m. (London time) on the
first day of the relevant Interest Period or, if such day is not a business day, on the
next business day. If a rate of interest cannot for whatever reason be established for
an Interest Period in accordance with the foregoing provisions of this Condition 2.2,
the rate of interest on the Notes for such Interest Period shall be calculated by
reference to such rate as the Company shall determine on the basis of quotations made
for twelve months' sterling deposits in such inter-bank market or markets as the
- 11 -
70-40485392

LONDON 3726997 v2 (2K)
Company may select on the first day of the relevant Interest Period or, if such day is
not a business day, on the next business day.
2.3 If a rate of interest cannot be established in accordance with Condition 2.2 for:
2.3.1 the first Interest Period, the Company shall calculate the rate of interest on the
Notes for that period by reference to such interest rate as the Company may
decide on the basis of quotations made for deposits of a similar size and
currency for the Interest Period in such other interbank market or markets as
the Company may select; or
2.3.2 another Interest Period, the rate of interest on the Notes for that Interest Period
is the same as that applicable to the Notes during the previous Interest Period.
2.4 As soon as reasonably practicable after determination of a rate of interest, the
Company shall notify each Noteholder of the rate.
2.5 Interest is calculated on the basis of a 365 day year and actual days elapsed.
2.6 Interest ceases to accrue on a Note as from the due date for redemption of the Note.
However, if upon due delivery of a redemption notice in accordance with
Condition 3.1 and this certificate in accordance with Condition 5.1, payment of
principal on the Note is withheld or refused in breach of the provisions of the Deed,
interest continues to accrue on the principle amount of the Notes until the date of the
payment at the rate set out in Conditions 2.2 and 2.3.
2.7 The Company shall pay each interest payment (after deduction of tax) to the
Noteholders on the Register at the close of business on fifth business day before an
Interest Payment Date and a Noteholder is deemed to be the holder on that Interest
Payment Date of a Note held by him on that preceding date notwithstanding any
intermediate transmission of the Note.
3. REDEMPTION
3.1 A Noteholder may require the Company to redeem all or some of the outstanding
Notes in amounts or in integral multiples of £1 at par together with accrued interest
(after deduction of tax) on:
3.1.1 the later to occur of (i) the date falling 12 months following the date on which
the Offer is declared unconditional, and (ii) the date falling 6 months
following the date of issue of the relevant Notes; and
3.1.2 each Interest Payment Date thereafter.
To exercise this right, the Noteholder shall complete and sign the redemption notice
set out in Appendix 1 to the Conditions and deliver it in writing to the Company in
accordance with the instructions in the redemption notice not less than 30 days before
the relevant date for redemption and deliver the relevant certificate in accordance with
Condition 5. A redemption notice delivered in accordance with this Condition is
irrevocable. On the relevant date for redemption the Company shall redeem the Note
- 12 -
70-40485392

LONDON 3726997 v2 (2K)
at par together with accrued interest (after deduction of tax) up to but excluding that
date.
3.2 Unless previously redeemed or purchased, the Company shall redeem the Notes on
the fifth anniversary of the date of issue of the first Note (or, if such date is not a
business day, the next business day) (the "Final Redemption Date") at par together
with accrued interest (after deduction of tax) up to but excluding that date.
3.3 A Noteholder shall be entitled by notice in writing to the Company to require the
Company to redeem all or part (in integral multiples of £1 nominal amount) of the
Notes at par together with accrued interest (after deduction of tax) up to but excluding
the date of redemption on the occurrence of any of the following events:
3.3.1 the failure by the Company to pay:
(a) any principal moneys payable on the Note within 30 days of the due
date for payment; or
(b) any interest payable on the Note within 30 days of the due date for
payment;
3.3.2 the passing by the Company of an effective resolution for its winding up or the
making by a court of competent jurisdiction of an order for the winding up of
the Company or the dissolution of the Company otherwise than, in each case,
for the purposes of an amalgamation, reorganisation, liquidation or
reconstruction under which a successor or successors undertake(s) the
obligations of the Company under the Notes or for the purposes of a members'
voluntary winding up on terms previously sanctioned by an Extraordinary
Resolution;
3.3.3 the appointment of an administrator or the making of an administration order
in relation to the Company or the appointment of a receiver over, or the taking
possession of or sale by an encumbrancer of, the whole or any substantial part
of the Company's assets when such person has not been paid out or such
person's claim has not been discharged within 30 business days of the claim
being made; or
3.3.4 the making by the Company of an arrangement or composition with its
creditors generally or the making by the Company of an application to a court
of competent jurisdiction for protection of its creditors generally.
3.4 A Noteholder may opt to require the Company (but for the avoidance of doubt, not the
Guarantor) to pay, to him/her in lieu of and in satisfaction of the principal amount of
the Notes to be redeemed plus accrued interest, an amount of US dollars equal to the
sterling principal amount of such Notes calculated using the closing mid-point US
dollar spot rate quoted by Bloomberg on the business day falling 14 days before the
date of payment (or if such day is not a business day, the preceding business day) (the
"Repayment Value"), provided that if the Repayment Value would otherwise exceed
the Capped Amount (as defined below), the Repayment Value shall be replaced with
the Capped Amount. The "Capped Amount" means the lower of:
- 13 -
70-40485392

LONDON 3726997 v2 (2K)
3.4.1 the sterling principal amount of the Note plus one-half of one per cent. of the
sterling nominal value of the Note to be repaid, converted to US dollars at the
spot rate quoted by Bloomberg on the date of redemption; and
3.4.2 the sterling principal amount of the Note plus one twenty-fourth of Y per cent.
of the sterling principal amount of the Note to be repaid converted to dollars at
the spot rate quoted by Bloomberg on the date of redemption, where "Y" is the
number of complete months between the date of issue of the Note and the date
of repayment.
3.5 The Company may at any time purchase Notes at any price by tender (available to all
Noteholders alike) or private treaty or otherwise by agreement with the relevant
Noteholder.
3.6 The Company shall cancel a Note redeemed or purchased and may not reissue or
resell that Note. For the avoidance of doubt, if the Company is required to redeem a
Note(s) but the Guarantor pays the principal and interest payable in respect of such
Note(s) pursuant to and in accordance with clause 6 of the Deed (to the extent that the
C ) (“Guaranteed Interest”) N ( )
be treated as redeemed and shall be cancelled forthwith, and neither the Company nor
the Guarantor shall have any further liability to pay any principal nor the Guaranteed
Interest on such Note(s) and the Guarantor shall not have any liability to pay further
interest on such Note(s) whatsoever.
4. DEALINGS
4.1 The Notes are non-transferable and no application has been or will be made to any
investment exchange for the Notes to be listed or dealt in.
4.2 The Notes have not been and will not be listed on any stock exchange and have not
been, and will not be, registered under the Securities Act or under any laws of any
state, district or other jurisdiction, of the United States, nor have clearances been nor
will they be, obtained from the securities commission or similar authority of any
province or territory of Canada and no prospectus has been, or will be, filed, or
registration made, under any securities laws of any province or territory of Canada,
nor has a prospectus in relation to the Notes been, nor will one be, lodged with, or
registered by, the Australian Securities and Investments Commission and no steps
have been taken, nor will any be taken, to enable the Notes to be offered in
compliance with applicable securities laws of Japan and no regulatory clearances in
respect of the Notes have been, or will be, applied for in any other jurisdiction.
4.3 Accordingly, unless an exemption under relevant securities laws is available, the
Notes have not been and may not be offered, sold, resold, delivered or distributed
(directly or indirectly) in, into or from the United States or any other Restricted
Jurisdiction or to, or for the account or benefit of, any Restricted Overseas Person.
5. PROCEDURE ON REDEMPTION AND UNCLAIMED MONEYS
5.1 A Noteholder whose Note is due to be redeemed shall, not later than the due date for
redemption, deliver to the Company the certificate for the Note for cancellation or an
indemnity in a form which is reasonably satisfactory to the Board if the certificate
- 14 -
70-40485392

LONDON 3726997 v2 (2K)
cannot be produced. Upon delivery and against a receipt (if the Company so requires)
for the moneys payable in respect of the Note, the Company shall pay to the
Noteholder those moneys.
5.2 If the Noteholder fails to comply with Condition 5.1:
5.2.1 the Company may pay all amounts payable in respect of the Note into a
separate interest-bearing bank account;
5.2.2 the payment of an amount into a bank account does not constitute the
Company a trustee in respect of the amount and is deemed for all purposes to
be a payment to the Noteholder and the Company is discharged from all
obligations in respect of the Note;
5.2.3 the Company is not responsible for the safe custody of the amount or related
interest;
5.2.4 subject to Condition 5.2.5, the Company is, and the Noteholder is not, entitled
to interest accrued on the amount; and
5.2.5 if the amount remains unclaimed in respect of interest on a Note after a period
of five years, and in respect of principal, after a period of ten years in each
case from the date of payment of the amount into the account, the Noteholder
ceases to be entitled to the amount and it shall then belong to the Company.
5.3 The Company may invest or otherwise use all unclaimed amounts in respect of a Note
until claimed.
6. PAYMENT OF AMOUNTS IN RESPECT OF NOTES
6.1 The Company shall pay principal moneys and any interest payable in respect of a
Note by electronic bank transfer to a bank account notified to the Company by the
Noteholder or by cheque, at the risk of the Noteholders by post to the registered
address of the Noteholder or, in the case of joint Noteholders, to the registered address
of the Noteholder who is first named on the Register. Every such cheque shall be
made payable to the person to whom it is sent.
6.2 The Board may withhold payment of principal moneys and any interest in respect of a
Note to a person entitled by transmission to a Note until he has proved such evidence
of his right as the Board may require.
6.3 If the due date for payment of an amount in respect of a Note is not a business day,
the Noteholder is not entitled to payment of the amount until the next following
business day and is not entitled to any further interest or other payment in respect of
the resulting delay in payment.
7. GUARANTEE
7.1 A Noteholder claiming payment by the Guarantor under the guarantee set out in
clause 6 of the Deed shall deliver to the Guarantor at Deutsche Bank Luxembourg
S.A., Private Wealth Management, 2, boulevard Konrad Adenauer, L-1115
Luxembourg (to the attention of Katrin Braun), or such other address as may from
- 15 -
70-40485392

LONDON 3726997 v2 (2K)
time to time be notified by the Guarantor to the Noteholders in writing, a signed
demand for payment in the form set out in Schedule 4 hereto (duly completed) and the
Guarantor shall subject to clause 6.1 of the Deed and the limitations contained therein,
make payment to such Noteholder of the amount demanded upon presentation to it of
a demand for payment which on its face appears to comport with such form, without
any requirement that the Guarantor conduct any further investigation.
7.2 If an amount is payable by the Guarantor under clause 6 of the Deed, it shall pay such
amount in sterling only as will ensure that the Noteholder receives the same net
benefit as he/she would have received had payment been made by the Company in
sterling only and for the purposes of the Guarantee set out in clause 6.1 of the Deed
and this Condition, the provisions of Condition 3.4 shall not apply.
8. INTERPRETATION
Words and expressions defined in the Deed shall, unless the context otherwise
requires, have the same meanings in these Conditions.
9. NOTICES
9.1 A notice to be given to or by a Noteholder under the Deed or these Conditions shall
be in writing.
9.2 A notice or other document may be given personally (which shall include delivery by
courier) or by post in a pre-paid envelope addressed:
9.2.1 to the Noteholder at the address shown in the Register against his respective
name (or at another address notified to the Company by the Noteholder as the
registered address);
9.2.2 to the Company at Clifford Chance LLP, 10 Upper Bank Street, London E14
5JJ (for the attention of Tim Lewis); or
9.2.3 to the Guarantor at Deutsche Bank Luxembourg S.A., Private Wealth
Management, 2, boulevard Konrad Adenauer, L-1115 Luxembourg (to the
attention of Katrin Braun) or such other address as may from time to time be
notified by the Guarantor to the Noteholders in writing.
9.3 If a Noteholder (or, in the case of joint holders, the person first named in the Register)
has a registered address outside the United Kingdom but has notified the Company of
an address in the United Kingdom at which notices or other documents may be given
to him, he is entitled to have notices given to him at the address in the United
Kingdom, but otherwise no such Noteholder or person is entitled to receive a notice or
other document from the Company.
9.4 A notice or other document sent by post from an address within the United Kingdom
to another address within the United Kingdom is deemed to have been given to, and
received by, the intended recipient on the next business day after posting, if pre-paid
as first class.
- 16 -
70-40485392

9.5 A notice or other document sent by pre-paid airmail post between different countries
is deemed to have been given to, and received by, the intended recipient on the third
business day after posting.
9.6 A notice or other document not sent by post but delivered by hand (which shall, for
the avoidance of doubt, include delivery by courier) is deemed to have been given to,
and received by, the intended recipient on the day it is so left.
9.7 A notice or other document sent by electronic means to an email address or a fax
number specified for the purpose by the intended recipient is deemed to have been
given to, and received by, the intended recipient 24 hours after it was sent.
9.8 A Post Office certificate of posting for a properly addressed and stamped envelope
containing the notice or document is conclusive evidence that the notice or document
was so sent or supplied. A printed copy of a notice or document sent or supplied by
electronic means that indicates that it was properly addressed and sent (and showing
the time of sending or transmission) is conclusive evidence that the notice or
document was so sent or supplied.
9.9 In the case of joint holders of a Note, a notice or other document shall be given to
whichever of them is named first in the Register in respect of the joint holding and
notice given in this way is sufficient notice to all joint holders.
9.10 A person who becomes entitled to a Note by transmission or otherwise is bound by a
notice in respect of the Note which, before his name is entered in the Register, has
been properly served on a person from whom he derives his title.
9.11 Where a person is entitled by transmission to a Note, the Company may give a notice
or other document to that person as if he were the holder of a Note by addressing it to
him by name or by the title of representative of the deceased or trustee of the bankrupt
member (or by similar designation) at an address in the United Kingdom supplied for
that purpose by the person claiming to be entitled by transmission. Until an address
has been supplied, a notice or other document may be given in any manner in which it
might have been given if the death or bankruptcy or other event had not occurred.
The giving of notice in accordance with this Condition 9.11 is sufficient notice to all
other persons interested in the Note.
10. TAX
LONDON 3726997 v2 (2K)
All payments of principal and interest in respect of the Notes by or on behalf of the
Company shall be made free and clear of, and without withholding or deduction for or
on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or assessed by or on
behalf any authority having power to tax, unless the withholding or deduction of such
taxes, duties, assessments, or governmental charges is required by law. In that event,
the Company shall pay such interest and principal after withholding or deducting such
taxes, duties, assessments or governmental charges.
- 17 -
70-40485392

To: KSE, UK, Inc. (the "Company ")
LONDON 3726997 v2 (2K)
APPENDIX 1
REDEMPTION NOTICE
£394,048,000 FLOATING RATE GUARANTEED UNSECURED LOAN NOTES 2016
I/We, the registered holder(s) of the Note represented by this certificate, give notice that I/we
require the Company to redeem the whole/£[ ] 1 of the principal amount of the Note on [ ] 2
in accordance with Condition 3.1 of the Note.
Please pay the principal moneys, interest or any other amount payable in respect of the Note
so redeemed [in sterling/US dollars] in the following manner. [Specify bank/other funds
transfer system/other method] 3 :
Dated 20[ ]
Signatures by individuals 4 :
[OR]
1. ___________________________ 2. ___________________________
3. ___________________________ 4. ___________________________
Execution by a company:
Signed by the person named below for and on behalf of the Noteholder named in this
certificate:
___________________Signature ________________ Name of the person
1 Delete or complete as appropriate. If no amount is inserted the whole of the principal amount will be
redeemed. The Note is redeemable in whole (whatever the amount) or in part (only in amounts or integral
multiples of £1).
2 Complete the date (being a date permitted by the terms of Condition 3.1 of the Note). The redemption notice
duly completed and signed must be received by the Company at the above address (or such other address as
the Company may from time to time have appointed for the purpose and notified to the Noteholders) not less
than 30 days before the date for redemption specified in the notice.
3 If no details are inserted, payment will be made and sent to the registered address of the Noteholder (or in
the case of joint Noteholders, to one of the Noteholders).
4 All joint holders must sign.
- 18 -
70-40485392

LONDON 3726997 v2 (2K)
SCHEDULE 2
PROVISIONS AS TO REGISTRATION, TRANSFER, TRANSMISSION, ETC.
1. TRUSTS NOT RECOGNISED
Except as ordered by a court of competent jurisdiction or as required by law, the
Company is not obliged to recognise a person as holding a Note on trust and is not
bound by or otherwise compelled to recognise (even if it has notice of it) an equitable,
contingent, future, partial or other claim to or interest in a Note other than an absolute
right in the holder to the whole of the Note.
2. RECOGNITION OF NOTEHOLDER
The Company shall recognise a Noteholder as entitled to the Note registered in his
name free from any equity, set-off or counter-claim on the part of the Company
against the original or an intermediate holder of the Note.
3. TRANSFERS
3.1 The Notes are non-transferable save by operation of law or in accordance with
this Schedule 2.
4. TRANSMISSION OF NOTES
4.1 The Company may recognise only the personal representatives of a deceased
Noteholder as having title to a Note held by that Noteholder alone or to which he
alone was entitled. In the case of a Note held by more than one person, the Company
may recognise only the survivor or survivors as being entitled to it.
4.2 Nothing in this Deed releases the estate of a deceased Noteholder from liability in
respect of a Note which has been solely or jointly held by him.
4.3 A person becoming entitled by transmission to a Note may, on production of any
evidence the Board may require, request to be registered as a Noteholder by giving
notice to the Company to that effect.
4.4 Where a person becomes entitled by transmission to a Note, the rights of the
Noteholder in relation to the Note cease. The person entitled by transmission may,
however, give a good discharge for principal moneys and interest payable in respect
of the Note and, subject to paragraphs 4.3 and Condition 6.2, has the rights to which
he would be entitled if he were the holder of the Note. The person entitled by
transmission is not, however, before he is registered as the holder of the Note, entitled
in respect of it to receive notice of or exercise rights conferred by being a Noteholder
in relation to meetings of the Noteholders.
5. REPLACEMENT CERTIFICATES
Where a certificate is worn out, defaced, lost or destroyed, the Board may cancel it
and issue a replacement certificate on such terms as to provision of evidence and
indemnity (with or without security) and to payment of any exceptional out of pocket
expenses incurred by the Company in the investigation of that evidence and the
- 19 -
70-40485392

LONDON 3726997 v2 (2K)
preparation of that indemnity and security as the Board may decide and on surrender
of the original certificate (where it is worn out or defaced).
- 20 -
70-40485392

1. CONVENING MEETINGS
LONDON 3726997 v2 (2K)
SCHEDULE 3
PROVISIONS AS TO MEETINGS OF NOTEHOLDERS
1.1 The Company may convene a meeting of the Noteholders at any time.
1.2 The Company shall (upon receiving such indemnity (if any) as it may require against
all reasonable costs, expenses and liabilities which it may incur in doing so) convene
a meeting of the Noteholders within 30 days of receipt of a requisition from
Noteholders holding at the date of the deposit of the requisition not less than one-tenth
in principal amount of the Notes outstanding at that date.
1.3 The requisition:
1.3.1 shall state the object of the meeting;
1.3.2 shall be signed by the requisitionists and deposited at the Registered Office;
and
1.3.3 may consist of several documents in like form each signed by one or more
requisitionists.
1.4 The meeting shall be held at such place in the United Kingdom as the Company may
decide.
2. LENGTH AND FORM OF NOTICE
2.1 All meetings shall be called by not less than 14 clear days' notice.
2.2 The notice of meeting shall specify:
2.2.1 the place, date and time of the meeting;
2.2.2 the general nature of the business to be transacted at the meeting but, except
for a resolution to be proposed as an Extraordinary Resolution, the terms of a
resolution to be proposed need not be specified; and
2.2.3 with reasonable prominence, that a Noteholder entitled to attend and vote may
appoint one or more proxies to attend and vote instead of the Noteholder and
that a proxy need not also be a Noteholder.
2.3 The accidental omission to send a notice of meeting or, in cases where it is sent out
with the notice, a form of appointment of proxy to, or the non-receipt of either by, a
Noteholder does not invalidate the proceedings at a meeting.
3. QUORUM
3.1 No business may be transacted at a meeting unless a quorum is present. The absence
of a quorum does not prevent the appointment of a chairman in accordance with
paragraph 5, which is not treated as part of the business of the meeting.
- 21 -
70-40485392

3.2 The quorum for a meeting convened for the purpose of passing an Extraordinary
Resolution is two Noteholders (or one Noteholder if there is only one Noteholder
holding outstanding Notes) holding or representing by proxy a majority in principal
amount of the Notes outstanding at the date of the meeting. The quorum for a
meeting convened for any other purpose is persons holding or representing by proxy
one-tenth in principal amount of the Notes outstanding at the date of the meeting.
4. PROCEDURE IF QUORUM NOT PRESENT
4.1 If a quorum is not present within five minutes (or such longer period as the chairman
in his absolute discretion may decide) from the time fixed for the start of the meeting
or if during the meeting a quorum ceases to be present, the meeting:
LONDON 3726997 v2 (2K)
4.1.1 if convened on the requisition of the Noteholders, shall be dissolved; or
4.1.2 in any other case, shall stand adjourned to such time (being not less than
14 days nor more than 28 days later) and place as the chairman (or, in default,
the Board) may decide.
4.2 At an adjourned meeting the quorum shall be the Noteholders present in person or by
proxy, whatever the principal amount of the Notes held by them. If a quorum is not
present within five minutes (or such longer period as the chairman in his absolute
discretion may decide) from the time fixed for the start of the meeting or if during the
meeting a quorum ceases to be present, the adjourned meeting shall be dissolved.
4.3 The Company shall give not less than seven clear days' notice of any meeting
adjourned for the lack of a quorum and the notice shall comply with paragraph 2.2
and shall state the quorum requirement.
5. CHAIRMAN
5.1 A person nominated by the Company shall preside as chairman at a meeting.
5.2 The Noteholders present at the meeting may select one of their number to be chairman
if:
5.2.1 no person has been nominated pursuant to paragraph 5.1; or
5.2.2 at the meeting, the person nominated by the Company is not present within 20
minutes after the time fixed for the start of the meeting or is not willing to act.
6. RIGHT TO ATTEND AND SPEAK
Each member of the Board and any person authorised by the Board may attend and
speak at a meeting whether or not he is a Noteholder.
7. POWER TO ADJOURN
7.1 The chairman may, with the consent of a meeting at which a quorum is present, and
shall, if so directed by the meeting, adjourn a meeting from time to time and from
place to place or for an indefinite period.
- 22 -
70-40485392

7.2 Without prejudice to any other power which he may have under the provisions of this
schedule or at common law, the chairman may, without the consent of the meeting,
interrupt or adjourn a meeting from time to time and from place to place or for an
indefinite period if he decides that it has become necessary to do so in order to:
LONDON 3726997 v2 (2K)
7.2.1 secure the proper and orderly conduct of the meeting;
7.2.2 give all persons entitled to do so a reasonable opportunity of speaking and
voting at the meeting; or
7.2.3 ensure that the business of the meeting is properly disposed of.
8. NOTICE OF ADJOURNED MEETING
Without prejudice to paragraph 4.3, whenever a meeting is adjourned for 28 days or
more or for an indefinite period, at least seven clear days' notice specifying the place,
the date and the time of the adjourned meeting and the general nature of the business
to be transacted shall be given to the Noteholders and each member of the Board.
Except in these circumstances and subject to paragraph 4.3, it is not necessary to give
notice of an adjourned meeting or of the business to be transacted at the adjourned
meeting.
9. BUSINESS AT ADJOURNED MEETING
No business shall be transacted at an adjourned meeting other than the business which
might properly have been transacted at the meeting from which the adjournment took
place.
10. METHOD OF VOTING
10.1 At a meeting, a resolution put to the vote of the meeting is decided by a show of
hands unless (before or on the declaration of the result of the show of hands) a poll is
duly demanded.
10.2 A poll may be demanded on a question by the chairman of the meeting or by a
Noteholder or Noteholders present in person or by proxy representing in total not less
than one-twentieth in principal amount of the Notes outstanding at the date of the
meeting.
10.3 A demand by a proxy is deemed to be a demand by the Noteholder appointing the
proxy.
10.4 Unless a poll is demanded and the demand is not withdrawn, a declaration by the
chairman that the resolution has been carried, or carried by a particular majority, or
lost or not carried by a particular majority, and an entry to that effect in the book
containing the minutes of proceedings, is conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or against the
resolution.
- 23 -
70-40485392

11. PROCEDURE ON A POLL
11.1 If a poll is properly demanded, it shall be taken in such manner as the chairman may
direct. He may appoint scrutineers, who need not be Noteholders, and may fix a time
and place for declaring the result of the poll. The result of the poll is deemed to be the
resolution of the meeting at which the poll is demanded.
11.2 A poll demanded on the election of a chairman or on any question of adjournment
shall be taken at the meeting and without adjournment. A poll demanded on another
question shall be taken at such time and place as the chairman may decide, either at
once or after an interval or adjournment (but not more than 30 clear days after the date
of the demand).
11.3 No notice need be given of a poll not taken immediately if the time and place at which
it is to be taken are announced at the meeting at which it is demanded. In any other
case at least seven clear days' notice shall be given specifying the time and place at
which the poll is to be taken.
11.4 The demand for a poll may be withdrawn but only with the consent of the chairman.
A demand withdrawn in this way validates the result of a show of hands declared
before the demand is made. In the case of a poll demanded before the declaration of
the result of a show of hands, the meeting shall continue as if the demand had not
been made.
11.5 The demand for a poll (other than on the election of the chairman or on a question of
adjournment) does not prevent the meeting continuing for the transaction of business
other than the question on which a poll has been demanded.
11.6 On a poll, votes may be given in person or by proxy and a Noteholder entitled to more
than one vote need not, if he votes, use all his votes or cast all the votes he uses in the
same way.
12. VOTES OF NOTEHOLDERS
12.1 On a show of hands at a meeting:
LONDON 3726997 v2 (2K)
12.1.1 every Noteholder present (but not being present by proxy) and entitled to vote
on the resolution has one vote; and
12.1.2 every proxy present who has been duly appointed by a Noteholder entitled to
vote on the resolution has one vote, except where:
(a) that proxy has been duly appointed by more than one Noteholder
entitled to vote on the resolution; and
(b) the proxy has been instructed:
(i) by one or more of those Noteholders to vote for the resolution
and by one or more of those Noteholders to vote against the
resolution; or
- 24 -
70-40485392

LONDON 3726997 v2 (2K)
(ii) by one or more of those Noteholders to vote in the same way
on the resolution (whether for or against) and one or more of
those Noteholders has given the proxy discretion as to how to
vote,
in which case, the proxy has one vote for and one vote against the resolution.
12.2 On a poll at a meeting, every Noteholder present in person or by proxy and entitled to
vote has one vote for every £1 in principal amount of the Note or Notes of which the
relevant Noteholder or Noteholders is the holder.
12.3 In the case of joint holders of a Note, the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the votes of the
other joint holders, and seniority is determined by the order in which the names of the
holders stand in the Register.
13. CASTING VOTE
In the case of an equality of votes the chairman shall not have a casting vote.
14. VOTING BY PROXY
14.1 A form of appointment of proxy shall be in writing in any usual form (or in another
form approved by the Board) executed by the appointor or his duly constituted
attorney or, if the appointor is a company, under its seal or under the hand of its duly
authorised officer or attorney or other person authorised to sign.
14.2 A form of appointment of proxy is deemed (unless the contrary is stated in it) to
confer authority to demand or join in demanding a poll and to vote on a resolution or
amendment of a resolution put to, or other business which may properly come before,
the meeting or meetings for which it is given, as the proxy thinks fit.
14.3 A proxy need not be a Noteholder.
14.4 A Noteholder may appoint more than one proxy to attend on the same occasion.
When two or more valid but differing forms of appointment of proxy are delivered for
the same Note for use at the same meeting, the one which is last validly delivered
(regardless of its date or the date of its execution) shall be treated as replacing and
revoking the other or others as regards that Note.
14.5 Deposit of a form of appointment of proxy does not prevent a Noteholder attending
and voting in person at the meeting or an adjournment of the meeting or on a poll.
14.6 A form of appointment of proxy is (unless the contrary is stated in it) valid for an
adjournment of the meeting as well as for the meeting or meetings to which it relates.
A form of appointment of proxy is valid for 12 months from the date of execution.
14.7 The Company may send a form of appointment of proxy to all or none of the persons
entitled to receive notice of and to vote at a meeting. If sent the form of appointment
of proxy shall provide for three-way voting on all resolutions set out in the notice of
meeting.
- 25 -
70-40485392

15. DEPOSIT OF PROXY
15.1 A form of appointment of proxy, and (if required by the Board) a power of attorney or
other authority under which it is executed or a copy of it notarially certified or
certified in some other way approved by the Board, shall be:
LONDON 3726997 v2 (2K)
15.1.1 deposited at the place in the United Kingdom specified in the notice convening
the meeting or in a form of appointment of proxy or other accompanying
document sent by the Company in relation to the meeting, not less than
48 hours before the time for holding the meeting or adjourned meeting or the
taking of a poll at which the person named in the form of appointment of
proxy proposes to vote;
15.1.2 in the case of a form of appointment of proxy sent by electronic means, where
the Company has given an email address or fax number for that purpose:
(a) in the notice calling the meeting;
(b) in a form of appointment of proxy sent out by the Company in relation
to the meeting; or
(c) in an invitation to appoint a proxy issued by the Company in relation to
the meeting,
be received at such address or number not less than 48 hours before the time
for holding the meeting or adjourned meeting or the taking of a poll at which
the person named in the form of appointment of proxy proposes to vote;
15.1.3 in the case of a meeting adjourned for less than 28 days but more than 48
hours or in the case of a poll taken more than 48 hours after it is demanded,
deposited as required by paragraph 15.1.1 or 15.1.2 but not less than 24 hours
before the time appointed for the holding of the adjourned meeting or the
taking of the poll; or
15.1.4 in the case of a meeting adjourned for less than 48 hours or in the case of a
poll not taken immediately but taken not more than 48 hours after it was
demanded, delivered at the adjourned meeting or at the meeting at which the
poll was demanded to the chairman or to the secretary or to a director of the
Company.
15.2 A form of appointment of proxy not deposited or delivered in accordance with
paragraph 15.1 is invalid.
16. WHEN VOTES BY PROXY VALID THOUGH AUTHORITY REVOKED
A vote given or poll demanded by a proxy or corporate representative is valid despite
termination of his authority unless notice of termination is received by the Company
at the place specified for depositing the form of appointment of proxy at least
one hour before the time for holding the meeting or adjourned meeting at which the
vote is given or (in the case of a poll taken otherwise than at or on the same day as the
meeting or adjourned meeting) the time appointed for the taking of the poll at which
the vote is cast.
- 26 -
70-40485392

17. CORPORATE REPRESENTATIVE
LONDON 3726997 v2 (2K)
A company which is a Noteholder may, by resolution of its directors or other
governing body, authorise a person to act as its representative at a meeting (the
"corporate representative"). The corporate representative may exercise on behalf of
the company (in respect of that part of the company's holding of Notes to which the
authorisation relates) those powers that the company could exercise if it were an
individual Noteholder. For the avoidance of doubt, the company is for the purposes
of this schedule deemed to be present in person at a meeting if the corporate
representative is present. Each reference to attendance and voting in person is to be
construed accordingly. A member of the Board or the secretary of the Company or
other person authorised by such member or the secretary may require the corporate
representative to produce a certified copy of the resolution of authorisation before
permitting him to exercise his powers.
18. OBJECTIONS TO AND ERROR IN VOTING
No objection may be made to the qualification of a voter or to the counting of, or
failure to count, a vote, except at the meeting or adjourned meeting at which the vote
objected to is tendered or at which the error occurs. An objection properly made shall
be referred to the chairman and only invalidates the result of the voting if, in the
opinion of the chairman, it is of sufficient magnitude to affect the decision of the
meeting. The decision of the chairman is conclusive and binding on all concerned.
19. AMENDMENTS TO RESOLUTIONS
If an amendment proposed to a resolution under consideration is ruled out of order by
the chairman the proceedings on the substantive resolution are not invalidated by an
error in his ruling.
20. EXTRAORDINARY RESOLUTIONS
20.1 In addition to any other power, a meeting of Noteholders may, with the prior written
consent of the Guarantor, by Extraordinary Resolution and with the consent of the
Company sanction any modification, abrogation, variation or compromise of the
provisions of the Deed and/or the rights of the Noteholder under this Deed unless any
such modification, abrogation, variation or compromise would not (in the opinion of
the Board) be prejudicial to the interests of the Noteholders or is of a formal, minor or
technical nature or is made to correct a manifest error, in which case neither the
sanction of an Extraordinary Resolution nor the consent of the Noteholders shall be
required.
20.2 Without limiting paragraph 20.1, the Noteholders have power to sanction in
accordance with paragraph 20.1:
20.2.1 an agreement for postponing the time for the payment of principal moneys or
interest payable in respect of the Notes;
20.2.2 an agreement for reducing the rate of interest or for the capitalisation of any
interest;
- 27 -
70-40485392

LONDON 3726997 v2 (2K)
20.2.3 an agreement for the exchange of Notes for, or conversion of Notes into, other
securities of the Company or another company; and
20.2.4 a matter which under the provisions of this Deed is required to be sanctioned
by Extraordinary Resolution
PROVIDED THAT any such resolution exercising any such power shall only be
effective if the Company agrees to it in writing, before the convening of the meeting
or within seven days after the date of any such resolution in writing.
20.3 An Extraordinary Resolution is binding upon each Noteholder whether or not present
at the meeting and each Noteholder is bound to give effect to the Extraordinary
Resolution.
21. NOTEHOLDERS' WRITTEN RESOLUTIONS
A resolution in writing executed by or on behalf of Noteholders holding 95 per cent.
in principal amount of Notes for the time being outstanding who would have been
entitled to vote upon it if it had been proposed at a meeting at which the Noteholder
was present is as effective as if it had been passed at a meeting duly convened and
held. The resolution in writing may consist of several instruments in the same form
each duly executed by or on behalf of one or more Noteholders. If the resolution in
writing is described as an Extraordinary Resolution, it has effect accordingly.
22. MINUTES OF MEETINGS
22.1 The Company shall cause minutes of all proceedings of meetings of the Noteholders
to be entered in books kept for that purpose.
22.2 A minute, if purporting to be signed by the chairman of the meeting at which the
proceedings took place, or by the chairman of the next meeting, is conclusive
evidence of the proceedings.
22.3 Where minutes have been made in accordance with this paragraph 22 of the
proceedings at a meeting then, until the contrary is proved, the meeting is deemed
duly held and convened, and all proceedings had at the meeting to have been duly
had.
- 28 -
70-40485392

LONDON 3726997 v2 (2K)
SCHEDULE 4
FORM OF DEMAND NOTICE
NOTES ISSUED PURSUANT TO A DEED POLL CONSTITUTING £394,048,000
FLOATING RATE GUARANTEED UNSECURED LOAN NOTES 2016
To: Deutsche Bank Luxembourg S.A.
DEMAND FOR PAYMENT
We hereby confirm that we are the holder of notes (the "Notes") in aggregate principal
amount equal to [insert amount in sterling] constituted by a deed poll (the "Deed Poll") dated
[ ] 2011 and made by KSE, UK, INC. (the "Company") and you.
The sum of [insert amount in sterling] is due and payable by the Company to us under and
pursuant to the Notes and has not been paid.
We confirm that such amount represents obligations of principal (comprising a sum of [insert
amount in sterling) and interest (comprising a sum of [insert amount in sterling) only and
does not include any fees or other amounts incidental to the principal amount of the Notes.
Pursuant and subject to the terms of the guarantee provided by you under the Deed Poll (the
"Guarantee") and the Cap (as defined in the Deed Poll), we hereby demand payment by you
to us of a sum of [insert amount in sterling] comprising principal and [insert amount in
sterling] comprising interest (less any amounts of interest as would exceed the Cap).
We irrevocably confirm and acknowledge that in the event of a conflict as to the timing of the
receipt or deemed receipt of a demand for payment under the Guarantee pursuant to Clause
6.1 of the Deed Poll that D B k S ’ (
"Determination") shall be final and binding on us and all holders of the Notes in all respects
and that Deutsche Bank Luxembourg S.A. shall not have any liability whatsoever to us in
respect of the Determination and/or the making of such Determination.
We confirm that our name and registered address are as follows:
[Insert name] (the "Noteholder")
[insert registered address]
____________________
By (name): [insert name of signatory]
Title: [insert title of signatory]
[insert name of Noteholder]
- 29 -
70-40485392

IN WITNESS WHEREOF this Deed has been executed by the Company and the Guarantor
and is intended to be and is hereby delivered on the date first above written
Executed as a deed by )
KSE, UK, INC. )
________________________ Signature of Director
________________________ Name of Director
in the presence of:
___________________________ Signature of witness
___________________________ Name of witness
___________________________ Address of witness
___________________________
___________________________
___________________________ Occupation of witness
Signed as a deed by )
DEUTSCHE BANK LUXEMBOURG S.A. )
acting by two authorised signatories )
_________________________________
Name:
_________________________________
Name:
LONDON 3726997 v2 (2K)
- 30 -
70-40485392