Exhibit 4.2


 


BALL CORPORATION


 


And


 


GUARANTORS


 


Parties
Hereto


 


$375,000,000


 


7.125% SENIOR NOTES DUE 2016


 


 


SECOND SUPPLEMENTAL INDENTURE


 


Dated
as of August 20, 2009


 


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

  



 

















 


SECOND SUPPLEMENTAL INDENTURE dated as of August 20,
2009 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 of the Base Indenture
provides that the Company and the Trustee, without the consent of any holders
of the Company’s Securities, may amend or waive certain terms and covenants in
the Base Indenture as permitted by Sections 2.1 and 2.2 thereof.


 


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 parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto.


 


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 7.125% Senior Notes due 2016 (the “Notes”):


 


ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01         Definitions.


 


“ABI Acquisition”
means the acquisition by the Company of three beverage can manufacturing plants
in (i) Rome, Georgia, (ii) Columbus, Ohio and (iii) Fort
Atkinson, Wisconsin, and one beverage can end manufacturing plant in
Gainesville, Florida from Metal Container Corporation, an indirect wholly-owned
subsidiary of Anheuser-Busch InBev n.v./s.a.


 


“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 of:


 


(a)           the present value at
such Redemption Date of (i) the redemption price of such Note at September 1,
2013, (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 September 1,
2013 (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;


 


5

















 


(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;


 


6

















 


(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;


 


7

















 


(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)           an amount equal to any
extraordinary loss plus any net loss realized by such Person or any of its
Restricted Subsidiaries in connection with an Asset Sale, to the extent such
losses were deducted in computing such Consolidated Net Income; plus


 


(2)           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


 


8

















 


(3)           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


 


(4)           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


 


(5)           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:


 


(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 will be
included only 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 will be excluded 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 will be excluded; and


 


(4)           the cumulative effect of a change in accounting principles
will be excluded.


 


9

















 


“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 August 11, 2009, 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 


 


10

















 


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 $509.0
million of the Company’s 6.875% Senior Notes due 2012, up to $450.0 million of
the Company’s 6.625% Senior Notes due 2018 and up to $325.0 million of the
Company’s 7.375% Senior Notes due 2019.


 


“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 


 


11

















 


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 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,
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.


 


“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.


 


12
















 


“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 (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;


 


13

















 


(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 $375.0 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, 


 


14

















 


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, determined as provided below.


 


For purposes of calculating the Leverage Ratio:


 


(1)           acquisitions 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, 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; and


 


(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.


 


“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 and
debt issuance 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 


 


15

















 


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:


 


16

















 


(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;


 


17

















 


(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 $250.0 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;


 


18

















 


(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;


 


19

















 


(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.


 


20

















 


“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 


 


21

















 


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 Second 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
ABI Acquisition, the offering of the Initial Notes, the offering of up to $325.0
million of the Company’s 7.375% Senior Notes due 2019 and the payment of
related fees and expenses thereof.


 


22
















 


“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 September 1,
2013; provided, however, that if
the period from the Redemption Date to September 1, 2013, 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
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 


 


23

















 


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.


 


24

















 


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 


 


25

















 


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.


 


26

















 


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


 


27

















 


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.


 


28

















 


“THIS
GLOBAL NOTE IS HELD
BY THE DEPOSITARY (AS DEFINED IN THE SECOND 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 SECOND SUPPLEMENTAL INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE SECOND 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.


 


29

















 


(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.


 


30

















 


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


 


31

















 


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


 


32

















 


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.  A notice
of redemption may not be conditional.


 


33
















 


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 September 1,
2012, 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
107.125% 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 September 1,
2013, 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 September 1, 2013.


 


(d)           On or after September 1,
2013, 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 September 1 of the
years indicated below:


 


34

















 




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  103.563

  	
  %

  
	
  2014

  	
   

  	
  101.781

  	
  %

  
	
  2015 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;


 


35

















 


(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 Company will select the Notes and other pari
passu Indebtedness to be purchased on a pro rata basis 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.  The Company will publicly
announce the results of the Asset Sale Offer on the Purchase Date.


 


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


 


36

















 


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 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.


 


37

















 


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


 


38

















 


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.


 


39

















 


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 $50.0 million per annum; provided that up
to $15.0 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 $100.0
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 and the notes would have been rated Ba3 (or the equivalent
thereof) or better by Moody’s and BB- (or the equivalent thereof) or better by
S&P (provided, that if either
such entity ceases to rate the notes for reasons outside of


 


40

















 


the control of the
Company, the equivalent investment grade credit rating from any other “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 a replacement agency will be deemed
to satisfy the rating requirement for the rating agency so replaced).


 


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


 


41

















 


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.


 


42

















 


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;


 


43
















 


(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 $200.0 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


 


44

















 


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;


 


45

















 


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 (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


 


46

















 


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.


 


47

















 


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;


 


48

















 


(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 Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.


 


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, 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         Payment for Consents.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Supplemental Indenture or the Notes unless such
consideration is offered to be paid and is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


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:


 


49

















 


(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;


 


50

















 


(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;


 


51

















 


(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;


 


52
















 


(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 


 


53

















 


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 


 


54

















 


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:


 


55

















 


(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.


 


56

















 


(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 


 


57

















 


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 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 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 


 


58

















 


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.


 


59

















 


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 


 


60

















 


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 


 


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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.


 


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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 


 


63

















 


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:


 


64

















 


(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 an 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 


 


65

















 


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.


 


66

















 


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)           the Net Proceeds of
such sale or other disposition are applied in accordance with 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


 


67

















 


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; or (d) upon legal defeasance, covenant defeasance
or satisfaction and discharge of this Indenture as provided in Article 8
and Article 11, 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 Net
Proceeds of such sale or other disposition are applied in accordance with 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.


 


68

















 


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

333 West Wacker Drive, Suite 2100

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.


 


69

















 


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 facsimile or electronic transmission
(including a pdf.) of written instructions or directions pursuant to this
Supplemental Indenture, it being understood that originals of such shall be
provided to the Trustee in a timely manner, and such originally executed
instructions and/or directions shall be signed by an authorized Officer of the
Company.


 


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.


 


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.


 


70

















 


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.


 


71

















 


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]


 


72
















 


SIGNATURES


 


Dated as of August 20, 2009


 


	
   

  	
  Ball Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. David Hoover

  
	
   

  	
   

  	
  Name: R. David Hoover

  
	
   

  	
   

  	
  Title: President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. David Hoover

  
	
   

  	
   

  	
  Name: R. David Hoover

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  Ball
  Aerospace & Technologies Corp.

  
	
   

  	
  Ball Technologies
  Holdings Corp.

  
	
   

  	
  Efratom
  Holding, Inc.

  
	
   

  	
  Ball Holdings Corp.

  
	
   

  	
  Ball Technology
  Services Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L. Taylor

  
	
   

  	
   

  	
  Name: David L. Taylor

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ball Delaware Holdings,
  LLC

  
	
   

  	
  Ball Asia Services
  Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond J. Seabrook

  
	
   

  	
   

  	
  Name: Raymond J.
  Seabrook

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  



 

















 


	
   

  	
  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: Senior
  Associate

  
				



 


 

















 


EXHIBIT A


 




 





[FACE
OF NOTE]


 


[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Supplemental Indenture]




 





 


7.125% SENIOR NOTES DUE 2016


 


	
  ISIN
  No.:

  	
   

  	
  $                               

  
	
  CUSIP No.:

  	
   

  	
   

  



 


BALL
CORPORATION


 


promises to pay to CEDE & CO. or
registered assigns, the principal sum of
$                        
on September 1, 2016.


 


Interest Payment Dates:  March 1st and September 1st


 


Record Dates: 
February 15th and August 15th


 


Dated:  August 20,
2009


 


 


	
   

  	
  BALL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


Date
of Authentication: August 20, 2009


 


This
is one of the Global Notes

referred to in the within-

mentioned Supplemental Indenture:


 


Dated:
August 20, 2009


 


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


as
Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 
















 


[Back
of Note]


 


7.125%
Senior Notes due 2016


 


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 7.125% per annum from the date hereof until
maturity.  The Company will pay interest
semi-annually on March 1st and September 1st 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 March 1, 2010. 
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 February 15 or August 15 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 Second
Supplemental Indenture (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”), dated as of August 20,
2009, 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 


 


76

















 


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 September 1, 2013. 
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 September 1
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2013

  	
   

  	
  103.563

  	
  %

  
	
  2014

  	
   

  	
  101.781

  	
  %

  
	
  2015 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b)           Notwithstanding the provisions of
subparagraph (a) of this Paragraph 5, at any time prior to September 1,
2012, 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 107.125% 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 September 1, 2013, 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


 


77

















 


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.


 


78

















 


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 


 


79

















 


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


 


80
















 


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.


 


82

















 


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., as trustee (the “Trustee “), as amended by the Second
Supplemental Indenture (the “Second  Supplemental Indenture” and, together with
the Base Indenture, the “Indenture
“), dated as of August 20, 2009, 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 Second 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
Second 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 Second Supplemental Indenture are expressly set forth in Article 10
of the Second Supplemental Indenture and reference is hereby made to the Second
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 Second Supplemental Indenture
referred to herein) and The Bank of New York Mellon Trust Company, N.A., as trustee
under the Second 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 Second Supplemental Indenture (the “Second Supplemental Indenture” and, together with the Base
Indenture, the “Indenture”), dated as of August 20, 2009,
among the Company, the Guarantors named therein and the Trustee, providing for
the original issuance of an aggregate principal amount of $375.0 million of
7.125% Senior Notes due 2016 (the “ Notes”);


 


WHEREAS, the Second 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 Second
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 Second
Supplemental Indenture.


 


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


 


(a)                                  Along with all Guarantors
named in the Second 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 Second 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 Second Supplemental Indenture, and the Guaranteeing
Subsidiary accepts all obligations of a Guarantor under the Second 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 Second 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 Second 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 Second 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 Second 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.


 


85

















 


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 Second 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 Second
Supplemental Indenture and the Note Guarantee on the terms set forth herein or
therein; or (B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Second 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 Second 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 Second 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 Second Supplemental
Indenture as the Note Guarantees theretofore and thereafter issued in accordance
with the terms of the Second 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 Second
Supplemental Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Second 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 the Net Proceeds of such
sale or other disposition are applied in accordance with the applicable
provisions of the Supplemental Indenture, including without limitation Section 4.10
of the Second 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 Second
Supplemental Indenture, including without limitation Section 4.10 of the
Second Supplemental Indenture, the Trustee will execute 


 


86

















 


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 Second Supplemental Indenture as provided in Article 10
of the Second 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.


 


87

















 


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

  



 


88