Exhibit 4.4


 




 





ICO NORTH AMERICA, INC.


 


7.5% CONVERTIBLE SENIOR SECURED
NOTES DUE 2009


 






 


SUPPLEMENTAL INDENTURE #1


Dated as of November    ,
2005


 


to the


 


INDENTURE


Dated as of August 15, 2005


 






 


The Bank of New York,


 


a New York banking corporation, as


 


Trustee


 








 





 

















 


Supplemental Indenture (this “Supplemental Indenture”), dated as
of November         , 2005, among
SSG UK Limited, a private company organized under the law of England and Wales,
and New ICO Satellite Services GP, a Delaware partnership (each a “Guaranteeing
Subsidiary”), each a subsidiary of ICO North America, Inc. (or its
permitted successor), a Delaware corporation (the “Company”), the
Company, the other Guarantors (as defined in the Indenture referred to herein)
and The Bank of New York, as trustee under the indenture referred to below (the
“Trustee”).


 


W I T N E S S E T H


 


Whereas, the Company
has heretofore executed and delivered to the Trustee an indenture (the “Indenture”)
dated as of August 15, 2005 providing for the original issuance of  $650,000,000 aggregate principal amount of its
7.5% Convertible Senior Secured Notes due 2009 (the “Notes”);


 


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


 


Whereas, pursuant to Section 10.01
of the Indenture, the Trustee is authorized to execute and deliver this
Supplemental Indenture.


 


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


 


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


 


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


 


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


 


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


 

















 


(ii)                                  in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately, whether or not such failure to pay has
become an Event of Default which could cause acceleration pursuant to Article 7
of the Indenture. Each Guarantying Subsidiary agrees that this is a guarantee
of payment and not a guarantee of collection.


 


(b)                                 The 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, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor.


 


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


 


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


 


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


 


(f)                                    No Guaranteeing Subsidiary shall be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.


 


(g)                                 As between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 7
of the Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any declaration
of acceleration of such obligations as provided in Article 7 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 Note
Guarantee.


 


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(h)                                 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 Guarantee.


 


(i)                                     Pursuant to Section 12.02 of the
Indenture, after giving effect to any maximum amount and any other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy Law,
the uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law, and after giving effect to
any collections from, rights to receive contribution from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article 12 of the Indenture, this new Note Guarantee shall
be limited to the maximum amount permissible such that the obligations of such
Guarantor under this Note Guarantee will not constitute a fraudulent transfer
or conveyance.


 


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


 


4.                                      Releases.


 


(a)                                  In the event of a sale or other disposition
of all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock of any
Guarantor, in each case to a Person that is not (either before or after giving
effect to such transaction) the Company or a Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) shall
automatically be released and relieved of any obligations under its Note
Guarantee; provided, however, that such sale or
other disposition (including by way of merger, consolidation or otherwise)
shall be made in compliance with the provisions of the Indenture applicable
thereto, including Article 6 thereof. Upon delivery by the Company to the
Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the Company in accordance with
the provisions of the Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.


 


(b)                                 Any Guarantor not released from its
obligations under its Note Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided in Article 12 of the Indenture.


 


5.                                      No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of any Guaranteeing Subsidiary,
as such, shall have any liability for any obligations of the Company or any
Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Notes by


 


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accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC that
such a waiver is against public policy.


 


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


 


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


 


8.                                      Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


9.                                      The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by each Guaranteeing Subsidiary and the
Company.


 


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


 


 


	
   

  	
  SSG UK Limited

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
  Dennis Schmitt, Director

  
	
   

  	
   

  
	
   

  	
  New ICO Satellite Services GP

  
	
   

  	
  By SSG UK Limited, its
  general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
  Dennis Schmitt, Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICO North America, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Jorgens

  	
   

  
	
   

  	
   

  	
  Craig Jorgens, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICO Satellite Services
  GP

  
	
   

  	
  By ICO Satellite Services
  Limited, its general

  
	
   

  	
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Dennis Schmitt, Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ICO Satellite Management
  LLC

  
	
   

  	
  By ICO North America, Inc.,
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Jorgens

  	
   

  
	
   

  	
   

  	
  Craig Jorgens, President

  
						



 


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  ICO Services Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Dennis Schmitt, Director

  
	
   

  	
   

  	
   

  
	
   

  	
  ICO Satellite Services
  Limited

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Dennis Schmitt, Director

  
	
   

  	
   

  	
   

  
	
   

  	
  ICO Global
  Communications (Canada) Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Schmitt

  	
   

  
	
   

  	
   

  	
  Dennis Schmitt, Director

  



 


 


	
  The Bank of New York, as
  Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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