Exhibit 4.2


 


EXECUTION VERSION


 


BALL CORPORATION


 


And


 


GUARANTORS


 


Parties
Hereto


 


$500,000,000


 


5.75% SENIOR NOTES DUE 2021


 


FIFTH SUPPLEMENTAL INDENTURE


 


Dated
as of November 18, 2010


 


To


 


INDENTURE


 


Dated
as of March 27, 2006


 


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.


(f/k/a The Bank of New York Trust Company, N.A.)


 


Trustee


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act Section

  	
   

  	
   

  
	
  Indenture Section

  	
   

  	
  Supplemental

  
	
  310(a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
   

  	
  4.03; 12.02

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05, 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.12

  
	
  317(a)(1)

  	
   

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
   

  	
  12.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  12.01

  



 






N.A. means not applicable.


*This Cross-Reference Table
is not part of this Supplemental Indenture.


 

















 


TABLE OF CONTENTS


 


	
  Exhibit A

  	
  FORM OF NOTE

  
	
  Exhibit B

  	
  FORM OF NOTATION OF
  GUARANTEE

  
	
  Exhibit C

  	
  FORM OF SUPPLEMENTAL
  INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

  



 

















 


FIFTH
SUPPLEMENTAL INDENTURE dated as of November 18, 2010 by and among Ball
Corporation, an Indiana corporation (the “Company”), the
Guarantors (as defined below) and The Bank of New York Mellon Trust Company,
N.A. (f/k/a The Bank of New York Trust Company, N.A.), a national banking
association, as trustee (the “Trustee”).


 


The
Company has heretofore executed and delivered to the Trustee an indenture,
dated as of March 27, 2006 (the “Base Indenture”)
providing for the issuance from time to time of one or more series of the
Company’s securities.


 


The
Company and the Guarantors desire and have requested the Trustee pursuant to Section 9.1
of the Base Indenture to join with them in the execution and delivery of this
Supplemental Indenture in order to supplement the Base Indenture to the extent
set forth herein to provide for the issuance and the terms of the Notes (as
defined below).


 


Section 9.1(6) of
the Base Indenture provides that the Company and the Trustee, without the
consent of any holders of the Company’s Securities, may provide for the
issuance of and establish the form and terms and conditions of Notes of any
series as permitted by Sections 2.1 and 2.2 thereof.  The provisions contained in this Fifth
Supplemental Indenture shall govern only the 5.75% Senior Notes due 2021 issued
hereunder.


 


The
execution and delivery of this Supplemental Indenture has been duly authorized
by a board resolution of the Company and each of the Guarantors.


 


All
conditions and requirements necessary to make this Supplemental Indenture a
valid, binding and legal instrument in accordance with its terms have been
performed and fulfilled by the Company and the Guarantors and the execution and
delivery thereof have been in all respects duly authorized by the Company and
the Guarantors.


 


The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders (as defined
herein) of the 5.75% Senior Notes due 2021 (the “Notes”):


 


ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01         Definitions.


 


“Acquired Debt” means, with respect to any
specified Person, Indebtedness, including Disqualified Stock, of any other
Person existing at the time such other Person is merged with or into, becomes a
Restricted Subsidiary of such specified Person or is otherwise assumed by such
specified Person in connection with an acquisition of assets from such Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person or the acquisition of assets
from such person.


 


“Additional Assets” means:


 


(1)           any property or assets, other than Capital Stock, Indebtedness
or rights to receive payments over a period greater than 180 days, that are
usable by the Company or a Restricted Subsidiary in a Permitted Business; or


 


(2)           the Capital Stock of a Person that is at the time,
or becomes, a Restricted Subsidiary as a result of the acquisition of such
Capital Stock by the Company or another Restricted Subsidiary.


 


“Additional Notes” means any Notes (other than
the Initial Notes) issued under this Supplemental Indenture in accordance with
Sections 2.14 and 4.09 hereof, as part of the same series as the Initial Notes.


 

















 


“Affiliate” of any specified Person means
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.  For purposes of this definition, “control,”
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided,
that beneficial ownership of 10% or more of the Voting Stock of a Person will
be deemed to be in control.  For purposes
of this definition, the terms “controlling,” “controlled by” and “under common
control with” have correlative meanings.


 


“Agent” means any Registrar, Paying Agent
or co-registrar.


 


“Applicable Premium” means, with respect to
any Note on any Redemption Date, the greater of:


 


(1)           1.0% of the principal amount of the Note; or


 


(2)           the excess (if any) of:


 


(a)           the present value at such
Redemption Date of (i) the redemption price of such Note at November 15,
2015 (such redemption price being set forth in the table appearing in Section 3.07
hereof) plus (ii) all required interest payments due on such Note through November 15,
2015 (excluding accrued but unpaid interest to the Redemption Date), computed
using a discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points; over


 


(b)           the principal amount of the
Note.


 


“Applicable Procedures” means, with respect
to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary that apply to such transfer or
exchange.


 


“Asset Sale” means:


 


(1)           the sale, lease, conveyance or other disposition of
any assets or rights other than in the ordinary course of business consistent
with past practices; provided,
that the sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole will be governed by the provisions of this Supplemental Indenture
described under Section 4.15 and/or the provisions described under Section 5.01
hereof and not by the provisions of Section 4.10 hereof; and


 


(2)           the issuance or sale of Equity Interests in any of
the Company’s Restricted Subsidiaries, and in the case of either clause (1) or
(2), whether in a single transaction or series of related transactions
(a) that have a fair market value in excess of $20.0 million or
(b) for Net Proceeds in excess of $20.0 million.


 


Notwithstanding
the preceding, none of the following items will be deemed to be an Asset Sale:


 


(1)           a transfer of assets or rights by the Company to a
Restricted Subsidiary of the Company or by a Restricted Subsidiary of the
Company to the Company or another Restricted Subsidiary of the Company;


 


(2)           an issuance or sale of Equity Interests by a
Restricted Subsidiary of the Company to the Company or to another Restricted
Subsidiary of the Company;


 


(3)           the sale or lease of equipment, inventory, accounts
receivable or other current assets in the ordinary course of business;


 


(4)           the sale or other disposition of cash or Cash
Equivalents;


 

















 


(5)           a Restricted Payment that is not prohibited by Section 4.07
or a Permitted Investment;


 


(6)           sales, conveyances or other transfers of receivables
and related assets to a Securitization Entity or to another Person as
contemplated by the definition of “Qualified Securitization Transaction” in a
Qualified Securitization Transaction;


 


(7)           the sale or disposition of obsolete, uneconomical,
worn out or surplus property or equipment;


 


(8)           the surrender or waiver of contract rights or
settlement, release or surrender of a contract, tort or other litigation claim
in the ordinary course of business;


 


(9)           the granting of Liens not prohibited by this
Supplemental Indenture;


 


(10)         any exchange of like property pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended, for use in a Permitted
Business;


 


(11)         the lease, assignment or sublease of any real or
personal property in the ordinary course of business; and


 


(12)         any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary.


 


“Attributable Debt” in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended.  Such present value will be
calculated using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP; provided,
however, that if such sale and leaseback
transaction results in a Capital Lease Obligation, the amount of Indebtedness
represented thereby will be determined in accordance with the definition of “Capital
Lease Obligation.”


 


“Ball Asia
Pacific” means Ball Asia Pacific Limited, a Hong Kong
company, and its affiliates and joint ventures.


 


“Bankruptcy Law” means Title 11, U.S. Code
or any similar federal or state law for the relief of debtors.


 


“Base  Indenture”
means has the meaning set forth in the preamble to this Supplemental Indenture,
as amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof.


 


“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of
the Exchange Act), such “person” will be deemed to have beneficial ownership of
all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition.  The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding meaning.


 


“Board of Directors” means:


 


(1)           with respect to a corporation, the board of
directors of the corporation or any committee thereof duly authorized to act on
behalf of such board;


 


(2)           with respect to a partnership, the Board of
Directors of the general partner of the partnership;


 

















 


(3)           with respect to a limited liability company, the
managing member or members or any controlling committee of managing members or
managers thereof; and


 


(4)           with respect to any other Person, the board or
committee of such Person serving a similar function.


 


“Business Day” means any day other than a
Legal Holiday.


 


“Capital Lease Obligation” means, at the
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at that time be required to be
capitalized on a balance sheet prepared in accordance with GAAP, and the Stated
Maturity thereof will be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may
be prepaid by the lessee without payment of a penalty.


 


“Capital Stock” means:


 


(1)           in the case of a corporation, corporate stock;


 


(2)           in the case of an association or business entity,
any and all shares, interests, participations, rights or other equivalents,
however designated, of corporate stock;


 


(3)           in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or membership
interests; and


 


(4)           any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all of the
foregoing any debt securities convertible into Capital Stock, whether or not
such debt securities include any right of participation with Capital Stock.


 


“Cash Equivalents” means:


 


(1)           United States dollars;


 


(2)           securities issued or directly and fully guaranteed
or insured by the United States government or any agency or instrumentality of
the United States government having maturities of not more than one year from
the date of acquisition;


 


(3)           certificates of deposit and eurodollar time deposits
with maturities of not more than one year from the date of acquisition, bankers’
acceptances with maturities of not more than one year from the date of
acquisition and overnight bank deposits, in each case, with any domestic
commercial bank having capital and surplus in excess of $500.0 million and a
Thomson Bank Watch Rating of “B” or better;


 


(4)           repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;


 


(5)           commercial paper having one of the two highest
ratings obtainable from Moody’s or S&P and in each case maturing within six
months after the date of acquisition;


 


(6)           money market funds at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (1) through
(5) of this definition; and


 


(7)           in the case of any Foreign Subsidiary;


 

















 


(a)           direct obligations of the
sovereign nation, or any agency thereof, in which such Foreign Subsidiary is
organized and is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation, or any agency thereof;


 


(b)           investments of the type and
maturity described in clauses (1) through (6) above of foreign
obligors, which investments or obligors have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies; or


 


(c)           investments of the type and
maturity described in clauses (1) through (6) above of foreign
obligors which investments or obligors are not rated as provided in such
clauses or in clause (b) above but which are, in the reasonable judgment
of the Company, comparable in investment quality to such investments and
obligors, or the direct or indirect parent of such obligors.


 


“Change of Control” means the occurrence of
any of the following:


 


(1)           the sale, transfer, conveyance or other disposition,
other than by way of merger or consolidation, in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole to any “person,” as that term is used
in Section 13(d)(3) of the Exchange Act;


 


(2)           the adoption of a plan relating to the liquidation
or dissolution of the Company;


 


(3)           the consummation of any transaction, including,
without limitation, any merger or consolidation, the result of which is that
any “person,” as defined above, becomes the ultimate Beneficial Owner, directly
or indirectly, of more than 50% of the Voting Stock of the Company, measured by
voting power rather than number of shares;


 


(4)           the first day on which a majority of the members of
the Board of Directors of the Company are not Continuing Directors; or


 


(5)           the Company consolidates with, or merges with or
into, any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Company
outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance).


 


“Company” means Ball Corporation, and any
and all successors thereto.


 


“Consolidated Cash Flow” means, with
respect to any specified Person for any period, the Consolidated Net Income of
such Person for such period plus, without duplication:


 


(1)           provision for taxes based on income or profits of
such Person and its Restricted Subsidiaries for such period, to the extent that
such provision for taxes was deducted in computing such Consolidated Net
Income; plus


 


(2)           consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized, including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and 


 

















 


charges incurred in respect of letter of credit or bankers’ acceptance
financings and receivables financings, and net payments, if any, pursuant to
Hedging Obligations, to the extent that any such expense was deducted in
computing such Consolidated Net Income; plus


 


(3)           depreciation, amortization, including amortization
of goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period, and other non-cash expenses,
excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period, of such Person and its
Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; minus


 


(4)           non-cash items increasing such Consolidated Net
Income for such period, other than items that were accrued in the ordinary
course of business;


 


in
each case, on a consolidated basis and determined in accordance with GAAP.


 


“Consolidated Indebtedness” means, with
respect to any specified Person as of any date, the sum, without duplication,
of:


 


(1)           the total amount of Indebtedness of such Person and
its Restricted Subsidiaries; plus


 


(2)           the total amount of Indebtedness of any other
Person, to the extent that such Indebtedness has been Guaranteed by, or is
secured by a Lien on the assets of, the referent Person or one or more of its
Restricted Subsidiaries; plus


 


(3)           the aggregate liquidation value of all Disqualified
Stock of such Person and all preferred stock of Restricted Subsidiaries of such
Person,


 


in
each case, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Net Income” means, with
respect to any specified Person for any period, the aggregate of the Net Income
of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided, that the following items shall
be excluded in computing Consolidated Net Income (without duplication):


 


(1)           the Net Income (but not loss) of any Person (other
than the Company) that is not a Restricted Subsidiary or that is accounted for
by the equity method of accounting except to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;


 


(2)           the Net Income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval, that has not
been obtained or, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders;


 


(3)           the Net Income of any Person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition;


 


(4)           the cumulative effect of a change in accounting
principles;


 


(5)           any gains or losses (on an after-tax basis)
attributable to asset dispositions;


 


(6)           all extraordinary, unusual, or non-recurring gains,
charges, expenses or losses;


 

















 


(7)           any non-cash compensation expenses recorded from
grants of stock options, restricted stock and other equity equivalents to
officers, directors and employees;


 


(8)           any impairment charge or asset write off;


 


(9)           net charges associated with or related to any
restructurings;


 


(10)         all financial advisory fees, accounting fees, legal
fees and similar advisory and consulting fees and related costs and expenses of
the Company and its Restricted Subsidiaries incurred as a result of asset acquisitions, Investments,
Asset Sales permitted under Section 4.10 hereof and the issuance of
Capital Stock or Indebtedness, all determined in accordance with GAAP and in
each case eliminating any increase or decrease in income resulting from
non-cash accounting adjustments made in connection with the related asset
acquisition, Investment or Asset Sale;


 


(11)         expenses incurred by the Company or any Restricted
Subsidiary to the extent reimbursed in cash by a third party;


 


(12)         all other non-cash charges, including unrealized
gains or losses on agreements with respect to Hedging Obligations and all
non-cash charges associated with announced restructurings, whether announced
previously or in the future (such non-cash restructuring charges being “Non-Cash Restructuring Charges”); and


 


(13)         income or loss attributable to discontinued
operations (including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued).


 


“Continuing Directors” means, as of any
date of determination, any member of the Board of Directors of the Company who:


 


(1)           was a member of such Board of Directors on the date
of this Supplemental Indenture; or


 


(2)           was nominated for election or elected to such Board
of Directors with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or
election.


 


“Corporate Trust Office of the Trustee”
will be at the address of the Trustee specified in Section 12.02 hereof or
such other address as to which the Trustee may give notice to the Company.


 


“Credit Facilities” means one or more debt
facilities (including, without limitation, the Existing Credit Facilities) or
commercial paper facilities, in each case with banks, investment funds or other
institutional lenders providing for revolving credit loans, term loans,
receivables financings, including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced in any manner (whether upon or
after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors) in whole or in part from time to
time.


 


“Custodian” means the Trustee, as custodian
with respect to the Notes in global form, or any successor entity thereto.


 


“Default” means any event that is, or with the passage of
time or the giving of notice or both would be, an Event of Default.


 


“Definitive Note” means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that
such Note will not bear the Global Note Legend.


 
















 


“Depositary” means, with respect to the
Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this Supplemental
Indenture.


 


“Description of Notes” means the description of notes section
of the Company’s prospectus supplement, dated November 15, 2010, relating
to the initial offering of the Notes.


 


“Designated Noncash Consideration” means
the fair market value of noncash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset Sale that is so
designated as Designated Noncash Consideration pursuant to an Officers’
Certificate, setting forth the basis of such valuation, executed by the
principal executive officer and the principal financial officer of the Company,
less the amount of cash or Cash Equivalents received in connection with a sale
of such Designated Noncash Consideration.


 


“Disqualified Stock” means any Capital
Stock that, by its terms, or by the terms of any security into which it is
convertible or for which it is exchangeable, in each case at the option of the
holder of the security, or upon the happening of any event, matures, excluding
any maturity as the result of the optional redemption thereof, or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder, in whole or in part, on or prior to the
date on which the Notes mature, except to the extent that such Capital Stock is
solely redeemable with, or solely exchangeable for, any Equity Interests of the
Company that are not Disqualified Stock; provided,
however, that only the portion of
the Capital Stock or other security which so matures, is mandatorily redeemable
or is so redeemable at the option of the holder prior to such date will be
deemed to be Disqualified Stock; provided
further that if such Capital
Stock or other security is issued to any employee or to any plan for the
benefit of employees of the Company or its Subsidiaries or by any such plan to
such employees, such Capital Stock or other security will not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Company or any of its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or
disability.  Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof.


 


“Domestic Subsidiary” means any Restricted
Subsidiary of the Company that was formed under the laws of the United States
or any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of
the Company or its Domestic Subsidiaries.


 


“Equity Interests” means Capital Stock and
all warrants, options or other rights to acquire Capital Stock, but excluding
any debt security that is convertible into, or exchangeable for, Capital Stock.


 


“Equity Offering” means:


 


(1)           an offering or sale of Capital Stock, other than
Disqualified Stock, of the Company; or


 


(2)           the contribution of cash to the Company as an equity
capital contribution, other than in respect of Disqualified Stock.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Excluded Subsidiary” means such
Subsidiaries of the Company as may from time to time be designated by the
Company as “Excluded Subsidiaries” pursuant to an Officers’ Certificate
delivered to the Trustee; provided,
that each such Subsidiary will be an Excluded Subsidiary only if and only for
so long as:


 


(1)           the aggregate of the net sales of all such
Subsidiaries will not exceed $10.0 million in any twelve-month period; and


 

















 


(2)           the aggregate of the assets, including capitalization,
of all such Subsidiaries as of any date will not exceed $10.0 million.


 


“Existing Credit Facilities” means that
certain credit agreement, dated October 13, 2005, as amended.


 


“Existing Indebtedness” means all
Indebtedness of the Company and the Company’s Restricted Subsidiaries, other
than Indebtedness under Credit Facilities, in existence on the date of this
Supplemental Indenture.


 


“Existing Senior Notes” means up to $375.0
million of the Company’s 7.125% Senior Notes due 2016, up to $450.0 million of
the Company’s 6.625% Senior Notes due 2018, up to $325.0 million of the Company’s
7.375% Senior Notes due 2019 and up to $500 million of the Company’s 6.75%
Senior Notes due 2020.


 


“Fitch” means Fitch Inc., and its successors.


 


“Fixed Charge Coverage Ratio” means with
respect to any specified Person for any period, the ratio of the Consolidated
Cash Flow of such Person and its Restricted Subsidiaries for such period to the
Fixed Charges of such Person and its Restricted Subsidiaries for such period.  In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays,
repurchases, redeems, defeases or otherwise discharges any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the “Calculation Date”),
then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect
to such incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.


 


In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:


 


(1)           acquisitions and dispositions that have been made by
the specified Person or any of its Restricted Subsidiaries, including through
mergers or consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries, and
including any related financing transactions and giving effect to the
application of proceeds from any dispositions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date will be deemed to have occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for such reference
period will be calculated without giving effect to clause (3) of the
proviso set forth in the definition of Consolidated Net Income;


 


(2)           the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, will be excluded; and


 


(3)           the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date;


 


provided that to the
extent that clause (1), (2) or (3) of this paragraph requires that
pro forma effect be given to an acquisition, disposition or discontinued
operations, as applicable, such pro forma calculation shall be made in good
faith by a responsible financial or accounting officer of the Company (any may
include, for the avoidance of doubt and without duplication, cost savings,
synergies and operating expense resulting from such acquisition whether or not
such cost savings, synergies or operating expense reductions would be allowed
under Regulation S-X promulgated by the SEC or any other regulation or policy
of the SEC).


 

















 


“Fixed Charges” means, with respect to any
specified Person for any period, the sum, without duplication, of:


 


(1)           the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, to the extent properly characterized as interest
expense in accordance with GAAP, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred
in respect of letter of credit or bankers’ acceptance financings, and net
payments, if any, pursuant to Hedging Obligations;


 


(2)           the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period;


 


(3)           any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon; and


 


(4)           all dividend payments, whether or not in cash, on
any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company, other than Disqualified Stock, or to the Company or a
Restricted Subsidiary of the Company.


 


“Foreign Subsidiaries” means Subsidiaries
of the Company that are not Domestic Subsidiaries.


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board and
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are applicable as of
the date of this Supplemental Indenture.


 


“Global Note Legend” means the legend set
forth in Section 2.06(f), which is required to be placed on all Global
Notes issued under this Supplemental Indenture.


 


“Global Notes” means, individually and
collectively, each of the Global Notes, in the form of Exhibit A
hereto issued in accordance with Section 2.01 hereof.


 


“Government Securities” means direct
obligations of, or obligations guaranteed by, the United States of America, and
the payment for which the United States pledges its full faith and credit.


 


“Guarantee” means a guarantee, other than
by endorsement of negotiable instruments for collection in the ordinary course
of business, direct or indirect, in any manner including, without limitation,
by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness.


 


“Guarantors” means:


 


(1)           each Domestic Subsidiary of the Company as of the
date of this Supplemental Indenture that Guarantees any other Indebtedness of
the Company (other than Ball Capital Corp. II, Ball Asia Pacific, any other
Unrestricted Subsidiary and the Excluded Subsidiaries); and


 


(2)           any other Subsidiary of the Company that executes a
supplemental indenture in the form of Exhibit C and becomes a
Guarantor in accordance with the provisions of this Supplemental Indenture;


 


and,
in each case, their respective successors and assigns.


 

















 


“Hedging Counterparty” means, with respect
to any Hedging Obligations, any counterparty thereto, at the time such Hedging
Obligations are initially incurred, that is a holder, or an Affiliate thereof,
of Indebtedness under any Credit Facilities. 
For clarification, such counterparty (and its successors and assigns)
will be deemed a Hedging Counterparty even if it or its Affiliate ceases to be
a holder of Indebtedness under any Credit Facilities for any reason.


 


“Hedging Obligations” means, with respect
to any specified Person, the net payment Obligations of such Person under:


 


(1)           interest rate swap agreements (including from fixed
to floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements; and


 


(2)           other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange rates or commodity
prices.


 


“Holder” means a Person in whose name a
Note is registered.


 


“Incur” means, to directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise. 
The term “Incurrence” has a correlative meaning.  For the avoidance of doubt the Incurrence of
Indebtedness by a Subsidiary of a Person will not be deemed to be an indirect
Incurrence of Indebtedness by the referent Person.


 


“Indebtedness” means, with respect to any
specified Person, any indebtedness of such Person, whether or not contingent:


 


(1)           in respect of borrowed money;


 


(2)           evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in respect
thereof;


 


(3)           in respect of banker’s acceptances;


 


(4)           representing Capital Lease Obligations;


 


(5)           representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable; or


 


(6)           representing Hedging Obligations not entered into on
behalf of a customer,


 


if
and to the extent any of the preceding items, other than letters of credit and
Hedging Obligations, would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP.  In addition, the term “Indebtedness” includes
all Indebtedness of others secured by a Lien on any asset of the specified
Person, whether or not such Indebtedness is assumed by the specified Person,
and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person or any liability of any person,
whether or not contingent and whether or not it appears on the balance sheet of
such Person.


 


The
amount of any Indebtedness outstanding as of any date will be:


 


(1)           the accreted value of the Indebtedness, in the case
of any Indebtedness that does not require the current payment of interest;


 


(2)           the principal amount of the Indebtedness in the case
of any other Indebtedness; and


 

















 


(3)           in respect of Indebtedness of another Person secured
by a Lien on the assets of the specified Person, the lesser of:


 


(a)           the fair market value of
such assets at the date of determination; and


 


(b)           the amount of the
Indebtedness of the other Person.


 


“Indenture” means the Base Indenture, as
supplemented by this Supplemental Indenture, governing the Notes, in each case,
as amended, supplemented or restated from time to time.


 


“Indirect Participant” means a Person who
holds a beneficial interest in a Global Note through a Participant.


 


“Initial Notes” means the first $500.0
million aggregate principal amount of Notes issued under this Supplemental
Indenture on the date hereof.


 


“Investments” means, with respect to any
Person, all investments by such Person in other Persons, including Affiliates,
in the form of loans, including Guarantees of Indebtedness or other
Obligations, advances or capital contributions, excluding commission, travel,
entertainment, moving and similar advances to officers and employees made in the
ordinary course of business, prepaid expenses and accounts receivable,
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with
GAAP.  If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Equity Interests
of any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
direct or indirect Restricted Subsidiary of the Company, the Company or such
Restricted Subsidiary, as the case may be, will be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Restricted Subsidiary that were not sold
or disposed of in an amount determined as provided in the final paragraph of Section 4.07
hereof.


 


“Investment Grade” means a rating equal to or higher
than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and
BBB- (or the equivalent) by S&P, and the equivalent investment grade credit
rating from any Replacement Rating Agency or Replacement Rating Agencies, if
any.


 


“Legal Holiday” means a Saturday, a Sunday
or a day on which banking institutions in the City of New York, the city in
which the principal office of the Trustee is located or at a place of payment
are authorized by law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest will accrue on such payment for
the intervening period.


 


“Leverage Ratio” means, with respect to any
specified Person as of any date, the ratio of (a) the Consolidated
Indebtedness of the Company as of such date to (b) the Consolidated Cash
Flow of the Company for the four most recent full fiscal quarters ending
immediately prior to such date for which internal financial statements are
available.  For purposes of calculating
the Leverage Ratio, Consolidated Cash Flow will be calculated on a pro forma
basis as provided in the definition of “Fixed Charge Coverage Ratio.”


 


“Lien” means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement or any lease in the nature thereof; provided that in no event will an
operating lease be deemed to constitute a Lien.


 


“Limited Originator Recourse” means a
reimbursement obligation to the Company or a Restricted Subsidiary in
connection with a drawing on a letter of credit, revolving loan commitment,
cash collateral account or other such credit enhancement issued to support
Indebtedness of a Securitization Entity under a facility for the financing of
trade receivables; provided, that
the available amount of any such form of credit enhancement at any time will
not exceed 10% of the principal amount of such Indebtedness at such time.


 

















 


“Moody’s” means Moody’s Investors Service, Inc., and its
successors.


 


“Net Income” means, with respect to any specified
Person, the net income or loss of such Person, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:


 


(1)           any gain or loss, together with any related
provision for taxes on such gain or loss, realized in connection with the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries;


 


(2)           any extraordinary gain or loss, together with any
related provision for taxes on such extraordinary gain or loss; and


 


(3)           any one-time noncash charges (including legal,
accounting, debt issuance and debt retirement costs) resulting from the
Transactions.


 


“Net Proceeds” means the aggregate cash
proceeds or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale, including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale, net of all costs relating to such Asset Sale,
including, without limitation, legal, accounting, investment banking and
brokers fees, and sales and underwriting commissions, and any relocation
expenses incurred as a result thereof, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), and amounts required to be applied to the
repayment of Indebtedness, other than Indebtedness under a Credit Facility secured
by a Lien on the asset or assets that were the subject of such Asset Sale and
any reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.


 


“Non-Recourse Debt” means Indebtedness:


 


(1)           as to which neither the Company nor any of its
Restricted Subsidiaries, other than a Securitization Entity, if applicable,
(a) provides credit support of any kind, including any undertaking,
agreement or instrument that would constitute Indebtedness, (b) is directly
or indirectly liable as a guarantor or otherwise or (c) constitutes the
lender;


 


(2)           no default with respect to which, including any
rights that the holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary, would permit upon notice, lapse of time or
both any holder of any other Indebtedness, other than the Notes, of the Company
or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or
payable prior to its stated maturity; and


 


(3)           as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries, other than a Securitization Entity,
if applicable.


 


“Non-U.S. Person” means a Person who is not
a U.S. Person.


 


“Notes” has the meaning assigned to it in
the preamble to this Supplemental Indenture. 
The Initial Notes and the Additional Notes will be treated as a single
class for all purposes under this Supplemental Indenture, and unless the
context otherwise requires, all references to the Notes will include the
Initial Notes and any Additional Notes.


 


“Obligations” means any principal, premium,
if any, interest, including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company or its
Restricted Subsidiaries whether or not a claim for post-filing interest is
allowed in such proceeding, penalties, fees, charges, expenses, indemnifications,
reimbursement obligations, damages, including liquidated damages, guarantees
and other liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereof.


 

















 


“Officer” means, with respect to any
Person, the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.


 


“Officers’ Certificate” means a certificate
signed on behalf of the Company by two Officers of the Company, one of whom
must be a vice-president, the principal financial officer or the principal
accounting officer of the Company, that meets the requirements of Sections
12.04 and 12.05 hereof.


 


“Opinion of Counsel” means an opinion from
legal counsel who is acceptable to the Trustee, that meets the requirements of
Sections 12.04 and 12.05 hereof.  The
counsel may be an employee of or counsel to the Company, any Subsidiary of the
Company or the Trustee.


 


“Participant” means, with respect to the
Depositary, a Person who has an account with the Depositary.


 


“Permitted Business” means the lines of
business conducted by the Company and its Restricted Subsidiaries on the date
of this Supplemental Indenture and businesses substantially similar, related or
incidental thereto or reasonable extensions thereof.


 


“Permitted Investments” means:


 


(1)           any Investment in the Company or in a Restricted
Subsidiary of the Company;


 


(2)           any Investment in Cash Equivalents;


 


(3)           any Investment by the Company or any Restricted
Subsidiary of the Company in a Person engaged in a Permitted Business, if as a
result of such Investment:


 


(a)           such Person becomes a
Restricted Subsidiary of the Company; or


 


(b)           such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company;


 


(4)           any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof (including, without limitation, any
sale or other disposition of all or a portion of the business constituting the
aerospace and technologies segment of the Company) or any other disposition of
assets not constituting an Asset Sale;


 


(5)           any Investment made in exchange for the issuance of
Equity Interests, other than Disqualified Stock, of the Company;


 


(6)           other Investments in any Person having an aggregate
fair market value, measured on the date each such Investment was made and
without giving effect to subsequent changes in value, when taken together with
all other Investments made pursuant to this clause (6) since the date of
this Supplemental Indenture not to exceed 2.5% of Total Assets;


 


(7)           Hedging Obligations;


 


(8)           any Investment by the Company or a Restricted
Subsidiary of the Company in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a Qualified
Securitization Transaction; provided, that
any Investment in a Securitization Entity is in the form of a Purchase Money
Note or an Equity Interest;


 

















 


(9)           any Investment existing on the date of this
Supplemental Indenture and any amendment, modification, restatement,
supplement, extension, renewal, refunding, replacement, or refinancing, in
whole or in part, thereof;


 


(10)         any Investments received in satisfaction of
judgments, settlements of debt or compromises of obligations incurred in the
ordinary course of business, including pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of any trade creditor
or customer;


 


(11)         any Investment in Ball Asia Pacific, the proceeds of
which are used to permanently repay Indebtedness of Ball Asia Pacific in an
amount up to the amount that was outstanding on August 10, 1998, plus any
interest, prepayment penalty and reasonable costs associated with such
repayment;


 


(12)         Investments in Permitted Joint Ventures of up to
$250.0 million outstanding at any time;


 


(13)         receivables owing to the Company or any Restricted
Subsidiary of the Company if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
provided that such trade terms
may include such concessionary trade terms as the Company or any such
Restricted Subsidiary deems reasonable under the circumstances;


 


(14)         Investments deemed to have been made as a result of
the acquisition of a Person that at the time of such acquisition held
instruments constituting Investments that were not acquired in contemplation of
the acquisition of such Person;


 


(15)         Investments in prepaid expenses and lease, utility
and workers’ compensation performance and other similar deposits;


 


(16)         commission, payroll, travel and similar advances to
employees in the ordinary course of business;


 


(17)         Investments consisting of intercompany indebtedness
not prohibited under this Supplemental Indenture;


 


(18)         Investments consisting of the licensing or
contribution of intellectual property pursuant to joint marketing arrangements
with other Persons;


 


(19)         Investments consisting of purchases and acquisitions
of inventory, supplies, materials and equipment or purchases of contract rights
or licenses or leases of intellectual property, in each case in the ordinary
course of business; and


 


(20)         other Investments in any Person other than an
Affiliate of the Company having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (20) that are at the time outstanding not to exceed $350.0
million.


 


“Permitted Joint Venture” means an entity
characterized as a joint venture, however structured, engaged in a Permitted
Business and in which the Company or a Restricted Subsidiary (a) owns at
least 40% of the ownership interest or (b) has a right to receive at least
40% of the profits or distributions; provided
that such joint venture is not a Subsidiary of the Company.


 


“Permitted Liens” means:


 


(1)           Liens on assets, including, without limitation, the
capital stock of a Subsidiary, of the Company or any of its Restricted
Subsidiaries to secure Indebtedness under any Credit Facilities that is
permitted by the terms of this Supplemental Indenture to be incurred, whether
pursuant to the terms of the first or second paragraph of Section 4.09
hereof or otherwise;


 

















 


(2)           Liens on the assets, including, but not limited to,
the capital stock of a Subsidiary, of the Company or any of its Restricted
Subsidiaries to secure Indebtedness in respect of any Hedging Obligations to
any Hedging Counterparty, but only to the extent that such Hedging Obligations
relate to Indebtedness that is permitted by the terms of this Supplemental
Indenture to be incurred;


 


(3)           Liens on property or assets of a Person existing at
the time such Person is acquired by, or merged into or consolidated with, the
Company or any Restricted Subsidiary of the Company; provided,
that such Liens were not put in place in contemplation thereof and do not
extend to any property or assets other than those of the Person acquired by, or
merged into or consolidated with, the Company or any Restricted Subsidiary of
the Company;


 


(4)           Liens on property or assets existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
provided, that such Liens were not put
in place in contemplation thereof and only extend to the property or assets so
acquired;


 


(5)           Liens existing on the date of this Supplemental
Indenture;


 


(6)           Liens to secure any Permitted Refinancing
Indebtedness incurred to refinance any Indebtedness secured by any Lien
referred to in the foregoing clauses (1) through (5), as the case may be,
at the time the original Lien became a Permitted Lien;


 


(7)           Liens in favor of the Company or any Restricted
Subsidiary of the Company;


 


(8)           Liens to secure Indebtedness permitted by clause (xvi) of
the definition of “Permitted Debt;”


 


(9)           Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $100.0 million in the aggregate at any one time
outstanding and that (a) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit, other than trade credit in the
ordinary course of business, and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use thereof in
the operation of business by the Company or such Restricted Subsidiary;


 


(10)         Liens incurred or deposits made to secure the
performance of statutory or regulatory obligations, bankers’ acceptances,
surety or appeal bonds, performance bonds, deposits to secure the performance
of tenders, bids, trade contracts, government contracts, import duties, payment
of rent, performance, letters of credit and return-of-money bonds, leases or
licenses or other obligations of a like nature incurred in the ordinary course
of business, including, without limitation, landlord Liens on leased
properties;


 


(11)         Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent, that are not subject to penalties or
interest for non-payment or that are being contested in good faith by
appropriate proceedings; provided,
that any reserve or other appropriate provision as will be required to conform
with GAAP will have been made therefor;


 


(12)         Liens to secure Indebtedness, including Capital
Lease Obligations, permitted by clause (iv) of the definition of “Permitted
Debt;”


 


(13)         carriers’, warehousemen’s, mechanics’, landlords’,
materialmen’s, repairmen’s, suppliers’ or other like Liens arising in the
ordinary course of business and deposits made to obtain the release of such
liens and with respect of obligations not overdue for a period in excess of 60
days or which are being contested in good faith by appropriate proceedings; provided, that any reserve or other appropriate provision as
will be required to conform with GAAP will have been made therefor;


 

















 


(14)         easements, rights-of-way, zoning ordinances and
similar charges, restrictions, exceptions or other irregularities, reservations
of, or rights of others for:  licenses,
sewers, electric lines, telegraph and telephone lines, and other similar
encumbrances or title defects incurred, or leases or subleases granted to
others, in the ordinary course of business, which do not in any case materially
detract from the value of the property subject thereto or do not materially
interfere with the ordinary conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole;


 


(15)         Liens in favor of customs and revenue authorities to
secure payment of customs duties in connection with the importation of goods in
the ordinary course of business and other similar Liens arising in the ordinary
course of business;


 


(16)         leases or subleases granted to third Persons not
materially interfering with the ordinary course of business of the Company and
its Restricted Subsidiaries taken as a whole;


 


(17)         Liens, other than any Lien imposed by ERISA or any rule or
regulation promulgated thereunder, incurred or pledges or deposits made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security;


 


(18)         deposits made in the ordinary course of business to
secure liability to insurance carriers;


 


(19)         Liens for purchase money obligations, including
refinancings thereof permitted under Section 4.09 hereof, provided, that (a) the Indebtedness secured by any such
Lien is permitted under Section 4.09 hereof and (b) any such Lien
encumbers only the asset so purchased;


 


(20)         any attachment or judgment Lien not constituting an
Event of Default under clause (i) of Section 6.01 hereof and Liens
arising from the rendering of a judgment that is not a final judgment or order
against the Company or any Restricted Subsidiary with respect to which the
Company or such Restricted Subsidiary is then proceeding with an appeal or
other proceeding for review or in connection with surety or appeal bonds in
connection with such attachment or judgment;


 


(21)         any interest or title of a lessor or sublessor under
any operating lease or capital lease;


 


(22)         Liens on assets transferred to a Securitization
Entity or on assets of a Securitization Entity, in either case incurred in
connection with a Qualified Securitization Transaction;


 


(23)         Liens under licensing agreements for use of
intellectual property entered into in the ordinary course of business;


 


(24)         Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Company and
its Restricted Subsidiaries in the ordinary course of business; and


 


(25)         Rights of set-off of banks and other Persons.


 


“Permitted Refinancing Indebtedness” means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund other Indebtedness of the Company or any of
its Restricted Subsidiaries, other than intercompany Indebtedness; provided, that:


 


(1)           the principal amount, or accreted value, if
applicable, of such Permitted Refinancing Indebtedness does not exceed the
principal amount, or accreted value, if applicable, of the Indebtedness
extended, refinanced, renewed, replaced, defeased or refunded, plus all accrued
interest and premiums on the Indebtedness and the amount of all fees, expenses,
prepayment penalties and premiums incurred in connection therewith;


 
















 


(2)           such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;


 


(3)           if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment
to, the Notes on terms at least as favorable to the holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and


 


(4)           such Indebtedness is incurred either by the Company
or by the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.


 


“Person” means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, limited liability company or government or any
agency or political subdivision thereof or any other entity.


 


“Purchase Money Note” means a promissory
note of a Securitization Entity evidencing a line of credit, which may be
irrevocable, from the Company or any Restricted Subsidiary of the Company in
connection with a Qualified Securitization Transaction, which note will be
repaid from cash available to the Securitization Entity, other than amounts
required to be established as reserves pursuant to agreements, amounts paid to
investors in respect of interest, principal and other amounts owing to such
investors and amounts paid in connection with the purchase of newly generated
receivables.


 


“Qualified Securitization Transaction”
means any transaction or series of transactions pursuant to which the Company
or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to
(a) a Securitization Entity, in the case of a transfer by the Company or
any of its Restricted Subsidiaries, and (b) any other Person, in case of a
transfer by a Securitization Entity, or may grant a security interest in, any
receivables, whether now existing or arising or acquired in the future, of the
Company or any of its Restricted Subsidiaries, and any assets related thereto
including, without limitation, all collateral securing such receivables, all
contracts and contract rights and all Guarantees or other obligations in
respect of such receivables, proceeds of such receivables and other assets,
including contract rights, which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving receivables, collectively, “transferred
assets”; provided, that, in the
case of any such transfer by the Company or any of its Restricted Subsidiaries,
the transferor receives cash or Purchase Money Notes in an amount which, when
aggregated with the cash and Purchase Money Notes received by the Company and
its Restricted Subsidiaries upon all other such transfers of transferred assets
during the 90 days preceding such transfer, is at least equal to 75% of the
aggregate face amount of all receivables so transferred during such day and the
90 preceding days.


 


“Rating Agencies” means each of Fitch, Moody’s and S&P and
any Replacement Agency selected by the Company (as certified by a resolution by
the Board of Directors) if any of Fitch, Moody’s or S&P ceases to rate the
notes or fails to make a rating of the notes publicly available for reasons
outside the control of the Company.


 


“Redemption Date” has the meaning set forth in Section 3.07(a).


 


“Replacement Rating Agency” means a “nationally
recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act selected by the Company (as certified by a resolution by the
Board of Directors) as a replacement agency for Fitch, Moody’s or S&P, or
all of them, as the case may be, if any of Fitch, Moody’s or S&P ceases to
rate the notes or fails to make a rating of the notes publicly available for
reasons outside the control of the Company.


 


“Responsible Officer” when used with
respect to the Trustee, means any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Trustee who customarily performs functions similar to those 


 

















 


performed
by the persons who at the time will be such officers, respectively, or to whom
any corporate trust matter is referred because of such person’s knowledge of
and familiarity with the particular subject and who will have direct responsibility
for the administration of this Supplemental Indenture.


 


“Restricted Investment” means an Investment
other than a Permitted Investment.


 


“Restricted Subsidiary” of a Person means
any Subsidiary of the referent Person that is not an Unrestricted Subsidiary; provided, that, on the date of this
Supplemental Indenture, all Subsidiaries of the Company other than Ball Asia
Pacific, Ball Capital Corp. II and the Excluded Subsidiaries will be Restricted
Subsidiaries of the Company.


 


“S&P” means Standard & Poor’s Ratings Services,
a division of the McGraw-Hill Corporation, Inc., and its successors.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities Act” means the Securities Act
of 1933, as amended.


 


“Securitization Entity” means a Wholly-Owned
Restricted Subsidiary of the Company, or another Person in which the Company or
any Restricted Subsidiary of the Company makes an Investment and to which the
Company or any Restricted Subsidiary of the Company transfers receivables and
related assets, that engages in no activities other than in connection with the
financing of receivables and that is designated by the Board of the Directors
of the Company, as provided below, as a Securitization Entity (a) no
portion of the Indebtedness or any other Obligations, contingent or otherwise,
of which (1) is guaranteed by the Company or any Restricted Subsidiary of
the Company, other than the Securitization Entity, other than pursuant to
Standard Securitization Undertakings or Limited Originator Recourse, (2) is
recourse to or obligates the Company or any Restricted Subsidiary of the
Company, other than the Securitization Entity, in any way other than pursuant
to Standard Securitization Undertakings or Limited Originator Recourse or
(3) subjects any property or asset of the Company or any Restricted
Subsidiary of the Company, other than the Securitization Entity, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings or Limited Originator
Recourse, (b) with which neither the Company nor any Restricted Subsidiary
of the Company has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing receivables of such
entity and (c) to which neither the Company nor any Restricted Subsidiary
of the Company has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating
results.  Any such designation by the
Board of Directors of the Company will be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors
of the Company giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing conditions.


 


“Significant Subsidiary” means any
Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect on the date of this Supplemental Indenture.


 


“Standard Securitization Undertakings”
means representations, warranties, covenants and indemnities entered into by
the Company or any Subsidiary of the Company that are reasonably customary in
receivables securitization transactions.


 


“Stated Maturity” means, with respect to
any installment of interest or principal on any series of Indebtedness, the
date on which the payment of interest or principal was scheduled to be paid in
the original documentation governing such Indebtedness, and will not include
any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.


 


“Subsidiary” means, with respect to any
specified Person:


 

















 


(1)           any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled, without regard to the occurrence of any contingency, to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person; and


 


(2)           any partnership (a) the sole general partner or
the managing general partner of which is such Person or an entity described in
clause (1) and related to such Person or (b) the only general
partners of which are such Person or one or more entities described in clause (1) and
related to such Person, or any combination thereof.


 


“Supplemental Indenture” means this Fifth
Supplemental Indenture, dated as of the date hereof, by and among the Company,
the Guarantors and the Trustee, governing the Notes, as amended, supplemented
or otherwise modified from time to time in accordance with the Base Indenture
and the terms hereof.


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this
Supplemental Indenture is qualified under the TIA.


 


“Total Assets” means the total assets of
the Company and its Restricted Subsidiaries on a consolidated basis determined
in accordance with GAAP, as shown on the most recently available consolidated
balance sheet of the Company and its Restricted Subsidiaries.


 


“Transactions” means the
offering of the Notes under this Supplemental Indenture and the application of
the net proceeds therefrom and the payment of related fees and expenses.


 


“Treasury Rate” means, as
of any Redemption Date, the yield to maturity as of such Redemption Date of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical
Release H.15 (519) that has become publicly available at least
two business days prior to the Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to November 15,
2015; provided, however, that if
the period from the Redemption Date to November 15, 2015, is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.


 


“Unrestricted Subsidiary” means
(a) each of Ball Asia Pacific, Ball Capital Corp. II, and the Excluded
Subsidiaries and (b) any Subsidiary of the Company that is designated by
the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to
a board resolution, but only to the extent that such Subsidiary:


 


(1)           has no Indebtedness other than Non-Recourse Debt;


 


(2)           except as permitted by Section 4.11, is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company;


 


(3)           is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person’s net worth; and


 


(4)           has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any
of its Restricted Subsidiaries; provided, however, that the Company and its Restricted Subsidiaries
may guarantee the performance of Unrestricted Subsidiaries in the ordinary
course of business except for guarantees of Obligations in respect of borrowed
money.


 


Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be evidenced to the Trustee by filing with the Trustee a certified copy of the
board resolution giving effect to such designation and an 


 

















 


Officers’
Certificate certifying that such designation complied with the preceding
conditions and was permitted by Section 4.07 hereof.  If, at any time, any such Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Supplemental Indenture and any Indebtedness of such Subsidiary
will be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date and, if such Indebtedness is not permitted to be incurred as of such
date under Section 4.09 hereof, the Company will be in default of such Section 4.09.  The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation will only be permitted if (1) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as if
such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence
following such designation.


 


“U.S. Person” means a U.S. person as
defined in Rule 902(o) under the Securities Act.


 


“Voting Stock” of any specified Person as
of any date means the Capital Stock of such Person that is at the time entitled
to vote in the election of the Board of Directors of such Person.


 


“Weighted Average Life to Maturity” means,
when applied to any Indebtedness at any date, the number of years obtained by
dividing:


 


(1)           the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at final maturity,
in respect of the Indebtedness, by (b) the number of years, calculated to
the nearest one-twelfth, that will elapse between such date and the making of
such payment; by


 


(2)           the then outstanding principal amount of such
Indebtedness.


 


“Wholly-owned Restricted Subsidiary” of any
specified Person means a Restricted Subsidiary, 100% of the outstanding Capital
Stock and other Equity Interests of which are directly or indirectly owned by
the Company.


 


Section 1.02         Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Calculation Date”

  	
   

  	
  1.01

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control Payment

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.09

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Other Indebtedness”

  	
   

  	
  4.16

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Default”

  	
   

  	
  6.01

  	
   

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  



 

















 


	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  	
   

  



 


Section 1.03         Incorporation by Reference of
Trust Indenture Act.


 


Whenever
this Supplemental Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Supplemental Indenture.


 


The
following TIA terms used in this Supplemental Indenture have the following
meanings:


 


“indenture securities” means the Notes;


 


“indenture security holder” means a Holder
of a Note;


 


“indenture to be qualified” means this
Supplemental Indenture;


 


“indenture trustee” or “institutional trustee” means the
Trustee; and


 


“obligor” on the Notes and the Guarantees
means the Company and the Guarantors, respectively, and any successor obligor
upon the Notes and the Guarantees, respectively.


 


All
other terms used in this Supplemental Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.


 


Section 1.04         Rules of Construction.


 


Unless
the context otherwise requires:


 


(1)           a term has the meaning assigned to it;


 


(2)           an accounting term not otherwise defined herein has
the meaning assigned to it in accordance with GAAP;


 


(3)           “or” is not exclusive;


 


(4)           words in the singular include the plural, and in the
plural include the singular;


 


(5)           provisions apply to successive events and
transactions;


 


(6)           references to sections of or rules under the
Securities Act will be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time;


 


(7)           “will” shall be interpreted to express a command;
and


 


(8)           references to sections of the Indenture refer to
sections of this Supplemental Indenture.


 


Section 1.05         Relationship with Base Indenture.


 


The
terms and provisions contained in the Base Indenture will constitute, and are
hereby expressly made, a part of this Supplemental Indenture and the Company,
the Guarantors and the Trustee, by their execution and delivery of this
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby.  However, to the extent
any provision of the Base Indenture conflicts with the express provisions of
this Supplemental Indenture, the provisions of this Supplemental Indenture will
govern and be controlling.


 

















 


The
Trustee accepts the amendment of the Base Indenture effected by this
Supplemental Indenture and agrees to execute the trust created by the Base
Indenture as hereby amended, but only upon the terms and conditions set forth in
this Supplemental Indenture, including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee in the performance
of the trust created by the Base Indenture, and without limiting the generality
of the foregoing, the Trustee will not be responsible in any manner whatsoever
for or with respect to any of the recitals or statements contained herein, all
of which recitals or statements are made solely by the Company and the
Guarantors, or for or with respect to (1) the validity or sufficiency of
this Supplemental Indenture or any of the terms or provisions hereof,
(2) the proper authorization hereof by the Company and the Guarantors,
(3) the due execution hereof by the Company and the Guarantors or (4) the
consequences (direct or indirect and whether deliberate or inadvertent) of any
amendment herein provided for, and the Trustee makes no representation with
respect to any such matters.


 


ARTICLE 2.


THE NOTES


 


Section 2.01         Form and Dating.


 


(a)           General.  The Notes and the Trustee’s certificate of
authentication will be substantially in the form of Exhibit A
hereto.  The Notes may have notations,
legends or endorsements required by law, stock exchange rule or
usage.  Each Note will be dated the date
of its authentication.  The Notes will be
in denominations of $2,000 and integral multiples of $1,000 in excess thereof.


 


The
terms and provisions contained in the Notes will constitute, and are hereby
expressly made, a part of this Supplemental Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Supplemental
Indenture, expressly agree to such terms and provisions and to be bound
thereby.  However, to the extent any
provision of any Note conflicts with the express provisions of the Base
Indenture, the provisions of the Note will govern and be controlling, and to
the extent any provision of the Note conflicts with the express provisions of
this Supplemental Indenture, the provisions of this Supplemental Indenture will
govern and be controlling.


 


(b)           Global
Notes.  Notes issued in global form
will be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon). 
Notes issued in definitive form will be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon).  Each Global Note will represent such of the
outstanding Notes as will be specified therein and each will provide that it
will represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as  required by Section 2.06 hereof.


 


Section 2.02         Execution and Authentication.


 


One
Officer will sign the Notes for the Company and the Guarantees for the
Guarantors by manual or facsimile signature or a signature by the means of an
electronic transmission (including a pdf). 
If an Officer whose signature is on a Note and/or a Guarantee no longer
holds that office at the time such Note and/or Guarantee is authenticated, such
Note and/or Guarantee will nevertheless be valid.


 


A
Note and/or a Guarantee will not be valid until authenticated by the manual
signature of the Trustee.  The signature
will be conclusive evidence that the Note or Guarantee, as applicable, has been
authenticated under this Supplemental Indenture.


 


The
Trustee will, upon a written order of the Company signed by one Officer (an “Authentication Order”), authenticate Notes
and Guarantees for original issue in accordance with this Supplemental
Indenture, including any Additional Notes issued pursuant to Section 2.14
hereof.


 

















 


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  An authenticating
agent may authenticate Notes and Guarantees whenever the Trustee may do
so.  Each reference in this Supplemental
Indenture to authentication by the Trustee includes authentication by such
agent.  An authenticating agent has the
same rights as an Agent to deal with Holders, the Company or an Affiliate of
the Company.


 


Section 2.03         Registrar and Paying Agent.


 


The
Company will maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar will keep a register of the
Notes and of their transfer and exchange. 
The Company may appoint one or more co-registrars and one or more
additional paying agents.  The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional
paying agent.  The Company may change any
Paying Agent or Registrar without notice to any Holder.  The Company will notify the Trustee in
writing of the name and address of any Agent not a party to this Supplemental
Indenture.  If the Company fails to appoint
or maintain another entity as Registrar or Paying Agent, the Trustee will act
as such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


The
Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to
the Global Notes.


 


The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Custodian with respect to the Global Notes.


 


Section 2.04         Paying Agent to Hold Money in
Trust.


 


The
Company will require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and will notify the Trustee of any
default by the Company in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) will have no further
liability for the money.  If the Company
or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying
Agent.  Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee will serve as
Paying Agent for the Notes.


 


Section 2.05         Holder Lists.


 


The Trustee will preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of all Holders and will otherwise comply with
TIA Section 312(a).  If the Trustee
is not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company will otherwise comply with TIA Section 312(a).


 


Section 2.06         Transfer and Exchange.


 


(a)           Transfer and Exchange of Global
Notes.  A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. 
All Global Notes will be exchanged by the Company for Definitive Notes
if:


 


(1)           the Company delivers to the
Trustee notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under
the 


 

















 


Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 120 days
after the date of such notice from the Depositary; or


 


(2)           the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should
be exchanged for Definitive Notes and delivers a written notice to such effect
to the Trustee.


 


Upon
the occurrence of either of the preceding events in (1) or (2) above,
Definitive Notes will be issued in such names and in any approved denominations
as the Depositary will instruct the Trustee. 
Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.07 and 2.10 hereof. 
Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, will be authenticated and delivered in the form of, and will
be, a Global Note.  A Global Note may not
be exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Sections 2.06(b), (c) or (g) hereof.


 


(b)           Transfer and Exchange of
Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Supplemental Indenture and the
Applicable Procedures.  Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one
or more of the other following subparagraphs, as applicable:


 


(1)           Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Global Note may
be transferred to Persons who take delivery thereof in the form of a beneficial
interest in a Global Note.  No written
orders or instructions will be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(1).


 


(2)           All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.   In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)          (i) a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged; and  (ii) instructions given in accordance
with the Applicable Procedures containing information regarding the Participant
account to be credited with such increase.


 


Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Supplemental Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee will adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.


 


(c)           Transfer or Exchange of
Beneficial Interests for Definitive Notes. 
If any holder of a beneficial interest in a Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(g) hereof,
and the Company will execute and the Trustee will authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant.  The
Trustee will deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.


 


(d)           Transfer and Exchange of
Definitive Notes for Beneficial Interests.  A Holder of a Definitive Note may exchange
such Note for a beneficial interest in a Global Note or transfer such
Definitive Notes to a Person who


 

















 


takes delivery thereof in the form of a beneficial
interest in a Global Note at any time. 
Upon receipt of a request for such an exchange or transfer, the Trustee
will cancel the applicable Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Global Notes.


 


If
any such exchange or transfer from a Definitive Note to a beneficial interest
is effected pursuant to the previous paragraph at a time when a Global Note has
not yet been issued, the Company will issue and, upon receipt of the Company’s
order, the Trustee will authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.


 


A
Holder of Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of a Definitive Note.


 


(e)           Transfer
and Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar will register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder will present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. 
In addition, the requesting Holder will provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(f)            Legends.  The following legends will appear on the face
of all Global Notes issued under this Supplemental Indenture unless
specifically stated otherwise in the applicable provisions of this Supplemental
Indenture.


 


“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS  DEFINED IN THE FIFTH
SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE  BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY  PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE  REQUIRED PURSUANT TO SECTION 2.06
OF THE FIFTH SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED  IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE FIFTH SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE  MAY BE
DELIVERED TO THE TRUSTEE FOR  CANCELLATION PURSUANT TO SECTION 2.11
OF THE SUPPLEMENTAL INDENTURE AND  (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.  UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”


 


(g)           Cancellation
and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note will be returned to or retained and canceled 


 

















 


by the Trustee in accordance with Section 2.11
hereof.  At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged
for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.


 


(h)           General Provisions Relating
to Transfers and Exchanges.


 


(1)           To permit registrations of
transfers and exchanges, the Company will execute and the Trustee will
authenticate Global Notes and Definitive Notes upon the Company’s order or at
the Registrar’s request.


 


(2)           No service charge will be
made to a holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).


 


(3)           The Registrar will not be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.


 


(4)           All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes will be the valid obligations of the Company,
evidencing the same debt, and entitled to the same
benefits under this Supplemental Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.


 


(5)           The Company will not be
required:


 


(A)          to issue, to register the
transfer of or to exchange any Notes during a period of 15 days before the day
of any selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection;


 


(B)           to register the transfer of
or to exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part; or


 


(C)           to register the transfer of
or to exchange a Note between a record date and the next succeeding interest
payment date.


 


(6)           Prior to due presentment for
the registration of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of
the Trustee, any Agent or the Company will be affected by notice to the
contrary.


 


(7)           The Trustee will
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02 hereof.


 


(8)           All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile or electronic transmission (including a
pdf).


 
















 


(9)                                  The Trustee
shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Supplemental
Indenture or under applicable law with respect to any transfer of any interest
in any Note other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Supplemental Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.


 


(10)                            Neither the
Trustee nor any Agent shall have any responsibility for any actions taken or
not taken by the Depositary.


 


Section 2.07                            Replacement
Notes.


 


If
any mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company will issue and the Trustee, upon receipt of an Authentication
Order, will authenticate a replacement Note if the Trustee’s requirements are
met.  An indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced.  The Company may charge for its expenses in
replacing a Note.


 


Every
replacement Note is an additional obligation of the Company and will be
entitled to all of the benefits of this Supplemental Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


Section 2.08                            Outstanding
Notes.


 


The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding.  Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.


 


If
a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.


 


If
the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a Redemption Date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes will be
deemed to be no longer outstanding and will cease to accrue interest.


 


Section 2.09                            Treasury
Notes.


 


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, will be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee will be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so owned
will be so disregarded.


 


Section 2.10                            Temporary
Notes.


 


Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, will authenticate
temporary Notes.  Temporary Notes will be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary 


 

















 


Notes
and as will be reasonably acceptable to the Trustee.  Without unreasonable
delay, the Company will prepare and the Trustee will authenticate definitive
Notes in exchange for temporary Notes.


 


Holders
of temporary Notes will be entitled to all of the benefits of this Supplemental
Indenture.


 


Section 2.11                            Cancellation.


 


The
Company at any time may deliver Notes to the Trustee for cancellation. 
The Registrar and Paying Agent will forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. 
The Trustee and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will return
such canceled Notes to the Company.  The Company may not issue new Notes
to replace Notes that it has paid or that have been delivered to the Trustee
for cancellation.


 


Section 2.12                            Defaulted
Interest.


 


If
the Company defaults in a payment of interest on the Notes, it will pay the
defaulted interest in any lawful manner plus,
to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at
the rate provided in the Notes and in Section 4.01 hereof.  The
Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. 
The Company will fix or cause to be fixed each such special record date and
payment date, provided that no
such special record date will be less than 10 days prior to the related payment
date for such defaulted interest.  At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) will mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.


 


Section 2.13                            CUSIP
Number.


 


The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee will use CUSIP numbers in notices of redemption
as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption will not
be affected by any defect in or the omission of such numbers.  The Company
will promptly notify the Trustee in writing of any change in the CUSIP numbers.


 


Section 2.14                            Issuance
of Additional Notes.


 


The
Company will be entitled, upon delivery of an Officer’s Certificate and an
Opinion of Counsel, subject to its compliance with Section 4.09 hereof, to
issue Additional Notes under this Supplemental Indenture which will have
identical terms as the Initial Notes issued on the date hereof, other than with
respect to the date of issuance and issue price.  The Initial Notes issued
on the date hereof and any Additional Notes issued will be treated as a single
class for all purposes under this Supplemental Indenture.


 


With
respect to any Additional Notes, the Company will set forth in a resolution of
its Board of Directors and an Officer’s Certificate, a copy of each which will
be delivered to the Trustee, the following information:


 


(a)                                  the aggregate
principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Supplemental Indenture; and


 


(b)                                 the issue
price, the issue date and the CUSIP number of such Additional Notes.


 

















 


ARTICLE 3.

REDEMPTION AND PREPAYMENT


 


Section 3.01                            Notice
to Trustee.


 


If
the Company elects to redeem Notes pursuant to the redemption provisions of Section 3.07
hereof, it will furnish to the Trustee, at least 30 days but not more than 60
days before a Redemption Date, an Officers’ Certificate setting forth:


 


(i)                                     the provision of this
Supplemental Indenture pursuant to which the redemption will occur;


 


(ii)                                  the Redemption Date;


 


(iii)                               the principal amount of
Notes to be redeemed;


 


(iv)                              the redemption price; and


 


(v)                                 the CUSIP numbers of the
Notes to be redeemed.


 


Section 3.02                            Selection
of Notes to Be Redeemed.


 


If
less than all of the Notes are to be redeemed at any time, the Trustee will
select the Notes to be redeemed among the Holders of the Notes (a) in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, (b) if the Notes are not so
listed, on a pro rata basis
(unless otherwise required by law or applicable stock exchange or depositary
requirements).  In the event of partial redemption by lot, the particular
Notes to be redeemed will be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the Redemption Date by the Trustee
from the outstanding Notes not previously called for redemption.


 


The
Trustee will promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed.  Notes and portions of Notes
selected will be in amounts of $2,000 or whole multiples of $1,000 in excess
thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, will be redeemed.  Except as provided in the preceding sentence,
provisions of this Supplemental Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.


 


Section 3.03                            Notice
of Redemption.


 


At
least 30 days but not more than 60 days before a Redemption Date, the Company
will mail or cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Notes are to be redeemed at its registered address.


 


The
notice will identify the Notes to be redeemed, including the CUSIP numbers, and
will state:


 


(1)                                  the Redemption
Date;


 


(2)                                  the redemption
price;


 


(3)                                  if any Note is
being redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the Redemption Date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued in the name of the Holder of such Notes upon cancellation of the
original Note;


 

















 


(4)                                  the name and
address of the Paying Agent;


 


(5)                                  that Notes
called for redemption must be surrendered to the Paying Agent to collect the
redemption price;


 


(6)                                  that, unless
the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date;


 


(7)                                  the paragraph
of the Notes and/or Section of this Supplemental Indenture pursuant to
which the Notes called for redemption are being redeemed; and


 


(8)                                  that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes.


 


At the Company’s request,
the Trustee will give the notice of redemption in the Company’s name and at its
expense; provided,  however, that the Company will have
delivered to the Trustee, at least 45 days prior to the Redemption Date (or
such shorter period as the Trustee in its sole discretion may allow), an
Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.


 


Section 3.04                            Effect
of Notice of Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the Redemption Date at the redemption price; provided, that any redemption of
Notes pursuant to this Supplemental Indenture may, at the Company’s discretion,
be subject to one or more conditions precedent.


 


Section 3.05                            Deposit
of Redemption Price.


 


One
Business Day prior to the Redemption Date, the Company will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued interest on all Notes to be redeemed on that date.  The
Trustee or the Paying Agent will promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.


 


If
the Company complies with the provisions of the preceding paragraph, on and
after the Redemption Date, interest will cease to accrue on the Notes or the
portions of Notes called for redemption.  If a Note is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest will be paid to the Person in whose
name such Note was registered at the close of business on such record
date.  If any Note called for redemption will not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest will be paid on the unpaid principal, from
the Redemption Date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.


 


Section 3.06                            Notes
Redeemed in Part.


 


Upon
surrender of a Note that is redeemed in part, the Company will issue and, upon
the Company’s written request, the Trustee will authenticate for the Holder at
the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.


 


No
Notes of $2,000 or less can be redeemed in part.


 

















 


Section 3.07                            Optional
Redemption.


 


(a)                                  At any time
prior to November 15, 2013, the Company may, on any one or more occasions,
redeem, in whole or in part, up to 35% of the aggregate principal amount of the
Notes, including Additional Notes of the same class, if any, issued under this
Supplemental Indenture at a redemption price of par plus the stated interest
rate, or 105.75% of the principal amount of the Notes redeemed, plus accrued
and unpaid interest, if any, to the date of redemption (the “Redemption Date”),
with the net cash proceeds of one or more Equity Offerings; provided, that:


 


(1)                                  at least 65% of
the aggregate principal amount of the Notes, including Additional Notes of the
same class, if any, issued under this Supplemental Indenture remains
outstanding immediately after the occurrence of such redemption, excluding
Notes held by the Company and its Subsidiaries; and


 


(2)                                  the redemption
occurs within 90 days of the date of the closing of such Equity Offering.


 


(b)                                 At any time
prior to November 15, 2015, the Company, at its option, may on one or more
occasions redeem all or a part of the Notes, upon not less than 30 nor more
than 60 days’ prior notice, at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to the Redemption Date, subject to the
rights of Holders of Notes on the relevant record date to receive interest due
on the relevant interest payment date.


 


(c)                                  Except pursuant
to clauses (a) and (b) above, the Notes will not be redeemable at the
Company’s option prior to November 15, 2015.


 


(d)                                 On or after November 15,
2015, the Company, at its option, may redeem all or a part of the Notes upon
not less than 30 nor more than 60 days’ notice, at the redemption prices,
expressed as percentages of principal amount, set forth below, plus accrued and
unpaid interest on the Notes redeemed, to the applicable Redemption Date, if
redeemed during the twelve-month period beginning on November 15 of the
years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2015

  	
   

  	
  102.875

  	
  %

  
	
  2016

  	
   

  	
  101.917

  	
  %

  
	
  2017

  	
   

  	
  100.958

  	
  %

  
	
  2018
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Section 3.08                            Mandatory
Redemption.


 


The
Company is not required to make any mandatory redemption or sinking fund
payments with respect to the Notes.


 


Section 3.09                            Offer
to Purchase by Application of Excess Proceeds.


 


In
the event that, pursuant to Section 4.10 hereof, the Company is required
to commence an Asset Sale Offer, it will follow the procedures specified below.


 


The
Asset Sale Offer will remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer
Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase
Date”), the Company will purchase the principal amount of Notes and
such other pari passu
Indebtedness required to be purchased pursuant to Section 4.10 hereof (the
“Offer Amount”) or, if less than
the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness tendered in
response to the Asset Sale Offer.  Payment for any Notes so purchased will
be made in the same manner as interest payments are made.


 


If
the Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest will be paid to
the Person in whose name a Note is registered at the close of 


 

















 


business
on such record date, and no additional interest will be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.


 


Upon
the commencement of an Asset Sale Offer, the Company will send, by first class
mail, a notice to the Trustee and each of the Holders.  The notice will
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer.  The Asset Sale Offer will
be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing
similar provisions to those set forth in this Supplemental Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets.  The notice, which will govern the terms of the Asset Sale Offer,
will state:


 


(1)                                  that the Asset
Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer will remain open;


 


(2)                                  the Offer
Amount, the purchase price and the Purchase Date;


 


(3)                                  that any Note
not tendered or accepted for payment will continue to accrue interest;


 


(4)                                  that, unless
the Company defaults in making such payment, any Note accepted for payment
pursuant to the Asset Sale Offer will cease to accrue interest after the
Purchase Date;


 


(5)                                  that Holders
electing to have a Note purchased pursuant to an Asset Sale Offer may only
elect to have all of such Note purchased and may not elect to have only a
portion of such Note purchased;


 


(6)                                  that Holders
electing to have a Note purchased pursuant to any Asset Sale Offer will be
required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days before
the Purchase Date;


 


(7)                                  that Holders
will be entitled to withdraw their election if the Company, the depositary or
the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, facsimile or electronic transmission
(including a pdf) or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;


 


(8)                                  that, if the
aggregate principal amount of Notes and other pari
passu Indebtedness surrendered by Holders exceeds the Offer Amount,
the Trustee will select the Notes and the Company or its agent will select such
other pari passu Indebtedness to
be purchased on a pro rata basis
or otherwise in accordance with DTC policies and procedures based on the
principal amount of Notes and other pari
passu Indebtedness surrendered (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$2,000, or integral multiples of $1,000 in excess thereof, will be purchased);
and


 


(9)                                  that Holders
whose Notes were purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).


 


On
or before the Purchase Date, the Company will, to the extent lawful, accept for
payment, on a pro rata basis to
the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and will deliver to the Trustee an Officers’
Certificate stating that such Notes or portions thereof were accepted for payment
by the Company in accordance with the terms of this Section 3.09. 
The Company, the Depositary or the Paying Agent, as the case may be, will
promptly (but in any case not later than five days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes tendered by such Holder and accepted by the Company for purchase,
and the Company will promptly issue a new Note, and the Trustee, upon written
request from the 


 

















 


Company
will authenticate and mail or deliver such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted will be promptly mailed or
delivered by the Company to the Holder thereof.


 


Other
than as specifically provided in this Section 3.09, any purchase pursuant
to this Section 3.09 will be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


ARTICLE 4.

COVENANTS


 


Section 4.01                            Payment
of Notes.


 


The Company or a Guarantor
will pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. 
Principal, premium, if any, and interest will be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.


 


The
Company or a Guarantor will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to the then applicable interest rate on the Notes to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest at the same rate to the
extent lawful.


 


Section 4.02                            Maintenance
of Office or Agency.


 


The
Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Supplemental Indenture may be
served.  The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.  If at
any time the Company fails to maintain any such required office or agency or
fails to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes.  The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.


 


The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03 hereof.


 


Section 4.03                            Reports.


 


(a)                                  Whether or not
the Company is required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company will furnish to the Trustee and the
Holders of Notes or cause the Trustee to furnish to the Holders of Notes (or
file with the SEC for public availability) within the time periods specified in
the SEC’s rules and regulations:


 


(1)                                  all quarterly
and annual financial information that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and, with 


 

















 


respect to the annual
information only, a report on the annual financial statements by the Company’s
independent registered public accountants (which will be firm(s) of
established national reputation); and


 


(2)                                  all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.


 


In
addition, whether or not required by the rules and regulations of the SEC,
the Company will file a copy of all such information and reports referred to in
clauses (1) and (2) above with the SEC for public availability within
the time periods specified in the SEC’s rules and regulations, unless the
SEC will not accept such a filing, and make such information available to
securities analysts and prospective investors upon request.  The Company
will at all times comply with TIA Section 314(a).  Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such will not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).


 


(b)                                 For so long as
any Notes remain outstanding, the Company and the Guarantors will furnish to
the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(c)                                  If the Company
is no longer subject to the periodic reporting requirements of the Exchange Act
for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraphs of this Section 4.03 with the SEC
within the time periods specified above unless the SEC will not accept such a
filing.  The Company agrees that it will
not take any action for the purpose of causing the SEC not to accept any such
filings.  If, notwithstanding the foregoing,
the SEC will not accept the Company’s filings for any reason, the Company will
post the reports referred to in the preceding paragraphs on its website within
the time periods that would apply if it was required to file those reports with
the SEC.


 


Section 4.04                            Compliance
Certificate.


 


(a)                                  The Company and
each Guarantor (to the extent that such Guarantor is so required under the TIA)
will deliver to the Trustee, within 90 days after the end of each fiscal year,
an Officers’ Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Supplemental Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Supplemental Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Supplemental
Indenture (or, if a Default or Event of Default will have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


(b)                                 So long as not
contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03(a) above will be accompanied by a written
statement of the Company’s independent registered public accountants (who will
be a firm of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants will not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.


 


(c)                                  The Company
will, so long as any of the Notes are outstanding, deliver to the Trustee, as
soon as possible, but in no event later than five days after any Officer
becoming aware of any Default or Event of Default, 


 

















 


an Officers’ Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.


 


Section 4.05                            Taxes.


 


The
Company will pay, and will cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.


 


Section 4.06                            Stay,
Extension and Usury Laws.


 


The
Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Supplemental
Indenture; and the Company and each of the Guarantors (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


Section 4.07                            Restricted
Payments.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:


 


(i)                                     declare or pay any dividend
or make any other payment or distribution on account of the Company’s Equity
Interests, including, without limitation, any payment in connection with any
merger or consolidation involving the Company, or to the direct or indirect
holders of the Company’s Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests, other than Disqualified
Stock, of the Company);


 


(ii)                                  purchase, redeem or
otherwise acquire or retire for value, including, without limitation, in
connection with any merger or consolidation involving the Company, any Equity
Interests of the Company;


 


(iii)                               make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or the Guarantees (excluding any intercompany
Indebtedness between or among the Company or any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated Maturity
of such Indebtedness; provided, that
this restriction does not apply to a purchase, redemption or defeasance made in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of date of such purchase,
redemption or defeasance; or


 


(iv)                              make any Restricted
Investment;


 


(all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as “Restricted
Payments”) unless, at the time of and after giving effect to such
Restricted Payment:


 


(a)                                  no Default or
Event of Default will have occurred and be continuing or would occur as a
consequence of such Restricted Payment; and


 


(b)                                 the Company
would, at the time of such Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof; and


 
















 


(c)                                  Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company or any of its Restricted Subsidiaries after August 10,
1998, excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi) and
(x) of the next succeeding paragraph, is less than the sum, without
duplication, of:


 


(i)                                     50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing August 10, 1998 to the
end of the Company’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment, or,
if such Consolidated Net Income for such period is a deficit, less 100% of such
deficit, plus


 


(ii)                                  100% of the aggregate net
cash proceeds or the fair market value of property other than cash received by
the Company since August 10, 1998 as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company (other
than Disqualified Stock), or from the issue or sale of Disqualified Stock or
debt securities of the Company that have been converted into or exchanged for
such Equity Interests, other than Equity Interests, Disqualified Stock or debt
securities sold to a Restricted Subsidiary of the Company, plus


 


(iii)                               to the extent not already
included in Consolidated Net Income of the Company for such period and without
duplication, any Restricted Investment that was made by the Company or any of
its Restricted Subsidiaries after August 10, 1998 is sold for cash or
otherwise liquidated or repaid for cash, or any Unrestricted Subsidiary which
is designated as an Unrestricted Subsidiary subsequent to August 10, 1998
is sold for cash or otherwise liquidated or repaid for cash or redesignated as
a Restricted Subsidiary, 100% of the cash return of capital with respect to
such Restricted Investment or Unrestricted Subsidiary, less the cost of
disposition, if any plus 50% of the excess of the fair market value of the Company’s
Investment in such Unrestricted Subsidiary as of the date of such redesignation
over the amount of the Restricted Investment that reduced this clause (c); provided, that any amounts that increase
this clause (c) will not duplicatively increase amounts available as
Permitted Investments.


 


The preceding provisions
will not prohibit:


 


(i)                                     the payment of any dividend
or the consummation of any irrevocable redemption within 60 days after the date
of declaration of the dividend or giving of the redemption notice, as the case
may be, if at the date of declaration or notice, the dividend or redemption
payment would have complied with the provisions of this Supplemental Indenture;


 


(ii)                                  the making of any Restricted
Payment in exchange for, or out of or with the net cash proceeds of the
substantially concurrent sale, other than to a Restricted Subsidiary of the
Company, of Equity Interests of the Company (other than Disqualified Stock) or
from the substantially concurrent contribution of common equity capital to the
Company; provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition will be excluded from clause (c)(ii) of
the preceding paragraph;


 


(iii)                               the payment, purchase,
defeasance, retirement redemption, repurchase or other acquisition (a) of
subordinated Indebtedness of the Company or any Restricted Subsidiary of the
Company with the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness or (b) of any Disqualified Stock of the Company in exchange
for, or out of the net cash proceeds of the substantially concurrent sale of,
Disqualified Stock of the Company that is not prohibited by the terms of this
Supplemental Indenture to be issued;


 


(iv)                              the payment of dividends on
the Company’s common stock of up to a combined amount of $75.0 million per
annum; provided that up to $20.0 million of such amount that is not utilized by
the Company to pay dividends in any calendar year may be carried forward to any
subsequent year;


 


(v)                                 (a) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company that are held by any member of the Company’s, or any of its
Restricted 


 

















 


Subsidiaries’, management pursuant to any management equity
subscription agreement or stock option agreement or (b) the repurchase of
Equity Interests of the Company or any Restricted Subsidiary of the Company
held by employee benefits plans, whether directly or for employees, directors
or former directors, pursuant to the terms of agreements, other than management
equity subscription agreements or stock option agreements, approved by the
Company’s Board of Directors; provided
that, in the case of foregoing clause (a) the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests will not
exceed $50.0 million in the aggregate since the date of this Supplemental
Indenture and, in the case of foregoing clause (b), the aggregate purchase
price paid for all such repurchased Equity Interests will not exceed $25.0
million in any twelve-month period;


 


(vi)                              the repurchase of Equity
Interests deemed to occur upon the exercise of stock options to the extent such
Equity Interests represent a portion of the exercise price of those stock
options;


 


(vii)                           the distribution, as a
dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to
the Company or a Restricted Subsidiary of the Company by, Unrestricted
Subsidiaries;


 


(viii)                        the payment of any dividend
by a Restricted Subsidiary to the holders of all of its Equity Interests on a
pro rata basis;


 


(ix)                                other Restricted Payments in
an aggregate amount since the date of this Supplemental Indenture not to exceed
$150.0 million under this clause (ix); and


 


(x)                                   other Restricted Payments of
the kind contemplated by clause (i) or (ii) of the definition of
Restricted Payments if, immediately after giving effect to such Restricted
Payment as if it had occurred at the beginning of the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available, the Company’s Leverage Ratio would have been less than 3.5 to 1.0;


 


provided that, with respect to
clauses (iv), (ix) and (x) above, no Default or Event of Default will
have occurred and be continuing immediately after such transaction or as a
consequence thereof.


 


The
amount of all Restricted Payments, other than cash, will be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.  The
fair market value of any assets or securities that are required to be valued by
this Section 4.07 will be determined by the Board of Directors of the
Company whose resolution with respect thereto will be delivered to the Trustee.


 


If
any Restricted Investment is sold or otherwise liquidated or repaid or any
dividend or payment is received by the Company or a Restricted Subsidiary of
the Company and such amounts may be credited to clause (c) above, then
such amounts will be credited only to the extent of amounts not otherwise
included in Consolidated Net Income and that do not otherwise increase the
amount available as a Permitted Investment.


 


Section 4.08                            Dividends
and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to:


 


(a)                                  pay dividends
or make any other distributions on its Capital Stock to the Company or any of
its Restricted Subsidiaries, or with respect to any other interest or participation
in, or measured by, its profits, or pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries;


 


(b)                                 make loans or
advances to the Company or any of its Restricted Subsidiaries; or


 


(c)                                  transfer any of
its properties or assets to the Company or any of its Restricted Subsidiaries.


 

















 


However,
the preceding restrictions do not apply to such encumbrances or restrictions
existing under or by reason of


 


(a)                                  agreements
governing Existing Indebtedness as in effect on the date of this Supplemental
Indenture;


 


(b)                                 other
encumbrances and restrictions in effect on the date of this Supplemental
Indenture;


 


(c)                                  any Credit
Facilities, including the Existing Credit Facilities, as in effect on the date
of this Supplemental Indenture, and any extensions, amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof and other Credit Facilities not prohibited under this
Supplemental Indenture, provided
that such extensions, amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings and other
Credit Facilities are not materially more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the Existing Credit Facilities as in effect on the date of this Supplemental
Indenture;


 


(d)                                 the several
indentures governing the Notes, the Existing Senior Notes and the related
Guarantees;


 


(e)                                  applicable law
or any applicable rule, regulation or order;


 


(f)                                    existing with
respect to any Person or the property or assets of such person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition, and not incurred in connection with or in contemplation of such
acquisition, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided,
that in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Supplemental Indenture to be incurred;


 


(g)                                 customary
non-assignment provisions in leases or other contracts entered into in the
ordinary course of business;


 


(h)                                 purchase money
obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions on the property purchased or
leased of the nature described in clause (c) of the preceding paragraph;


 


(i)                                     Indebtedness of
Restricted Subsidiaries; provided
that such Indebtedness was not prohibited under this Supplemental Indenture;


 


(j)                                     Permitted
Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


(k)                                  Liens securing
Indebtedness otherwise permitted to be incurred under the provisions of Section 4.12
hereof that limit the right of the debtor to dispose of the assets subject to
such Liens;


 


(l)                                     provisions
limiting the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, sale-leaseback agreements, stock sale
agreements and other similar agreements entered into in the ordinary course of
business;


 


(m)                               any Purchase
Money Note, or other Indebtedness or other contractual requirements of a
Securitization Entity in connection with a Qualified Securitization
Transaction; provided that such
restrictions may apply only to such Securitization Entity;


 


(n)                                 any restriction
with respect to a Restricted Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all the
Capital Stock or assets of such Restricted Subsidiary pending the closing of
such sale or disposition;


 

















 


(o)                                 restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; and


 


(p)                                 any encumbrance
or restriction of the type referred to in clauses (a) through (c) of
the first paragraph of this Section 4.08 imposed by any extension,
amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing of an agreement, contract, instrument or obligation
referred to in clauses (a) through (o) above that is not materially
more restrictive, taken as a whole, than the encumbrance or restriction imposed
by the applicable predecessor agreement, contract, instrument or obligation.


 


Section 4.09                            Incurrence
of Indebtedness and Issuance of Disqualified and Preferred Stock.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to
Incur any Indebtedness, including Acquired Debt, and the Company will not issue
any Disqualified Stock and will not permit any of its Restricted Subsidiaries
to issue any shares of preferred stock; provided,
however, that the Company may
Incur Indebtedness, including Acquired Debt, or issue Disqualified Stock and
any of the Company’s Restricted Subsidiaries may Incur Indebtedness if the
Company’s Fixed Charge Coverage Ratio for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
Incurred or such Disqualified Stock is issued would have been at least 2.0 to
1, determined on a pro forma basis, including a pro forma application of the
net proceeds therefrom, as if the additional Indebtedness had been Incurred, or
the Disqualified Stock had been issued, as the case may be, at the beginning of
such four-quarter period.


 


The provisions of the first
paragraph of this Section 4.09 will not prohibit the Incurrence of any of
the following items of Indebtedness, Disqualified Stock or the issuance of
preferred stock, as applicable (collectively, “Permitted
Debt”):


 


(i)                                     the Incurrence by the
Company or any of its Restricted Subsidiaries of Indebtedness under Credit
Facilities in an aggregate principal amount at any one time outstanding under
this clause (i), with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder, not to exceed $2.5 billion less the aggregate amount of all Net Proceeds of Asset Sales
applied by the Company or any of its Restricted Subsidiaries since the date of
this Supplemental Indenture to repay any term Indebtedness under any Credit
Facility or to repay any revolving credit Indebtedness under any Credit
Facility pursuant to Section 4.10 hereof;


 


(ii)                                  the Incurrence by the
Company and its Restricted Subsidiaries of the Existing Indebtedness;


 


(iii)                               the Incurrence by the
Company and the Guarantors of Indebtedness represented by the Notes and the
Guarantees to be issued on the date of this Supplemental Indenture;


 


(iv)                              the Incurrence by the
Company or any of its Restricted Subsidiaries of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, Incurred for the purpose of financing all or any part of the
purchase price or cost of design, construction, installation or improvement of
property, plant or equipment used in the business of the Company or any of its
Restricted Subsidiaries, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any
Indebtedness Incurred pursuant to this clause (iv), not to exceed 7.5% of Total
Assets at any time outstanding;


 


(v)                                 the Incurrence by the
Company or any of its Restricted Subsidiaries of Permitted Refinancing
Indebtedness;


 


(vi)                              the Incurrence by the
Company or any of its Restricted Subsidiaries of intercompany Indebtedness
between or among the Company and any of its Restricted Subsidiaries; provided, however,
that:


 

















 


(i)                                     if the Company or any
Guarantor is the obligor on such Indebtedness and the payee is not the Company
or a Guarantor, such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations then due with respect to the Notes,
in the case of the Company, or any such Guarantor’s Guarantee, in the case of a
Guarantor; and


 


(ii)                                  (a) any subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Company or a Restricted Subsidiary of the
Company and (b) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary of the Company
will be deemed, in each case, to constitute an Incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (vi);


 


(vii)                           the Incurrence by the
Company or any of its Restricted Subsidiaries of Hedging Obligations that are
Incurred in the normal course of business and not for speculative purposes;


 


(viii)                        the Incurrence by the
Company or any of its Restricted Subsidiaries of Indebtedness in the ordinary
course of business solely in respect of performance, bid, surety, appeal and
similar bonds, completion or performance guarantees or standby letters of
credit (not supporting Indebtedness for borrowed money) issued for the purpose
of supporting workers’ compensation liabilities of the Company or any of its
Restricted Subsidiaries;


 


(ix)                                the Incurrence of
Indebtedness arising from agreements of the Company or a Restricted Subsidiary
of the Company providing for indemnification, adjustment of purchase price or
similar obligations, in each case, Incurred or assumed in connection with
the disposition of any business, assets or a Subsidiary;


 


(x)                                   the Incurrence by a
Restricted Subsidiary of the Company of Indebtedness in connection with and in
contemplation of, the concurrent disposition of such Restricted Subsidiary to
the stockholders of the Company; provided
that such disposition occurs concurrently with such Incurrence and following
such disposition, neither the Company nor any of its Restricted Subsidiaries
has any liability with respect to such Indebtedness;


 


(xi)                                the Incurrence by a
Securitization Entity of Indebtedness in a Qualified Securitization Transaction
that is Non-Recourse Debt with respect to the Company and its Restricted
Subsidiaries (other than Securitization Entities), except for Standard
Securitization Undertakings and Limited Originator Recourse;


 


(xii)                             the guarantee by the Company
or any Restricted Subsidiary of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be Incurred by another
provision of this Section 4.09;


 


(xiii)                          the Incurrence of Indebtedness
of the Company or a Restricted Subsidiary owed to, including obligations in
respect of letters of credit for the benefit of, any Person in connection with
workers’ compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance provided by such Person to the
Company or a Restricted Subsidiary of the Company, pursuant to reimbursement or
indemnification obligations to such Person, in each case Incurred in the
ordinary course of business;


 


(xiv)                         the Incurrence of
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business, provided
that such Indebtedness is extinguished within two business days of its
Incurrence;


 


(xv)                            the issuance of shares of
preferred stock by a Restricted Subsidiary to the Company or another Restricted
Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any 


 

















 


other subsequent transfer of any such shares of preferred stock (except
to the Company or another Restricted Subsidiary) will be deemed in each case to
be an issuance of such shares of preferred stock that was not permitted by this
clause (xv); and


 


(xvi)                         the Incurrence by the
Company or any of its Restricted Subsidiaries of additional Indebtedness in an
aggregate principal amount, or accreted value, as applicable, at any time
outstanding, including all Permitted Refinancing Indebtedness Incurred to
refund, refinance or replace any Indebtedness Incurred pursuant to this clause
(xvi), not to exceed $350.0 million.


 


The
Company will not Incur any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the
Company unless such Indebtedness is also contractually subordinated in right of
payment to the Notes on substantially identical terms; provided, however,
that no Indebtedness of the Company will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company
solely by virtue of being unsecured or by virtue of being secured on first or
junior Lien basis.


 


For
purposes of determining compliance with this Section 4.09, in the event
that an item of proposed Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (i) through
(xvi) above, or is entitled to be Incurred pursuant to the first paragraph
of this Section 4.09, the Company, in its sole discretion, will be
permitted to classify such item of Indebtedness on the date of its Incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any
manner that complies with this Section 4.09, except that Indebtedness
under Credit Facilities outstanding on the date on which Notes are first issued
and authenticated under this Supplemental Indenture will initially be deemed to
have been Incurred on such date in reliance on the exception provided by
clause (i) of the definition of Permitted Debt.


 


The
accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same or substantially similar terms, the reclassification
of Equity Interests as Indebtedness due to a change in accounting principles,
and the payment of dividends on Disqualified Stock in the form of additional
shares of the same or a substantially similar class of Disqualified Stock will
not be deemed to be an Incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.09. For purposes of
determining compliance with any U.S. dollar-denominated restriction on the Incurrence
of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall be utilized, calculated based on the
relevant currency exchange rate in effect on the date such Indebtedness was
Incurred. Notwithstanding any other provision of this covenant, the maximum
amount of Indebtedness that the Company or any Restricted Subsidiary may Incur
pursuant to this covenant will not be deemed to be exceeded solely as a result
of fluctuations in exchange rates or currency values.


 


Section 4.10                            Asset
Sales.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:


 


(i)                                     the Company or the
Restricted Subsidiary, as the case may be, receives consideration (including assumption
of liabilities) at the time of the Asset Sale at least equal to the fair market
value (measured as of the date of the definitive agreement with respect to such
Asset Sale) of the assets or Equity Interests issued or sold or otherwise
disposed of;


 


(ii)                                  the fair market value is
determined by the Company’s Board of Directors or Chief Financial Officer and
evidenced by an Officers’ Certificate delivered to the Trustee with respect to
any Asset Sale determined to have a fair market value greater than $100.0
million; and


 


(iii)                               at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.  For purposes of
this provision, each of the following will be deemed to be cash:


 

















 


(w)                               any liabilities, as shown on
the Company’s or such Restricted Subsidiary’s most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary, other than contingent
liabilities and liabilities of the Company that are by their terms subordinated
to the Notes or any Guarantee thereof, that are assumed by the transferee of
any such assets;


 


(x)                                   any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days after the consummation of such Asset Sale,
to the extent of the cash received in that conversion;


 


(y)                                 any Designated Noncash
Consideration received by the Company or any of its Restricted Subsidiaries in
such Asset Sale; provided that
the aggregate fair market value, as determined above, of such Designated
Noncash Consideration, taken together with the fair market value at the time of
receipt of all other Designated Noncash Consideration received pursuant to this
clause (y) less the amount of Net Proceeds previously realized in cash
from prior Designated Noncash Consideration is less than 7.5% of Total Assets
at the time of the receipt of such Designated Noncash Consideration, with the
fair market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent changes
in value; and


 


(z)                                   Additional Assets;


 


provided, that this clause (iii) will
not be applicable to any sale or other disposition of all or a portion of the
business constituting the aerospace and technologies segment of the Company.


 


Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Company
(or the applicable Restricted Subsidiary, as the case may be) may, at its
option and to the extent the Company elects, apply those Net Proceeds:


 


(a)                                  to repay
Indebtedness and other Obligations under any Credit Facility;


 


(b)                                 to acquire all
or substantially all of the assets of, or any Capital Stock of, another
Permitted Business, if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;


 


(c)                                  to make a
capital expenditure in a Permitted Business;


 


(d)                                 to acquire other
long-term assets that are used or useful in a Permitted Business; or


 


(e)                                  to make an
Investment in Additional Assets; provided,
that the Company will be deemed to have complied with this clause (e) if,
within 365 days of such Asset Sale, the Company will have entered into a
definitive agreement covering such Investment which is thereafter completed
within 365 days after the first anniversary of such Asset Sale.


 


Pending
the final application of any Net Proceeds, the Company (or the applicable
Restricted Subsidiary) may temporarily reduce Indebtedness or otherwise invest
the Net Proceeds in any manner that is not prohibited by this Supplemental
Indenture.


 


Any
Net Proceeds from Asset Sales that are not applied or invested as provided in
the second preceding paragraph will constitute “Excess Proceeds.” 
When the aggregate amount of Excess Proceeds exceeds $50.0 million, the
Company will make an offer to all Holders of Notes and all holders of other
Indebtedness that is pari passu
with the Notes containing provisions similar to those set forth in this
Supplemental Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets (an “Asset Sale
Offer”) to purchase the maximum principal amount of Notes and such
other pari passu Indebtedness
that may be purchased out of the Excess Proceeds.  The offer price in any
Asset Sale Offer will be equal to 100% of the principal amount plus accrued and



 

















 


unpaid
interest to the date of purchase, and will be payable in cash.  If any
Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use those Excess Proceeds for any purpose not otherwise prohibited by this
Supplemental Indenture.  If the aggregate principal amount of Notes and
other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis.  Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.


 


Section 4.11                            Transactions
With Affiliates.


 


(a)                                  The Company
will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate involving
aggregate consideration in excess of $10.0 million (each of the foregoing, an “Affiliate Transaction”), unless


 


(1)                                  such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person; and


 


(2)                                  the Company
delivers to the Trustee:


 


(A)                              with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $50.0 million, a resolution of the Board
of Directors of the Company set forth in an Officers’ Certificate certifying
that such Affiliate Transaction complies with clause (1) above and that
such Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors of the Company; and


 


(B)                                with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $100.0 million, an opinion as to the
fairness to the Company of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing.


 


(b)                                 The following
items will not be deemed to be Affiliate Transactions and, therefore, will not
be subject to the provisions of Section 4.11(a) hereof:


 


(1)                                  any employment
agreement, employee benefit plan, officer or director indemnification
agreement, severance or termination agreement, or any similar arrangement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and payments pursuant thereto;


 


(2)                                  transactions
between or among the Company and/or its Restricted Subsidiaries;


 


(3)                                  transactions
between or among the Company and/or its Restricted Subsidiaries with Ball Asia
Pacific and Permitted Joint Ventures on terms that are no less favorable to the
Company and/or such Subsidiary than those that would have been obtained in a
comparable transaction by the Company and/or such Subsidiary with an unrelated
Person;


 


(4)                                  any sale or
other issuance of Equity Interests, other than Disqualified Stock, to
Affiliates of the Company;


 


(5)                                  Restricted
Payments and Investments that do not violate the provisions of Section 4.07
hereof;


 


(6)                                  fees and
compensation paid to members of the Board of Directors of the Company and its
Restricted Subsidiaries in their capacity as such;


 
















 


(7)                                  advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business;


 


(8)                                  fees and
compensation paid to, and indemnity provided on behalf of, officers, directors
or employees of the Company or any of its Restricted Subsidiaries, as
determined by the Board of Directors of the Company or of any such Restricted
Subsidiary, to the extent such fees and compensation are reasonable and
customary;


 


(9)                                  transactions
effected as part of a Qualified Securitization Transaction;


 


(10)                            the grant of
stock options or similar rights to officers, employees, consultants and
directors of the Company and, to the extent otherwise permitted under this
Supplemental Indenture, to any Restricted Subsidiary, pursuant to plans
approved by the Board of Directors of the Company and issuance of securities
pursuant thereto; and


 


(11)                            transactions
pursuant to any arrangement, contract or agreement in existence on the date of
this Supplemental Indenture, as such arrangement may be amended or restated,
renewed, extended, refinanced, refunded or replaced from time to time, provided that any such amendment or
restatement, renewal, extension, refinancing, refund or replacement is on terms
and conditions not materially less favorable to the Company or its Restricted
Subsidiaries taken as a whole than the arrangement, contract or agreement in
existence on the date of this Supplemental Indenture.


 


Section 4.12                            Liens.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Lien of any kind securing
Indebtedness, Attributable Debt, or trade payables, other than Permitted Liens,
upon any of their property or assets, now owned or hereafter acquired, unless
all payments due under this Supplemental Indenture and the Notes are secured on
an equal and ratable basis with the obligations so secured until such time as
such obligations are no longer secured by a Lien.


 


Section 4.13                            Business
Activities.


 


The
Company will not, and will not permit any Restricted Subsidiary to, engage in
any business other than Permitted Businesses, except to such extent as would
not be material to the Company and its Restricted Subsidiaries taken as a
whole.


 


Section 4.14                            Corporate
Existence.


 


Subject
to Articles 5 and 10 hereof, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries and any Unrestricted Subsidiary with $20.0 million of
net sales in the most recent twelve month period or assets of $20.0 million, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company, any Restricted Subsidiary or any
Unrestricted Subsidiary with $20.0 million of net sales in the most recent
twelve month period or assets of $20.0 million and (ii) the rights
(charter and statutory), licenses and franchises of the Company, its Restricted
Subsidiaries and any Unrestricted Subsidiary with $20.0 million of net sales in
the most recent twelve month period or assets of $20.0 million; provided, however, that the Company will
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors will determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.


 


Section 4.15                            Offer
to Purchase Upon Change of Control.


 


(a)                                  If a Change of
Control occurs, and the Company does not redeem the Notes as described in Section 3.07
hereof within 60 days after the Change of Control, each Holder of Notes will
have the right to require 


 

















 


the Company to repurchase all or any part, equal to
$2,000 or an integral multiple of $1,000 in excess thereof, of that Holder’s
Notes pursuant to the offer described below (the “Change of Control Offer”) at an offer price in cash equal to
101% of the aggregate principal amount of the Notes repurchased plus accrued
and unpaid interest to the date of purchase (the “Change of Control Payment”).  Within 30 days following
any Change of Control, or, at the Company’s option, prior to the consummation
of such Change of Control but after the public announcement thereof, the
Company will mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Notes on the
date specified in such notice, which date will be no earlier than 30 days and
no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”), pursuant
to the procedures required by this Supplemental Indenture and described in such
notice.  The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control.  To the extent
that the provisions of any securities laws or regulations conflict with the
Change of Control provisions of this Supplemental Indenture, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control provisions
of this Supplemental Indenture by virtue of such compliance.


 


(b)                                 On the Change
of Control Payment Date, the Company will, to the extent lawful,


 


(1)                                  accept for
payment all Notes or portions of the Notes (in integral multiples of $1,000)
properly tendered pursuant to the Change of Control Offer;


 


(2)                                  deposit with
the Paying Agent an amount equal to the Change of Control Payment in respect of
all Notes or portions of the Notes properly tendered; and


 


(3)                                  deliver or
cause to be delivered to the Trustee the Notes properly accepted together with
an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of the Notes being purchased by the Company.


 


The
Paying Agent will promptly mail to each Holder of Notes properly tendered the
Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail, or cause to be transferred by book entry, to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided
that each new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof.


 


The
provisions described above that require the Company to make a Change of Control
Offer following a Change of Control will be applicable whether or not any other
provisions of this Supplemental Indenture are applicable.  Except as
described above with respect to a Change of Control, this Supplemental
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.


 


(c)                                  Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Supplemental
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes properly tendered and not withdrawn under the Change of Control
Offer, or (2) notice of redemption has been given pursuant to Section 3.07,
unless and until there is a default in payment of the applicable redemption
price. Notwithstanding anything to the contrary contained herein, a Change of
Control Offer may be made in advance of a Change of Control, conditioned upon
the consummation of such Change of Control, if a definitive agreement is in
place for the Change of Control at the time the Change of Control Offer is
made.


 


Section 4.16                            Additional
Guarantees.


 


If
the Company or any of its Restricted Subsidiaries acquires or creates another
Domestic Subsidiary after the date of this Supplemental Indenture and such
newly acquired or created Domestic Subsidiary Guarantees (or is a guarantor of)
any other Indebtedness of the Company, then that newly acquired or created
Domestic Subsidiary will 


 

















 


become
a Guarantor and execute and deliver a supplemental indenture to the Trustee in
the form of Exhibit C within 20 business days of the date on which
it was acquired or created; provided,
that this Section 4.16 does not apply to any Subsidiary that has properly
been designated as an Unrestricted Subsidiary in accordance with this
Supplemental Indenture for so long as it continues to constitute an
Unrestricted Subsidiary or to any Excluded Subsidiary for so long as it
continues to constitute an Excluded Subsidiary.


 


Section 4.17                            [Reserved.]


 


Section 4.18                            Sale
and Leaseback Transactions.


 


The
Company will not, and will not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided
that the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:


 


(i)                                     the Company or such
Restricted Subsidiary, as applicable, could have incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to Section 4.09 hereof;


 


(ii)                                  the gross cash proceeds of
such sale and leaseback transaction are at least equal to the fair market
value, as determined in good faith by the Board of Directors and set forth in
an Officers’ Certificate delivered to the Trustee, of the property that is the
subject of that sale and leaseback transaction; and


 


(iii)                               the transfer of assets in
that sale and leaseback transaction is permitted by, and the Company applies
the proceeds of such transaction in compliance with, Section 4.10 hereof.


 


Section 4.19                            Designation
of Restricted and Unrestricted Subsidiaries.


 


The
Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default.  If
a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary properly designated will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under the first paragraph
of Section 4.07 hereof or Permitted Investments, as determined by the
Company.  That designation will only be permitted if the Investment would
be permitted at that time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.  The Board of Directors may at
any time redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary
if the redesignation would not cause a Default.


 


Section 4.20                            Changes
in Covenants When Notes Rated Investment Grade.


 


If
on any date following the date of this Supplemental Indenture:


 


(i) the
Notes are rated Investment Grade by at least two of the Rating Agencies, and


 


(ii) no
Default or Event of Default will have occurred and be continuing,


 


then
beginning on that day and continuing at all times thereafter regardless of any
subsequent changes in the rating of the Notes, the Company and its Subsidiaries
will not be subject to the provisions of this Supplemental Indenture described
in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.19 and clause (iv) of Section 5.01.


 

















 


ARTICLE 5.

SUCCESSORS


 


Section 5.01                            Merger,
Consolidation or Sale of Assets.


 


The
Company will not, directly or indirectly: 
(1) consolidate or merge with or into another person, whether or
not the Company is the surviving corporation, or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries, taken as a
whole, in one or more related transactions, to another Person unless:


 


(i)                                     either:  (a) the Company is the surviving
corporation; or (b) the Person formed by or surviving any such
consolidation or merger, if other than the Company, or to which such sale,
assignment, transfer, conveyance or other disposition will have been made is a
corporation organized or existing under the laws of the United States, any
state of the United States or the District of Columbia and, if such entity is
not a corporation, a co-obligor of the Notes is a corporation organized or
existing under any such laws;


 


(ii)                                  the Person formed by or
surviving any such consolidation or merger, if other than the Company, or the
Person to which such sale, assignment, transfer, conveyance or other
disposition will have been made assumes all the obligations of the Company
under the Notes and this Supplemental Indenture pursuant to agreements
reasonably satisfactory to the Trustee;


 


(iii)                               immediately after such
transaction no Default or Event of Default exists; and


 


(iv)                              either:


 


(a)                                  except in the
case of a merger of the Company with or into a Subsidiary, the Company or the
Person formed by or surviving any such consolidation or merger, if other than
the Company, or to which such sale, assignment, transfer, conveyance or other
disposition will have been made will on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if
the same had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09
hereof or


 


(b)                                 the Fixed
Charge Coverage Ratio for the Company or the Person formed by or surviving any
such consolidation or merger, if other than the Company, or to which such sale,
assignment, transfer, conveyance or other disposition will have been made
would, immediately after giving pro forma effect thereto and any related
financing transactions as if same had occurred at the beginning of the
applicable four-quarter period, not be less than such Fixed Charge Coverage
Ratio for the Company and its Restricted Subsidiaries immediately prior to such
transaction,


 


provided, however, that clause (iv) above does not apply if, in
the good faith determination of the Board of Directors of the Company, whose
determination will be evidenced by a board resolution, the purpose of such
transactions is to change the state of incorporation of the Company.  The
Company may not, directly or indirectly, lease all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries, taken as a
whole, in one or more related transactions, to any other Person.  The
provisions of this Section 5.01 will not apply to a sale, assignment,
transfer, conveyance or other disposition of assets between or among the
Company and its Restricted Subsidiaries.


 


Section 5.02                            Successor
Corporation Substituted.


 


Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made will succeed to, and be substituted for (so that 


 

















 


from
and after the date of such consolidation, merger, sale, lease, conveyance or
other disposition, the provisions of this Supplemental Indenture referring to
the “Company” will refer instead to the successor corporation and not to the
Company), and may exercise every right and power of the Company under this
Supplemental Indenture with the same effect as if such successor Person had
been named as the Company herein; provided,
however, that the predecessor Company will not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company’s assets that meets the requirements of Section 5.01
hereof.


 


ARTICLE 6.

DEFAULTS AND REMEDIES


 


Section 6.01                            Events
of Default.


 


Each
of the following is an “Event of Default:”


 


(a)                                  default for 30
days in the payment when due of interest on the Notes;


 


(b)                                 default in the
payment when due of principal of or premium, if any, on the Notes;


 


(c)                                  the Company or
any of its Restricted Subsidiaries fails to comply with the provisions of Section 5.01
hereof;


 


(d)                                 the Company or
any of its Restricted Subsidiaries fails for 30 days after notice from the
Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes to comply with the provisions of Sections 4.07, 4.09, 4.10 or 4.15
hereof;


 


(e)                                  the Company or
any of its Restricted Subsidiaries fails for 60 days after notice from the
Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes to comply with any of the other agreements in this Supplemental
Indenture or the Notes;


 


(f)                                    the Company or
any of its Restricted Subsidiaries (other than a Securitization Entity)
defaults under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (other than a
Securitization Entity) (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries (other than a Securitization Entity))
whether such Indebtedness or guarantee now exists, or is created after the date
of this Supplemental Indenture, if that default:


 


(1)                                  is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
on or before the expiration of the grace period provided in such Indebtedness
on the date of such default (a “Payment
Default”); or


 


(2)                                  results in the
acceleration of such Indebtedness prior to its express maturity,


 


in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$50.0 million or more or its foreign currency equivalent;


 


(g)                                 the Company or
any of its Restricted Subsidiaries fails to pay final judgments aggregating in
excess of $50.0 million or its foreign currency equivalent, excluding amounts
covered by insurance, which judgments are not paid, discharged or stayed for a
period of 60 days;


 


(h)                                 except as
permitted by this Supplemental Indenture, any Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in
full force and effect, or any Guarantor, or any Person acting on behalf of any
Guarantor, denies or disaffirms its obligations under its Guarantee.


 

















 


(i)                                     the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(i)                                     commences a voluntary case,


 


(ii)                                  consents to the entry of an
order for relief against it in an involuntary case,


 


(iii)                               consents to the appointment
of a custodian of it or for all or substantially all of its property,


 


(iv)                              makes a general assignment
for the benefit of its creditors,


 


(v)                                 generally is not paying its
debts as they become due; or


 


(j)                                     a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)                                     is for relief against the
Company or any of its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;


 


(ii)                                  appoints a custodian of the
Company or any of its Significant Subsidiaries that are Restricted Subsidiaries
or any group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary; or


 


(iii)                               orders the liquidation of
the Company or any of its Significant Subsidiaries that are Restricted
Subsidiaries or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary; and


 


the
order or decree remains unstayed and in effect for 60 consecutive days.


 


Section 6.02                            Acceleration.


 


If
any Event of Default (other than an Event of Default specified in clause (h) or
(i) of Section 6.01 hereof) with respect to the Company, any
Significant Subsidiary that is a Restricted Subsidiary, as applicable, or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately.  Upon any such declaration,
the Notes will become due and payable immediately.  Notwithstanding the
foregoing, if an Event of Default specified in clause (h) or (i) of Section 6.01
hereof occurs with respect to the Company, any of its Significant Subsidiaries
that are Restricted Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, all outstanding
Notes will be due and payable without further action or notice.  Holders
of the Notes may not enforce this Supplemental Indenture or the Notes except as
provided in this Supplemental Indenture.


 


In
the case of any Event of Default occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of this Supplemental Indenture, an equivalent
premium will also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.


 


The
Company is required to deliver to the Trustee annually a statement regarding
compliance with this Supplemental Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.


 

















 


Section 6.03                            Other
Remedies.


 


If
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Supplemental Indenture.


 


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  A delay or omission by
the Trustee or any Holder of a Note in exercising any right or remedy accruing
upon an Event of Default will not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default.  All remedies are cumulative
to the extent permitted by law.


 


Section 6.04                            Waiver
of Past Defaults.


 


The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
this Supplemental Indenture except a continuing Default or Event of Default in
the payment of interest on, or the principal of, the Notes (including in
connection with an offer to purchase); provided,
however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
rescind an acceleration and its consequences, including any related payment default
that resulted from such acceleration.  Upon any such waiver, such Default
or Event of Default will cease to exist, and any Event of Default arising
therefrom will be deemed to have been cured for every purpose of this
Supplemental Indenture; but no such waiver will extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.


 


Section 6.05                            Control
by Majority.


 


Holders
of a majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it.  However, the Trustee may refuse to follow any direction that
conflicts with law or this Supplemental Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.


 


Section 6.06                            Limitation
on Suits.


 


A
Holder of a Note may pursue a remedy with respect to this Supplemental
Indenture or the Notes only if:


 


(a)                                  the Holder of a
Note gives to the Trustee written notice of a continuing Event of Default;


 


(b)                                 the Holders of
at least 25% in principal amount of the then outstanding Notes make a written
request to the Trustee to pursue the remedy;


 


(c)                                  such Holder of
a Note or Holders of Notes offer and, if requested, provide to the Trustee
security or indemnity satisfactory to the Trustee against any loss, liability
or expense;


 


(d)                                 the Trustee
does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and


 


(e)                                  during such
60-day period the Holders of a majority in aggregate principal amount of the
then outstanding Notes do not give the Trustee a direction inconsistent with
the request.


 


A
Holder of a Note may not use this Supplemental Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to any Holder).


 

















 


Section 6.07                            Rights
of Holders of Notes to Receive Payment.


 


Notwithstanding
any other provision of this Supplemental Indenture, the right of any Holder of
a Note to receive payment of principal, premium and interest on the Note, on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of such Holder.


 


Section 6.08                            Collection
Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as Trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent lawful, interest and
such further amount as will be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


Section 6.09                            Trustee
May File Proofs of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Notes), its creditors or its property and will be entitled and
empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee will consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof.  To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, will be denied for any reason, payment of the
same will be secured by a Lien on, and will be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise.  Nothing
herein contained will be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.


 


Section 6.10                            Priorities.


 


If
the Trustee collects any money pursuant to this Article, it will pay out the
money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


Second:  to Holders of Notes
for amounts due and unpaid on the Notes for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and


 


Third:  to the Company.


 


The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.


 

















 


Section 6.11                            Undertaking
for Costs.


 


In
any suit for the enforcement of any right or remedy under this Supplemental
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant.  This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or
a suit by Holders of more than 10% in principal amount of the then outstanding
Notes.


 


ARTICLE 7.

TRUSTEE


 


Section 7.01                            Duties
of Trustee.


 


(a)                                  If an Event of
Default has occurred and is continuing, the Trustee will exercise such of the
rights and powers vested in it by this Supplemental Indenture, and use the same
degree of care and skill in its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.


 


(b)                                 Except during
the continuance of an Event of Default:


 


(i)                                     the duties of the Trustee
will be determined solely by the express provisions of this Supplemental
Indenture and the Trustee need perform only those duties that are specifically
set forth in this Supplemental Indenture and no others, and no implied
covenants or obligations will be read into this Supplemental Indenture against
the Trustee; and


 


(ii)                                  in the absence of bad faith
on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Supplemental Indenture, but in the case of any such
certificates of opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee will be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Supplemental Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(c)                                  The Trustee may
not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:


 


(i)                                     this paragraph does not
limit the effect of paragraph (b) of this Section;


 


(ii)                                  the Trustee will not be
liable for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and


 


(iii)                               the Trustee will not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05
hereof.


 


(d)                                 Whether or not
therein expressly so provided, every provision of this Supplemental Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b), (c), (e) and
(f) of this Section and Section 7.02.


 


(e)                                  No provision of
this Supplemental Indenture will require the Trustee to expend or risk its own
funds or incur any liability.  The Trustee will be under no obligation to
exercise any of its rights and powers under this Supplemental Indenture at the
request of any Holders, unless such Holder will have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.


 
















 


(f)                                    The Trustee
will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.  Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.


 


Section 7.02                            Rights
of Trustee.


 


(a)                                  The Trustee may
conclusively rely upon any document believed by it to be genuine and to have
been signed or presented by the proper Person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)                                 Before the
Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both.  The Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.  The Trustee may consult with counsel
of its selection and the advice of such counsel or any Opinion of Counsel will
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.


 


(c)                                  The Trustee may
act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.


 


(d)                                 The Trustee
will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it
by this Supplemental Indenture.


 


(e)                                  Unless
otherwise specifically provided in this Supplemental Indenture, any demand,
request, direction or notice from the Company or any Guarantor will be
sufficient if signed by an Officer of the Company or Guarantor issuing such
demand, request or notice.


 


(f)                                    The Trustee
will be under no obligation to exercise any of the rights or powers vested in
it by this Supplemental Indenture at the request or direction of any of the
Holders unless such Holders will have offered to the Trustee security or
indemnity satisfactory to the Trustee it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.


 


(g)                                 Whenever in the
administration of this Supplemental Indenture, the Trustee will deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers’ Certificate.


 


(h)                                 The Trustee
will not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default or Event of Default
is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Supplemental Indenture.


 


(i)                                     The Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.


 


(j)                                     In no event
shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 

















 


(k)                                  The rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder.


 


(l)                                     The Trustee may
request that the Company deliver an Officers’ Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Supplemental Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person as so authorized in any such certificate
previously delivered and not superseded.


 


Section 7.03                            Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee. 
However, in the event the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if this Supplemental Indenture has been qualified under
the Trust Indenture Act) or resign.  Any Agent may exercise the same
rights, with the same duties, as the Trustee under this Section 7.03. 
The Trustee is also subject to Sections 7.10 and 7.11 hereof.


 


Section 7.04                            Trustee’s
Disclaimer.


 


The
Trustee will not be responsible for and makes no representation as to the
validity or adequacy of this Supplemental Indenture or the Notes, it will not
be accountable for the Company’s use of the proceeds from the Notes or any
money paid to the Company or upon the Company’s direction under any provision
of this Supplemental Indenture, it will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it will not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Supplemental Indenture other than its certificate of
authentication.


 


Section 7.05                            Notice
of Defaults.


 


If
a Default or Event of Default occurs and is continuing and if it is actually
known to a Responsible Officer of the Trustee, the Trustee will mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs.  Except in the case of a Default or Event of Default relating to
the payment of principal of or interest on any Note, the Trustee may withhold
the notice from Holders of the Notes if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.


 


Section 7.06                            Reports
by Trustee to Holders of the Notes.


 


Within
60 days after each May 15 beginning with the May 15 following the
date of this Supplemental Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but
if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be
transmitted).  The Trustee also will comply with TIA Section 313(b)(2). 
The Trustee will also transmit by mail all reports as required by TIA Section 313(c).


 


A
copy of each report at the time of its mailing to the Holders of Notes will be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA Section 313(d).  The
Company will promptly notify the Trustee when the Notes are listed on any stock
exchange or delisted therefrom.


 


Section 7.07                            Compensation
and Indemnity.


 


The
Company and the Guarantors will pay to the Trustee from time to time such
reasonable compensation as agreed upon in writing for its acceptance of this
Supplemental Indenture and services hereunder.  The Trustee’s 


 

















 


compensation
will not be limited by any law on compensation of a Trustee of an express
trust.  The Company and the Guarantors will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services.  Such
expenses will include the reasonable compensation, disbursements and expenses
of the Trustee’s agents and counsel.


 


The
Company and the Guarantors will, jointly and severally, indemnify the Trustee
against any and all losses, liabilities, claims, damages or expenses (including
taxes other than taxes based upon the income of the Trustee) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Supplemental Indenture, including the costs and expenses of
enforcing this Supplemental Indenture against the Company and the Guarantors
(including this Section 7.07) and defending itself against any claim
(whether asserted by the Company and the Guarantors or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or willful misconduct.  The
Trustee will notify the Company promptly of any claim for which it may seek
indemnity.  Failure by the Trustee to so notify the Company will not
relieve the Company and the Guarantors of its obligations hereunder.  The
Company will defend the claim and the Trustee will cooperate in the
defense.  The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel.  The Company need not
pay for any settlement made without its consent, which consent will not be
unreasonably withheld.


 


The
obligations of the Company and the Guarantors under this Section 7.07
shall be joint and several and will survive the satisfaction and discharge of
this Supplemental Indenture.


 


To
secure the Company’s and the Guarantors’ payment obligations in this Section,
the Trustee will have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and interest
on particular Notes.  Such Lien will survive the satisfaction and
discharge of this Supplemental Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(g) or (h) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.


 


The
Trustee will comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.


 


Section 7.08                            Replacement
of Trustee.


 


A
resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.


 


The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company.  The Holders of Notes of a
majority in aggregate principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing.  The
Company may remove the Trustee if:


 


(a)                                  the Trustee
fails to comply with Section 7.10 hereof;


 


(b)                                 the Trustee is
adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;


 


(c)                                  a custodian or
public officer takes charge of the Trustee or its property; or


 


(d)                                 the Trustee
becomes incapable of acting.


 


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company will promptly appoint a successor
Trustee.  Within one year after the successor Trustee takes office, the 


 

















 


Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.


 


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor Trustee.


 


If
the Trustee, after written request by any Holder of a Note who has been a
Holder of a Note for at least six months, fails to comply with Section 7.10,
such Holder of a Note may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


A
successor Trustee will deliver a written acceptance of its appointment to the
retiring Trustee and to the Company.  Thereupon, the resignation or
removal of the retiring Trustee will become effective, and the successor
Trustee will have all the rights, powers and duties of the Trustee under this
Supplemental Indenture.  The successor Trustee will mail a notice of its
succession to Holders of the Notes.  The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee
(including its agents and/or counsel) hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07
hereof will continue for the benefit of the retiring Trustee.


 


Section 7.09                            Successor
Trustee by Merger, Etc.


 


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee.


 


Section 7.10                            Eligibility;
Disqualification.


 


There
will at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate Trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100.0 million as set
forth in its most recent published annual report of condition.


 


This
Supplemental Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5).  The Trustee is subject to TIA Section 310(b).


 


Section 7.11                            Preferential
Collection of Claims Against Company.


 


The
Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). 
A Trustee who has resigned or been removed will be subject to TIA Section 311(a) to
the extent indicated therein.


 


Section 7.12                            Trustee’s
Application for Instructions from the Company.


 


Any
application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Supplemental Indenture and the date on
and/or after which such action will be taken or such omission will be
effective.  The Trustee will not be
liable for any action taken by, or omission of, the Trustee in accordance with
a proposal included in such application on or after the date specified in such
application (which date will not be less than three Business Days after the
date any officer of the Company actually receives such application, unless any
such officer will have consented in writing to any earlier date) unless prior
to the taking of such action (or the effective date in the case of an
omission), the Trustee will have received written instructions in response to
such application specifying the action to be taken or omitted.


 

















 


ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01                            Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


Section 8.02                            Legal
Defeasance and Discharge.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.02, the Company and the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from its obligations with respect to all outstanding
Notes and to have each Guarantor’s obligation discharged with respect to its
Guarantee on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Company and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which will thereafter
be deemed to be “outstanding” only for the purposes of Section 8.05 hereof
and the other Sections of this Supplemental Indenture referred to in (a) and
(b) below, and to have satisfied all its other obligations under such
Notes and this Supplemental Indenture (and the Trustee, on demand of and at the
expense of the Company, will execute proper instruments acknowledging the
same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:  (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section 8.04
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, interest on such Notes when such payments are due, (b) the
Company’s obligations with respect to the Notes under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s and the Guarantors’ obligations in connection
therewith and (d) this Article 8. 
Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of
its option under Section 8.03 hereof.


 


Section 8.03                            Covenant
Defeasance.


 


Upon
the Company’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, the Company and each Restricted Subsidiary will,
subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under the covenants contained in
Sections 3.09, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17
and 4.19 and clause (iv) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes will thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed “outstanding” for all other purposes
hereunder (it being understood that such Notes will not be deemed outstanding
for accounting purposes).  For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company, each Guarantor and each Restricted Subsidiary may omit to comply
with and will have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply will not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Supplemental Indenture and such Notes will be unaffected
thereby.  In addition, upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(d) through 6.01(f) hereof will not constitute
Events of Default.


 


Section 8.04                            Conditions
to Legal or Covenant Defeasance.


 


The
following will be the conditions to the application of either Section 8.02
or 8.03 hereof to the outstanding Notes:


 

















 


In
order to exercise either Legal Defeasance or Covenant Defeasance:


 


(a)                                  the Company must
irrevocably deposit with the Trustee, in trust, for the benefit of the Holders,
cash in United States dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities in
such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm of independent public accountants, to pay the
principal of, or interest and premium, if any, on the outstanding Notes on the
Stated Maturity or on the applicable Redemption Date, as the case may be, and
the Company must specify whether the Notes are being defeased to maturity or to
a particular Redemption Date;


 


(b)                                 in the case of
an election under Section 8.02 hereof, the Company will have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this Supplemental Indenture, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel will confirm that, the Holders of the outstanding Notes
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;


 


(c)                                  in the case of
an election under Section 8.03 hereof, the Company will have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;


 


(d)                                 no Default or
Event of Default will have occurred and be continuing on the date of such
deposit, other than a Default or Event of Default resulting from the incurrence
of Indebtedness all or a portion of the proceeds of which will be used to
defease the Notes pursuant to this Article 8 concurrently with such
incurrence, or insofar as Sections 6.01(h) or 6.01(i) hereof is
concerned, at any time in the period ending on the 91st day after the date of
deposit (and any similar concurrent deposit relating to other Indebtedness),
and the granting of Liens to secure such borrowings;


 


(e)                                  such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than
this Supplemental Indenture and the agreements governing any other Indebtedness
being defeased,  discharged or replaced)
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;


 


(f)                                    the Company
will have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
of the Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and


 


(g)                                 the Company
will have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.


 


Section 8.05                            Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
hereof in respect of the outstanding Notes will be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Supplemental
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.


 

















 


The
Company and the Guarantors will pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding
Notes.


 


Anything
in this Article 8 to the contrary notwithstanding, the Trustee will
deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06                            Repayment
to Company.


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable will be
paid to the Company on its request or (if then held by the Company) will be
discharged from such trust; and the Holder of such Note will thereafter look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the reasonable expense
of the Company cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


 


Section 8.07                            Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Supplemental Indenture
and the Notes will be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.02
or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its
obligations, the Company will be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.


 


ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01                            Without
Consent of Holders of Notes.


 


Notwithstanding
Section 9.02 of this Supplemental Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Supplemental Indenture, the
Guarantees or the Notes without the consent of any Holder of a Note:


 


(a)                                  to cure any
ambiguity, defect or inconsistency;


 


(b)                                 to provide for
uncertificated Notes in addition to or in place of certificated Notes;


 


(c)                                  to provide for
the assumption of the Company’s obligations to the Holders of the Notes in the
case of merger or consolidation or sale of all or substantially all of the
Company’s assets;


 

















 


(d)                                 to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights under this
Supplemental Indenture of any Holder of the Notes;


 


(e)                                  to comply with
requirements of the SEC in order to effect or maintain the qualification of
this Supplemental Indenture under the TIA;


 


(f)                                    to provide for
the issuance of Additional Notes in accordance with this Supplemental
Indenture;


 


(g)                                 to conform the
text of this Supplemental Indenture, the Notes or the Guarantees to any
provision of the Description of Notes to the extent that such provision in the
Description of Notes was intended to be a verbatim recitation of a provision of
this Supplemental Indenture, the Notes or the Guarantees;


 


(h)                                 to allow any
Guarantor to execute a supplemental indenture and/or a Guarantee with respect
to the Notes;


 


(i)                                     to evidence and
provide for the acceptance of appointment by a successor trustee;


 


(j)                                     to add
guarantees with respect to the Notes;


 


(k)                                  to secure the
Notes; or


 


(l)                                     to release any
Lien granted in favor of the Holders of the Notes pursuant to Section 4.09
hereof upon release of the Lien securing the underlying obligation that gave
rise to such Lien.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Supplemental Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Supplemental Indenture
or otherwise.


 


Section 9.02                            With
Consent of Holders of Notes.


 


Except
as provided below in this Section 9.02, the Company, the Guarantors and
the Trustee may amend or supplement this Supplemental Indenture (including
Sections 3.09, 4.10 and 4.15 hereof), the Guarantees and the Notes with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes, and, subject to Sections 6.04 and 6.07 hereof) and any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Supplemental Indenture, the
Guarantees or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes).  Section 2.08 hereof will determine which
Notes are considered to be “outstanding” for purposes of this Section 9.02.


 


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee’s own rights, duties or immunities under this Supplemental
Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental indenture.


 

















 


It
will not be necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment or waiver, but it will
be sufficient if such consent approves the substance of the proposed amendment
or waiver.


 


After
an amendment, supplement or waiver under this Section becomes effective,
the Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. 
Any failure of the Company to mail such notice, or any defect therein,
will not, however, in any way impair or affect the validity of any such amended
or supplemental indenture or waiver. 
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding voting as a single
class may waive compliance in a particular instance by the Company with any
provision of this Supplemental Indenture or the Notes.  However, without the consent of each Holder
of Notes affected, an amendment, supplement or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):


 


(a)                                  reduce the
principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;


 


(b)                                 reduce the
principal of or change the fixed maturity of any Note or alter or waive any of
the provisions with respect to the redemption of the Notes except as provided
above with respect to Sections 3.09, 4.10 and 4.15 hereof;


 


(c)                                  reduce the rate
of or change the time for payment of interest, including default interest, on
any Note;


 


(d)                                 waive a Default
or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes, except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes and a waiver of the payment default that resulted from such
acceleration:


 


(e)                                  make any Note
payable in money other than that stated in the Notes;


 


(f)                                    make any change
in the provisions of this Supplemental Indenture relating to waivers of past
Defaults or the rights of Holders of the Notes to receive payments of principal
of or premium, interest on the Notes;


 


(g)                                 make any change
in the foregoing amendment and waiver provisions; or


 


(h)                                 release any
Guarantor from any of its Obligations under its Guarantee or this Supplemental
Indenture, except in accordance with the terms of this Supplemental Indenture.


 


Section 9.03                            Compliance
With Trust Indenture Act.


 


Every
amendment or supplement to this Supplemental Indenture or the Notes will be set
forth in a amended or supplemental indenture that complies with the TIA as then
in effect.


 


Section 9.04                            Revocation
and Effect of Consents.


 


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note.  However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as to its Note if
the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. 
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


 
















 


Section 9.05                            Notation
on or Exchange of Notes.


 


The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. 
The Company in exchange for all Notes may issue and the Trustee will,
upon receipt of an Authentication Order, authenticate new Notes that reflect
the amendment, supplement or waiver.


 


Failure
to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.


 


Section 9.06                            Trustee
to Sign Amendments, Etc.


 


The
Trustee will sign any amended, restated or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.  The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.  In executing any amended, restated or
supplemental indenture, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition
to the documents required by Section 12.04 hereof, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amended, restated or supplemental indenture is authorized or permitted by this
Supplemental Indenture.


 


ARTICLE 10.

NOTE GUARANTEES


 


Section 10.01                     Guarantee.


 


Subject
to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Supplemental Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: 
(a) the principal of and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. 
Each Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.


 


The
Guarantors hereby agree that their obligations hereunder will be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Supplemental Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor.  Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Supplemental
Indenture.


 


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors or any custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, will be reinstated in full force and effect.


 


Each
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.  Each


 

















 


Guarantor
further agrees that, as between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of such obligations as provided in Article 6 hereof, such obligations (whether
or not due and payable) will forthwith become due and payable by the Guarantors
for the purpose of this Guarantee.  The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.


 


Section 10.02                     Limitation
on Guarantor Liability.


 


Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee and this Article 10 will
be limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this Article 10, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent transfer or conveyance.


 


Section 10.03                     Execution
and Delivery of Guarantee.


 


To
evidence its Guarantee set forth in Section 10.01, each Guarantor hereby
agrees that a notation of such Guarantee substantially in the form included in Exhibit C
will be endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Supplemental Indenture will be executed
on behalf of such Guarantor by an Officer.


 


Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 will
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee.


 


If
an Officer whose signature is on this Supplemental Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee will be valid
nevertheless.


 


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Guarantee set forth in this
Supplemental Indenture on behalf of the Guarantors.


 


In
the event that the Company creates or acquires any new Subsidiaries subsequent
to the date of this Supplemental Indenture, if required by Section 4.16
hereof, the Company will cause such Subsidiaries to execute supplemental
indentures to this Supplemental Indenture and Guarantees in accordance with Section 4.16
hereof and this Article 10, to the extent applicable.


 


Section 10.04                     Guarantors
May Consolidate, etc. on Certain Terms.


 


A
Guarantor may not sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into, whether or not such
Guarantor is the surviving Person, another Person other than the Company or
another Guarantor, unless:


 


(a)                                  immediately
after giving effect to such transaction, no Default or Event of Default exists;
and


 


(b)                                 either:


 

















 


(1)                                  the Person
acquiring the property in any such sale or disposition or the Person formed by
or surviving any such consolidation or merger, if other than the Guarantor or
the Company, unconditionally assumes all the obligations of such Guarantor
under this Supplemental Indenture and its Guarantee pursuant to a supplemental
indenture in the form of Exhibit C hereto; or


 


(2)                                  such sale or
other disposition does not violate the applicable provisions of this
Supplemental Indenture.


 


In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in the form of Exhibit C
to the Trustee, of the Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this
Supplemental Indenture to be performed by the Guarantor, such successor Person
will succeed to and be substituted for the Guarantor with the same effect as if
it had been named herein as a Guarantor. 
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder.  All the Guarantees so issued will in all
respects have the same legal rank and benefit under this Supplemental Indenture
as the Guarantees theretofore and thereafter issued in accordance with the
terms of this Supplemental Indenture as though all of such Guarantees had been
issued at the date of the execution hereof.


 


Except
as set forth in Article 5 hereof, and notwithstanding clauses (a) and
(b) above, nothing contained in this Supplemental Indenture or in any of
the Notes will prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.  Upon any
such consolidation or merger of any Guarantor with or into another Guarantor or
with or into the Company, the Guarantee of the Guarantor that does not survive
will no longer be of any force or effect.


 


Section 10.05                     Releases
Following Sale of Assets, Etc..


 


In
the event of (a) any sale or other disposition of all or substantially all
of the assets of any Guarantor, including by way of merger, consolidation or
otherwise, to a Person that is not (either before or after giving effect to
such transaction) the Company or a Restricted Subsidiary of the Company, if the
sale or other disposition does not violate Section 4.10 herein;
(b) any sale or other disposition of all of the Capital Stock of a
Guarantor, including by way of dividend of the Capital Stock of such Guarantor
to the stockholders of the Company, to a Person that is not (either before or
after giving effect to such transaction) the Company or a Restricted Subsidiary
of the Company if the sale or other disposition does not violate Section 
4.07 or Section 4.10 herein; (c) if the Company designates any
Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in
accordance with Section 4.19 of this Supplemental Indenture; (d) upon
legal defeasance, covenant defeasance or satisfaction and discharge of this
Indenture as provided in Article 8 and Article 11; or (e) upon
release of such Guarantor’s Guarantee of all other Indebtedness of the Company,
then such Guarantor (in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such Guarantor)
will be released and relieved of any obligations under its Guarantee; provided that the such sale or other
disposition does not violate the applicable provisions of this Supplemental
Indenture, including without limitation Section 4.10 hereof.  Upon delivery by the Company to the Trustee
of an Officers’ Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with the
applicable provisions of this Supplemental Indenture, including without
limitation Section 4.10 hereof, the Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.


 


Any
Guarantor not released from its obligations under its Guarantee will remain
liable for the full amount of principal of and interest on the Notes and for
the other obligations of any Guarantor under this Supplemental Indenture as
provided in this Article 10.


 

















 


ARTICLE 11.

SATISFACTION AND DISCHARGE


 


Section 11.01                     Satisfaction
and Discharge.


 


This
Supplemental Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:


 


(1)                                  either:


 


(a)                                  all Notes that
have been authenticated (except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered to
the Trustee for cancellation; or


 


(b)                                 all Notes that
have not been delivered to the Trustee for cancellation have become due and
payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination of cash in U.S. dollars
and non-callable Government Securities, in such amounts as will be sufficient
without consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and accrued interest to the date of maturity or
redemption;


 


(2)                                  no Default or
Event of Default has occurred and is continuing on the date of such deposit or
will occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;


 


(3)                                  the Company or
any Guarantor has paid or caused to be paid all sums payable by it under this
Supplemental Indenture; and


 


(4)                                  the Company has
delivered irrevocable instructions to the Trustee under this Supplemental
Indenture to apply the deposited money toward the payment of the Notes at
maturity or the Redemption Date, as the case may be.


 


In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.


 


ARTICLE 12.

MISCELLANEOUS


 


Section 12.01                     Trust
Indenture Act Controls.


 


If
any provision of this Supplemental Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties will
control.


 


Section 12.02                     Notices.


 


Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others’ address.


 


If to the Company and/or any
Guarantor:


 

















 


Ball Corporation

10 Longs Peak Drive

Broomfield, Colorado 80021-2510

Telecopier No.:  (303) 460-2691

Attention:  Treasurer


 


With a copy to:


 


Skadden, Arps, Slate,
Meagher & Flom LLP

155 North Wacker Drive

Chicago, Illinois 60606

Telecopier No.:  (312) 407-0411

Attention:  Charles W. Mulaney, Jr., Esq.


 


If to the Trustee:


 


The Bank of New York Mellon
Trust Company, N.A.

700 S. Flower Street, Suite 500

Los Angeles, CA 90017

Telecopier No.:  (213) 630-6298

Attention:  Corporate Trust Administration


 


The
Company, any Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.


 


All
notices and communications (other than those sent to Holders) will be deemed to
have been duly given:  at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.


 


Any
notice or communication to a Holder will be mailed by first class mail postage
prepaid, certified or registered mail, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar.  Any notice or
communication will also be so mailed to any Person described in TIA Section 313(c),
to the extent required by the TIA. 
Failure to mail a notice or communication to a Holder or any defect in
it will not affect its sufficiency with respect to other Holders.


 


If
a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.


 


If
the Company mails a notice or communication to Holders, it will mail a copy to
the Trustee and each Agent at the same time.


 


The
Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other
similar unsecured electronic methods.  If
the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion
elects to act upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. 
The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction.  The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.


 

















 


Section 12.03                     Communication
by Holders of Notes with Other Holders of Notes.


 


Holders
may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Supplemental Indenture or the
Notes.  The Company, the Trustee, the
Registrar and anyone else will have the protection of TIA Section 312(c).


 


Section 12.04                     Certificate
and Opinion as to Conditions Precedent.


 


Upon
any request or application by the Company to the Trustee to take any action
under this Supplemental Indenture, the Company will furnish to the Trustee:


 


(a)                                  an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee (which
will include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Supplemental Indenture relating to the proposed
action have been satisfied; and


 


(b)                                 except with
respect to the initial issuance of the Notes, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which will include the statements
set forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.


 


Section 12.05                     Statements
Required in Certificate and Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Supplemental Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) will comply with the provisions of TIA Section 314(e) and
will include:


 


(a)                                  a statement
that the Person making such certificate or opinion has read such covenant or
condition;


 


(b)                                 a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;


 


(c)                                  a statement
that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and


 


(d)                                 a statement as
to whether or not, in the opinion of such Person, such condition or covenant
has been satisfied.


 


Section 12.06                     Rules by
Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


 


Section 12.07                     Calculation
of Foreign Currency Amounts.


 


The
calculation of the U.S. dollar equivalent amount for any amount denominated in
a foreign currency will be the noon buying rate in the City of New York as
certified by the Federal Reserve Bank of New York on the date on which such
determination is required to be made or, if such day is not a day on which such
rate is published, the rate most recently published prior to such day.


 


Section 12.08                     No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No
past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or such Guarantor under the Notes, the
Guarantees, this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such


 

















 


obligations
or their creation.  Each Holder by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes and the Guarantees.  The waiver may not be effective to waive
liabilities under the federal securities laws.


 


Section 12.09                     Governing
Law; Waiver of Jury Trial.


 


THE
INTERNAL LAWS OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


EACH
OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS  SUPPLEMENTAL INDENTURE, THE
NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 12.10                     Force
Majeure.


 


In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


Section 12.11                     No
Adverse Interpretation of Other Agreements.


 


This
Supplemental Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other
Person.  Any such indenture, loan or debt
agreement may not be used to interpret this Supplemental Indenture.


 


Section 12.12                     Successors.


 


All
agreements of the Company in this Supplemental Indenture and the Notes will
bind its successors.  All agreements of
the Trustee in this Supplemental Indenture will bind its successors.


 


Section 12.13                     Severability.


 


In
case any provision in this Supplemental Indenture or in the Notes will be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.


 


Section 12.14                     Counterpart
Originals.


 


The
parties may sign any number of copies of this Supplemental Indenture.  Each signed copy will be an original, but all
of them together represent the same agreement.


 


Section 12.15                     Table
of Contents, Headings, Etc.


 


The
Table of Contents, Cross-Reference Table and Headings of the Articles and
Sections of this Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Supplemental Indenture
and will in no way modify or restrict any of the terms or provisions hereof.


 


[Signatures
on following page]


 

















 


SIGNATURES


 


Dated as of November 18,
2010


 


	
   

  	
   

  	
  Ball
  Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Charles E. Baker

  
	
   

  	
   

  	
   

  	
  Name:
  Charles E. Baker

  
	
   

  	
   

  	
   

  	
  Title: Vice President, General Counsel and
  Assistant Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ball
  Aerosol and Specialty Container Holding Corporation

  
	
   

  	
   

  	
  Ball
  Aerosol and Specialty Container Inc.

  
	
   

  	
   

  	
  Ball
  Metal Beverage Container Corp.

  
	
   

  	
   

  	
  Ball
  Metal Food Container Corp.

  
	
   

  	
   

  	
  Ball
  Metal Packaging Sales Corp.

  
	
   

  	
   

  	
  Ball
  Packaging Corp.

  
	
   

  	
   

  	
  Ball
  Plastic Container Corp.

  
	
   

  	
   

  	
  BG
  Holdings I, Inc.

  
	
   

  	
   

  	
  BG
  Holdings II, Inc.

  
	
   

  	
   

  	
  Latas de Aluminio Ball, Inc.

  
	
   

  	
   

  	
  USC
  May Verpackungen Holding Inc.

  
	
   

  	
   

  	
  Ball
  Corporation, a Nevada corporation

  
	
   

  	
   

  	
  Ball
  Glass Container Corporation

  
	
   

  	
   

  	
  Ball
  Glass Containers, Inc.

  
	
   

  	
   

  	
  Ball
  Metal Container Corporation

  
	
   

  	
   

  	
  Ball
  Aerospace & Technologies Corp.

  
	
   

  	
   

  	
  Ball
  Technologies Holdings Corp.

  
	
   

  	
   

  	
  Efratom
  Holding, Inc.

  
	
   

  	
   

  	
  Ball
  Holdings Corp.

  
	
   

  	
   

  	
  Ball
  Delaware Holdings, LLC

  
	
   

  	
   

  	
  Ball
  Asia Services Limited

  
	
   

  	
   

  	
  Ball
  Metal Food Container, LLC

  
	
   

  	
   

  	
  Ball
  Pan-European Holdings, Inc.

  
	
   

  	
   

  	
  Metal
  Packaging International, Inc.

  
	
   

  	
   

  	
  Ball
  Container LLC

  
	
   

  	
   

  	
  Ball
  Holdings LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Charles E. Baker

  
	
   

  	
   

  	
   

  	
  Name:
  Charles E. Baker

  
	
   

  	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 

















 


	
   

  	
  The Bank of New York
  Mellon Trust Company, N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Alex Briffett

  
	
   

  	
   

  	
   

  	
  Name:
  John A. (Alex) Briffett

  
	
   

  	
   

  	
   

  	
  Title:
  Authorized Signatory

  



 
















 


EXHIBIT A




 





 


[FACE OF NOTE]


 


[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE SUPPLEMENTAL INDENTURE]




 





 


5.75% SENIOR NOTES DUE 2021


 


	
  ISIN
  No.:

  	
  $                         

  
	
  CUSIP
  No.:

  	
   

  



 


BALL CORPORATION


 


promises
to pay to CEDE & CO. or registered assigns, the principal sum of
$                        
on May 15, 2021.


 


Interest
Payment Dates:  May 15th and November 15th


 


Record
Dates:  May 1st and November 1st


 


Dated:  November 18, 2010


 


 


	
   

  	
  BALL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


Date
of Authentication: November 18, 2010


 


This
is one of the Global Notes

referred to in the within-

mentioned Supplemental Indenture:


 


Dated:
November 18, 2010


 


THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,


as
Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


[Back of Note]


 


5.75% Senior Notes due 2021


 


Capitalized
terms used herein have the meanings assigned to them in the Supplemental
Indenture referred to below unless otherwise indicated.


 


1.             INTEREST . 
Ball Corporation, an Indiana corporation (the “Company”), promises to pay interest on the
principal amount of this Note at 5.75% per annum from the date hereof until
maturity.  The Company will pay interest
semi-annually on May 15th and November 15th of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an “Interest Payment Date”). 
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest will accrue from such next
succeeding Interest Payment Date; provided,
further, that the first Interest
Payment Date will be May 15, 2011. 
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest at the same rate to the
extent lawful.  Interest will be computed
on the basis of a 360-day year of twelve 30-day months.


 


2.             METHOD OF PAYMENT.  The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in Section 2.12
of the Supplemental Indenture with respect to defaulted interest.  Principal, premium, if any, and interest on
the Notes will be payable at the office or agency of the Paying Agent and
Registrar within the City and State of New York or, at the option of the
Company, payment of interest may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the register of Holders of
Notes; provided that all payments
of principal, premium and interest with respect to Notes the Holders of which
have given wire transfer instructions to the Trustee will be required to be made
by wire transfer of immediately available funds to the accounts specified by
the Holders thereof.  Such payment will
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.


 


3.             PAYING AGENT AND REGISTRAR.  Initially, The Bank of New York Mellon Trust
Company, N.A., the Trustee under the Supplemental Indenture, will act as Paying
Agent and Registrar.  The Company may
change any Paying Agent or Registrar without notice to any Holder.  The Company or any of its Subsidiaries may
act in any such capacity.


 


4.             INDENTURE. 
This Note is one of a duly authenticated series of securities of the
Company issued and to be issued in one or more series under an indenture (the “Base Indenture”), dated as of March 27,
2006, between the Company and the Trustee, as amended by the Fifth Supplemental
Indenture (the “Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”),
dated as of November 18, 2010, among the Company, the Guarantors and the
Trustee.  The terms of the Notes include
those stated in the Supplemental Indenture and those made part of the
Supplemental Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). 
The Notes are subject to all such terms, and Holders are referred to the
Supplemental Indenture and such Act for a statement of such terms.  To the extent any provision of this Note
conflicts with the express provisions of the Base Indenture, the provisions of
this Note will govern and be controlling, and to the extent any provision of
this Note conflicts with the express provisions of the Supplemental Indenture,
the provisions 


 

















 


of
the Supplemental Indenture will govern and be controlling.  The Company will be entitled to issue
Additional Notes pursuant to Section 2.14 of the Supplemental Indenture.


 


5.             OPTIONAL REDEMPTION .


 


(a)           Except
as set forth in subparagraph (b) and (c) of this Paragraph 5, the
Company will not have the option to redeem the Notes prior to November 15,
2015.  Thereafter, the Company will have
the option to redeem all or a part of the Notes, upon not less than 30 nor more
than 60 days’ notice, at the redemption prices, expressed as percentages of
principal amount, set forth below, plus accrued and unpaid interest on the
Notes redeemed to the applicable Redemption Date, if redeemed during the
twelve-month period beginning on November 15 of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2015

  	
   

  	
  102.875

  	
  %

  
	
  2016

  	
   

  	
  101.917

  	
  %

  
	
  2017

  	
   

  	
  100.958

  	
  %

  
	
  2018
  and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           Notwithstanding
the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to November 15, 2013, the Company may on any one or more occasions redeem,
in whole or in part, up to 35% of the aggregate principal amount of Notes,
including Additional Notes of the same class, if any, issued under the
Supplemental Indenture, at a redemption price of par plus the stated interest
rate, or 105.75% of the principal amount of the Notes redeemed, plus accrued
and unpaid interest thereon to the Redemption Date with the net cash proceeds
of one or more Equity Offerings; provided
that at least 65% of the aggregate principal amount of the Notes, including
Additional Notes of the same class, if any, issued under the Supplemental
Indenture, remains outstanding immediately after the occurrence of such
redemption, excluding Notes held by the Company and its Subsidiaries; and the
redemption occurs within 90 days of the date of the closing of such Equity
Offering.


 


(c)           At
any time prior to November 15, 2015, the Company, at its option, may
redeem all or a part of the notes, upon not less than 30 nor more than
60 days’ prior notice, at a redemption price equal to 100% of the
principal amount of notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to the date of redemption, subject to the
rights of Holders of Notes on the relevant record date to receive interest due
on the relevant interest payment date.


 


6.             MANDATORY REDEMPTION.  The Company is not required to make mandatory
redemption payments with respect to the Notes.


 


7.             REPURCHASE AT OPTION OF HOLDER .


 


(a)           If
a Change of Control occurs, and the Company does not redeem the Notes as
described under clause (5) above within 60 days after the Change of
Control, the Company will be required to make an offer (a “Change of Control Offer”) to repurchase
all or any part, equal to $2,000 or an integral multiple of $1,000 in excess
thereof, of each Holder’s Notes at a purchase price in cash equal to 101% of
the aggregate principal amount of the Notes repurchased plus accrued and unpaid
interest on the Notes repurchased to the date of purchase (the “Change of Control Payment”).  Within 30 days following any Change of
Control or, at the Company’s option, prior to the consummation of such Change
of Control but after the public announcement thereof, the Company will mail a
notice to each Holder setting forth the procedures governing the Change of
Control Offer as required by the Supplemental Indenture.


 


(b)           If
the Company or a Restricted Subsidiary consummates any Asset Sales and the
aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will
commence an offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes
containing provisions similar to those set forth in the Supplemental Indenture
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase the maximum principal amount of Notes and such 


 

















 


other
pari passu Indebtedness that may
be purchased out of the Excess Proceeds (an “Asset
Sale Offer”) pursuant to Section 3.09 of the Supplemental
Indenture at an offer price in cash in an amount equal to 100% of the principal
amount plus accrued and unpaid interest to the date of purchase and will be
payable in cash.  To the extent that the
aggregate amount of Notes and other pari
passu Indebtedness tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company (or such Subsidiary) may use those Excess
Proceeds for any purpose not otherwise prohibited by the Supplemental
Indenture.  If the aggregate principal
amount of Notes and other pari passu
Indebtedness surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee will select the Notes and other pari passu Indebtedness to be purchased on
a pro rata basis.  Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Notes.


 


8.   NOTICE OF REDEMPTION. 
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder whose Notes are to be
redeemed at its registered address. 
Notes in denominations larger than $2,000 may be redeemed in part but
only in whole multiples of $1,000 in excess thereof, unless all of the Notes held
by a Holder are to be redeemed.  On and
after the Redemption Date interest ceases to accrue on Notes or portions
thereof called for redemption.


 


9.   DENOMINATIONS,
TRANSFER, EXCHANGE.  The Notes
are in registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. 
Notes may be transferred or exchanged as provided in the Supplemental
Indenture.  The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Supplemental Indenture.  The Company need not exchange or transfer any
Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. 
Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest Payment
Date.


 


10.   PERSONS DEEMED
OWNERS.  The registered Holder
of a Note may be treated as its owner for all purposes.


 


11.   AMENDMENT,
SUPPLEMENT AND WAIVER.  The
Base Indenture may be amended as provided therein.  Subject to certain exceptions, the
Supplemental Indenture, the Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes, voting as a single class, and any existing
default or compliance with any provision of the Supplemental Indenture, the
Guarantees or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes,
including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes, voting as a single
class.  Without the consent of any Holder
of a Note, the Supplemental Indenture, the Guarantees or the Notes may be
amended or supplemented (i) to cure any ambiguity, defect or
inconsistency; (ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; (iii) to provide for the assumption of the
Company’s obligations to Holders of the Notes in case of a merger or
consolidation or sale of all or substantially all of the Company’s assets
(iv) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Supplemental Indenture of any such Holder; (v) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Supplemental Indenture under the Trust Indenture Act; (vi) to
provide for the issuance of Additional Notes in accordance with the
Supplemental Indenture; (vii) to conform the text of the Supplemental
Indenture, the Notes or the Guarantees to any provision of the Description of
Notes to the extent that such provision in the Description of Notes was
intended to be a verbatim recitation of a provision of the Supplemental
Indenture, the Notes or the Guarantees; (viii) to allow any Guarantor to
execute a supplemental indenture to the Supplemental Indenture and/or a
Guarantee with respect to the Notes; (ix) to evidence and provide for the
acceptance of appointment by a successor trustee; (x) to add Guarantees
with respect to the Notes; (xi) to secure the Notes; or (xii) to
release any Lien granted in favor of the Holders of the Notes pursuant to 


 

















 


Section 4.09
of the Supplemental Indenture upon release of the Lien securing the underlying
obligation that gave rise to such Lien.


 


12.           DEFAULTS AND REMEDIES.  Each of the following is an “EVENT OF DEFAULT”:  (i) default
for a period of 30 days in the payment when due of interest on the Notes;
(ii) default in the payment when due of principal of or premium, if any,
on the Notes; (iii) the Company or any of its Restricted Subsidiaries fails
to comply with the provisions of Section 5.01 of the Supplemental
Indenture; (iv) the Company or any of its Restricted Subsidiaries fails
for 30 days after notice to the Company to comply with any of the provisions of
Sections 4.07, 4.09, 4.10 or 4.15 of the Supplemental Indenture; (v) the
Company or any of its Restricted Subsidiaries fails for 60 days after notice to
comply with any of the other agreements in the Supplemental Indenture or the
Notes; (vi) the Company or any of its Restricted Subsidiaries (other than
a Securitization Entity) defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (other than a Securitization Entity) (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries (other than a
Securitization Entity)) whether such Indebtedness or guarantee now exists, or
is created after the date of this Supplemental Indenture, if that default
(a) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness on or before the expiration of the grace period
provided in such Indebtedness on the date of such default (a “Payment Default”) or (b) results in
the acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$50.0 million or more or its foreign currency equivalent; (vii) the
Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $50.0 million or its foreign currency equivalent,
excluding amounts covered by insurance, which judgments are not paid,
discharged or stayed for a period of 60 days; (viii) certain events of
bankruptcy or insolvency occur with respect to the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law; or
(ix) except as permitted by the Supplemental Indenture, any Guarantee is
held in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, denies or disaffirms its obligations under
such Guarantor’s Guarantee.


 


If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable. 
Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company or any Restricted Subsidiary of the Company that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law, all outstanding Notes will become due and payable without
further action or notice.  Holders may
not enforce the Supplemental Indenture or the Notes except as provided in the
Supplemental Indenture.  Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power.  The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default if it
determines that withholding notice is in their interest, except a Default or
Event of Default relating to the payment of principal or interest.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under the Supplemental Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Notes.  The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Supplemental Indenture, and the Company is required upon becoming
aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.


 

















 


13.           TRUSTEE DEALINGS WITH COMPANY.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.


 


14.           NO RECOURSE AGAINST OTHERS.  A director, officer, employee, incorporator
or stockholder, of the Company or any Guarantor, as such, will not have any
liability for any obligations of the Company or the Guarantors under the Notes,
the Guarantees or the Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for the issuance of
the Notes.


 


15.           AUTHENTICATION.  This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


16.           ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as:  TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).


 


17.           CUSIP NUMBERS.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.  The Company will furnish
to any Holder upon written request and without charge a copy of the Base
Indenture, the Supplemental Indenture and the Guarantees.  Requests may be made to:


 


Ball Corporation

10 Longs Peak Drive

Broomfield, Colorado 80021-2510

Telecopier No.:  (303) 460-2691

Attention:  Chief Financial Officer


 

















 


ASSIGNMENT FORM


 


	
  To assign this Note, fill
  in the form below:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (I) or (we) assign and
  transfer this Note to:

  	
   

  
	
   

  	
   

  	
  (Insert
  assignee’s legal name)

  
	
   

  	
   

  	
   

  
	
  (Insert
  assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print
  or type assignee’s name, address and zip code)

  
	
  and irrevocably appoint

  	
   

  
	
  to transfer this Note on
  the books of the Company.  The agent
  may substitute another to act for him.

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (sign exactly as your name
  appears on the face of this senior note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Identification No:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
												



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 

















 


Option of Holder to Elect Purchase


 


If
you want to elect to have this Note purchased by the Company pursuant to Section 4.10
or 4.15 of the Supplemental Indenture, check the box below:


 


	
  o
    Section 4.10

  	
  o
    Section 4.15

  



 


If
you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.15 of the Supplemental
Indenture, state the amount you elect to have purchased: $


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
  (sign
  exactly as your name appears on the face of this senior note)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tax Identification No:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
							



 


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 

















 


EXHIBIT B


 


FORM OF NOTATION OF GUARANTEE


 


For
value received, each Guarantor (which term includes any successor Person under
the Supplemental Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Supplemental Indenture and subject
to the provisions in the indenture (the “Base
Indenture “), dated as of March 27, 2006, between Ball
Corporation, (the “Company”) and
The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York
Trust Company, N.A.), as trustee (the “Trustee
“), as amended by the Fifth Supplemental Indenture (the “Fifth Supplemental Indenture” and,
together with the Base Indenture, the “Indenture
“), dated as of November 18, 2010, among the Company, the Guarantors named
on the signature pages thereto and the Trustee, (a) the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes (as defined in the Fifth Supplemental Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Fifth Supplemental Indenture and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.  The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee
and the Fifth Supplemental Indenture are expressly set forth in Article 10
of the Fifth Supplemental Indenture and reference is hereby made to the Fifth Supplemental
Indenture for the precise terms of the Guarantee.  Each Holder of a Note, by accepting the same,
agrees to and will be bound by such provisions and appoints the Trustee
attorney-in-fact of such Holder for such purpose.


 


 


	
   

  	
  [Name of Guarantor(s)]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 
















 


EXHIBIT C


 


FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture
“), dated as of
                    ,
20   , among
                        
(the “Guaranteeing Subsidiary “),
a subsidiary of Ball Corporation (or its permitted successor), an Indiana
corporation (the “Company “), the
Company, the other Guarantors (as defined in the Fifth Supplemental Indenture
referred to herein) and The Bank of New York Mellon Trust Company, N.A., as trustee
under the Fifth Supplemental Indenture referred to below (the “Trustee “).


 


W I T N E S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Base Indenture “), dated as
of March 27, 2006, between the Company and the Trustee, as amended by a
Fifth Supplemental Indenture (the “Fifth
Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), dated as of November 18,
2010, among the Company, the Guarantors named therein and the Trustee,
providing for the original issuance of an aggregate principal amount of $500.0
million of 5.75% Senior Notes due 2021 (the “ Notes”);


 


WHEREAS,
the Fifth Supplemental Indenture provides that under certain circumstances the
Guaranteeing Subsidiary will execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary will unconditionally
guarantee all of the Company’s Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the “ Note Guarantee”); and


 


WHEREAS,
pursuant to Section 9.01 of the Fifth Supplemental Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


 


1.             Capitalized
Terms.  Capitalized terms used
herein without definition will have the meanings assigned to them in the Fifth
Supplemental Indenture.


 


2.             Agreement
to Guarantee.  The
Guaranteeing Subsidiary hereby agrees as follows:


 


(a)           Along
with all Guarantors named in the Fifth Supplemental Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:


 


(i)            the
principal of, and premium, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and


 


(ii)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed or any performance
so 


 

















 


guaranteed
for whatever reason, the Guarantors will be jointly and severally obligated to
pay the same immediately.


 


(b)           The
obligations hereunder will be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Fifth Supplemental Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.


 


(c)           The
following is hereby waived:  diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.


 


(d)           This
Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and the Fifth Supplemental Indenture, and
the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Fifth Supplemental Indenture.


 


(e)           If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors, or any custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, will be reinstated in full force and
effect.


 


(f)            The
Guaranteeing Subsidiary will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.


 


(g)           As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 of the Fifth Supplemental
Indenture for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Fifth
Supplemental Indenture, such obligations (whether or not due and payable) will
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee.


 


(h)           The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantee.


 


(i)            Pursuant
to Section 10.02 of the Fifth Supplemental Indenture, after giving effect
to any maximum amount and all other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 10 of the Fifth
Supplemental Indenture, this new Note Guarantee will be limited to the maximum
amount permissible such that the obligations of such Guarantor under this Note
Guarantee will not constitute a fraudulent transfer or conveyance.


 


3.             Execution
and Delivery.  Each
Guaranteeing Subsidiary agrees that the Note Guarantees will remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.


 


4.             Guaranteeing Subsidiary may
Consolidate, etc. on Certain Terms.


 

















 


(a)           The
Guaranteeing Subsidiary may not sell or otherwise dispose of all substantially
all of its assets to, or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person, other than the Company
or another Guarantor unless:


 


(i)            immediately
after giving effect to such transaction, no Default or Event of Default exists;
and


 


(ii)           either
(A) subject to Sections 10.04 and 10.05 of the Fifth Supplemental
Indenture, the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Fifth Supplemental Indenture and the Note
Guarantee on the terms set forth herein or therein; or (B) such sale or
other disposition does not violate the applicable provisions of the Fifth
Supplemental Indenture, including without limitation, Section 4.10
thereof.


 


(b)           In
case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of the Fifth Supplemental Indenture to be
performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.  Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable under the Fifth Supplemental Indenture
which theretofore will not have been signed by the Company and delivered to the
Trustee.  All the Note Guarantees so
issued will in all respects have the same legal rank and benefit under the
Fifth Supplemental Indenture as the Note Guarantees theretofore and thereafter
issued in accordance with the terms of the Fifth Supplemental Indenture as
though all of such Note Guarantees had been issued at the date of the execution
hereof.


 


(c)           Except
as set forth in Articles 4 and 5 and Section 10.05 of Article 10 of
the Fifth Supplemental Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Fifth Supplemental Indenture or in any of the Notes
will prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.


 


5.             Releases.


 


(a)           In
the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of any Guarantor, in each
case to a Person that is not (either before or after giving effect to such
transaction) a Subsidiary of the Company, then such Guarantor (in the event of
a sale or other disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) will be released and relieved of any
obligations under its Note Guarantee; provided
that such sale or other disposition does not violate the applicable provisions
of the Supplemental Indenture, including without limitation Section 4.10
of the Fifth Supplemental Indenture. 
Upon delivery by the Company to the Trustee of an Officers’ Certificate
and an Opinion of Counsel to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of the Fifth Supplemental
Indenture, including without limitation Section 4.10 of the Fifth
Supplemental Indenture, the Trustee will execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.


 

















 


(b)           Any
Guarantor not released from its obligations under its Note Guarantee will
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of any Guarantor under the Fifth Supplemental
Indenture as provided in Article 10 of the Fifth Supplemental Indenture.


 


6.             No
Recourse Against Others.  No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, will have any liability for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of the Notes by
accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for issuance of the Notes. 
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.


 


7.             New York Law to Govern.  THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


8.             Counterparts.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy will be an original, but all of them together represent the same
agreement.


 


9.             Effect
of Headings.  The Section headings
herein are for convenience only and will not affect the construction hereof.


 


10.           The
Trustee.  The Trustee will not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above written.


 


	
  Dated:                                    
  , 20

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GUARANTEEING SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [COMPANY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [EXISTING GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [TRUSTEE],

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory