exv4w1







Exhibit 4.1




Execution Copy




 

 






EXTERRAN HOLDINGS, INC.




AND



THE GUARANTORS NAMED ON THE SIGNATURE PAGES HEREOF



 





7.25% SENIOR NOTES DUE 2018



 





INDENTURE



Dated as of November 23, 2010



 





WELLS FARGO BANK, NATIONAL ASSOCIATION,



As Trustee



 

 












 









 












CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture	 	Indenture	 
	Act Section	 	Section	 
	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)
	 	 	11.03	 
	(c)
	 	 	11.03	 
	313(a)
	 	 	7.06	 
	(b)(1)
	 	 	7.06	 
	(b)(2)
	 	 	7.06, 7.07	 
	(c)
	 	 	7.06, 11.02	 
	(d)
	 	 	7.06	 
	314(a)
	 	 	4.03, 4.04, 11.02	 
	(b)
	 	 	N/A	 
	(c)(1)
	 	 	11.04	 
	(c)(2)
	 	 	11.04	 
	(c)(3)
	 	 	N/A	 
	(d)
	 	 	N/A	 
	(e)
	 	 	11.05	 
	(f)
	 	 	N/A	 
	315(a)
	 	 	7.01	 
	(b)
	 	 	7.05, 11.02	 
	(c)
	 	 	7.01	 
	(d)
	 	 	7.01	 
	(e)
	 	 	6.11	 
	316(a)(last sentence)
	 	 	2.08	 
	(a)(1)(A)
	 	 	6.05	 
	(a)(1)(B)
	 	 	6.04	 
	(a)(2)
	 	 	N/A	 
	(b)
	 	 	6.07	 
	(c)
	 	 	9.04	 
	317(a)(1)
	 	 	6.08	 
	(a)(2)
	 	 	6.09	 
	(b)
	 	 	2.04	 
	318(a)
	 	 	11.01	 
	(b)
	 	 	N/A	 
	(c)
	 	 	11.01	 








 




			
	N/A means not applicable.
	 
	*	 	This Cross-Reference Table is not part of the Indenture.




i









 













TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	Section 1.01.
	 	Definitions	 	 	1	 
	Section 1.02.
	 	Other Definitions	 	 	26	 
	Section 1.03.
	 	Incorporation by Reference of Trust Indenture Act	 	 	27	 
	Section 1.04.
	 	Rules of Construction	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE 2 THE NOTES	 	 	27	 
	Section 2.01.
	 	Form and Dating	 	 	27	 
	Section 2.02.
	 	Execution and Authentication	 	 	28	 
	Section 2.03.
	 	Registrar and Paying Agent	 	 	28	 
	Section 2.04.
	 	Paying Agent to Hold Money in Trust	 	 	29	 
	Section 2.05.
	 	Noteholder Lists	 	 	29	 
	Section 2.06.
	 	Transfer and Exchange	 	 	29	 
	Section 2.07.
	 	Replacement Notes	 	 	29	 
	Section 2.08.
	 	Outstanding Notes	 	 	30	 
	Section 2.09.
	 	Temporary Notes	 	 	30	 
	Section 2.10.
	 	Cancellation	 	 	30	 
	Section 2.11.
	 	Defaulted Interest	 	 	31	 
	Section 2.12.
	 	CUSIP Numbers	 	 	31	 
	Section 2.13.
	 	Issuance of Additional Notes	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE 3 REDEMPTION AND PREPAYMENT	 	 	32	 
	Section 3.01.
	 	Notices to Trustee	 	 	32	 
	Section 3.02.
	 	Selection of Notes to be Redeemed	 	 	32	 
	Section 3.03.
	 	Notice of Redemption	 	 	32	 
	Section 3.04.
	 	Effect of Notice of Redemption	 	 	33	 
	Section 3.05.
	 	Deposit of Redemption Price	 	 	34	 
	Section 3.06.
	 	Notes Redeemed in Part	 	 	34	 
	Section 3.07.
	 	Optional Redemption	 	 	34	 
	Section 3.08.
	 	Mandatory Redemption	 	 	35	 
	Section 3.09.
	 	Offer to Purchase by Application of Excess Proceeds	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE 4 COVENANTS	 	 	37	 
	Section 4.01.
	 	Payment of Notes	 	 	37	 
	Section 4.02.
	 	Maintenance of Office or Agency	 	 	37	 
	Section 4.03.
	 	Reports	 	 	38	 
	Section 4.04.
	 	Compliance Certificate	 	 	39	 
	Section 4.05.
	 	Taxes	 	 	39	 
	Section 4.06.
	 	Stay, Extension and Usury Laws	 	 	40	 
	Section 4.07.
	 	Limitation on Restricted Payments	 	 	40	 
	Section 4.08.
	 	Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries	 	 	44	 
	Section 4.09.
	 	Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock	 	 	46	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 4.10.
	 	Limitation on Asset Sales	 	 	49	 
	Section 4.11.
	 	Limitation on Transactions with Affiliates	 	 	51	 
	Section 4.12.
	 	Limitation on Liens	 	 	52	 
	Section 4.13.
	 	Additional Subsidiary Guarantees	 	 	53	 
	Section 4.14.
	 	Corporate Existence	 	 	53	 
	Section 4.15.
	 	Offer to Repurchase Upon Change of Control	 	 	53	 
	Section 4.16.
	 	No Inducements	 	 	56	 
	Section 4.17.
	 	[Reserved]	 	 	56	 
	Section 4.18.
	 	Covenant Termination	 	 	56	 
	Section 4.19.
	 	Designation of Restricted and Unrestricted Subsidiaries	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE 5 SUCCESSORS	 	 	57	 
	Section 5.01.
	 	Merger, Consolidation, or Sale of Assets	 	 	57	 
	Section 5.02.
	 	Successor Substituted	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES	 	 	58	 
	Section 6.01.
	 	Events of Default	 	 	58	 
	Section 6.02.
	 	Acceleration	 	 	61	 
	Section 6.03.
	 	Other Remedies	 	 	61	 
	Section 6.04.
	 	Waiver of Past Defaults	 	 	61	 
	Section 6.05.
	 	Control by Majority	 	 	61	 
	Section 6.06.
	 	Limitation on Suits	 	 	62	 
	Section 6.07.
	 	Rights of Holders of Notes to Receive Payment	 	 	62	 
	Section 6.08.
	 	Collection Suit by Trustee	 	 	62	 
	Section 6.09.
	 	Trustee May File Proofs of Claim	 	 	63	 
	Section 6.10.
	 	Priorities	 	 	63	 
	Section 6.11.
	 	Undertaking for Costs	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE 7 TRUSTEE	 	 	64	 
	Section 7.01.
	 	Duties of Trustee	 	 	64	 
	Section 7.02.
	 	Rights of Trustee	 	 	65	 
	Section 7.03.
	 	Individual Rights of Trustee	 	 	66	 
	Section 7.04.
	 	Trustee’s Disclaimer	 	 	66	 
	Section 7.05.
	 	Notice of Defaults	 	 	66	 
	Section 7.06.
	 	Reports by Trustee to Holders of the Notes	 	 	66	 
	Section 7.07.
	 	Compensation and Indemnity	 	 	67	 
	Section 7.08.
	 	Replacement of Trustee	 	 	68	 
	Section 7.09.
	 	Successor Trustee by Merger, etc.	 	 	69	 
	Section 7.10.
	 	Eligibility; Disqualification	 	 	69	 
	Section 7.11.
	 	Preferential Collection of Claims Against the Company	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	 	69	 
	Section 8.01.
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	69	 
	Section 8.02.
	 	Legal Defeasance and Discharge	 	 	69	 
	Section 8.03.
	 	Covenant Defeasance	 	 	70	 
	Section 8.04.
	 	Conditions to Legal or Covenant Defeasance	 	 	71	 
	Section 8.05.
	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	72	 
	Section 8.06.
	 	Repayment to the Company	 	 	72	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 8.07.
	 	Reinstatement	 	 	73	 
	Section 8.08.
	 	Discharge	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER	 	 	74	 
	Section 9.01.
	 	Without Consent of Holders of Notes	 	 	74	 
	Section 9.02.
	 	With Consent of Holders of Notes	 	 	75	 
	Section 9.03.
	 	Compliance with Trust Indenture Act	 	 	76	 
	Section 9.04.
	 	Effect of Consents	 	 	76	 
	Section 9.05.
	 	Notation on or Exchange of Notes	 	 	77	 
	Section 9.06.
	 	Trustee to Sign Amendments, etc.	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE 10 GUARANTEES OF NOTES	 	 	77	 
	Section 10.01.
	 	Subsidiary Guarantees	 	 	77	 
	Section 10.02.
	 	[Reserved]	 	 	78	 
	Section 10.03.
	 	Guarantors May Consolidate, etc., on Certain Terms	 	 	78	 
	Section 10.04.
	 	Releases of Subsidiary Guarantees	 	 	79	 
	Section 10.05.
	 	[Reserved]	 	 	79	 
	Section 10.06.
	 	Limitation on Guarantor Liability	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE 11 MISCELLANEOUS	 	 	80	 
	Section 11.01.
	 	Trust Indenture Act Controls	 	 	80	 
	Section 11.02.
	 	Notices	 	 	80	 
	Section 11.03.
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	81	 
	Section 11.04.
	 	Certificate and Opinion as to Conditions Precedent	 	 	81	 
	Section 11.05.
	 	Statements Required in Certificate or Opinion	 	 	81	 
	Section 11.06.
	 	Rules by Trustee and Agents	 	 	82	 
	Section 11.07.
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	82	 
	Section 11.08.
	 	Governing Law	 	 	82	 
	Section 11.09.
	 	No Adverse Interpretation of Other Agreements	 	 	82	 
	Section 11.10.
	 	Successors	 	 	82	 
	Section 11.11.
	 	Severability	 	 	82	 
	Section 11.12.
	 	Table of Contents, Headings, etc.	 	 	83	 
	Section 11.13.
	 	Counterparts	 	 	83	 
	Section 11.14.
	 	Acts of Holders	 	 	83	 
	Section 11.15.
	 	Patriot Act	 	 	84	 






iv









 






APPENDIX, SCHEDULE AND ANNEX




	 	 	 	 	 	 	 

	RULE 144A/REGULATION S APPENDIX	 	App.-1	 
	 	 	 
	 	 	 	 
	 	 	EXHIBIT 1     Form of Initial Note
	 	 	 	 
	 	 	EXHIBIT A    Form of Exchange Note
	 	 	 	 
	 	 	 
	 	 	 	 
	SCHEDULE I	 	Agreements with Affiliates 
	 	 	S-1	 
	 	 	 
	 	 	 	 
	ANNEX A	 	Form of Supplemental Indenture 
	 	 	A-1	 







v











 





     This Indenture, dated as of November 23, 2010, is among Exterran Holdings, Inc., a
Delaware corporation (the “Company”), the guarantors listed on the signatures page hereof (each, a
“Guarantor” and, collectively, the “Guarantors”) and Wells Fargo Bank, National Association, a
national banking association, as trustee (the “Trustee”).



     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 of the Company’s Initial Notes, Exchange Notes and
Additional Notes:



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01. Definitions.




     “ABS Facility” means that certain asset backed securitization facility under that certain
Indenture dated as of August 20, 2007, between Exterran ABS 2007 LLC, Exterran ABS Leasing 2007 LLC
and Wells Fargo Bank, National Association, as trustee, as amended, modified, supplemented,
restated, refinanced or replaced by another limited recourse facility from time to time.



     “Acquired Debt” means, with respect to any specified Person:




     (1) Indebtedness of any other Person existing at the time such other Person was merged
with or into or became a Subsidiary of such specified 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 Subsidiary of, such specified Person, but excluding
Indebtedness which is extinguished, retired or repaid in connection with such Person merging
with or into or becoming a Subsidiary of such specified Person; and




     (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.




     “Additional Assets” means:




     (1) any assets used or useful in a Permitted Business, other than Indebtedness or
Capital Stock;




     (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of
the acquisition of such Capital Stock by the Company or any of its Restricted Subsidiaries;
or




     (3) Capital Stock constituting a non-controlling interest in any Person that at such
time is a Restricted Subsidiary;


provided, however, that any such Restricted Subsidiary described in clause (2) or (3) is primarily
engaged in a Permitted Business.







1









 








     “Additional Interest” means all Additional Interest then owing pursuant to Section 5 of the
Registration Rights Agreement referred to in clause (1) of the definition of “Registration Rights
Agreement” in the Appendix. Unless the context indicates otherwise, all references to “interest”
in this Indenture or the Notes shall be deemed to include any Additional Interest.



     “Additional Notes” means, subject to the Company’s compliance with Section 4.09, 7.25% Senior
Notes due 2018 issued from time to time after the Initial Issuance Date under the terms of this
Indenture (other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture and other than
Exchange Notes issued pursuant to an exchange offer for other Notes outstanding under this
Indenture).



     “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. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.



     “Agent” means any Registrar or Paying Agent.



     “Agent Members” has the meaning provided in the Appendix.



     “Applicable Law,” except as the context may otherwise require, means all applicable laws,
rules, regulations, ordinances, judgments, decrees, injunctions, writs and orders of any court or
governmental or congressional agency or authority and rules, regulations, orders, licenses and
permits of any United States federal, state, municipal, regional, or other governmental body,
instrumentality, agency or authority.



     “Asset Sale” means:




     (1) the sale, lease, conveyance or other disposition of any properties or assets
(including by way of a Sale and Leaseback Transaction); provided, however, that the
disposition of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 4.15
and/or the provisions of Section 5.01 and not by the provisions of Section 4.10; and




     (2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests in any of its Restricted Subsidiaries.



     Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:




     (1) any single transaction or series of related transactions that involves properties
or assets having a fair market value of less than $25.0 million;




     (2) the sale, lease, conveyance or other disposition of assets between or among any of
the Company and its Restricted Subsidiaries,



2









 






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




     (4) the sale, lease or other disposition of equipment, inventory, accounts receivable
or other properties or assets, including obsolete or worn out equipment, in the ordinary
course of business;




     (5) the sale or other disposition of cash or Cash Equivalents, Hedging Contracts or
other financial instruments in the ordinary course of business;




     (6) a Restricted Payment that does not violate Section 4.07 or a Permitted Investment;




     (7) the creation or perfection of a Lien that is not prohibited by Section 4.12;




     (8) dispositions in connection with Permitted Liens;




     (9) surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind;




     (10) the grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual property;




     (11) an Asset Swap;




     (12) any expropriation, taking, sale, lease, conveyance or other disposition of assets
located in the State of Venezuela or the claims related thereto (including any receipt of
proceeds related thereto or the subsequent sale or other disposition of any non-cash
consideration received therefrom);




     (13) Permitted MLP Dispositions; and




     (14) dispositions of Investments in Joint Ventures to the extent required by, or made
pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in,
Joint Venture agreements or any similar binding arrangements.



     “Asset Swap” means any substantially contemporaneous (and in any event occurring within 180
days of each other) purchase and sale or exchange of any assets or properties used or useful in a
Permitted Business between the Company or any of its Restricted Subsidiaries and another Person;
provided that any cash received must be applied in accordance with Section 4.10 as if the Asset
Swap were an Asset Sale.



     “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 shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP. As used in the preceding sentence,



3









 




the “net rental payments” under any lease for any such period shall mean the sum of rental and
other payments required to be paid with respect to such period by the lessee thereunder, excluding
any amounts required to be paid by such lessee on account of maintenance and repairs, insurance,
taxes, assessments, water rates or similar charges. In the case of any lease that is terminable by
the lessee upon payment of penalty, such net rental payment shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated.




     “Bankruptcy Law” means Title 11, United States Code, as may be amended from time to time, or
any similar federal or state law for the relief of debtors.



     “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 correlative meanings.



     “Board of Directors” means:




     (1) with respect to the Company or any other corporation, its board of directors; and




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



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the applicable Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification, and delivered to the
Trustee.



     “Business Day” means each day that is not a Saturday, Sunday or other day on which banking
institutions in New York, New York or another place of payment are authorized or required by law to
close.



     “Capital Lease Obligation” means, at the time any determination 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 in accordance with GAAP, excluding liabilities resulting from a change in GAAP
subsequent to the Issue Date.



     “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;



4









 






     (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.



     “Cash Equivalents” means:




     (1) securities issued or directly and fully guaranteed or insured by (i) the United
States government or any agency or instrumentality of the United States government (provided
that the full faith and credit of the United States is pledged in support of those
securities) or (ii) any foreign country whose sovereign debt has a rating of at least “A3”
from Moody’s and at least “A-” from S&P or any agency or instrumentality of such foreign
country (provided that the full faith and credit of such foreign country is pledged in
support of those securities), in each case having maturities of not more than 12 months
from the date of acquisition;




     (2) certificates of deposit, demand deposits and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case, with any
commercial bank having capital and surplus of $500.0 million (or the equivalent thereof in
any other currency or currency unit);




     (3) marketable general obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition thereof, having a credit rating of “A” or better from either S&P or Moody’s;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (1) and (2) above entered into with any
financial institution meeting the qualifications specified in clause (2) above;




     (5) commercial paper having one of the two highest ratings obtainable from Moody’s or
S&P, or carrying an equivalent rating by a nationally recognized rating agency, if both
Moody’s and S&P cease publishing ratings, and in each case maturing within 270 days after
the date of acquisition;




     (6) deposits available for withdrawal on demand with any commercial bank not meeting
the qualifications specified in clause (2) above; and




     (7) money market mutual funds substantially all of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of this definition.



5









 





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




     (1) the direct or indirect sale, lease, 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 properties or assets (including Capital Stock of the
Restricted Subsidiaries) 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 that term is used in Section
13(d)(3) of the Exchange Act) becomes the 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; or




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



     “Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing
agency..



     “Commission” or “SEC” means the Securities and Exchange Commission.



     “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus the following:




     (1) all income tax expense of such Person and its Restricted Subsidiaries for such
period, to the extent that such expense was deducted in computing such Consolidated Net
Income;




     (2) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings), and including the effect of
all payments made or received pursuant to interest rate Hedging Contracts, to the extent
that any such expense was deducted in computing such Consolidated Net Income;




     (3) depreciation and amortization expense (including amortization of deferred financing
costs) of such Person and its Restricted Subsidiaries for such period, to the extent that
any such expense was deducted in computing such Consolidated Net Income;



6









 






     (4) non-cash losses resulting from foreign currency balance sheet adjustments required
by GAAP to the extent such losses were deducted in computing such Consolidated Net Income;




     (5) all unusual or non-recurring items of loss, to the extent that any such items were
deducted in computing such Consolidated Net Income; and




     (6) all dividends or distributions paid in cash to the specified Person or a Restricted
Subsidiary of the specified Person from any Person that is not a Restricted Subsidiary of
the specified Person or that is accounted for by the equity method of accounting (excluding
any net income of such Person that is included in such Consolidated Net Income).



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (1) the
amount of Total Indebtedness to (2) the aggregate amount of Consolidated Cash Flow of the Company
for the Company’s most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding such date, determined on a pro forma basis as
described under the definition of “Fixed Charge Coverage Ratio.”



     “Consolidated Net Income” means, with respect to any specified Person for any period, the net
income (loss) of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP and before any reduction in respect of preferred stock
dividends, provided that:




     (1) any gain (or loss), together with any related provision for taxes on such gain (or
loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of any
securities by such Person or its Restricted Subsidiaries (other than pursuant to item (12)
of the items not deemed to be Asset Sales in the definition of Asset Sale) or the
extinguishment of any Indebtedness of such Person or its Restricted Subsidiaries will be
excluded;




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




     (3) 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 (except as has been obtained or is customarily obtained) or, directly
or indirectly, by operation of the terms of its charter or any judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, partners or members;




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




     (5) any impairment losses will be excluded;



7









 






     (6) any non-cash compensation charge arising from any grant of stock, stock options or
other equity-based awards will be excluded;




     (7) unrealized mark to market losses and gains under Hedging Contracts included in the
determination of Consolidated Net Income, including, without limitation those resulting from
the application of the Financial Accounting Standards Board Accounting Standards
Codification (ASC) 815, will be excluded; and




     (8) any charges relating to any premium or penalty paid, write off of deferred finance
costs or other charges in connection with redeeming or retiring any Indebtedness prior to
its Stated Maturity will be excluded.



     “Consolidated Net Tangible Assets” means, with respect to any Person at any date of
determination, the aggregate amount of total assets included in such Person’s most recent quarterly
or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves
reflected in such balance sheet, after deducting (a) all current liabilities of Indebtedness
incurred under Credit Facilities, and (b) all goodwill, trademarks, patents, unamortized debt
discounts and expenses and other like intangibles reflected in such balance sheet.



     “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 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 at the time of such
nomination or election.



     “Corporate Trust Office of the Trustee” means the office of the Trustee specified in Section
11.02 hereof or such other office as to which the Trustee may give notice to the Company.



     “Credit Agreement” means that certain Senior Secured Credit Agreement, dated as of August 20,
2007, by and among the Company, as U.S. borrower and Canadian guarantor, Exterran Canada, Limited
Partnership, as Canadian borrower, Wells Fargo Bank, National Association, as U.S. administrative
agent, and the other agents and lenders party thereto, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection therewith, and in each case
as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.



     “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement and the ABS Facility), commercial paper facilities or secured capital markets
financings, in each case with banks or other institutional lenders or institutional investors
providing for revolving credit loans, term loans, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables), letters of credit or secured capital markets financings, in each case,
as



8









 




amended, restated, modified, renewed, refunded, replaced or refinanced (including refinancing
with any capital markets transaction) in whole or in part from time to time.




     “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.



     ”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.



     “Depository” has the meaning provided in the Appendix.



     “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 Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. 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 or redeem 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.



     “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 and all of
whose outstanding Capital Stock is Beneficially Owned by the Company.



     “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 any public or private sale of Capital Stock (other than Disqualified
Stock) made for cash on a primary basis by the Company after the date of this Indenture, provided
that at any time on or after a Change of Control, any sale of Capital Stock to an Affiliate of the
Company shall not be deemed an Equity Offering.



     “Euroclear” means the Euroclear System or any successor securities clearing agency.



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



     “Exchange Notes” has the meaning specified in the Appendix.



     “Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement or the ABS
Facility and other than intercompany indebtedness) in existence on the date of this Indenture,
until such amounts are repaid.



9









 





     The term “fair market value” means the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or necessity of either party,
determined in good faith by the Board of Directors of the Company in the case of amounts of $75.0
million or more and otherwise by an Officer of the Company.



     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any four-quarter
reference period, the ratio of the Consolidated Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period. In the event that the specified Person or any of its
Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the applicable four-quarter reference period 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 or
redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom as if the same had occurred at the beginning of such period. If any
indebtedness bears a floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness will be calculated as if the average rate in effect from the beginning
of such period to the Calculation Date had been the applicable rate for the entire period (taking
into account any interest Hedging Contract applicable to such Indebtedness). If any Indebtedness
that is being given pro forma effect bears an interest rate at the option of such Person, the
interest rate shall be calculated by applying such optional rate chosen by such Person. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as such
Person may designate.



     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, consolidations or otherwise (including acquisitions
of assets used in a Permitted Business), and including in each case any related financing
transactions (including repayment of Indebtedness) during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date, will be
given pro forma effect as if they had occurred on the first day of the four-quarter
reference period, including any Consolidated Cash Flow and any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur within the next 12 months,
in the reasonable judgment of the chief financial or accounting officer of the Company
(regardless of whether those cost savings or operating improvements could then be reflected
in pro forma financial statements in accordance with Regulation S-X promulgated under the
Securities Act or any other regulation or policy of the Commission related thereto);




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



10









 






     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
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;




     (4) any Person that is a Restricted Subsidiary of the specified Person on the
Calculation Date will be deemed to have been a Restricted Subsidiary of the specified Person
at all times during such four-quarter period;




     (5) any Person that is not a Restricted Subsidiary of the specified Person on the
Calculation Date will be deemed not to have been a Restricted Subsidiary of the specified
Person at any time during such four-quarter period; and




     (6) interest income reasonably anticipated by such Person to be received during the
applicable four-quarter period from cash or Cash Equivalents held by such Person or any
Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the
Calculation Date or will exist as a result of the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio, will be included.



     “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, 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 including the effect of all payments made or
received pursuant to interest rate Hedging Contracts, but excluding any unrealized mark to
market losses and gains under Hedging Contracts (including, without limitation, those
resulting from the application of the Financial Accounting Standards Board (FASB) Accounting
Standards Codification (ASC) 815); plus




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




     (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;
plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of such Person or on any series of preferred
securities of its Restricted Subsidiaries, other than dividends payable solely in
Equity Interests of the payor (other than Disqualified Stock) or to such Person or a



11









 







Restricted Subsidiary of such Person, times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal,


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




     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that (a) is not a Domestic
Subsidiary and (b) has 50% or more of its consolidated assets located outside the United States or
any territory thereof.



     “GAAP” means generally accepted accounting principles in the United States, which are in
effect from time to time.



     “Global Note” has the meaning provided in the Appendix.



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



     The term “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, acting as co-obligor or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness, provided that
any agreement by the Company or any of its Restricted Subsidiaries to repurchase equipment at a
price not greater than its fair market value shall not be deemed a guarantee of Indebtedness. When
used as a verb, “guarantee” has a correlative meaning.



     “Guarantors” means each of (a) the Subsidiaries of the Company executing this Indenture as
initial Guarantors, (b) any other Restricted Subsidiary of the Company that executes a supplement
to this Indenture in accordance with Section 4.13 or 10.03 hereof and (c) the respective successors
and assigns of such Restricted Subsidiaries, as required under Article 10 hereof, in each case
until such time as any such Restricted Subsidiary shall be released and relieved of its obligations
pursuant to Section 8.02, 8.03 or 10.04 hereof.



     “Hedging Contracts” means, with respect to any specified Person:




     (1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements entered into with one or more financial institutions and designed to
protect the Person or any of its Restricted Subsidiaries entering into the agreement against
fluctuations in interest rates with respect to Indebtedness incurred;




     (2) foreign exchange contracts and currency protection agreements entered into with one
or more financial institutions and designed to protect the Person or any of its Restricted
Subsidiaries entering into the agreement against fluctuations in currency exchanges rates
with respect to Indebtedness incurred;




     (3) any commodity futures contract, commodity option or other similar agreement or
arrangement designed to protect against fluctuations in the price of



12









 







commodities used, produced, processed or sold by that Person or any of its Restricted Subsidiaries at the time; and




     (4) other agreements or arrangements designed to protect such Person or any of its
Restricted Subsidiaries against fluctuations in interest rates, commodity prices or currency
exchange rates,


and in each case are entered into only in the normal course of business and not for speculative
purposes.




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



     “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;




     (3) in respect of all outstanding letters of credit issued for the account of such
Person that support obligations that constitute Indebtedness (provided that the amount of
such letters of credit included in Indebtedness shall not exceed the amount of the
Indebtedness being supported) and, without duplication, the unreimbursed amount of all
drafts drawn under letters of credit issued for the account of such Person;




     (4) in respect of bankers’ acceptances;




     (5) representing Capital Lease Obligations or Attributable Debt in respect of Sale and
Leaseback Transactions;




     (6) 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




     (7) representing any obligations under Hedging Contracts,


if and to the extent any of the preceding items (other than letters of credit and obligations under
Hedging Contracts) 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 other Persons 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. For the avoidance of
doubt, the term “Indebtedness” excludes (i) taxes, assessments or other similar governmental
charges or claims, (ii) any obligation arising from any agreement providing for indemnities,
purchase price adjustments, holdbacks, contingency payment obligations based on the performance of
the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness)
incurred by the specified Person in connection with the acquisition or disposition of assets, (iii)
any obligation 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




13









 







course of business, provided that such obligation is extinguished within five Business
Days of its incurrence, and (iv) obligations owed on a short-term basis to banks and other
financial institutions incurred in the ordinary course of business that arise in connection with
ordinary banking arrangements to manage cash balances 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 issued with
original issue discount;




     (2) in the case of obligations under any Hedging Contracts, the termination value of
the agreement or arrangement giving rise to such obligations that would be payable by such
Person at such date; and




     (3) the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.



     “Indenture” means this Indenture, as amended or supplemented from time to time.



     “Initial Issuance Date” means November 23, 2010.



     “Initial Notes” has the meaning provided in the Appendix.



     “Initial Purchasers” has the meaning provided in the Appendix.



     “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P.



     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other
obligations), advances or capital contributions (excluding (1) commission, travel, relocation costs
and similar advances to officers and employees made in the ordinary course of business and (2)
advances to customers in the ordinary course of business that are recorded as accounts receivable
on the balance sheet of the lender), 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 Restricted Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or disposition in an amount
equal to the fair market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of Section 4.07. The
acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in
a third Person will be deemed to be an Investment made by the Company or such Subsidiary in such
third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person on the date of any
such acquisition in an amount determined as provided in the final paragraph of Section 4.07.



14









 





     “Joint Venture” means any Person that is not a direct or indirect Subsidiary of the Company in
which the Company or any of its Restricted Subsidiaries makes any Investment.



     “Legal Holiday” means any calendar day other than a Business Day. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.



     “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,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction other than a precautionary financing statement
respecting a lease not intended as a security agreement.



     “Make Whole Premium” means, with respect to a Note at any time, the excess, if any, of (a) the
present value at such time of (i) the redemption price of such Note at December 1, 2013 pursuant to
Section 3.07(a) plus (ii) any required interest payments due on such Note through December 1, 2013
(except for currently accrued and unpaid interest), computed using a discount rate equal to the
Treasury Rate plus 50 basis points, discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), over (b) the principal amount of
such Note.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.



     “Net Proceeds” means the aggregate cash proceeds 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:




     (1) the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, severance costs and any
relocation expenses incurred as a result of the Asset Sale,




     (2) taxes paid or payable as a result of the Asset Sale, in each case, after taking
into account any available tax credits or deductions and any tax sharing arrangements,




     (3) amounts required to be applied to the repayment of Indebtedness secured by a Lien
on the properties or assets that were the subject of such Asset Sale, and




     (4) any amounts to be set aside in any reserve established in accordance with GAAP or
any amount placed in escrow, in either case for adjustment in respect of the sale price of
such properties or assets or for liabilities associated with such Asset Sale and
retained by the Company or any of its Restricted Subsidiaries until such time as such
reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds
shall include only the amount of the reserve so reversed or the amount returned to the



15









 







Company or its Restricted Subsidiaries from such escrow arrangement, as the case may be.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (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) is 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 Capital Stock or assets of the Company or any of its Restricted Subsidiaries
except as contemplated by clause (9) of the definition of Permitted Liens.



     For purposes of determining compliance with Section 4.09, in the event that any Non-Recourse
Debt of any of the Company’s Unrestricted Subsidiaries ceases to be Non-Recourse Debt of such
Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a
Restricted Subsidiary of the Company.



     “Notes” has the meaning specified in the Appendix.



     “Notes Custodian” has the meaning specified in the Appendix.



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



     “Offering Memorandum” means the offering memorandum of the Company dated November 18, 2010
relating to the offering of the Initial Notes.



     “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, any Assistant Secretary or any Vice
President of such Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two of its
Officers, one of whom, in the case of any Officers’ Certificate delivered pursuant to Section 4.04,
must be the principal executive officer, the principal financial officer, or the principal
accounting officer of the Company that meets the requirements of Section 11.05 hereof.



16









 





     “Omnibus Agreement” means the Second Amended And Restated Omnibus Agreement, dated as of
November 10, 2009, by and among the Company, Exterran Energy Solutions, L.P., Exterran GP LLC,
Exterran General Partner, L.P., the Partnership and EXLP Operating LLC, as amended by the First
Amendment thereto, dated as of August 11, 2010.



     “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable
to the Trustee, that meets the requirements of Section 11.05 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Pari Passu Indebtedness” means, with respect to any Excess Proceeds from Asset Sales,
Indebtedness of the Company or any Guarantor that ranks equally in right of payment with the Notes
or the Subsidiary Guarantees, as the case may be, and the terms of which require the Company or any
of its Restricted Subsidiaries to apply such Excess Proceeds to offer to repurchase such
Indebtedness.



     “Partnership” means Exterran Partners, L.P., a Delaware limited partnership, and its
successors.



     “Permitted Acquisition Indebtedness” means Indebtedness or Disqualified Stock of the Company
or any of its Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock was
Indebtedness or Disqualified Stock of any other Person existing at the time (a) such Person became
a Restricted Subsidiary of the Company or (b) such Person was merged or consolidated with or into
the Company or any of its Restricted Subsidiaries, provided that on the date such Person became a
Restricted Subsidiary of the Company or the date such Person was merged or consolidated with or
into the Company or any of its Restricted Subsidiaries, as applicable, either




     (1) immediately after giving effect to such transaction on a pro forma basis as if the
same had occurred at the beginning of the applicable four-quarter period, the Company or
such Restricted Subsidiary, as applicable, would 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, or




     (2) immediately after giving effect to such transaction on a pro forma basis as if the
same had occurred at the beginning of the applicable four-quarter period, the Fixed Charge
Coverage Ratio of the Company would be equal to or greater than the Fixed Charge Coverage
Ratio of the Company immediately prior to such transaction.



     “Permitted Business” means each business in which the Company or any of its Restricted
Subsidiaries is engaged on the date of this Indenture and any other business that is related or
ancillary thereto and reasonable extensions thereof, including natural gas or other hydrocarbon
gathering, processing, treating and transportation businesses.



     “Permitted Business Investments” means Investments by the Company or any of its Restricted
Subsidiaries in any Unrestricted Subsidiary of the Company or in any Joint Venture, provided that:



17









 






     (1) at the time of such Investment and immediately thereafter, the Company could incur
$1.00 of additional Indebtedness under the Fixed Charge Coverage Ratio test set forth in the
first paragraph of Section 4.09;




     (2) if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at
the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b)
any such Indebtedness of such Unrestricted Subsidiary or Joint Venture that is recourse to
the Company or any of its Restricted Subsidiaries (which shall include, without limitation,
all Indebtedness of such Unrestricted Subsidiary or Joint Venture for which the Company or
any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise,
obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to
any guarantee, including, without limitation, any “claw-back,” “make-well” or “keep-well”
arrangement) could, at the time such Investment is made, be incurred at that time by the
Company and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 4.09; and




     (3) such Unrestricted Subsidiary’s or Joint Venture’s activities are not outside the
scope of any Permitted Business.



     “Permitted Investments” means:




     (1) any Investment in the Company (including, without limitation, through purchases of
Notes) 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, 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 properties or 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, including Asset
Swaps;




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




     (6) any Investments received in compromise of obligations of trade creditors or
customers that were 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, or as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries with respect to any secured Investment in default;



18









 






     (7) Hedging Contracts;




     (8) Permitted Business Investments;




     (9) any Investment in the Partnership to maintain the approximate 2% general partner
interest in the Partnership; and




     (10) 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 (10)
that are at the time outstanding, do not exceed the greater of (a) $100.0 million and (b)
2.5% of the Company’s Consolidated Net Tangible Assets.



     “Permitted Liens” means:




     (1) any Lien with respect to the Credit Agreement or any other Credit Facilities;




     (2) Liens in favor of the Company or the Guarantors;




     (3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets (other than improvements thereon, accessions thereto and
proceeds thereof) other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;




     (4) Liens on property existing at the time of acquisition of the property by the
Company or any Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition;




     (5) any interest or title of a lessor to the property subject to a Capital Lease
Obligation;




     (6) Liens for the purpose of securing the payment of all or a part of the purchase
price of, or Capital Lease Obligations, purchase money obligations or other payments
incurred to finance the acquisition, lease, improvement or construction of or repairs or
additions to, assets or property acquired or constructed in the ordinary course of business;
provided that:




     (a) the aggregate principal amount of Indebtedness secured by such Liens is
otherwise permitted to be incurred under this Indenture and does not exceed the cost
of the assets or property so acquired or constructed; and




     (b) such Liens are created within 180 days of the later of the acquisition,
lease, completion of improvements, construction, repairs or additions or
commencement of full operation of the assets or property subject to such Lien and do
not encumber any other assets or property of the Company or any



19









 







Restricted Subsidiary other than such assets or property and assets affixed or appurtenant
thereto;




     (7) Liens existing on the date of this Indenture;




     (8) Liens to secure the performance of tenders, bids, statutory obligations, surety or
appeal bonds, trade contracts, government contracts, operating leases, performance bonds or
other obligations of a like nature incurred in the ordinary course of business;




     (9) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any
Joint Venture owned by the Company or any Restricted Subsidiary of the Company to the extent
securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint
Venture;




     (10) Liens on pipelines or pipeline facilities that arise by operation of law;




     (11) Liens arising under joint venture agreements, partnership agreements and other
agreements arising in the ordinary course of business of the Company and its Restricted
Subsidiaries that are customary in any Permitted Business;




     (12) Liens upon specific items of inventory, receivables or other goods or proceeds of
the Company or any of its Restricted Subsidiaries securing such Person’s obligations in
respect of bankers’ acceptances or receivables securitizations issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such inventory,
receivables or other goods or proceeds and permitted by Section 4.09;




     (13) Liens securing Obligations of the Company or any Guarantor under the Notes or the
Subsidiary Guarantees, as the case may be;




     (14) Liens securing any Indebtedness equally and ratably with all Obligations due under
the Notes or any Subsidiary Guarantee pursuant to a contractual covenant that limits Liens
in a manner substantially similar to Section 4.12;




     (15) Liens to secure performance of Hedging Contracts of the Company or any of its
Restricted Subsidiaries;




     (16) Liens securing any insurance premium financing under customary terms and
conditions, provided that no such Lien may extend to or cover any assets or property
other than the insurance being acquired with such financing, the proceeds thereof and
any unearned or refunded insurance premiums related thereto;




     (17) other Liens incurred by the Company or any Restricted Subsidiary of the Company,
provided that, after giving effect to any such incurrence, the aggregate principal amount of
all Indebtedness then outstanding and secured by any Liens incurred pursuant to this clause
(17) does not exceed the greater of (a) $100.0 million and (b) 2.5% of the Company’s
Consolidated Net Tangible Assets; and



20









 






     (18) any Lien renewing, extending, refinancing or refunding a Lien permitted by clauses
(1) through (17) above, provided that (a) the principal amount of the Indebtedness secured
by such Lien is not increased except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection therewith
and by an amount equal to any existing commitments unutilized thereunder and (b) no assets
encumbered by any such Lien other than the assets permitted to be encumbered immediately
prior to such renewal, extension, refinance or refund are encumbered thereby (other than
improvements thereon, accessions thereto and proceeds thereof).



     “Permitted MLP Dispositions” means any sale, lease, conveyance or other disposition of any
properties or assets by the Company or any of its Restricted Subsidiaries, or the issuance of
Equity Interests in any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in
any of its Restricted Subsidiaries, on the one hand, to the Partnership or any of its Subsidiaries,
on the other hand, in exchange for cash (with the items described in clauses (3)(a) and (b) of
Section 4.10 deemed to be cash), Cash Equivalents, Additional Assets or Equity Interests in the
Partnership (including general partner units necessary to maintain the general partner’s interest),
or any combination thereof, provided at the time of such disposition, and after giving effect to
such disposition and the receipt of consideration therefor, the Consolidated Leverage Ratio is less
than 4.5 to 1.0.



     “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 of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses
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 or the Subsidiary
Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment
to the Notes or the Subsidiary Guarantees on terms at least as favorable to the Noteholders
as those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and




     (4) such Indebtedness is not incurred (other than by way of a guarantee) by a
Restricted Subsidiary of the Company if the Company is the issuer or other primary obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.



21









 





     Notwithstanding the preceding, any Indebtedness incurred under Credit Facilities pursuant to
Section 4.09 shall be subject only to the refinancing provision in the definition of Credit
Facilities and not pursuant to the requirements set forth in the definition of Permitted
Refinancing Indebtedness.



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



     “Purchase Agreement” has the meaning provided in the Appendix.



     “QIB” means a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act.



     “Registered Exchange Offer” has the meaning provided in the Appendix.



     “Registration Rights Agreement” has the meaning provided in the Appendix.



     “Regulation S” has the meaning provided in the Appendix.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
corporate trust department of the Trustee having direct responsibility for the administration of
this Indenture.



     “Restricted Global Note” has the meaning provided in the Appendix.



     “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.



     “Rule 144A” has the meaning provided in the Appendix.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.



     “Sale and Leaseback Transaction” means an arrangement relating to property owned by the
Company or a Restricted Subsidiary on the Initial Issuance Date or thereafter acquired by the
Company or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers
such property to a Person and the Company or a Restricted Subsidiary leases it from such Person.




     “SEC” or “Commission” means the Securities and Exchange Commission.



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



22









 





     “Senior Debt” means




     (1) all Indebtedness of the Company or any of its Restricted Subsidiaries outstanding
under Credit Facilities and all obligations under Hedging Contracts with respect thereto;




     (2) all Existing Indebtedness;




     (3) any other Indebtedness of the Company or any of its Restricted Subsidiaries
permitted to be incurred under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes or any Subsidiary Guarantee; and




     (4) all Obligations with respect to the items listed in the preceding clauses (1), (2)
and (3).



     Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not
include:



     (a) any intercompany Indebtedness of the Company or any of its Restricted
Subsidiaries to the Company or any of its Affiliates; or



     (b) any Indebtedness that is incurred in violation of this Indenture.


For the avoidance of doubt, “Senior Debt” will not include any trade payables or taxes owed or
owing by the Company or any of its Restricted Subsidiaries.




     “Shelf Registration Statement” has the meaning provided in the Appendix.



     “Significant Subsidiary” means any 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 Indenture.



     “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 (other than a partnership or
limited liability company) of which more than 50% of the total voting power of Voting Stock
is at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and



23









 






     (2) any partnership (whether general or limited) or limited liability company (a) the
sole general partner or member of which is such Person or a Subsidiary of such Person, or
(b) if there is more than a single general partner or member, either (x) the only managing
general partners or managing members of which are such Person or one or more Subsidiaries of
such Person (or any combination thereof) or (y) such Person owns or controls, directly or
indirectly, a majority of the outstanding general partner interests, member interests or
other Voting Stock of such partnership or limited liability company, respectively; provided
that, notwithstanding the provisions in clauses (1) and (2), any corporation, association,
partnership, limited liability company or other business entity that (i) is formed in a
jurisdiction other than under the laws of the United States or any state of the United
States or the District of Columbia, (ii) has more than 50% of its consolidated assets
located outside the United States or any territory thereof, (iii) is controlled by such
Person or any Restricted Subsidiary of such Person through contractual rights or otherwise
and (iv) consolidates its financial results with such Person or a Restricted Subsidiary of
such Person in accordance with GAAP, will be deemed to be a Subsidiary of such Person.



     “Subsidiary Guarantees” means the joint and several guarantees issued by all of the Guarantors
pursuant to Article 10 hereof.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) and the rules and
regulations thereunder, as in effect on the date on which this Indenture is qualified under the TIA
(except as provided in Section 9.01(i) and 9.03 hereof).



     “Total Indebtedness” means, at any time (without duplication), the sum of (1) 100% of the
non-current portion of long-term debt of the Company and its Restricted Subsidiaries reflected on
the consolidated balance sheet of the Company and its Restricted Subsidiaries as of the Company’s
most recently ended fiscal quarter for which internal financial statements are available, plus (2)
any Indebtedness of the Company and its Restricted Subsidiaries that is not reflected on the
consolidated balance described in clause (1) above which has been used to finance assets that
generate income included in Consolidated Cash Flow of the Company and its Restricted Subsidiaries
for the Company’s most recently ended four full fiscal quarters for which internal financial
statements are available, plus (3) the current portion of the debt set forth in clause (1) above,
less (4) any Capital Lease Obligations arising from a change in GAAP from the date of the indenture
that are included in clauses (1) through (3) above, less (4) any Indebtedness included in clauses
(1) through (3) above representing obligations under Hedging Contracts.



     “Transfer Restricted Securities” has the meaning provided in the Appendix.



     “Treasury Rate” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15(519) which has become publicly available at least two Business
Days prior to the date fixed for redemption (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 December 1, 2013; provided, however, that if such period is not equal
to the constant maturity of a United States Treasury security for which a weekly average yield is
given, the Company shall obtain the Treasury Rate by linear interpolation (calculated to



24









 




the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the period from the redemption date to December 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 shall be used. The Company will (a)
calculate the Treasury Rate on the second Business Day preceding the applicable redemption date and
(b) prior to such redemption date file with the Trustee an Officers’ Certificate setting forth the
Make Whole Premium and the Treasury Rate and showing the calculation of each in reasonable detail.




     “Trustee” means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.



     “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.



     “Unrestricted Subsidiary” means (a) the Partnership and each of its 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 each of the
Partnership, any Subsidiary of the Partnership and such other Subsidiary:




     (1) except to the extent permitted by subclause (2)(b)) of the definition of “Permitted
Business Investments,” has no Indebtedness other than Non-Recourse Debt owing to any Person
other than the Company or any of its Restricted Subsidiaries;




     (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 financial condition or to cause such
Person to achieve any specified levels of operating results; 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.



     All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a 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. 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 Indenture and any



25









 





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, the Company will
be in default of such covenant.




     “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled (without regard to the occurrence of any contingency) to vote in the election of
the Board of Directors of such Person.



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




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




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


Section 1.02. Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section
	 
	 	 	 	 
	“Act”
	 	 	11.14	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Appendix”
	 	 	2.01	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Settlement Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“Discharge”
	 	 	8.08	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Payment Default”
	 	 	6.01	 
	“Permitted Debt”
	 	 	4.09	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 
	“Restricted Payments Basket”
	 	 	4.07	 
	“Settlement Date”
	 	 	3.09	 
	“Termination Date”
	 	 	3.09	 






26









 





Section 1.03. Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. Any terms incorporated in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.


Section 1.04. Rules of Construction.




     Unless the context otherwise requires:




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




     (2) an accounting term not otherwise defined 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) the meanings of the words “will” and “shall” are the same when used to express an
obligation;




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




     (7) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole (as amended or supplemented from time to time) and not to any particular Article,
Section or other subdivision



ARTICLE 2

THE NOTES



Section 2.01. Form and Dating.




     Provisions relating to the Initial Notes and the Exchange Notes are set forth in the Rule
144A/Regulation S Appendix attached hereto (the “Appendix”) which is hereby incorporated in and
expressly made part of this Indenture. The Initial Notes and the Trustee’s certificate of
authentication therefor shall be substantially in the form of Exhibit 1 to the Appendix which is
hereby incorporated in and expressly made a part of this Indenture. The Exchange Notes and the
Trustee’s certificate of authentication therefor shall be substantially in the form of Exhibit A to
the Appendix, which is hereby incorporated in and expressly made a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock exchange rule, agreements
to which the Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Note shall be dated the



27









 




date of its authentication. The terms of the Notes set forth in the Appendix are part of the terms of this
Indenture.



Section 2.02. Execution and Authentication.




     An Officer shall sign the Notes on behalf of the Company by manual or facsimile signature.



     If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.



     A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.



     On the Initial Issuance Date, the Trustee shall authenticate and deliver $350.0 million of
7.25% Senior Notes due 2018 and, at any time and from time to time thereafter, the Trustee shall
authenticate and deliver Notes for original issue, in each case upon a written order of the
Company. Such order shall specify the aggregate principal amount of the Notes to be authenticated,
the date on which the original issue of Notes is to be authenticated and to whom the Notes shall be
registered and delivered and, in the case of an issuance of Additional Notes pursuant to Section
2.13 after the Initial Issuance Date, shall certify that such issuance is in compliance with
Section 4.09.



     The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices and demands.


Section 2.03. Registrar and Paying Agent.




     The Company shall maintain an office or agency in the United States where Notes may be
presented for registration of transfer or for exchange (the “Registrar”) and an office or agency in
New York, New York where Notes may be presented for payment (the “Paying Agent”). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The Company may have 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 shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company or any Subsidiary may act as Paying
Agent or Registrar.




28











 





     The Company initially appoints the Trustee as Registrar and Paying Agent in connection
with the Notes at the corporate trust office of the Trustee at 45 Broadway, 14th Floor,
New York, New York 10006. If the Trustee is no longer the Registrar and Paying Agent, the Company
shall provide the Trustee with access to inspect the Note register at all times and with copies of
the Note register.



Section 2.04. Paying Agent to Hold Money in Trust.




     Prior to 11:00 a.m. New York City time, on each due date of the principal and interest on any
Note, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes and shall notify the Trustee of any default by the Company in making any such
payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money held by
it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by
the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.



Section 2.05. Noteholder Lists.




     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Noteholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five 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
Noteholders and the principal amounts and number of Notes.



Section 2.06. Transfer and Exchange.




     The Notes shall be issued in registered form and shall be transferable only upon the surrender
of a Note for registration of transfer. When a Note is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of this Indenture and Section 8-401(a) of the Uniform Commercial Code
are met. When Notes are presented to the Registrar with a request to exchange them for an equal
principal amount of Notes of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. The Company may require payment of a sum sufficient to
cover any taxes, assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Section 3.06, 4.10, 4.15 or
9.05).



Section 2.07. Replacement Notes.




     If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the Uniform



29









 




Commercial Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent and the Registrar from any loss which any of them may suffer if a Note is replaced.
The Company and the Trustee may charge the Holder for their expenses in replacing a Note. In the
event any such Note shall have matured, instead of issuing a new Note, the Company may direct the
Trustee to pay the same without surrender thereof upon the Holder furnishing the Company and the
Trustee with indemnity satisfactory to them and complying with such other reasonable regulations as
the Company may prescribe and paying such reasonable expenses as the Company and the Trustee may
incur in connection therewith.




     Every replacement Note is an additional obligation of the Company.



Section 2.08. Outstanding Notes.




     Notes outstanding at any time are all Notes authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in this Section as not
outstanding. Except as otherwise provided in TIA §316(a), 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, it ceases to be outstanding unless the
Trustee, any provider of an indemnity bond and the Company receive proof satisfactory to them that
the replaced Note is held by a bona fide purchaser.



     If the Paying Agent segregates and holds in trust, in accordance with this Indenture, by 11:00
a.m. New York time, on a redemption date or other maturity date money sufficient to pay all
principal, premium, if any, interest and Additional Interest, if any, payable on that date with
respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, then on
and after that date such Notes (or portions thereof) cease to be outstanding and interest and
Additional Interest, if any, on them cease to accrue.



Section 2.09. Temporary Notes.




     Until definitive Notes are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes
and deliver them in exchange for temporary Notes.



Section 2.10. Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel (subject to the record
retention requirements of the Exchange Act) all Notes surrendered for registration of transfer,
exchange, payment or cancellation. Upon written request, the Trustee will deliver a certificate of
such cancellation to the Company unless the Company directs the Trustee to deliver



30









 




canceled Notes to the Company instead. The Company may not issue new Notes to replace Notes
they have redeemed, paid or delivered to the Trustee for cancellation.




Section 2.11. Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any lawful manner. The
Company may pay the defaulted interest to the Persons who are Noteholders on a subsequent special
record date. The Company shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail to each Noteholder a
notice that states the special record date, the payment date and the amount of defaulted interest
to be paid.



Section 2.12. CUSIP Numbers.




     The Company in issuing the Notes may use “CUSIP” numbers and corresponding “ISINs” (if then
generally in use) and, if so, the Trustee shall use “CUSIP” numbers and corresponding “ISINs” in
notices of redemption as a convenience to Holders; provided, however, 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 shall not be affected by
any defect in or omission of such numbers.



Section 2.13. Issuance of Additional Notes.




     The Company shall be entitled, subject to their compliance with Section 4.09, to issue
Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued
on the Initial Issuance Date, other than with respect to the date of issuance, issue price and the
date from which interest begins to accrue. The Initial Notes issued on the Initial Issuance Date,
any Additional Notes and all Exchange Notes issued in exchange therefor shall be treated as a
single class for all purposes under this Indenture, including, without limitation, waivers,
consents, directions, declarations, amendments, redemptions and offers to purchase.



     With respect to any Additional Notes, the Company shall set forth in an Officers’ Certificate,
which shall be delivered to the Trustee, the following information:




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




     (2) the issue price, the issue date and the CUSIP number and any corresponding ISIN of
such Additional Notes; provided, however, that no Additional Notes may be issued at a price
that would cause such Additional Notes to have “original issue discount” within the meaning
of Section 1273 of the Code; and




     (3) whether such Additional Notes shall be Transfer Restricted Securities and issued in
the form of Initial Notes as set forth in Exhibit 1 to the Appendix to this Indenture or
shall be issued in the form of Exchange Notes as set forth in Exhibit A to the Appendix.



31









 





ARTICLE 3

REDEMPTION AND PREPAYMENT




Section 3.01. Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, they shall furnish to the Trustee, at least five Business Days (unless a
shorter period shall be agreeable to the Trustee) before the date of giving notice of the
redemption pursuant to Section 3.03, an Officers’ Certificate setting forth (i) the clause of
Section 3.07 pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed, (iv) the redemption price, and (v) whether it requests
the Trustee to give notice of such redemption. Any such notice may be cancelled at any time prior
to the mailing of notice of such redemption to any Holder and shall thereby be void and of no
effect.



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 shall select the
Notes to be redeemed among the Holders of the Notes as follows: (1) if the Notes are listed on any
national securities exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or (2) if the Notes are not listed on any
national securities exchange, on a pro rata basis (or, in the case of Global Notes, the Trustee
will select Notes for redemption based on the Depository’s method that most nearly approximates a
pro rata selection). In the event of partial redemption other than on a pro rata basis, the
particular Notes to be redeemed shall be selected, not less than three (3) Business Days (unless a
shorter period shall be agreeable to the Trustee) prior to the giving of notice of the redemption
pursuant to Section 3.03, by the Trustee from the outstanding Notes not previously called for
redemption.



     The Trustee shall 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 shall be in amounts of $2,000 or integral multiples
of $1,000 in excess of $2,000; 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 $2,000 or a multiple of $1,000,
shall be redeemed. Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.



     The provisions of the two preceding paragraphs of this Section 3.02 shall not apply with
respect to any redemption affecting only a Global Note, whether such Global Note is to be redeemed
in whole or in part. In case of any such redemption in part, the unredeemed portion of the
principal amount of the Global Note shall be in an authorized denomination.



Section 3.03. Notice of Redemption.




     At least 30 days but not more than 60 days before a redemption date, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice is issued in
connection with a Legal Defeasance, Covenant Defeasance or Discharge, the Company
shall 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.



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     The notice shall identify the Notes to be redeemed and shall state:




     (a) the redemption date;




     (b) the redemption price or, if the redemption price is not then determinable, the
manner in which it is to be determined;




     (c) 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 a principal amount equal to the unredeemed portion shall be issued in the
name of the Holder upon cancellation of the original Note;




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




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




     (f) that, unless the Company defaults in making such redemption payment, interest and
Additional Interest, if any, on Notes called for redemption cease to accrue on and after the
redemption date and the only remaining right of the Holders of such Notes is to receive
payment of the redemption price upon surrender to the Paying Agent of the Notes redeemed;




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




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



     If any of the Notes to be redeemed is in the form of a Global Note, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the Depository
applicable to redemption.



     At the Company’s request, the Trustee shall give the notice of optional redemption in the
Company’s name and at its expense; provided, however, that the Company shall have delivered to the
Trustee, as provided in Section 3.01, 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 second
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, except as provided in the next succeeding sentence, irrevocably due and payable
on the redemption date, at the redemption price. A notice of redemption may not be conditional,
except that any redemption pursuant to Section 3.07(b) may, at the Company’s
discretion, be subject to the completion of the related Equity Offering. If mailed in the
manner provided for in Section 3.03, the notice of redemption shall be conclusively presumed to
have



33









 








been given whether or not a Holder receives such notice. Failure to give timely notice or any
defect in the notice shall not affect the validity of the redemption.



Section 3.05. Deposit of Redemption Price.




     Prior to 11:00 a.m., New York City time, on the redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or a Subsidiary thereof is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.04 hereof) money sufficient in same day
funds to pay the redemption price of and accrued interest and Additional Interest, if any, on all
Notes to be redeemed on that date. The Paying Agent shall promptly return to the Company any money
deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of and accrued interest and Additional Interest, if any, on all Notes to be
redeemed.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest and Additional Interest, if any, shall cease to accrue on the Notes or
the portions of Notes called for redemption whether or not such Notes are presented for payment,
and the only remaining right of the Holders of such Notes shall be to receive payment of the
redemption price upon surrender to the Paying Agent of the Notes redeemed. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful, on any interest and
Additional Interest, if any, 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 shall issue in the name of the
Holder and the Trustee shall 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.



Section 3.07. Optional Redemption.




     (a) Except as set forth in clauses (b), (c) and (d) of this Section 3.07, the Company shall
not have the option to redeem the Notes pursuant to this Section 3.07 prior to December 1,
2013. On or after December 1, 2013, the Company shall have the option to redeem the Notes, in
whole or in part at any time, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Additional Interest, if any, to the
applicable redemption date (subject to the right of Holders of record on the relevant record date
to receive interest due on an interest payment date that is on or prior to the redemption date), if
redeemed during the twelve-month period beginning on December 1 of the years indicated below:



	 	 	 	 	 
	YEAR	 	PERCENTAGE
	2013
	 	 	105.438	%
	2014
	 	 	103.625	%
	2015
	 	 	101.813	%
	2016 and thereafter
	 	 	100.000	%







34









 






     (b) Notwithstanding the provisions of clause (a) of this Section 3.07, at any time prior to
December 1, 2013, the Company may on one or more occasions redeem up to 35% of the
aggregate principal amount of Notes (including any Additional Notes) issued under this Indenture at
a redemption price of 107.25% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on an interest payment date that is on or prior to
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 Notes (including any Additional
Notes) issued under this Indenture remains outstanding immediately after the occurrence of
each such redemption (excluding any Notes held by the Company and its Subsidiaries); and




     (2) each such redemption occurs within 120 days of the date of the closing of each such
Equity Offering.



     (c) Prior to December 1, 2013, the Company may redeem all or part of the Notes at a
redemption price equal to the sum of:



          (1) 100% of the principal amount thereof, plus




          (2) accrued and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on an interest payment date
that is on or prior to the redemption date), plus




          (3) the Make Whole Premium at the redemption date.




     (d) The Notes may also be redeemed, as a whole, following certain Change of Control Offers, at
the redemption price and subject to the conditions set forth in Section 4.15(6).



     (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through Section 3.06 hereof.



Section 3.08. Mandatory Redemption.




     Except as set forth under Sections 4.10 and 4.15 hereof, neither of the Company shall be
required to make mandatory redemption or sinking fund payments with respect to the Notes or to
repurchase the Notes at the option of the Holders.



Section 3.09. Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence
an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures
specified below.



     The Asset Sale Offer shall 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



35









 







Law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Settlement Date”), the Company shall purchase and pay for the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the
Offer Amount has been validly tendered (and not validly withdrawn), all Notes validly tendered (and
not validly withdrawn) in response to the Asset Sale Offer. Payment for any Notes so purchased
shall be made in the manner prescribed in the Notes.



     Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:




     (a) 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 shall remain open, including the
time and date the Asset Sale Offer will terminate (the “Termination Date”);




     (b) the Offer Amount and the purchase price;




     (c) that any Note not tendered or accepted for payment shall continue to accrue
interest and Additional Interest, if any;




     (d) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest and Additional
Interest, if any, after the Settlement Date;




     (e) 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;




     (f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, to the Company or a Paying Agent at the
address specified in the notice, before the Termination Date;




     (g) that Holders shall be entitled to withdraw their election if the Company or the
Paying Agent, as the case may be, receives, prior to the Termination Date, a telegram,
facsimile transmission 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;




     (h) that, if the aggregate principal amount of Notes surrendered by Holders, and Pari
Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount the
Company is required to repurchase, the Trustee shall select the Notes and Pari Passu
Indebtedness to be purchased on a pro rata basis on the basis of the aggregate
principal amount of tendered Notes and Pari Passu Indebtedness (with such adjustments
as may be deemed appropriate by the Trustee so that only Notes in denominations of $2,000,
or integral multiples of $1,000 in excess of $2,000, shall be purchased); and



36









 






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



     If any of the Notes subject to an Asset Sale Offer is in the form of a Global Note, then the
Company shall modify such notice to the extent necessary to accord with the procedures of the
Depository applicable to repurchases.



     Promptly after the Termination Date, the Company shall, to the extent lawful, accept for
payment Notes or portions thereof tendered pursuant to the Asset Sale Offer in the aggregate
principal amount required by Section 4.10 hereof, and prior to the Settlement Date it shall 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 and Section 4.10.
Prior to 11:00 a.m., New York City time, on the Settlement Date, the Company or the Paying Agent,
as the case may be, shall 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 shall issue a new Note, and the Trustee shall 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 shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or
before the Settlement Date.



ARTICLE 4

COVENANTS




Section 4.01. Payment of Notes.




     The Company shall pay or cause to be paid the principal of, premium, if any, interest and
Additional Interest, if any, on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, interest and Additional Interest, if any, shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
11:00 a.m., New York City time, on the due date money deposited by the Company or a Guarantor in
immediately available funds and designated for and sufficient to pay all principal, premium, if
any, interest and Additional Interest, if any, then due.



     The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the
extent lawful; and they shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any
(without regard to any applicable grace period), at the same rate to the extent lawful.



     The Company shall notify the Trustee of the amounts and payment dates of any Additional
Interest that may become payable under any Registration Rights Agreement.



Section 4.02. Maintenance of Office or Agency.




     The Company shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee) in New York, New York where Notes may be presented or



37









 







surrendered for
payment and they shall maintain an office or agency in the United States (which may be an office of
the Trustee or an affiliate of the Trustee) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall 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 shall fail to maintain any such required office or agency or shall fail 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. Further, if at any time there shall be no such office or agency in the
City of New York where the Notes may be presented or surrendered for payment, the Company shall
forthwith designate and maintain such an office or agency in the City of New York, in order that
the Notes shall at all times be payable in the City of New York. The Company shall 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 at 45 Broadway,
14th Floor, New York, New York 10006 as one such office or agency of the Company in
accordance with Section 2.03. In addition, Notes may be presented or surrendered for registration
of transfer or for exchange, and notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served, at the corporate trust office of the Trustee set forth in Section
11.02.



Section 4.03. Reports.




     (a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company will
file with the SEC (unless the SEC will not accept such a filing) for public availability within the
time periods specified in the SEC’s rules and regulations under the Exchange Act and, within five
Business Days of filing, or attempting to file, the same with the SEC, furnish to the Trustee and,
upon its prior request, to any of the Holders or Beneficial Owners of the Notes:




     (1) all quarterly and annual financial and other information with respect to the
Company and its Subsidiaries 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 thereon by the Company’s certified
independent accountants; 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.



38









 




The availability of the foregoing information or reports on the SEC’s website will be deemed to
satisfy the foregoing delivery requirements. All such reports will be prepared in all material
respects in accordance with all of the rules and regulations applicable to such reports, including
Section 3-10 of Regulation S-X, if the Company is not then subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. The Company shall at all times comply with TIA § 314(a).




     (b) The Company and the Guarantors shall furnish to the Holders and Beneficial Owners of the
Notes, prospective purchasers of the Notes and securities analysts, upon their request, the
information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.



     (c) Delivery of reports, information and documents to the Trustee under this Section is for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein.



Section 4.04. Compliance Certificate.




     (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal
year, beginning with the fiscal year ending December 31, 2010, an Officers’ Certificate stating
that a review of the activities of the Company and its Restricted 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
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 Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default
shall 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).



     (b) [Reserved].



     (c) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer of the Company becoming aware of any Default or Event of Default, a
statement specifying such Default or Event of Default.



Section 4.05. Taxes.




     The Company shall pay, and shall 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.



39









 





Section 4.06. Stay, Extension and Usury Laws.




     Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so)
that it shall 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 Indenture; and each of
the Company and 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 shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has been enacted.



Section 4.07. Limitation on Restricted Payments.




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




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




     (2) 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 or any direct or indirect parent of the Company;




     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes or the
Subsidiary Guarantees (excluding any intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries), except a payment of interest or principal within
one month of the Stated Maturity thereof; or




     (4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as “Restricted
Payments”),


unless, at the time of and after giving effect to such Restricted Payment:





     (1) no Default or Event of Default will have occurred and be continuing or would occur
as a consequence thereof; and




     (2) 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



40









 







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; and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (2) through (10), inclusive, of the next succeeding
paragraph), is less than the sum, without duplication, of the following (the “Restricted
Payments Basket”):




     (a) 100% of the Consolidated Cash Flow of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter during which
the Issue Date falls 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 less the product of 1.4 times the Company’s Fixed Charges for the same
period, plus




     (b) 100% of the aggregate net cash proceeds and the fair market value of assets
other than cash received by the Company since the Issue Date (i) as a contribution
to its common equity capital or from the issue or sale of Equity Interests (other
than Disqualified Stock) of the Company or (ii) from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or Disqualified Stock or debt securities)
sold to a Subsidiary of the Company), plus




     (c) the amount equal to the aggregate net reduction in Restricted Investments
made by the Company or any restricted Subsidiary in any Person after the Issue Date
resulting from:




     (i) repurchases, repayments or redemptions of such Restricted
Investments by such Person, proceeds realized upon the sale of any such
Restricted Investment, repayments of loans or advances or other transfers of
assets (including by way of dividend or distribution) by such Person to the
Company or any Restricted Subsidiary;




     (ii) the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries not to exceed the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which
amount in each case under this clause (c) was included in the calculation of
the amount of the Restricted Payments Basket; provided, however, that no
amount will be included under this clause (c) to the extent it is already
included in Consolidated Cash Flow of the Company; and




     (iii) the sale by the Company or any Restricted Subsidiary (other than
to the Company or a Restricted Subsidiary) of all or a portion



41









 







of the Capital Stock of an Unrestricted Subsidiary or a distribution
from an Unrestricted Subsidiary or a dividend from an Unrestricted
Subsidiary (whether any such distribution or dividend is made with proceeds
from the issuance by such Unrestricted Subsidiary of its Capital Stock or
otherwise), plus




     (d) the amount by which Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company’s consolidated balance sheet upon the
conversion or exchange subsequent to the Issue Date of any Indebtedness of the
Company or its Restricted Subsidiaries convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the amount of any cash or the
fair market value of any other property (other than such Capital Stock) distributed
by the Company upon such conversion or exchange) plus the amount of any cash
received by the Company or any of its Restricted Subsidiaries upon such conversion
or exchange.



     The preceding provisions will not prohibit:




     (1) the payment of any dividend or other distribution within 60 days after the date of
its declaration, if at the date of declaration the payment would have complied with the
provisions of this Indenture;




     (2) the purchase, redemption, defeasance or other acquisition or retirement of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially concurrent (a)
contribution (other than from a Restricted Subsidiary of the Company) to the equity capital
of the Company or (b) sale (other than to a Restricted Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock), with a sale being deemed
substantially concurrent if such purchase, redemption, defeasance or other acquisition or
retirement occurs not more than 120 days after such sale; provided, however, that the amount
of any such net cash proceeds that are utilized for any such purchase, redemption,
defeasance or other acquisition or retirement will be excluded (or deducted, if included)
from the calculation of any amount pursuant to clause (3)(b) above;




     (3) the purchase, redemption, defeasance or other acquisition or retirement of
subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an
incurrence of, or in exchange for, Permitted Refinancing Indebtedness;




     (4) the payment of any dividend or other distribution by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;




     (5) so long as no Default has occurred and is continuing, the purchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company pursuant to any director or employee equity
subscription agreement or stock option agreement or other employee benefit plan or to
satisfy obligations under any Equity Interests appreciation rights or



42









 







option plan or similar arrangement; provided, however, that the aggregate price paid
for all such purchased, redeemed, acquired or retired Equity Interests may not exceed $5.0
million in any calendar year, with any portion of such $5.0 million amount that is unused in
any calendar year to be carried forward to successive calendar years and added to such
amount;




     (6) the purchase, repurchase, redemption or other acquisition or retirement for value
of Equity Interests deemed to occur upon the exercise of stock options, warrants,
incentives, rights to acquire Equity Interests or other convertible securities if such
Equity Interests represent a portion of the exercise or exchange price thereof, and any
purchase, repurchase, redemption or other acquisition or retirement for value of Equity
Interests made in lieu of withholding taxes in connection with any exercise, vesting or
exchange of stock options, warrants, incentives or Equity Interests; or




     (7) payments or distributions to dissenting stockholders pursuant to applicable law or
in connection with the settlement or other satisfaction of legal claims made pursuant to or
in connection with a consolidation, merger or transfer of assets;




     (8) cash payments in lieu of the issuance of fractional shares;




     (9) so long as no Default has occurred and is continuing, the declaration and payment
of scheduled or accrued dividends to holders of any class of or series of Disqualified Stock
of the Company issued on or after the Issue Date in accordance with Section 4.09 to the
extent such dividends are included in Fixed Charges;




     (10) other Restricted Payments made since the Issue Date in an aggregate amount not in
excess of $150.0 million; or




     (11) so long as no Default has occurred and is continuing, the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value of any subordinated
Indebtedness of the Company or a Restricted Subsidiary (i) at a purchase price not greater
than 101% of the principal amount of such subordinated Indebtedness of the Company or a
Restricted Subsidiary in the event of a Change of Control in accordance with provisions
similar to Section 4.15 or (ii) at a purchase price not greater than 100% of the principal
amount thereof in accordance with provisions similar to Section 4.10; provided that, prior
to or simultaneously with such purchase, repurchase, redemption, defeasance or other
acquisition or retirement, the Company has made the Change of Control Offer or Asset Sale
Offer, as applicable, as provided in such Section and has completed the repurchase or
redemption of all Notes validly tendered for payment in connection with such Change of
Control Offer or Asset Sale Offer.



     The amount of all Restricted Payments (other than cash) will be the fair market value, on the
date of the Restricted Payment, of the Restricted Investment proposed to be made or 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. Not later than the date of making any
Restricted Payment that has the effect of reducing the Restricted Payments Basket by at least $25.0
million, the Company will deliver to the Trustee an Officers’ Certificate stating



43









 




that such Restricted Payment is permitted and setting forth the amount of the Restricted
Payments Basket after giving effect to such Restricted Payment.




     In the event that a Restricted Payment meets the criteria of more than one of the exceptions
described in (1) through (11) above or is entitled to be made pursuant to the first paragraph of
this Section 4.07, the Company shall, in its sole discretion, classify such Restricted Payment.



Section 4.08. Limitation on Dividend and Other Payment Restrictions Affecting 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:




     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to
the Company or any of its Restricted Subsidiaries;




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




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



     However, the preceding restrictions of this Section 4.08 will not apply to encumbrances or
restrictions existing under or by reason of:




     (1) agreements as in effect on the date of this Indenture and any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements or the Indebtedness to which they relate, provided that the
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive, taken as a whole, with respect to such
dividend, distribution and other payment restrictions than those contained in those
agreements on the date of this Indenture;




     (2) this Indenture, the Notes and the Subsidiary Guarantees;




     (3) Applicable Law;




     (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in connection with or
in contemplation of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of Indebtedness,
such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;



44









 






     (5) customary non-assignment provisions in equipment or other licenses, easements,
leases or similar instruments, in each case entered into in the ordinary course of business
and consistent with past practices;




     (6) Capital Lease Obligations, mortgage financings or purchase money obligations, in
each case for property acquired in the ordinary course of business that impose restrictions
on that property of the nature described in clause (3) of the preceding paragraph;




     (7) any agreement for the sale or other disposition of a Restricted Subsidiary of the
Company that restricts distributions by that Restricted Subsidiary pending its sale or other
disposition;




     (8) Permitted Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken
as a whole, than those contained in the agreements governing the Indebtedness being
refinanced;




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




     (10) provisions with respect to the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business;




     (11) any agreement or instrument relating to any property or assets acquired after the
date of this Indenture, so long as such encumbrance or restriction relates only to the
property or assets so acquired and is not and was not created in anticipation of such
acquisitions;




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




     (13) the issuance of preferred securities by a Restricted Subsidiary of the Company or
the payment of dividends thereon in accordance with the terms thereof; provided that
issuance of such preferred securities is permitted by Section 4.09 and the terms of such
preferred securities do not expressly restrict the ability of such Restricted Subsidiary to
pay dividends or make any other distributions on its Capital Stock (other than requirements
to pay dividends or liquidation preferences on such preferred securities prior to paying any
dividends or making any other distributions on such other Capital Stock);




     (14) with respect to any Foreign Subsidiary, any encumbrance or restriction contained
in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was
incurred if either (a) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant in such
Indebtedness or agreement or (b) the Company determines that any such encumbrance or



45









 







restriction will not materially affect the Company’s ability to make principal or interest
payments on the Notes, as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive; and




     (15) any other agreement governing Indebtedness of the Company or any Guarantor that is
permitted to be incurred by Section 4.09; provided, however, that such encumbrances or
restrictions are not materially more restrictive, taken as a whole, than those contained in
this Indenture or the Credit Agreement as it exists on the date of this Indenture.



Section 4.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt); the Company will not, and will not permit any of its Restricted
Subsidiaries to, issue any Disqualified Stock, and the Company will not permit any of its
Restricted Subsidiaries to issue any other preferred securities; provided, however, that the
Company and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or
issue Disqualified Stock, and any Restricted Subsidiaries may issue other preferred securities, if,
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 or other preferred securities are issued, the Fixed Charge
Coverage Ratio would have been at least 2.0 to 1.0, 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 Disqualified Stock or other preferred securities had been issued, as the case may be,
at the beginning of such four-quarter period.



     The first paragraph of this Section 4.09 will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”) or the issuance of any preferred
securities described in clause (11) below:




     (1) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness under one or more Credit Facilities, provided that, after giving effect to any
such incurrence, the aggregate principal amount of all Indebtedness incurred under this
clause (1) (with letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and its Subsidiaries thereunder) and then
outstanding does not exceed the greater of (a) $2,450.0 million or (b) $1,300.0 million plus
20.0% of the Company’s Consolidated Net Tangible Assets;




     (2) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by (a)
the Notes issued and sold on the Initial Issuance Date and the related Subsidiary Guarantees
issued on the date of this Indenture and (b) the Exchange Notes



46









 







and the related Subsidiary Guarantees issued pursuant to any Registration Rights
Agreement;




     (4) 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 construction or improvement of property, plant or equipment used in the business of
the Company or any of its Restricted Subsidiaries, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (4), provided that after giving effect to such
incurrence the aggregate principal amount of all Indebtedness incurred pursuant to this
clause (4) and then outstanding does not exceed the greater of (a) $100.0 million and (b)
2.5% of the Company’s Consolidated Net Tangible Assets;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to, extend,
refinance, renew, replace, defease or refund Indebtedness that was permitted by this
Indenture to be incurred under the first paragraph of this Section 4.09 or clause (2) or (3)
of this paragraph or this clause (5);




     (6) 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:




     (a) if the Company is the obligor on such Indebtedness and a Guarantor is not
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes, or if a Guarantor is
the obligor on such Indebtedness and neither the Company nor another Guarantor is
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Subsidiary Guarantee of such
Guarantor; and




     (b) (i) 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 (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor 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 (6);




     (7) the incurrence by the Company or any of its Restricted Subsidiaries of obligations
under Hedging Contracts;




     (8) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by
another provision of this Section 4.09;



47









 






     (9) the incurrence by any Foreign Subsidiary of additional Indebtedness, including all
Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or
refund any Indebtedness incurred pursuant to this clause (9), provided that, after giving
effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred
under this clause (9) and then outstanding does not exceed $200.0 million;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of bid, performance, surety, customs, appeals and similar bonds
issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary
course of business, including guarantees and obligations of the Company or any of its
Restricted Subsidiaries with respect to letters of credit supporting such obligations (in
each case other than an obligation for money borrowed);




     (11) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of any preferred securities; provided, however, that:




     (a) any subsequent issuance or transfer of Equity Interests that results in any
such preferred securities 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 preferred securities to a Person
that is not either the Company or a Restricted Subsidiary of the Company




shall be deemed, in each case, to constitute an issuance of such preferred securities by
such Restricted Subsidiary that was not permitted by this clause (11); and




     (12) the incurrence by the Company or any of its Restricted Subsidiaries of liability
in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint
Venture but only to the extent that such liability is the result of the Company’s or any
such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or
Joint Venture and not as guarantor of such Indebtedness and provided that, after giving
effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred
under this clause (12) and then outstanding does not exceed $25.0 million;




     (13) Permitted Acquisition Indebtedness; and




     (14) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness, provided that, after giving effect to any such incurrence, the aggregate
principal amount of all Indebtedness incurred under this clause (14) and then outstanding
does not exceed the greater of (a) $200.0 million or (b) 5.0% of the Company’s Consolidated
Net Tangible Assets.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories
of Permitted Debt described in clauses (1) through (14) above, or is entitled to be incurred



48









 







pursuant to the first paragraph of this Section 4.09, the Company will be permitted to classify (or
later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness
in any manner that complies with this Section 4.09. Any Indebtedness under Credit Facilities on
the date of this Indenture shall be considered incurred under clause (1) of the second paragraph of
this Section 4.09 and may not be later classified or reclassified as incurred pursuant to the first
paragraph of this Section 4.09.



     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 terms, and the
payment of dividends on Disqualified Stock or other preferred securities in the form of additional
shares of the same class of Disqualified Stock or other preferred securities, as the case may be,
will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or
other preferred securities for purposes of this Section 4.09, provided, in each such case, that the
amount thereof is included in Fixed Charges of the Company as accrued. Further, the accounting
reclassification of any obligation or instrument of the Company or any of its Restricted
Subsidiaries as Indebtedness will not be deemed an incurrence of Indebtedness 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 calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in
the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such Indebtedness being
refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that the Company and its Restricted Subsidiaries may incur pursuant to this covenant
shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of
currencies. The principal amount of any Permitted Refinancing Indebtedness, if incurred in a
different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such Permitted Refinancing
Indebtedness is denominated that is in effect on the date of such refinancing.



Section 4.10. Limitation on Asset Sales.




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




     (1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration
at the time of the Asset Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of;



49









 






     (2) the fair market value is determined by (a) an executive officer of the Company if
the value is less than $75.0 million and evidenced by an Officers’ Certificate delivered to
the Trustee, or (b) the Company’s Board of Directors if the value is $75.0 million or more
and evidenced by a resolution of the Board of Directors set forth in an Officers’
Certificate delivered to the Trustee; and




     (3) at least 75% of the aggregate consideration received by the Company and its
Restricted Subsidiaries in the Asset Sale and all other Asset Sales since the date of this
Indenture is in the form of cash, Cash Equivalents or Additional Assets. For purposes of
this provision, each of the following will be deemed to be cash:




     (a) any liabilities, as shown on the Company’s or any Restricted Subsidiary’s
most recent balance sheet, of the Company or such Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant
to a customary novation or assumption agreement that releases the Company or such
Subsidiary from further liability; and




     (b) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are, within 90 days after the
Asset Sale, converted by the Company or such Subsidiary into cash, to the extent of
the cash received in that conversion.



     Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or 720 days after
the receipt of any Net Proceeds by any Foreign Subsidiary from an Asset Sale), the Company or any
Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the
following:



     (I) to repay secured Indebtedness and, if no secured Indebtedness is then outstanding, to
repay any other Senior Debt;



     (II) to invest in Additional Assets; or



     (III) to make capital expenditures in respect of any Permitted Business of the Company or any
of its Restricted Subsidiaries.



     Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary
may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph
will constitute “Excess Proceeds.”



     On the 361st day after the Asset Sale (or the 721st day after an Asset Sale by any
Foreign Subsidiary, or, in either case and, at the Company’s option, any earlier date), if the
aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company will make an Asset Sale
Offer to all Holders of Notes, and to all holders of Pari Passu Indebtedness then outstanding, to
purchase the maximum principal amount of Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date,



50









 







subject to the right of Holders of record on the relevant record date to receive interest due on an
interest payment date that is on or prior to the Settlement Date, 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 Indenture. If the aggregate
principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness
to be purchased on a pro rata basis as set forth in Section 3.09(h) of this Indenture. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.



     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 each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Section 4.10 or Section 3.09, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under such provisions by virtue
of such conflict.



Section 4.11. Limitation on Transactions with Affiliates.




     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 of
the Company (each, an “Affiliate Transaction”), unless:




     (1) the 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) either: (a) the Company delivers to the Trustee, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate consideration in
excess of $25.0 million but no greater than $75.0 million, an Officers’ Certificate
certifying that such Affiliate Transaction or series of Affiliate Transactions complies with
this covenant; or (b) the Company delivers to the Trustee, with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate consideration in
excess of $75.0 million, an Officers’ Certificate certifying that such Affiliate Transaction
or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved by a majority of
the disinterested members of the Board of Directors of the Company.




51












 





     The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of the prior paragraph of this Section 4.11:




     (1) any employment, equity award, equity option or equity appreciation agreement or
plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary
course of business;




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




     (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns an Equity Interest in
such Person;




     (4) transactions effected in accordance with the terms of (a) the Omnibus Agreement,
(b) corporate sharing agreements with the Partnership and its Subsidiaries with respect to
general overhead and other administrative matters or (c) other agreements that are
identified in Schedule I to this Indenture, in each case as such agreements are in effect on
the date of this Indenture, and any amendment or replacement of any of such agreements so
long as such amendment or replacement agreement is either (i) approved by a majority of the
disinterested members of the Board of Directors of the Company or (ii) not materially more
disadvantageous, taken as a whole, to the Company and its Restricted Subsidiaries than the
agreement so amended or replaced;




     (5) customary compensation, indemnification and other benefits made available to
officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of
the Company, including reimbursement or advancement of out-of-pocket expenses and provisions
of officers’ and directors’ liability insurance;




     (6) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital
contributions from, Affiliates of the Company;




     (7) Permitted Investments or Restricted Payments that are permitted by Section 4.07;
and




     (8) in the case of contracts for buying and selling or leasing equipment or inventory
or other operational contracts, any such contracts are entered into in the ordinary course
of business on terms substantially similar to those contained in similar contracts entered
into by the Company or any of its Restricted Subsidiaries and unrelated third parties.



Section 4.12. Limitation on Liens.




     The Company will not and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter
acquired, unless the Notes or any Subsidiary Guarantee of such Restricted Subsidiary, as
applicable, is secured on an equal and ratable basis with (or on a senior basis to, in



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the case of obligations subordinated in right of payment to the Notes or such Subsidiary
Guarantee, as the case may be) the obligations so secured until such time as such obligations are
no longer secured by a Lien.




Section 4.13. Additional Subsidiary Guarantees.




     If, after the date of this Indenture, any Restricted Subsidiary of the Company that is not
already a Guarantor guarantees any other Indebtedness of the Company or any Guarantor, then that
Subsidiary will become a Guarantor by executing a supplemental indenture substantially in the form
of Annex A hereto and delivering it to the Trustee within twenty Business Days of the date on which
it guaranteed or incurred such Indebtedness, as the case may be, together with any Officers’
Certificate or Opinion of Counsel required by Section 9.06; provided, however, that the preceding
shall not apply to Subsidiaries of the Company that have properly been designated as Unrestricted
Subsidiaries in accordance with this Indenture for so long as they continue to constitute
Unrestricted Subsidiaries. Notwithstanding the preceding, any Subsidiary Guarantee of a Restricted
Subsidiary that was incurred pursuant to this Section 4.13 will be released at such time as such
Guarantor ceases both (x) to guarantee any other Indebtedness of either of the Company and any
other Guarantor and (y) to be an obligor with respect to any Indebtedness under any Credit
Facility.



Section 4.14. Corporate Existence.




     Except as otherwise permitted pursuant to the terms hereof (including consolidation and merger
permitted by Section 5.01), the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, and the corporate, partnership
or other existence of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such
Restricted Subsidiary; provided, however, that the Company shall not be required to preserve the
existence of any of its Restricted Subsidiaries if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and its
Restricted 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 Repurchase Upon Change of Control.





     (1) Within 30 days following the occurrence of a Change of Control, unless the Company
has previously or concurrently exercised its right to redeem all of the Notes pursuant to
Section 3.07, the Company shall make a cash tender 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 of
$2,000) of each Holder’s Notes at a purchase price (the “Change of Control Payment”) in cash
equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and
unpaid interest and Additional Interest, if any, thereon to the date of settlement (the
“Change of Control Settlement Date”), subject to the right of Holders of record on the
relevant record date to receive interest due on an interest payment date that is on or prior
to the Change of Control Settlement Date. Within 30 days following a Change of Control,
unless the Company has previously or concurrently exercised its right to redeem all of the
Notes pursuant to Section 3.07, the Company shall



53









 







mail a notice of the Change of Control Offer to each Holder and the Trustee describing
the transaction that constitutes the Change of Control and stating:




     (a) that the Change of Control Offer is being made pursuant to this Section
4.15 and that all Notes validly tendered and not validly withdrawn will be accepted
for payment;




     (b) the purchase price and the Change of Control Settlement Date, which shall
be no earlier than 30 days but no later than 60 days from the date such notice is
mailed;




     (c) that the Change of Control Offer will expire as of the time specified in
such notice and that the Company shall pay the Change of Control Purchase Price for
all Notes accepted for purchase promptly after such acceptance on the Change of
Control Settlement Date;




     (d) that any Note not tendered will continue to accrue interest and Additional
Interest, if any;




     (e) that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest and Additional Interest, if any, after the Change of
Control Settlement Date;




     (f) that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender the Notes, properly endorsed for
transfer, together with the form entitled “Option of Holder to Elect Purchase” on
the reverse of the Notes completed and such customary documents as the Company may
reasonably request, to the Paying Agent at the address specified in the notice prior
to the termination of the Change of Control Offer;




     (g) that Holders will be entitled to withdraw their election if the Paying
Agent receives, prior to the termination of the Change of Control Offer, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have the Notes purchased; and




     (h) that Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $2,000 in principal amount
or an integral multiple of $1,000 in excess of $2,000.




If any of the Notes subject to a Change of Control Offer is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depository applicable to repurchases. Further, the Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change of Control.



54









 







To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.15, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under such
provisions by virtue of such conflict.




     (2) On or before the Change of Control Settlement Date, the Company shall, to the
extent lawful, accept for payment all Notes or portions thereof (in minimum denominations of
$2,000 and in integral multiples of $1,000 in excess of $2,000) properly tendered (and not
validly withdrawn) pursuant to the Change of Control Offer. Promptly after such acceptance,
on the Change of Control Settlement Date the Company shall:




     (a) deposit with the Paying Agent by 11:00 a.m., New York City time, an amount
equal to the Change of Control Payment in respect of all Notes or portions thereof
so tendered (and not validly withdrawn); and




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




On the Change of Control Settlement Date, the Paying Agent shall mail to each Holder of
Notes properly tendered the Change of Control Payment for such Notes (or, if all the Notes
are then in global form, make such payment through the facilities of the Depository) and the
Trustee shall 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, however, that each such new Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess of $2,000. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Settlement Date.




     (3) The Change of Control provisions of this Section 4.15 shall be applicable whether
or nor any other provisions of this Indenture are applicable.




     (4) Prior to complying with any of the provisions of this Section 4.15, but in any
event no later than the Change of Control Settlement Date, the Company or any Guarantor must
either repay all of its other outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing such Senior Debt to permit the repurchase of Notes
required by this Section 4.15.




     (5) The Company shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the manner, at the
time and otherwise in compliance with the requirements set forth in this Section 4.15
applicable to a Change of Control Offer made by the Company and purchases all Notes properly
tendered and not withdrawn under such Change of Control Offer.




     (6) In the event that Holders of not less than 90% in aggregate principal amount of the
outstanding Notes accept a Change of Control Offer and the Company, or any third party
making a Change of Control Offer in lieu of the Company as described



55









 







above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the
right, upon not less than 30 nor more than 60 days’ prior notice as provided in Section
3.03, given not more than 30 days following such purchase pursuant to the Change of Control
Offer described above, to redeem all Notes that remain outstanding following such purchase
at a redemption price in cash equal to the Change of Control Payment plus, to the extent not
included in the Change of Control Payment, accrued and unpaid interest, if any, to the date
of redemption (subject to the right of Holders of record on the relevant record date to
receive interest due on interest payment date that is on or prior to the redemption date).




     (7) A Change of Control Offer may be made in advance of a Change of Control, and
conditioned upon the occurrence of the Change of Control, if a definitive agreement is in
place for the Change of Control at the time of making the Change of Control Offer.



Section 4.16. No Inducements.




     The Company will not, and the Company will not permit any of its Subsidiaries, either directly
or indirectly, to pay any consideration, whether by way of interest, fee or otherwise, to any
Beneficial Owner or Holder of any Notes for or as an inducement to any consent to any waiver,
amendment or supplement of any terms or provisions of this Indenture or the Notes, unless such
consideration is offered to be paid (or agreed to be paid) to all Beneficial Owners and Holders of
the Notes which so consent in the time frame set forth in the solicitation documents relating to
such consent.



Section 4.17. [Reserved]




Section 4.18. Covenant Termination.




     If at any time (a) the rating assigned to the Notes by both S&P and Moody’s is an Investment
Grade Rating, (b) no Default has occurred and is continuing under this Indenture and (c) the
Company has delivered to the Trustee an Officers’ Certificate certifying to the foregoing
provisions of this sentence, the Company and its Restricted Subsidiaries will no longer be subject
to the provisions of Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.17, 4.19, and clause (d) of
Section 5.01 of this Indenture. However, the Company and its Restricted Subsidiaries will remain
subject to all of the other provisions of this Indenture.



Section 4.19. Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary of the Company
to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted
Subsidiary of the Company 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 as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation that will reduce the amount
available for Restricted Payments under the first paragraph of Section 4.07 or represent Permitted
Investments, as determined by the Company. That designation shall only be permitted



56









 







if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the
definition of an Unrestricted Subsidiary.



     The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary of the Company; 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, 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.



ARTICLE 5

SUCCESSORS




Section 5.01. Merger, Consolidation, or Sale of Assets.




     The Company may not, directly or indirectly, (1) consolidate or merge with or into another
Person (whether or not the Company is the survivor), or (2) sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in one or more related
transactions to another Person, unless:




     (a) either (1) the Company is the survivor or (2) the Person formed by or surviving any
such consolidation or merger (if other than the Company ) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a Person organized
or existing under the laws of the United States, any state of the United States or the
District of Columbia;




     (b) 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, lease, conveyance or
other disposition shall have been made assumes all the obligations of the Company under the
Notes, this Indenture and the applicable Registration Rights Agreement pursuant to a
supplemental indenture or other agreement in a form reasonably satisfactory to the Trustee;




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




     (d) either:




     (i) 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,
lease, conveyance or other disposition shall have been made will, at the time of
such transaction and 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



57









 






     (ii) immediately after giving effect to such transaction and any related
financing transactions on a pro forma basis as if the same had occurred at the
beginning of the Company’s most recently ended four full quarters for which internal
financial statements are available immediately preceding the date of the
transactions, the Fixed Charge Coverage Ratio of 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, lease, conveyance or other disposition has
been made, will be equal to or greater than the Fixed Charge Coverage Ratio of the
Company immediately before such transactions; and




     (e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or disposition and such supplemental
indenture (if any) comply with this Indenture.



     Notwithstanding the restrictions described in the foregoing clause (d), any Restricted
Subsidiary may consolidate with, merge into or dispose of all or part of its properties and assets
to the Company without complying with the preceding clause (d) in connection with any such
consolidation, merger or disposition.



Section 5.02. Successor Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of the Company in
accordance with Section 5.01 hereof, the successor 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 shall succeed to, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the Company herein and
shall be substituted for the Company (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead to the successor and not to the Company);
and thereafter, if the Company is dissolved following a transfer of all or substantially all of its
properties or assets in accordance with this Indenture, it shall be discharged and released from
all obligations and covenants under this Indenture and the Notes. The Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such successor and such
discharge and release of the Company.



ARTICLE 6

DEFAULTS AND REMEDIES




Section 6.01. Events of Default.




     An “Event of Default” occurs if one of the following shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be involuntary or be effected
by operation of law):




     (a) the Company defaults in the payment when due of interest or Additional Interest, if
any, with respect to, the Notes, and such default continues for a period of 30 days;



58









 






     (b) the Company defaults in the payment of the principal of or premium, if any, on the
Notes when due at its Stated Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise;




     (c) the Company fails to comply with the provisions of Section 3.09, 4.10, 4.15 or 5.01
hereof;




     (d) the Company fails to comply with the provisions of Section 4.03 for 180 days after
notice to the Company by the Trustee or the Holders of at least 25% in principal amount of
the Notes then outstanding of such failure;




     (e) the Company fails to comply with any other covenant or other agreement in this
Indenture or the Notes for 60 days after notice to the Company by the Trustee or the Holders
of at least 25% in principal amount of the Notes then outstanding of such failure;




     (f) a default occurs 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 (or the payment of which is guaranteed
by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the date of this Indenture, if such default:




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




     (2) results in the acceleration of such Indebtedness prior to its Stated
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 $75.0 million or more;
provided, however, that if any such Payment Default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid, within a period of 60 days
from the continuation of such Payment Default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default and any
consequential acceleration of the Notes shall be automatically rescinded, so long as such
rescission does not conflict with any judgment or decree;




     (g) the Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $75.0 million (to the extent not covered by insurance by a
reputable and creditworthy insurer as to which the insurer has not disclaimed coverage),
which judgments are not paid, discharged or stayed for a period of 60 days;




     (h) except as permitted by this Indenture, any Subsidiary Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in



59









 






full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Subsidiary Guarantee; and




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




     (1) commences a voluntary case,




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




     (3) consents in writing to the appointment of a Custodian of it or for all or
substantially all of its property,




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




     (5) admits in writing it 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:




     (1) is for relief against the Company, any of the Company’s Restricted
Subsidiaries that is a Significant Subsidiary of the Company or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company in an involuntary case;




     (2) appoints a Custodian of the Company, any of the Company’s Restricted
Subsidiaries that is a Significant Subsidiary of the Company or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company or for all or substantially all of the
property of the Company, any of the Company’s Restricted Subsidiaries that is a
Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company, that, taken together, would constitute a
Significant Subsidiary of the Company; or




     (3) orders the liquidation of the Company, any of the Company’s Restricted
Subsidiaries that is a Significant Subsidiary of the Company or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company;




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



60









 





Section 6.02. Acceleration.




     If any Event of Default occurs and is continuing, the Trustee, by notice to the Company, or
the Holders of at least 25% in principal amount of the then outstanding Notes, by notice to the
Company and the Trustee, may declare all the Notes to be due and payable immediately. Upon any
such declaration, the Notes shall become due and payable immediately, together with all accrued and
unpaid interest, Additional Interest, if any, and premium, if any, thereon. Notwithstanding the
preceding, if an Event of Default specified in clause (i) or (j) of Section 6.01 hereof occurs with
respect to the Company, any of the Company’s Restricted Subsidiaries that is a Significant
Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary of the Company, all outstanding Notes shall
become due and payable without further action or notice, together with all accrued and unpaid
interest, Additional Interest, if any, and premium, if any, thereon. The Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except with respect to nonpayment of
principal, interest, premium or Additional Interest, if any, that have become due solely because of
the acceleration) have been cured or waived.



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 of and premium, interest and Additional Interest, if any, on
the Notes or to enforce the performance of any provision of the Notes or this 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 shall 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.




     Holders of a majority in principal amount of the then outstanding Notes 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 hereunder, except a continuing Default or Event of Default in the
payment of the principal of or premium, interest or Additional Interest, if any, on the Notes.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.



Section 6.05. Control by Majority.




     Holders of a majority in 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 Indenture or that the Trustee determines may



61









 







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 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 indemnity or security 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 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 Indenture to prejudice the rights of another Holder of a Note
or to obtain a preference or priority over another Holder of a Note.




Section 6.07. Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of and premium, interest and Additional Interest, if any, 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, shall 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 and the Guarantors for the whole amount of principal of, premium, interest and
Additional Interest, if any, remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and Additional Interest, if any, and such further amount as shall 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.



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Section 6.09. Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), their creditors or their property and shall 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 shall 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, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall 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 shall 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 shall 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 Trustee’s costs and expenses of collection;




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




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     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 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



63









 




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, 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 shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent man would exercise or use under the circumstances in the conduct of his
own affairs.



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




     (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this 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
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



     (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 7.01;




     (ii) the Trustee shall 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;




     (iii) the Trustee shall 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; and




     (iv) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have



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reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.



     (e) The Trustee shall 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 shall 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 and the written advice of such counsel or any Opinion of Counsel shall 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 shall not be responsible for the
misconduct or negligence of any agent appointed with due care.



     (d) The Trustee shall 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
Indenture.



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



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



     (g) The Trustee shall have no duty to inquire as to the performance of the Company’s covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have knowledge of any Default
or Event of Default except: (1) any Event of Default occurring pursuant to Section 6.01(a) or
6.01(b) hereof; or (2) any Default or Event of Default of which a Responsible Officer shall have
received written notification or obtained actual knowledge.



     (h) The permissive right of the Trustee to act hereunder shall not be construed as a duty.



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     (i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder and in its capacity as Trustee
under any other agreement executed in connection with this Indenture to which the Trustee is a
party.



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, any Guarantor or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest (as defined in the TIA) after a Default has occurred and is continuing, it
must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.



Section 7.04. Trustee’s Disclaimer.




     The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall 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 Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall 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 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 known to the Trustee,
the Trustee shall 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 in payment of principal
of or premium, if any, interest or Additional Interest, if any, on any Note, the Trustee may
withhold the notice 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 June 1 beginning with the June 1 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2) and §
313(b)(1). The Trustee shall also transmit by mail all reports as required by TIA § 313(c).



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



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Section 7.07. Compensation and Indemnity.




     The Company shall pay to the Trustee from time to time such reasonable compensation as the
Company and the Trustee may agree in writing for the Trustee’s acceptance of this Indenture and
services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall 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 shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.



     The Company and the Guarantors shall indemnify the Trustee, jointly and severally, against any
and all losses, liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, any Guarantor 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, bad faith or willful misconduct. The Trustee shall notify the
Company and the Guarantors promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company and the Guarantors shall not relieve the Company or the Guarantors
of their obligations hereunder. The Company and the Guarantors shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company and
the Guarantors shall pay the reasonable fees and expenses of such counsel; provided that the
Company and the Guarantors will not be required to pay such fees and expenses if they assume the
Trustee’s defense with counsel acceptable to and approved by the Trustee (such approval not to be
unreasonably withheld) and there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company and the Guarantors need not pay for any settlement made
without their consent, which consent shall not be unreasonably withheld. Neither the Company nor
the Guarantors need reimburse the Trustee for any expense or indemnity against any liability or
loss of the Trustee to the extent such expense, liability or loss is attributable to the
negligence, bad faith or willful misconduct of the Trustee.



     The obligations of the Company and the Guarantors under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.



     To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(i) or (j) 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 shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.



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Section 7.08. Replacement of Trustee.




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



     The Trustee may resign in writing upon 30 days notice at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing and may appoint a successor trustee with the consent of the Company. 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 receiver, 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 shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in 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 30 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 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 hereof, 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 shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee 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 and the Guarantors’ obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.



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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 shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail a
notice of its succession to the Company and the Holders of the Notes.



Section 7.10. Eligibility; Disqualification.




     There shall 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 $50 million
as set forth in its most recent published annual report of condition.



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


Section 7.11. Preferential Collection of Claims Against the Company.




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



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 Boards of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, exercise its rights under either Section 8.02 or 8.03
hereof with respect 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 shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have discharged their obligations with respect to all outstanding Notes, and
each Guarantor shall be deemed to have discharged its obligations with respect to its Subsidiary
Guarantee, on the date the conditions set forth in Section 8.04 below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, and each
Guarantor shall be deemed to have paid and discharged its Subsidiary Guarantee (which in each case
shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below) and to have satisfied all its
other obligations under such Notes or Subsidiary Guarantee and this Indenture (and the Trustee, on
demand of and at the expense of the Company,



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shall execute proper instruments acknowledging the same), except for the following provisions which shall 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 and premium, if any, interest and Additional Interest, if any, on
such Notes when such payments are due, (b) the Company’s obligations with respect to such Notes
under Sections 2.03, 2.04, 2.06, 2.07, 2.09 and 4.02 hereof and the Appendix, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the
Guarantors’ obligations in connection therewith and (d) the Legal Defeasance provisions of this
Article 8. Subject to compliance with this Article 8, the Company may exercise their option under
this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.




     If the Company exercises its Legal Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee, and any security for the Notes (other
than the trust) will be released.



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 shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under the covenants contained in Article 4 (other than
those in Sections 4.01, 4.02, 4.06 and 4.14) and in clause (d) of Section 5.01 hereof on and after
the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the
Notes shall 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 shall continue to be deemed “outstanding” for all other purposes hereunder.
For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the
Company and any Guarantor may omit to comply with and shall 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
shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall 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(f) through 6.01(h)
hereof shall not constitute Events of Default.



     If the Company exercises its Covenant Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee and any security for the Notes (other
than the trust) will be released.



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Section 8.04. Conditions to Legal or Covenant Defeasance.





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 U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of and premium, if any,
interest and Additional Interest, if any, on the outstanding Notes on the date of fixed
maturity or on the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to the date of fixed maturity or to a
particular redemption date;




     (b) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that:




     (1) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (2) since the date of this Indenture, there has been a change in the applicable
federal income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to
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 shall 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 federal income tax purposes as a result of such Covenant Defeasance and will be subject
to 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 shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit);




     (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) 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 shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the



71









 






Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and




     (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or 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 pursuant to Section 8.04 or 8.08 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or any of its Subsidiaries 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, interest and Additional Interest, if any, but such money need not be
segregated from other funds except to the extent required by law.



     The Company shall 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 or 8.08 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 shall deliver or pay
to the Company from time to time upon the written request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 or 8.08 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, Covenant Defeasance or Discharge, as the case may be.



Section 8.06. Repayment to the Company.




     Subject to applicable escheat and abandoned property laws, any money or non-callable
Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of or premium, interest or Additional Interest, if any, on any Note and remaining unclaimed for two years after such principal, premium,
interest or Additional Interest, if any, has become due and payable shall be paid to the Company on
its written request or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money or non-callable Government Securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before



72









 




being required to make any such repayment, shall at the written direction and 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 shall not
be less than 30 days from the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.




Section 8.07. Reinstatement.




     If the Trustee or Paying Agent is unable to apply any money or non-callable Government
Securities in accordance with Section 8.05 hereof, 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 Indenture and the Notes shall 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 8.05
hereof; provided, however, that, if the Company makes any payment of principal of or premium,
interest, Additional Interest, if any, on any Note following the reinstatement of its obligations,
the Company shall 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.



Section 8.08. Discharge.




     This Indenture shall be satisfied and discharged and shall cease to be of further effect as to
all Notes issued hereunder (except for (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in clause (b) of this Section 8.08, and as more fully set
forth in such clause (b), payments in respect of the principal of and premium, if any, interest and
Additional Interest, if any, on such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Sections 2.03, 2.04, 2.06, 2.07, 2.09 and 4.02 hereof
and the Appendix and (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company’s obligations in connection therewith), 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 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 or will become due and payable within one year by reason of the mailing of a
notice of redemption or otherwise, 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 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, if any, and accrued interest and Additional Interest,
if any, to the date of fixed maturity or redemption;



73









 





     (2) Event of Default has occurred and is continuing on the date of the deposit or will occur
as a result of the deposit (other than an Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of, or
constitute a default under, any material agreement or instrument (other than this Indenture) 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 Indenture;



     (4) the Company has delivered irrevocable instructions to the Trustee to apply the deposited
money toward the payment of the Notes at fixed maturity or the redemption date, as the case may be;
and



     (5) the Company has delivered an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge of this Indenture
(“Discharge”) have been satisfied.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




     Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture 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 Notes
pursuant to Article 5 hereof;




     (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 hereunder of any
Holder, provided that any change to conform this Indenture to the Offering Memorandum shall
not be deemed to adversely affect the legal rights hereunder of any Holder;




     (e) to secure the Notes or the Subsidiary Guarantees pursuant to the requirements of
Section 4.12 or otherwise;




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




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     (g) to add any additional Guarantor with respect to the Notes or to evidence the
release of any Guarantor from its Subsidiary Guarantee in accordance with Article 10 hereof;




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




     (i) to evidence or provide for the acceptance of appointment under this Indenture of a
successor Trustee.



     Upon the request of the Company, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company and the Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the terms of this Section 9.01,
but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.



Section 9.02. With Consent of Holders of Notes.




     Except as provided above in Section 9.01 and below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default or compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, tender offer or exchange offer for
Notes). However, without the consent of each Holder affected, an amendment, supplement or waiver
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 any of the
provisions with respect to the redemption or repurchase of the Notes (except as provided in
Sections 3.09, 4.10 and 4.15 hereof);



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



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



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



75









 





     (f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or Events of Default or the rights of Holders of Notes to receive payments of principal of or
premium, if any, interest or Additional Interest, if any, on the Notes (except as permitted in
clause (g) below);



     (g) waive a redemption or repurchase payment with respect to any Note (other than a payment
required by Sections 3.09, 4.10 and 4.15 hereof);



     (h) release any Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or



     (i) make any change in the preceding amendment, supplement and waiver provisions.



     Upon the request of the Company accompanied by Board Resolutions authorizing its 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 9.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such amended or supplemental indenture, unless such
amended or supplemental indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such amended or supplemental indenture.



     It shall 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, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section becomes effective, the Company
shall 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, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.



Section 9.03. Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental Indenture that complies with the TIA as then in effect.



     A consent to any amendment, supplement or waiver under this Indenture by any Holder given in
connection with a purchase, tender or exchange of such Holder’s Notes shall not be rendered invalid
by such purchase, tender or exchange.



Section 9.04. Effect of Consents.




     After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (a) through (i) of Section 9.02, in which case, the
amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the
consenting Holder’s Note.



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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
shall authenticate new Notes that reflect the amendment, supplement or waiver.



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



Section 9.06. Trustee to Sign Amendments, etc.




     The Trustee shall sign any amended 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. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture and that all conditions
precedent are satisfied.



ARTICLE 10

GUARANTEES OF NOTES




Section 10.01. Subsidiary Guarantees.




     Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees, on a senior unsecured basis, 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 Indenture, the Notes held thereby and the Obligations of the
Company hereunder and thereunder, that: (a) the principal of and premium, if any, interest and
Additional Interest, if any, on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at Stated Maturity, by acceleration, upon repurchase or redemption
or otherwise, and interest on the overdue principal of and premium, (to the extent permitted by
law) interest and Additional Interest, if any, on the Notes, and all other payment Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and
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, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at Stated Maturity, by acceleration, upon
repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. An Event of Default under this Indenture or the Notes shall constitute an event of
default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the
obligations of the Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company.



     The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any



77









 




provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance (other than complete performance) which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to
the extent permitted by law, 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 covenants that
its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations
contained in the Notes and this 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 or other similar official acting in relation to any of
the Company or the Guarantors, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby
waives, any right of subrogation in relation to the Holders in respect of any 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, (a) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article 6 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Obligations guaranteed thereby, and (b) 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)
shall forthwith become due and payable by the Guarantor for the purpose of its Subsidiary
Guarantee. The Guarantors shall 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
Subsidiary Guarantees.



Section 10.02. [Reserved]




Section 10.03. Guarantors May Consolidate, etc., on Certain Terms.




     (a) No Guarantor shall sell or otherwise dispose of all or substantially all of its properties
or 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) either
(1) the Person acquiring the properties or assets in any such sale or other disposition or the
Person formed by or surviving any such consolidation or merger (if other than such Guarantor)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture, substantially in the form of Annex A hereto, under the Notes, this Indenture and its
Subsidiary Guarantee on terms set forth therein, or (2) such transaction complies with the
provisions of Section 4.10, and (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.



     (b) In the case of any such consolidation or merger and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and substantially in the
form of Annex A hereto, of the Subsidiary Guarantee and the due and punctual performance of all of
the covenants of this Indenture to be performed by the Guarantor,



78









 




such successor Person shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor.




Section 10.04. Releases of Subsidiary Guarantees.




     The Subsidiary Guarantee of a Guarantor shall be released: (1) in connection with any sale or
other disposition of all or substantially all of the properties or assets of such Guarantor
(including by way of merger or consolidation) 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 complies with Section 4.10; (2) in connection with any sale or other
disposition of Capital Stock of such Guarantor 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 complies with Section 4.10 and the Guarantor ceases to be a Restricted
Subsidiary of the Company as a result of the sale or other disposition; (3) if the Company
designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with Section 4.19 of this Indenture; (4) upon Legal Defeasance or Covenant Defeasance or
Discharge in accordance with Article 8; (5) upon the liquidation or dissolution of such Guarantor,
provided no Default or Event of Default has occurred that is continuing; or (6) at such time as
such Guarantor ceases to guarantee any other Indebtedness of the Company and any other Guarantor.



     Upon delivery by the Company to the Trustee of an Officers’ Certificate to the effect that any
of the conditions described in the foregoing clauses (1) — (6) has occurred, the Trustee shall
execute any documents reasonably requested by the Company in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of
and premium, interest and Additional Interest, if any, on the Notes and for the other obligations
of such Guarantor under this Indenture as provided in this Article 10.



Section 10.05. [Reserved]




Section 10.06. Limitation on Guarantor Liability.




     The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary
Guarantee or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law and not otherwise being void or
voidable under any similar laws affecting the rights of creditors generally.



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ARTICLE 11

MISCELLANEOUS




Section 11.01. Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), such TIA-imposed duties shall control.



Section 11.02. Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing (in the English language) 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 any of the Company or the Guarantors:


Exterran Holdings, Inc.

16666 Northchase Drive

Houston, Texas 77060

Attention: Chief Financial Officer

Telecopier No.: (281) 836-7953




     with a copy (not constituting notice) to:


Baker Botts L.L.P.

One Shell Plaza

910 Louisiana Street

Houston, Texas 77002

Attention: Ryan J. Maierson

Telecopier No.: (713) 229-7911




     If to the Trustee:


Wells Fargo Bank, National Association

1445 Ross Avenue — 2nd Floor

Dallas, Texas 75202-2812

Attention: Corporate Trust Services

Telecopier No.: (214) 777-4086




     The Company, any of the Guarantors 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) shall 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 is acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery in each case to the address shown above.



80









 





     Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, 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 shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.



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



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



Section 11.03. Communication by Holders of Notes with Other Holders of Notes.




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



Section 11.04. Certificate and Opinion as to Conditions Precedent.




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




     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



Section 11.05. Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall 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;



81









 






     (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 11.06. Rules by Trustee and Agents.




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



Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




     No director, officer, partner, employee, incorporator, manager or stockholder or other owner
of Capital Stock of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Notes, the Subsidiary Guarantees or this
Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.



Section 11.08. Governing Law.




     THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



Section 11.09. No Adverse Interpretation of Other Agreements.




     This 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 Indenture.



Section 11.10. Successors.




     All agreements of the Company and the Guarantors in this Indenture and the Notes shall bind
their respective successors. All agreements of the Trustee in this Indenture shall bind its
successors.



Section 11.11. Severability.




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



82









 





Section 11.12. Table of Contents, Headings, etc.




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



Section 11.13. Counterparts.




     The parties may sign any number of copies of this Indenture, and each party hereto may sign
any number of separate copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. The exchange of copies of this Indenture and of
signature pages by facsimile or PDF transmission shall constitute effective execution and delivery
of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for
all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to
be their original signatures for all purposes.



Section 11.14. Acts of Holders.





     (a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by the Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing, and may be given or obtained in connection
with a purchase of, or tender offer or exchange offer for, outstanding Notes; and, except as
herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this
Section 11.14.




     (b) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to such
witness, notary or officer the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.




     (c) Notwithstanding anything to the contrary contained in this Section 11.14, the
principal amount and serial numbers of Notes held by any Holder, and the date of holding the
same, shall be proved by the register of the Notes maintained by the Registrar as provided
in Section 2.03.



83









 






     (d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, by or pursuant to a resolution of the Board of Directors of the Company, fix in
advance a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of Holders generally
in connection therewith or the date of the most recent list of Holders forwarded to the
Trustee prior to such solicitation pursuant to Section 2.05 and not later than the date such
solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of the then outstanding Notes have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the then outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than eleven months after the record date.




     (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and the Holder of
every Note issued upon the registration or transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made upon such
Note.




     (f) Without limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Note may do so itself with regard to all or any part
of the principal amount of such Note or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such principal
amount.




     (g) For purposes of this Indenture, any action by the Holders that may be taken in
writing may be taken by electronic means or as otherwise reasonably acceptable to the
Trustee.



Section 11.15. Patriot Act.




     The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act,
the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information within
their possession or control as it may reasonably request in order for the Trustee to satisfy the
requirements of the U.S.A. Patriot Act.



84









 





SIGNATURES




	 	 	 	 	 
	 	EXTERRAN HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	J. Michael Anderson 	 
	 	 	Senior Vice President, Chief Financial
Officer and Chief of Staff 	 
	 
	 	Guarantors:


EXTERRAN ENERGY SOLUTIONS, L.P.

 	 
	 	By:  	 	 
	 	 	J. Michael Anderson 	 
	 	 	Senior Vice President, Chief Financial
Officer and Chief of Staff 	 
	 



	 	 	 	 	 
	 	EES LEASING LLC

 	 
	 	By:  	 	 
	 	 	J. Michael Anderson 	 
	 	 	Senior Vice President, Chief Financial
Officer and Chief of Staff 	 
	 
	 	EXH MLP LP LLC

 	 
	 	By:  	 	 
	 	 	Pamela A. Jasinski 	 
	 	 	Manager 	 
	 



	 	 	 	 	 
	 	EXTERRAN WATER MANAGEMENT

SERVICES, LLC

 	 
	 	By:  	 	 
	 	 	J. Michael Anderson 	 
	 	 	Senior Vice President, Chief Financial
Officer and Chief of Staff 	 



85









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Patrick T. Giordano 	 
	 	 	Vice President 	 



86









 






	 	 	 	 	 



RULE 144A/REGULATION S APPENDIX




PROVISIONS RELATING TO INITIAL NOTES

AND EXCHANGE NOTES



1. Definitions





     1.1 Definitions.



     For the purposes of this Appendix the following terms shall have the meanings indicated below:



     “Depository” means The Depository Trust Company, its nominees and their respective successors.



     “Exchange Notes” means (1) the 7.25% Senior Notes due 2018 issued pursuant to the Indenture in
connection with a Registered Exchange Offer pursuant to a Registration Rights Agreement and (2)
Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the
Securities Act.



     “Initial Notes” means (1) $350.0 million aggregate principal amount of 7.25% Senior Notes due
2018 issued on the Initial Issuance Date and (2) Additional Notes, if any, issued in a transaction
exempt from the registration requirements of the Securities Act.



     “Initial Purchasers” means (1) with respect to the Initial Notes issued on the Initial
Issuance Date, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC,
J.P. Morgan Securities LLC, BNP Paribas Securities Corp., Credit Suisse Securities (USA) LLC and
the Co-Managers named in the Offering Memorandum and (2) with respect to each issuance of
Additional Notes, the Persons purchasing such Additional Notes under the related Purchase
Agreement.



     “Notes” means the Initial Notes, the Additional Notes and the Exchange Notes, treated as a
single class.



     “Notes Custodian” means the custodian with respect to a Global Note (as appointed by the
Depository), or any successor Person thereto and shall initially be the Trustee.



     “Purchase Agreement” means (1) with respect to the Initial Notes issued on the Initial
Issuance Date, the Purchase Agreement dated November 18, 2010 among the Company, the Guarantors and
the Initial Purchasers, and (2) with respect to each issuance of Additional Notes, the purchase
agreement or underwriting agreement among the Company and the Persons purchasing such Additional
Notes.



     “Registered Exchange Offer” means the offer by the Company, pursuant to a Registration Rights
Agreement, to certain Holders of Initial Notes, to issue and deliver to such Holders, in exchange
for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the
Securities Act.



App.-1









 





     “Registration Rights Agreement” means (1) with respect to the Initial Notes issued on the
Initial Issuance Date, the Registration Rights Agreement dated November 23, 2010 among the Company,
the Guarantors and the Initial Purchasers, and (2) with respect to each issuance of Additional
Notes issued in a transaction exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company and the Persons purchasing such Additional
Notes under the related Purchase Agreement.



     “Shelf Registration Statement” means the registration statement issued by the Company in
connection with the offer and sale of Initial Notes pursuant to a Registration Rights Agreement.



     “Transfer Restricted Securities” means Notes that bear or are required to bear the legend set
forth in Section 2.3(b) hereof.



     1.2 Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section:
	“Agent Members”

	 	 	2.1	(b)
	“Distribution Compliance Period”

	 	 	2.1	(b)
	“Global Note”

	 	 	2.1	(a)
	“Regulation S”

	 	 	2.1	(a)
	“Regulation S Notes”

	 	 	2.1	(a)
	“Restricted Global Note”

	 	 	2.1	(a)
	“Rule 144A”

	 	 	2.1	(a)
	“Rule 144A Notes”

	 	 	2.1	(a)





2. The Notes.




     2.1 (a) Form and Dating. Initial Notes offered and sold to QIBs in reliance on Rule
144A (“Rule 144A Notes”) under the Securities Act (“Rule 144A”) or in reliance on Regulation S
(“Regulation S Notes”) under the Securities Act (“Regulation S”), in each case as provided in a
Purchase Agreement, shall be issued initially in the form of one or more permanent global Notes in
definitive, fully registered form without interest coupons with the global Notes legend and
restricted Notes legend set forth in Exhibit 1 hereto (each, a “Restricted Global Note”), which
shall be deposited on behalf of the purchasers of the Initial Notes represented thereby with the
Trustee, as custodian for the Depository (or with such other custodian as the Depository may
direct), and registered in the name of the Depository or a nominee of the Depository, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. Beneficial interests in a
Restricted Global Note representing Initial Notes sold in reliance on either Rule 144A or
Regulation S may be held through Euroclear or Clearstream, as indirect participants in the
Depository. The aggregate principal amount of the Global Notes may from time to time be increased
or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as
hereinafter provided. Exchange Notes shall be issued in global form (with the global Notes legend
set forth in Exhibit 1 hereto) or in certificated form as



App.-2









 




provided in Section 2.4 of this Appendix. Exchange Notes issued in global form and Restricted Global Notes are
sometimes referred to in this Appendix as “Global Notes.”




     (b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note
deposited with or on behalf of the Depository.



     The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b),
authenticate and deliver initially one or more Global Notes that (a) shall be registered in the
name of the Depository for such Global Note or Global Notes or the nominee of such Depository and
(b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s
instructions or held by the Trustee as custodian for the Depository. If such Global Notes are
Restricted Global Notes, then separate Global Notes shall be issued to represent Rule 144A Notes
and Regulation S Notes so long as required by law or the Depository.



     Members of, or participants in, the Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee
and any agent of the Company or the Trustee shall be entitled to treat the Holder as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices of such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.



     Until the 40th day after the later of the commencement of the offering of any Initial Notes
and the original issue date of such Initial Notes (such period, the “Distribution Compliance
Period”), a beneficial interest in a Restricted Global Note representing Regulation S Notes may be
transferred to a Person who takes delivery in the form of an interest in a Restricted Global Note
representing Rule 144A Notes only if the transferor first delivers to the Trustee a written
certificate (in the form provided in Exhibit 1 hereto) to the effect that such transfer is being
made to a Person who the transferor reasonably believes is purchasing for its own account or
accounts as to which it exercises sole investment discretion and that such Person is a QIB, in each
case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction. After the expiration
of the Distribution Compliance Period, such certification requirements shall not apply to such
transfers of beneficial interests in a Restricted Global Note representing Regulation S Notes.



     Beneficial interests in a Restricted Global Note representing Rule 144A Notes may be
transferred to a Person who takes delivery in the form of an interest in a Restricted Global Note
representing Regulation S Notes, whether before or after the expiration of the Distribution
Compliance Period, only if the transferor first delivers to the Trustee a written certificate (in
the form provided in Exhibit 1 hereto) to the effect that such transfer is being made in accordance
with Rule 904 of Regulation S or Rule 144 (if available).



     (c) Certificated Notes. Except as provided in Section 2.3 or 2.4, owners of
beneficial interests in Restricted Global Notes shall not be entitled to receive physical delivery
of certificated Notes. Certificated Notes shall not be exchangeable for beneficial interests in
Global Notes, except with the consent of the Company.



App.-3









 





     2.2 Authentication. The Trustee shall authenticate and deliver: (1) on the Initial
Issuance Date, an aggregate principal amount of $350.0 million 7.25% Senior Notes due 2018, (2) any
Additional Notes for an original issue in an aggregate principal amount specified in the written
order of the Company pursuant to Section 2.02 of the Indenture and (3) Exchange Notes for issue
only in a Registered Exchange Offer, pursuant to a Registration Rights Agreement, for a like
principal amount of Initial Notes, in each case upon a written order of the Company. Such order
shall specify the amount of the Notes to be authenticated, the date on which the original issue of
Notes is to be authenticated and to whom the Notes shall be registered and delivered and, in the
case of any issuance of Additional Notes pursuant to Section 2.13 of the Indenture, shall certify
that such issuance is in compliance with Section 4.09 of the Indenture.



     2.3 Transfer and Exchange.



     (a) Transfer and Exchange of Global Notes.




     (i) The transfer and exchange of Global Notes or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a Global Note shall deliver to the
Registrar a written order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository to be credited with a
beneficial interest in the Global Note. The Registrar shall, in accordance with such
instructions instruct the Depository to credit to the account of the Person specified in
such instructions a beneficial interest in the Global Note and to debit the account of the
Person making the transfer the beneficial interest in the Global Note being transferred.




     (ii) Notwithstanding any other provisions of this Appendix, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such successor
Depository.




     (iii) In the event that a Restricted Global Note is exchanged for Notes in certificated
form pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such
Notes, such Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Initial Notes intended to ensure
that such transfers comply with Rule 144A or Regulation S, as the case may be) and such
other procedures as may from time to time be adopted by the Company.



     (b) Legends.




     (i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Note
certificate evidencing the Restricted Global Notes (and all Notes issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially the following
form:




THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES



App.-4









 






LAWS. NEITHER THIS NOTE, NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF,
AGREES NOT TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS
ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
THIS NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”), EXCEPT THAT THE NOTES MAY BE
TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE, OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR
TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION, AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




     (ii) The Company, acting in its discretion, may remove the legend set forth in
paragraph (i) above from any Transfer Restricted Security at any time on or after the Resale
Restriction Termination Date applicable to such Transfer Restricted Security. Without
limiting the generality of the preceding sentence, the Company may effect such removal by
issuing and delivering, in exchange for such Transfer Restricted Security, a Note without
such legend, registered to the same Holder and in an equal principal amount, and upon
receipt of a written order of the Company given at least three Business Days in advance of
the proposed date of exchange specified therein (which shall be no



App.-5









 






earlier than the Resale Restriction Termination Date), the Trustee shall authenticate
and deliver such Note as directed in such order.




     (iii) After a transfer of any Initial Notes pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to such Initial Notes all
requirements pertaining to legends on such Initial Note will cease to apply, the
requirements that any such Initial Note issued to certain Holders be issued in global form
will cease to apply, and a certificated Initial Note or an Initial Note in global form, in
each case without restrictive transfer legends, will be available to the transferee of the
Holder of such Initial Notes upon exchange of such transferring Holder’s certificated
Initial Note or directions to transfer such Holder’s interest in the Global Note, as
applicable.




     (iv) Upon the consummation of a Registered Exchange Offer with respect to the Initial
Notes, all requirements pertaining to such Initial Notes that Initial Notes issued to
certain Holders be issued in global form will still apply with respect to Holders of such
Initial Notes that do not exchange their Initial Notes, and Exchange Notes in certificated
or global form will be available to Holders that exchange such Initial Notes in such
Registered Exchange Offer.



     (c) Cancellation or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for certificated Notes, redeemed, purchased
or canceled, such Global Note shall be returned to the Trustee for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, purchased or canceled, or if any
certificated Note is exchanged for such a beneficial interest, the principal amount of Notes
represented by such Global Note shall be reduced or increased, as appropriate, and an adjustment
shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such
Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect
such reduction or increase, as the case may be.



     (d) Obligations with Respect to Transfers and Exchanges of Notes.




     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate certificated Notes and Global Notes at the Registrar’s
request.




     (ii) No service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax, assessments
or similar governmental charge payable in connection therewith (other than any such transfer
taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.06, 4.10, 4.15 and 9.05 and of the Indenture).




     (iii) The Registrar shall not be required to register the transfer of or exchange of
any Note or portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part. Also, it need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed.



App.-6









 






     (iv) Prior to the due presentation for registration of transfer of any Note, the
Company, the Guarantors, the Trustee, the Paying Agent or the Registrar may deem and treat
the Person in whose name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, interest and Additional
Interest, if any, on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Guarantors, the Trustee, the Paying Agent or
the Registrar shall be affected by notice to the contrary.




     (v) All Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or exchange.



     (e) No Obligation of the Trustee.




     (i) The Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Note, a member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than the Depository) of
any notice (including any notice of optional redemption) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Notes shall be given or made only to or
upon the order of the registered Holders (which shall be the Depository or its nominee in
the case of a Global Note). The rights of beneficial owners in any Global Note shall be
exercised only through the Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any beneficial
owners.




     (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or under
Applicable Law with respect to any transfer of any interest in any Note (including any
transfers between or among Depository participants, members or beneficial owners in any
Global 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 Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.



     2.4 Certificated Notes.



     (a) A Global Note deposited with the Depository or with the Trustee as custodian for the
Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the
form of certificated Notes in an aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 and
(i) the Depository notifies the Company that it is unwilling or unable to continue as Depository
for such Global Note or if at any time such Depository ceases to be a “clearing agency” registered
under the Exchange Act and in either event a successor depositary is not appointed by the Company
within 90 days, or (ii) an Event of Default has occurred and is continuing and DTC notifies the
Trustee of its decision to exchange the Global Notes. Except as



App.-7









 




provided in the preceding sentence, and notwithstanding any contrary indication in Section
2.3(b), beneficial interests in a Global Note may be exchanged for certificated Notes only with the
consent of the Company, including if an affiliate (as defined in Rule 144) of the Company acquires
such interests.




     (b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section shall be surrendered by the Depository or the Notes Custodian to the Trustee located at its
Corporate Trust Office to be so transferred, in whole or from time to time in part, without charge,
and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global
Note, an equal aggregate principal amount of certificated Notes of authorized denominations. Any
portion of a Global Note transferred pursuant to this Section shall be executed, authenticated and
delivered only in minimum denominations of $2,000 principal amount and any integral multiple of
$1,000 in excess of $2,000 and registered in such names as the Depository shall direct. Any
certificated Note delivered in exchange for an interest in a Global Note shall, except as otherwise
provided by Section 2.3(b), bear the restricted Notes legend set forth in Exhibit 1 hereto.



     (c) Subject to the provisions of Section 2.4(b), the Holder of a Global Note shall be entitled
to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is entitled to take under
this Indenture or the Notes.



     (d) In the event of the occurrence of any of the circumstances specified in Section 2.4(a),
the Company shall promptly make available to the Trustee a reasonable supply of certificated Notes
in definitive, fully registered form without interest coupons.




App.-8











 





EXHIBIT 1 TO RULE 144A/REGULATION S APPENDIX




[FORM OF FACE OF INITIAL NOTE]




[Global Notes Legend]



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS 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.



     TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



[Restricted Notes Legend]




     THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE, BY ITS
ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”), EXCEPT THAT THE NOTES MAY BE TRANSFERRED (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES



Ex. 1 to App.-1









 




TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE, OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION, AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.






Ex. 1 to App.-2









 








EXTERRAN HOLDINGS, INC.




					
	No. [     ]
	 	 
	 	$[               ]
	 	 	 	 	 
	 
	 	 	 	CUSIP No. [               ]
	 
	 	 	 	ISIN No. [               ]






7.25% Senior Note due 2018




     Exterran Holdings, Inc., a Delaware corporation, promises to pay to __________, or registered
assigns, the principal sum of _________ Dollars on December 1, 2018 [or such greater or lesser
amount as may be indicated on Schedule A hereto].1



     Interest Payment Dates: June 1 and December 1.



     Record Dates: May 15 and November 15.



     Additional provisions of this Note are set forth on the other side of this Note.



	 	 	 	 	 
	 	Exterran Holdings, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	If this Note is a Global Note, add this provision.




Ex. 1 to App.-3









 










TRUSTEE’S CERTIFICATE OF

AUTHENTICATION



Wells Fargo Bank, National Association,

as Trustee, certifies that

this is one of the Notes

referred to in the Indenture.




By___________________________

          
      Authorized Signatory




Dated:




Ex. 1 to App.-4









 





[FORM OF REVERSE SIDE OF INITIAL NOTE]




7.25% Senior Note due 2018




     Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.



     1. Interest. Exterran Holdings, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 7.25% per annum from November 23,
2010 until maturity and shall pay the Additional Interest payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually in arrears on June 1 and December 1 of each year, commencing June
1, 2011, 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 original issuance;
provided that if there is no existing Default or Event of 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 shall accrue from such next succeeding Interest Payment
Date, except in the case of the original issuance of Notes, in which case interest shall accrue
from the date of authentication. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is the rate then in effect; they shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace periods) from time to time
on demand 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) and Additional Interest to the Persons who are registered Holders of Notes at the close
of business on the May 15 or November 15 next preceding the Interest Payment Date, even if such
Notes are cancelled after such record date and on or before such Interest Payment Date, except as
provided in Section 2.11 of the Indenture with respect to defaulted interest. Holders must
surrender Notes to the Paying Agent to collect payments of principal and premium, if any, together
with accrued and unpaid interest and Additional Interest, if any, due at maturity. The Notes will
be payable as to principal, premium, if any, interest and Additional Interest, if any, at the
office or agency of the Company maintained for such purpose within the City and State of New York,
or, at the option of the Company, payment of interest and Additional Interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders, and provided that
payment by wire transfer of immediately available funds to an account in the United States will be
required with respect to any amounts due on all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall 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, Wells Fargo Bank, National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar at its corporate trust office
at 45 Broadway, 14th Floor, new York, New York 10006. The Company may change any



Ex. 1 to App.-5









 




Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.




     4. Indenture. The Company issued the Notes under an Indenture dated as of November
23, 2010 (“Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are unsecured senior obligations of the Company limited to $350.0 million
aggregate principal amount in the case of Notes issued on the Initial Issuance Date (as defined in
the Indenture).



     5. Optional Redemption.



     (a) Except as set forth in subparagraphs (b), (c) and (d) of this Paragraph 5, the Company
shall not have the option to redeem the Notes prior to December 1, 2013. On or after December 1,
2013, the Company shall have the option to redeem the Notes, in whole or in part at any time, upon
prior notice as set forth in Paragraph 8, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Additional Interest, if
any, to the applicable redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or prior to the
redemption date), if redeemed during the twelve-month period beginning on December 1 of the years
indicated below:




	 	 	 	 	 
	YEAR	 	PERCENTAGE
	2013
	 	 	105.438	%
	2014
	 	 	103.625	%
	2015
	 	 	101.813	%
	2016 and thereafter
	 	 	100.000	%







     (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to December 1, 2013, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes (including any Additional Notes) issued under the Indenture at a
redemption price of 107.25% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that is on
or prior to the redemption date), with the net cash proceeds of one or more Equity Offerings by the
Company; provided that (i) at least 65% of the aggregate principal amount of Notes (including any
Additional Notes) issued under the Indenture remains outstanding immediately after the occurrence
of each such redemption (excluding any Notes held by the Company and its Subsidiaries) and (ii)
each such redemption occurs within 120 days of the date of the closing of each such Equity
Offering.



     (c) Prior to December 1, 2013, the Company may redeem all or part of the Notes at a redemption
price equal to the sum of (1) the principal amount thereof, plus (2) accrued and unpaid interest,
if any, to the redemption date (subject to the right of Holders of record on the



Ex. 1 to App.-6









 





relevant record date to receive interest due on an interest payment date that is on or
prior to the redemption date), plus (3) the Make Whole Premium at the redemption date.



     (d) The Notes may also be redeemed, as a whole, following certain Change of Control Offers, at
the redemption price and subject to the conditions set forth in Section 4.15(6) of the Indenture.



     6. Mandatory Redemption.



     Except as set forth in Paragraph 7 below, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes or to repurchase the Notes at the
option of the Holders.



     7. Repurchase at Option of Holder.



     (a) Within 30 days following the occurrence of a Change of Control, unless the Company has
previously or concurrently exercised its right to redeem all of the Notes as described in paragraph
5 above, the Company shall make a cash tender 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 of $2,000) of each
Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest and Additional Interest, if any, to the date of
settlement (the “Change of Control Settlement Date”), subject to the right of Holders of record on
the relevant record date to receive interest due on an Interest Payment Date that is on or prior to
the Change of Control Settlement Date. Within 30 days following a Change of Control, unless the
Company has previously or concurrently exercised its right to redeem all of the Notes as described
in paragraph 5 above, the Company shall mail a notice of the Change of Control Offer to each Holder
and the Trustee describing the transaction that constitutes the Change of Control and setting forth
the procedures governing the Change of Control Offer as required by Section 4.15 of the Indenture.



     (b) On the 361st day after an Asset Sale (or the 721st day after an Asset Sale by any
Foreign Subsidiary, or, in either case and at the Company’s option, any earlier Date), if the
aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company shall commence an offer
to all Holders of Notes (an “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture, and to
all holders of any Pari Passu Indebtedness then outstanding, to purchase the maximum principal
amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds,
at an offer price in cash in an amount equal to 100% of the principal amount of the Notes plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date of settlement,
subject to the right of Holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Settlement Date, in accordance with the procedures
set forth in the Indenture. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such remaining Excess Proceeds for any purpose not otherwise prohibited
by the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and
Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and Pari Passu
Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $2,000, or integral multiples of



Ex. 1 to App.-7









 







$1,000 in excess of $2,000, shall be purchased) on the basis of the aggregate principal amount of
tendered Notes and Pari Passu Indebtedness. 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 (except as otherwise provided in the Indenture if the notice is issued in
connection with a Legal Defeasance, Covenant Defeasance or Discharge) before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. If mailed in the manner
provided for in Section 3.03 of the Indenture, the notice of optional redemption shall be
conclusively presumed to have been given whether or not a Holder receives such notice. Failure to
give timely notice or any defect in the notice shall not affect the validity of the redemption.
Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000 in excess of $2,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest and Additional Interest, if any, cease to accrue on Notes or
portions thereof called for redemption.



     9. Guarantees. The payment by the Company of the principal of and premium, interest
and Additional Interest, if any, on the Notes is fully and unconditionally guaranteed on a joint
and several senior unsecured basis by each of the Guarantors to the extent set forth in the
Indenture.



     10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in the 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 due on
transfer or exchange. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, they need not exchange or register the transfer of any Notes for a period
of 15 days before a selection of Notes to be redeemed.



     11. Persons Deemed Owners. The registered holder of a Note may be treated as its
owner for all purposes.



     12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented (1) to cure any ambiguity, defect or
inconsistency, (2) to provide for uncertificated Notes in addition to or in
place of certificated Notes, (3) to provide for the assumption of the Company’s obligations to
Holders of the Notes pursuant to Article 5 of the Indenture, (4) 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 Indenture of any such Holder, provided that any change to



Ex. 1 to App.-8









 







conform the Indenture to the Offering Memorandum shall not be deemed to adversely affect the
legal rights under the Indenture of any Holder, (5) to secure the Notes or the Subsidiary
Guarantees pursuant to Section 4.12 of the Indenture or otherwise, (6) to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the Indenture, (7) to add any
additional Guarantor with respect to the Notes or to evidence the release of any Guarantor from its
Subsidiary Guarantee, in each case as provided in the Indenture, (8) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act or (9) to evidence or provide for the acceptance of appointment under the
Indenture of a successor Trustee.



     13. Defaults and Remedies. Events of Default include: (i) default for 30 days in the
payment when due of interest or Additional Interest, if any, on the Notes; (ii) default in payment
when due of the principal of or premium, if any, on the Notes when due at Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply with Section 3.09, 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by the
Company for 180 days after notice to comply with Section 4.03 of the Indenture; (v) failure by the
Company for 60 days after notice to comply with any of its other agreements in the Indenture or the
Notes; (vi) default 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 (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists or is created after
the Initial Issuance Date, if such default (a) is caused by a failure to pay principal of, or
premium or interest, if any, on such Indebtedness prior to the expiration of any grace period
provided in such Indebtedness (a “Payment Default”) or (b) results in the acceleration of such
Indebtedness prior to its Stated 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 in excess
of $75.0 million, provided that if any such Payment Default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid, within a period of 60 days from the
continuation of such Payment Default beyond the applicable grace period or the occurrence of such
acceleration, as the case may be, such Event of Default and any consequential acceleration of the
Notes shall be automatically rescinded, so long as such rescission does not conflict with any
judgment or decree; (vii) failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $75.0 million (to the extent not covered by insurance by a reputable and
creditworthy insurer as to which the insurer has not disclaimed coverage), which judgments are not
paid, discharged or stayed for a period of 60 days; (viii) except as permitted by the Indenture,
any Subsidiary 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 Subsidiary Guarantee; and
(ix) certain events of bankruptcy, insolvency or reorganization with respect to the Company, any of
the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary of the Company as specified in
Section 6.01(i) or 6.01(j) of the Indenture. If any Event of Default occurs and is continuing, the
Trustee, by notice to the Company, or the Holders of at least 25% in principal amount of the then
outstanding Notes, by notice to the Company and the Trustee, may declare all the Notes to be due
and payable immediately. Notwithstanding the preceding, in the case of an Event of Default



Ex. 1 to App.-9









 







arising
from such events of bankruptcy, insolvency or reorganization described in Section 6.01(i) or
6.01(j) of the Indenture, all outstanding Notes will become due and payable without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power conferred on it. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of principal, interest, premium or Additional
Interest) if it determines that withholding notice is in their interest. The Holders of a majority
in 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 Indenture except a continuing Default or Event of Default in the payment of the principal
of or premium, interest or Additional Interest, if any, on the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the Indenture, and, so long
as any Notes are outstanding, the Company is required upon certain Officers becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event
of Default.



     14. Defeasance and Discharge. The Notes are subject to defeasance and discharge upon
the terms and conditions specified in the Indenture.



     15. No Recourse Against Others. No director, officer, partner, employee,
incorporator, manager or stockholder or other owner of Capital Stock of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor
under the Notes, the Subsidiary Guarantees or the 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 the
issuance of the Notes.



     16. Authentication. This Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee or an authenticating agent.



     17. 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).



     18. Additional Rights of Holders of Transfer Restricted Securities. In addition to
the rights provided to Holders of Notes under the Indenture, Holders of Transfer Restricted
Securities shall have all the rights set forth in the Registration Rights Agreement dated as of
November 23, 2010, among the Company, the Guarantors and the Initial Purchasers (the “Registration
Rights Agreement”).



     19. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers and corresponding
ISIN numbers to be printed on the Notes and the Trustee may use CUSIP numbers and corresponding
ISIN 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



Ex. 1 to App.-10









 







contained in any notice of
redemption and reliance may be placed only on the other identification numbers placed thereon.



     20. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     21. Successors. In the event a successor assumes all the obligations of the Company
under the Notes and the Indenture, pursuant to the terms thereof, the Company will be released from
all such obligations.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture or the Registration Rights Agreement. Requests may be made to:


Exterran Holdings, Inc.

16666 Northcase Drive

Houston, Texas 77060

Attention: Chief Financial Officer






Ex. 1 to App.-11









 








ASSIGNMENT FORM




     To assign this Note, fill in the form below:



     I or we assign and transfer this Note to



 



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




 



(Insert assignee’s Soc. Sec. or tax I.D. No.)



and irrevocably appoint __________________ agent 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 other side of this Note.
	 	 	 	 	 
	Signature Guarantee:

	 	 	 	 
	 	 	 	 	 
	(Signature must be guaranteed)	 	 	 	 





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.



 




In connection with any transfer of any of the Notes evidenced by this certificate occurring prior
to one year after the later of the date of original issuance of such Notes (or the date of any
subsequent reopening of the Notes) and the last date, if any, on which such Notes were owned by the
Company or any Affiliate of the Company (or, in the case of Regulation S Notes, prior to the
expiration of the Distribution Compliance Period), the undersigned confirms that such Notes are
being transferred in accordance with its terms:



CHECK ONE BOX BELOW




	 	 	 	 	 

	(1)

	 	o
	 	to the Company or any subsidiary thereof; or
	 
	 	 	 	 
	(2)

	 	o
	 	pursuant to an effective registration statement under the Securities Act of
1933; or
	 
	 	 	 	 
	(3)

	 	o
	 	to a person who the undersigned reasonably believes is a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that is
purchasing for its own account or for the account of a qualified institutional buyer to
whom notice is given that such transfer is






Ex. 1 to App.-12









 









	 	 	 	 	 

	 

	 	 	 	being made in reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of 1933; or
	 
	 	 	 	 
	(4)

	 	o
	 	outside the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 904 under the Securities
Act of 1933; or
	 
	 	 	 	 
	(5)

	 	o
	 	pursuant to another available exemption from the registration requirements of
the Securities Act of 1933.





Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered holder thereof; provided,
however, that if box (4) or (5) is checked, the Trustee shall be entitled to require, prior to
registering any such transfer of the Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the registration requirements of
the Securities Act of 1933, such as the exemption provided by Rule 144 under such Act.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature 	 
	 	 	 



Ex. 1 to App.-13









 






	 	 	 	 	 


TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.



The undersigned represents and warrants that it is purchasing this Note for its own account or an
account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company and any Guarantors as the
undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.




	 	 	 	 	 
	 	

 	 
	Dated: _____________________	
 	 
		Notice:  To be executed by an executive officer 	 
	 	 	 



Ex. 1 to App.-14









 






	 	 	 	 	 



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 Indenture, check the box below:



	 	 	 	 	 
	o Section 4.10

	 	o Section 4.15
	 	 






     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount (in minimum denomination of $2,000
or integral multiples of $1,000 in excess of $2,000) you elect to have purchased: $____________



	 	 	 

	Date: ___________________

	 	Your Signature:_______________________________________________
	 

	 	 
	 

	 	(Sign exactly as your name appears on the other side of this Note)






Soc. Sec. or Tax Identification No.: ___________



Signature Guarantee:_______________________




                              (Signature must be guaranteed)




     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.



Ex. 1 to App.-15









 





[TO BE ATTACHED TO GLOBAL NOTE]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE


The following increases or decreases in this Global Note have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal	 	 
	 	 	 	 	Amount of	 	Amount of	 	Amount of this	 	Signature of
	 	 	 	 	decrease in	 	increase in	 	Global Note	 	authorized
	 	 	 	 	Principal	 	Principal	 	following such	 	officer
	 	 	 	 	Amount of this	 	Amount of this	 	decrease or	 	of Trustee or
	Date	 	Global Note	 	Global Note	 	increase	 	Notes Custodian





Ex. 1 to App.-16









 






EXHIBIT A TO RULE 144A/REGULATION S APPENDIX




[FORM OF FACE OF EXCHANGE NOTE] ___*/




 




			
	*/ 	 	If the Note is to be issued in global form add the Global Notes Legend from Exhibit 1 to Rule
144A/Regulation S Appendix and the attachment from such Exhibit 1 captioned “[TO BE ATTACHED TO
GLOBAL NOTES] — SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE”.



All references to “Additional Interest” in the Note shall be deleted unless, at the date of
issuance of the Exchange Note, any Registration Default (as defined in the Registration Rights
Agreement) has occurred with respect to the related Initial Notes during the interest period in
which such date of issuance occurs.




Ex. A to App.-1









 








[FORM OF FACE OF EXCHANGE NOTE]




EXTERRAN HOLDINGS, INC.



					
	No. [     ]
	 	 
	 	$ [               ]
	 	 	 	 	 
	 
	 	 	 	CUSIP No. [               ]
	 
	 	 	 	ISIN No. [               ]






7.25% Senior Note due 2018




     Exterran Holdings, Inc., a Delaware corporation, promises to pay to __________, or registered
assigns, the principal sum of __________ Dollars on December 1, 2018 [or such greater or lesser
amount as may be indicated on Schedule A hereto].



     Interest Payment Dates: June 1 and December 1.



     Record Dates: May 15 and November 15.



     Additional provisions of this Note are set forth on the other side of this Note.



	 	 	 	 	 
	 	Exterran Holdings, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TRUSTEE’S CERTIFICATE OF

AUTHENTICATION




Wells Fargo Bank, National Association,

   as Trustee, certifies that

   this is one of the Notes

   referred to in the Indenture.




By ____________________________

          Authorized Signatory




Dated:






 




			
	2	 	If this Note is a Global Note, add this provision.






Ex. A to App.-2











 





[FORM OF REVERSE SIDE OF EXCHANGE NOTE]




7.25% Senior Note due 2018



     Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.



     1. Interest. Exterran Holdings, Inc., a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 7.25% per annum from November 23,
2010 until maturity and shall pay the Additional Interest payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually in arrears on June 1 and December 1 of each year, commencing June
1, 2011, 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 original issuance;
provided that if there is no existing Default or Event of 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 shall accrue from such next succeeding Interest Payment
Date, except in the case of the original issuance of Notes, in which case interest shall accrue
from the date of authentication. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is the rate then in effect; they shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace periods) from time to time
on demand 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) and Additional Interest to the Persons who are registered Holders of Notes at the close
of business on the May 15 or November 15 next preceding the Interest Payment Date, even if such
Notes are cancelled after such record date and on or before such Interest Payment Date, except as
provided in Section 2.11 of the Indenture with respect to defaulted interest. Holders must
surrender Notes to the Paying Agent to collect payments of principal and premium, if any, together
with accrued and unpaid interest and Additional Interest, if any, due at maturity. The Notes will
be payable as to principal, premium, if any, interest and Additional Interest, if any, at the
office or agency of the Company maintained for such purpose within the City and State of New York,
or, at the option of the Company, payment of interest and Additional Interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders, and provided that
payment by wire transfer of immediately available funds to an account in the United States will be
required with respect to any amounts due on all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Company or the Paying Agent. Such
payment shall 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, Wells Fargo Bank, National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may



Ex. A to App.-3




 









 







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. The Company issued the Notes under an Indenture dated as of November
23, 2010 (“Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes are unsecured senior obligations of the Company limited to $350.0 million
aggregate principal amount in the case of Notes issued on the Initial Issuance Date (as defined in
the Indenture).



     5. Optional Redemption.



     (a) Except as set forth in subparagraphs (b), (c) and (d) of this Paragraph 5, the Company
shall not have the option to redeem the Notes prior to December 1, 2013. On or after December 1,
2013, the Company shall have the option to redeem the Notes, in whole or in part at any time, upon
prior notice as set forth in Paragraph 8, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest and Additional Interest, if
any, to the applicable redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or prior to the
redemption date), if redeemed during the twelve-month period beginning on December 1 of the years
indicated below:



	 	 	 	 	 
	YEAR	 	PERCENTAGE
	2013
	 	 	105.438	%
	2014
	 	 	103.625	%
	2015
	 	 	101.813	%
	2016 and thereafter
	 	 	100.000	%






     (b) Notwithstanding the provisions of subparagraph (a)of this Paragraph 5, at any time prior
to December 1, 2013, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes (including any Additional Notes) issued under the Indenture at a
redemption price of 107.25% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that is on
or prior to the redemption date), with the net cash proceeds of one or more Equity Offerings by the
Company; provided that (i) at least 65% of the aggregate principal amount of Notes (including any
Additional Notes) issued under the Indenture remains outstanding immediately after the occurrence
of each such redemption (excluding any Notes held by the Company and its Subsidiaries) and (ii)
each such redemption occurs within 120 days of the date of the closing of each such Equity
Offering.



     (c) Prior to December 1, 2013, the Company may redeem all or part of the Notes at a redemption
price equal to the sum of (1) the principal amount thereof, plus (2) accrued and unpaid interest,
if any, to the redemption date (subject to the right of Holders of record on the



Ex. A to App.-4




 









 







relevant record date to receive interest due on an interest payment date that is on or prior to the
redemption date), plus (3) the Make Whole Premium at the redemption date.




     (d) The Notes may also be redeemed, as a whole, following certain Change of Control Offers, at
the redemption price and subject to the conditions set forth in Section 4.15(6) of the Indenture.



     6. Mandatory Redemption.




     Except as set forth in Paragraph 7 below, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes or to repurchase the Notes at the
option of the Holders.



     7. Repurchase at Option of Holder.



     (a) Within 30 days following the occurrence of a Change of Control, unless the Company has
previously or concurrently exercised its right to redeem all of the Notes as described in paragraph
5 above, the Company shall make a cash tender 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 of $2,000) of each
Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest and Additional Interest, if any, to the date of
settlement (the “Change of Control Settlement Date”), subject to the right of Holders of record on
the relevant record date to receive interest due on an Interest Payment Date that is on or prior to
the Change of Control Settlement Date. Within 30 days following a Change of Control, unless the
Company has previously or concurrently exercised its right to redeem all of the Notes as described
in paragraph 5 above, the Company shall mail a notice of the Change of Control Offer to each Holder
and the Trustee describing the transaction that constitutes the Change of Control and setting forth
the procedures governing the Change of Control Offer as required by Section 4.15 of the Indenture.



     (b) On the 361st day after an Asset Sale (or the 721st day after an Asset Sale by
any Foreign Subsidiary, or, in either case and at the Company’s option, any earlier Date), if the
aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company shall commence an offer
to all Holders of Notes (an “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture, and to
all holders of any Pari Passu Indebtedness then outstanding, to purchase the maximum principal
amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds,
at an offer price in cash in an amount equal to 100% of the principal amount of the Notes plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date of settlement,
subject to the right of Holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Settlement Date, in accordance with the procedures
set forth in the Indenture. If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such remaining Excess Proceeds for any purpose not otherwise prohibited
by the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and
Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and Pari Passu Indebtedness to be purchased on
a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be
purchased) on the basis of the aggregate principal amount of



Ex. A to App.-5




 









 







tendered Notes and Pari Passu Indebtedness. 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 (except as otherwise provided in the Indenture if the notice is issued in
connection with a Legal Defeasance, Covenant Defeasance or Discharge) before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. If mailed in the manner
provided for in Section 3.03 of the Indenture, the notice of optional redemption shall be
conclusively presumed to have been given whether or not a Holder receives such notice. Failure to
give timely notice or any defect in the notice shall not affect the validity of the redemption.
Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000 in excess of $2,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest and Additional Interest, if any, cease to accrue on Notes or
portions thereof called for redemption.



     9. Guarantees. The payment by the Company of the principal of and premium, interest
and Additional Interest, if any, on the Notes is fully and unconditionally guaranteed on a joint
and several senior unsecured basis by each of the Guarantors to the extent set forth in the
Indenture.



     10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in the 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 due on
transfer or exchange. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, they need not exchange or register the transfer of any Notes for a period
of 15 days before a selection of Notes to be redeemed.



     11. Persons Deemed Owners. The registered holder of a Note may be treated as its
owner for all purposes.



     12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented (1) to cure any ambiguity, defect or
inconsistency, (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes, (3) to provide for the assumption of the Company’s obligations to Holders of the Notes
pursuant to Article 5 of the Indenture, (4) 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 Indenture of any such Holder, provided that any change to conform the Indenture to the
Offering Memorandum shall not be deemed to adversely affect the



Ex. A to App.-6




 









 







legal rights under the Indenture of any Holder, (5) to secure the Notes or the Subsidiary
Guarantees pursuant to Section 4.12 of the Indenture or otherwise, (6) to provide for the issuance
of Additional Notes in accordance with the limitations set forth in the Indenture, (7) to add any
additional Guarantor with respect to the Notes or to evidence the release of any Guarantor from its
Subsidiary Guarantee, in each case as provided in the Indenture, (8) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act or (9) to evidence or provide for the acceptance of appointment under the
Indenture of a successor Trustee.




     13. Defaults and Remedies. Events of Default include: (i) default for 30 days in the
payment when due of interest or Additional Interest, if any, on the Notes; (ii) default in payment
when due of the principal of or premium, if any, on the Notes when due at Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or otherwise; (iii) failure by the
Company to comply with Section 3.09, 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by the
Company for 180 days after notice to comply with Section 4.03 of the Indenture; (v) failure by the
Company for 60 days after notice to comply with any of its other agreements in the Indenture or the
Notes; (vi) default 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 (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists or is created after
the Initial Issuance Date, if such default (a) is caused by a failure to pay principal of, or
premium or interest, if any, on such Indebtedness prior to the expiration of any grace period
provided in such Indebtedness (a “Payment Default”) or (b) results in the acceleration of such
Indebtedness prior to its Stated 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 in excess
of $75.0 million, provided that if any such Payment Default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid, within a period of 60 days from the
continuation of such Payment Default beyond the applicable grace period or the occurrence of such
acceleration, as the case may be, such Event of Default and any consequential acceleration of the
Notes shall be automatically rescinded, so long as such rescission does not conflict with any
judgment or decree; (vii) failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $75.0 million (to the extent not covered by insurance by a reputable and
creditworthy insurer as to which the insurer has not disclaimed coverage), which judgments are not
paid, discharged or stayed for a period of 60 days; (viii) except as permitted by the Indenture,
any Subsidiary 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 Subsidiary Guarantee; and
(ix) certain events of bankruptcy, insolvency or reorganization with respect to the Company, any of
the Company’s Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary of the Company as specified in Section 6.01(i) or 6.01(j) of the Indenture. If any
Event of Default occurs and is continuing, the Trustee, by notice to the Company, or the Holders of
at least 25% in principal amount of the then outstanding Notes, by notice to the Company and the
Trustee, may declare all the Notes to be due and payable immediately. Notwithstanding the
preceding, in the case of an Event of Default arising from such events of bankruptcy, insolvency or
reorganization described in Section 6.01(i)



Ex. A to App.-7




 









 







or 6.01(j) of the Indenture, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power conferred on it.
The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of principal, interest,
premium or Additional Interest) if it determines that withholding notice is in their interest. The
Holders of a majority in 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 Indenture except a continuing Default or Event of Default in the payment
of the principal of or premium, interest or Additional Interest, if any, on the Notes. The Company
is required to deliver to the Trustee annually a statement regarding compliance with the Indenture,
and, so long as any Notes are outstanding, the Company is required upon certain Officers becoming
aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.




     14. Defeasance and Discharge. The Notes are subject to defeasance and discharge upon
the terms and conditions specified in the Indenture.



     15. No Recourse Against Others. No director, officer, partner, employee,
incorporator, manager or stockholder or other owner of Capital Stock of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor
under the Notes, the Subsidiary Guarantees or the 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 the
issuance of the Notes.



     16. Authentication. This Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee or an authenticating agent.



     17. 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).



     18. [Additional Rights of Holders of Transfer Restricted Securities. In addition to
the rights provided to Holders of Notes under the Indenture, Holders of Transfer Restricted
Securities shall have all the rights set forth in the Registration Rights Agreement dated as of
November 23, 2010, among the Company, the Guarantors and the Initial Purchasers (the “Registration
Rights Agreement”).]3



     19. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers and corresponding
ISIN numbers to be printed on the Notes and the Trustee may use CUSIP numbers





 




			
	3	 	Delete if this Note is not being issued in
exchange for an Initial Note.





Ex. A to App.-8




 









 







and corresponding ISIN 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.




     20. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     21. Successors. In the event a successor assumes all the obligations of the Company
under the Notes and the Indenture, pursuant to the terms thereof, the Company will be released from
all such obligations.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture [and/or the Registration Rights Agreement]4. Requests may be made to:


Exterran Holdings, Inc.

16666 Northcase Drive

Houston, Texas 77060

Attention: Chief Financial Officer






 




			
	4	 	Delete if this Note is not being issued in
exchange for an Initial Note.





Ex. A to App.-9




 









 








ASSIGNMENT FORM




     To assign this Note, fill in the form below:



     I or we assign and transfer this Note to


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



 
(Insert assignee’s soc. Sec. or tax I.D. No.)



and irrevocably appoint __________________ agent 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 other side of this Note.






     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.



Ex. A to App.-10




 









 








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 Indenture, check the box below:



	 	 	 

	o Section 4.10
	 	o Section 4.15






     If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount (in minimum denomination of $2,000
or integral multiples of $1,000 in excess of $2,000) you elected to have purchased: $____________









	 	 	 

	Date:                                         

	 	Your Signature: _______________________________
	 

	 	(Sign exactly as your name appears on the other side of this Note)










Soc. Sec. or Tax Identification No.:                                         




Signature Guarantee:                                                             



(Signature must be guaranteed)




     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.



Ex. A to App.-11






 









 








SCHEDULE I




AGREEMENT WITH AFFILIATES


There are no agreements referred to in paragraph (4) of Section 4.11.











S-1









 








ANNEX A





 


 





EXTERRAN HOLDINGS, INC.




and



the Guarantors named herein



 





7.25% SENIOR NOTES DUE 2018



 





FORM OF SUPPLEMENTAL INDENTURE

AND AMENDMENT — SUBSIDIARY GUARANTEE




DATED AS OF ____________ __, ____



 





WELLS FARGO BANK, NATIONAL ASSOCIATION,





Trustee



 





 

 







A-1









 





     This SUPPLEMENTAL INDENTURE, dated as of ___________ __, ____, is among Exterran Holdings,
Inc., a Delaware corporation (the “Company”), each of the parties identified under the caption
“Guarantors” on the signature page hereto (the “Guarantors”) and Wells Fargo Bank, National
Association, a national banking association, as Trustee.



RECITALS




     WHEREAS, the Company, the initial Guarantors and the Trustee entered into an Indenture, dated
as of November 23, 2010 (the “Indenture”), pursuant to which the Company has issued $___,000,000 in
the aggregate principal amount of 7.25% Senior Notes due 2018 (the “Notes”);



     WHEREAS, Section 9.01(g) of the Indenture provides that the Company, the Guarantors and the
Trustee may amend or supplement the Indenture in order to comply with Section 4.13 or 10.03
thereof, without the consent of the Holders of the Notes; and



     WHEREAS, all acts and things prescribed by the Indenture, by law and by the Certificate of
Incorporation and the Bylaws (or comparable constituent documents) of the Company, of the
Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument
legally binding on the Company, the Guarantors and the Trustee, in accordance with its terms, have
been duly done and performed;



     NOW, THEREFORE, to comply with the provisions of the Indenture and in consideration of the
above premises, the Company, the Guarantors and the Trustee covenant and agree for the equal and
proportionate benefit of the respective Holders of the Notes as follows:



ARTICLE 1




     Section 1.01. This Supplemental Indenture is supplemental to the Indenture and does and shall
be deemed to form a part of, and shall be construed in connection with and as part of, the
Indenture for any and all purposes.



     Section 1.02. This Supplemental Indenture shall become effective immediately upon its
execution and delivery by each of the Company, the Guarantors and the Trustee.



ARTICLE 2




     From this date, in accordance with Section 4.13 or 10.03 and by executing this Supplemental
Indenture, the Guarantors whose signatures appear below are subject to the provisions of the
Indenture to the extent provided for in Article 10 thereunder.



ARTICLE 3




     Section 3.01. Except as specifically modified herein, the Indenture and the Notes are in all
respects ratified and confirmed (mutatis mutandis) and shall remain in full force and effect in
accordance with their terms with all capitalized terms used herein without definition having the
same respective meanings ascribed to them as in the Indenture.



A-2









 





     Section 3.02. Except as otherwise expressly provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Trustee
subject to all the terms and conditions set forth in the Indenture with the same force and effect
as if those terms and conditions were repeated at length herein and made applicable to the Trustee
with respect hereto.



     Section 3.03. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 3.04. The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of such executed copies together shall represent the same
agreement.



[NEXT PAGE IS SIGNATURE PAGE]






A-3









 








     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first written above.



	 	 	 	 	 
	 	Exterran Holdings, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	
 	 
	 	 	 
	 	 	 
	 
	 	 	 
	 	GUARANTORS:

[__________________________________]
 	 
	 	
 	 
	 	 	 
	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Wells Fargo Bank, National Association,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-4