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EXHIBIT 4.4
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE is dated as of October 15, 2000
between UNIVERSAL COMPRESSION, INC., a Texas corporation, as
successor-in-interest to TW Acquisition Corporation, a Delaware corporation (the
"Company"), Gas Compression Finance Corporation, a Michigan corporation
("Finance"), G.C.S. Distributing L.L.C., a Texas limited liability company
("Distributing") and Gas Compression Realty L.L.C., a Michigan limited liability
company ("Realty", and together with Finance and Distributing collectively the
"Subsidiary Guarantors" and each a "Subsidiary Guarantor"), and UNITED STATES
TRUST COMPANY OF NEW YORK, as trustee under the Indenture hereinafter mentioned
(the "Trustee").
WHEREAS, the Company has issued its 97/8% Senior Discount Notes due
2008 (the "Notes") in the aggregate principal amount at maturity of $242,500,000
under and pursuant to the indenture dated as of February 20, 1998, by and
between the Company and the Trustee, as amended and supplemented by the First
Supplemental Indenture, dated as of May 9, 2000 (the "First Supplemental
Indenture") by and among the Company and the Trustee and the Second Supplemental
Indenture, dated as of May 30, 2000 (the "Second Supplemental Indenture") by and
among the Company, Universal Compression International, Inc. and the Trustee (as
amended, the "Indenture");
WHEREAS, Section 4.18 of the Indenture provides that the Company will
not permit any of its Restricted Subsidiaries to guarantee the Indebtedness of
the Company unless such Restricted Subsidiary executes and delivers a
supplemental indenture to the Indenture providing a senior guarantee of payment
of the Notes by such Restricted Subsidiary (the "Guaranty");
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company and the
Trustee may amend the Indenture, without the consent of any Holder of Notes, to
make any change that would provide any additional benefit or rights to the
Holders or that does not adversely affect the rights of any Holder in any
material respect;
WHEREAS, each of the Subsidiary Guarantors is a Restricted Subsidiary
of the Company and has, pursuant to the Credit Agreement, dated as of May 30,
2000 (the "Credit Agreement") among the Company, Universal Compression Holdings,
Inc., various lenders, Deustche Bank Securities Inc., as lead arranger and
Bankers Trust Company, as administrative agent, guaranteed the obligations of
the Company arising under or in connection with the Credit Agreement (the
"Credit Agreement Guarantee");
WHEREAS, pursuant to Section 4.18 of the Indenture, each of the
Subsidiary Guarantors is required to become a Guarantor under the Indenture as a
result of the Credit Agreement Guarantee;
WHEREAS, each party hereto has duly authorized the execution and
delivery of this Supplemental Indenture and has done all things necessary to
make this Supplemental Indenture a valid agreement in accordance with its terms;
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NOW, THEREFORE, for and in consideration of the premises, the Company,
each of the Subsidiary Guarantors and the Trustee agree pursuant to Section 9.01
of the Indenture as follows:
Article 1
Agreement to Be Bound; Guarantee
Section 1.01. Agreement to Be Bound. Each of the Subsidiary Guarantors
hereby becomes a party to the Indenture as a Guarantor and as such will have all
of the rights and be subject to all of the obligations and agreements of
Guarantors under the Indenture. Each of the Subsidiary Guarantors agrees to be
bound by all of the provisions of the Indenture applicable to a Guarantor,
including without limitation Article Ten of the Indenture, and to perform all of
the obligations and agreements of a Guarantor under the Indenture.
Section 1.02. Guarantee. Subject to the provisions of this Article One,
each of the Subsidiary Guarantors hereby unconditionally and irrevocably
guarantees, on a senior basis (such guarantee to be referred to herein as a
"Guarantee") 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 the Indenture, the Notes or the obligations of the Company
or any other Guarantor to the Holders or the Trustee hereunder or thereunder,
that: (a) Accreted Value or principal of and interest on the Notes (and any
Additional Interest payable thereon) shall be duly and punctually paid in full
when due, whether at maturity, upon redemption at the option of Holders pursuant
to the provisions of the Notes relating thereto, by acceleration or otherwise,
and interest on the overdue principal and (to the extent permitted by law)
interest, if any, on the Notes and all other obligations of the Company or the
Guarantors to the Holders or the Trustee hereunder or thereunder (including
amounts due the Trustee under Section 7.07 of the Indenture) and all other
obligations shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the same shall
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed, or failing performance of
any other obligation of the Company to the Holders under this Indenture or under
the Notes, for whatever reason, the Guarantor shall be obligated to pay, or to
perform or cause the performance of, the same immediately. An Event of Default
under the Indenture or the Notes shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Notes to accelerate the obligations
of any or all of the Subsidiary Guarantors hereunder in the same manner and to
the same extent as the obligations of the Company.
Each of the Subsidiary Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each of the Subsidiary Guarantors hereby waives the
benefit of 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
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that its Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Guarantee. This
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each of the Subsidiary Guarantors further agrees that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject
to Article Eleven of the Indenture, the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Guarantee.
Section 1.03. Release of the Guarantee. In addition to any provisions
contained in the Indenture for release of a Guarantor's guarantee obligations,
this Guarantee shall be automatically and unconditionally released and
discharged with respect to a Subsidiary Guarantor without any further action
required on the part of the Trustee or any Holder, upon (i) the unconditional
release of such Subsidiary Guarantor from its liability in respect of the Credit
Agreement Guarantee; or (ii) any sale or other disposition (by merger or
otherwise) to any Person which is not a Restricted Subsidiary of the Company of
all of the Company's direct or indirect Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary; provided that
(a) such sale or disposition of such Capital Stock or assets is otherwise in
compliance with the terms of the Indenture and (b) the Credit Agreement
Guarantee has been released by the lenders under the Credit Agreement.
Article 2
The Trustee
Section 2.01. Privileges and Immunities of Trustee. The Trustee accepts
the amendment of the Indenture effected by this Third Supplemental Indenture but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture as hereby amended. The Trustee shall not be responsible for the
validity or sufficiency of this Third Supplemental Indenture, for the due
execution thereof by the Company or the Subsidiary Guarantors or for the
recitals contained herein, each of which is the Company's or the Subsidiary
Guarantors' responsibility, as applicable.
Article 3
Miscellaneous Provisions
Section 3.01. Instruments to be Read Together. Except as supplemented
hereby, all provisions in the Indenture shall remain in full force and effect.
This Third Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and said Indenture and this Third Supplemental
Indenture shall henceforth be read together.
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Section 3.02. Confirmation. The Indenture as amended and supplemented
by this Third Supplemental Indenture is in all respects confirmed and preserved.
Section 3.03. Terms Defined. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
Section 3.04. Counterparts. This Third Supplemental Indenture may be
signed in any number of counterparts each of which so executed shall be deemed
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 3.05. Effectiveness, Etc.. Without qualifying the provisions of
Section 1.01 of this Third Supplemental Indenture, this Third Supplemental
Indenture will take effect immediately upon execution thereof by the parties
hereto.
Section 3.06. Trust Indenture Act. If any provision of this Third
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act that is required under such Act to be part of and govern any
provision of this Third Supplemental Indenture, the provisions of such Act shall
control. If any provision of this Second Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of such Act shall be deemed to apply to the Indenture or
to be excluded by this Third Supplemental Indenture, as the case may be.
Section 3.07. Illegality, Unenforceability. In case any provision in
this Third Supplemental Indenture 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.
Section 3.08. Benefits of Supplemental Indenture. Nothing in this Third
Supplemental Indenture, the Indenture or the Notes, express or implied, shall
give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit of
any legal or equitable right, remedy or claim under the Indenture, this Third
Supplemental Indenture or the Notes.
Section 3.09. Successors and Assigns. All agreements in this Third
Supplemental Indenture made by the Company, the Subsidiary Guarantors and the
Trustee shall inure to the benefit of the Company, the Subsidiary Guarantors and
the Trustee and their respective successors and assigns. The provisions of this
Third Supplemental Indenture shall bind the Holders of the Notes from time to
time, the Company, the Subsidiary Guarantors the Trustee and their respective
successors and assigns, whether so expressed or not.
Section 3.10. Governing Law. This Third Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflict of laws principles thereof.
Section 3.11. Captions. The captions of the sections of this Third
Supplemental Indenture were formulated, used and inserted in this Third
Supplemental Indenture for convenience only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first above written.
UNIVERSAL COMPRESSION, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. XxxxXxxxxx
Title: Senior Vice President and
Chief Financial Officer
GAS COMPRESSION FINANCE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
G.C.S. DISTRIBUTING L.L.C.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Manager
GAS COMPRESSION REALTY L.L.C.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Manager
UNITED STATES TRUST COMPANY OF NEW
YORK, AS TRUSTEE
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
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