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Exhibit 4.3
ICO P&O, INC.
(formerly ICO, Inc.)
(a Delaware corporation),
the Additional Obligor named herein
and
the Successor named herein
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SERIES A AND SERIES B
10 3/8% SENIOR NOTES DUE 2007
________________________________________
___________________
SECOND SUPPLEMENTAL INDENTURE
AND AMENDMENT
DATED AS OF APRIL 1, 1998
___________________
STATE STREET BANK AND TRUST COMPANY
(formerly Fleet National Bank)
Trustee
___________________
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This SECOND SUPPLEMENTAL INDENTURE, dated as of April 1, 1998, is among
ICO P&O, Inc., a Texas corporation and formerly ICO, Inc. (the "Company"), the
party identified under the caption "Guarantor" on the signature page hereto (the
"Additional Obligor"), the party identified under the caption "Successor" on the
signature page hereto (the "Successor") and State Street Bank and Trust Company
(formerly Fleet National Bank), as Trustee .
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated as
of June 9, 1997 (the "Indenture"), pursuant to which the Company has originally
issued $120,000,000 in principal amount of 10 3/8% Senior Notes due 2007 (the
"Notes"), and the Additional Obligor, pursuant to a First Supplemental Indenture
dated April 1, 1998, has assumed and agreed to pay as an additional obligor all
the Obligations of the Company under the Notes and the Indenture; and
WHEREAS, all conditions precedent set forth in the Indenture to the
execution and delivery of this Second Supplemental Indenture, including without
limitation the conditions of Section 5.1 of the Indenture, have been complied
with. Specifically, (i) the Successor is a corporation organized and existing
under the laws of the State of Delaware; (ii) pursuant to this Second
Supplemental Indenture, the Successor is assuming all of the Company's
Obligations under the Notes and the Indenture; (iii) immediately before and
immediately after giving effect to the Merger (including any Indebtedness
incurred or anticipated to be incurred in connection with the Merger) no Default
or Event of Default shall have occurred and be continuing; (iv) the Consolidated
Net worth of the Successor is equal or greater than the Consolidated Net Worth
of the Company immediately preceding the Merger; and (v) immediately after
giving pro forma effect to the Merger as if the Merger had been made at the
beginning of the applicable Reference Period, the Successor would have been
permitted to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the first paragraph of Section 4.8 of the
Indenture; and
WHEREAS, Section 9.1 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture in order to comply with Article 5
thereof without the consent of the Holders of the Notes; and
WHEREAS, the Company is merging with and into ICO P&O, Inc., a Delaware
corporation ("P&O Delaware"), with P&O Delaware to be the surviving corporation
in the Merger (the "Successor" or "P&O"), and P&O intends to expressly assume
all the Obligations of the Company under the Notes and the Indenture pursuant to
this Second Supplemental Indenture; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by
the Articles of Incorporation and the Bylaws (or comparable constituent
documents) of the Company, of the Additional Obligor, of the Successor and of
the Trustee necessary to make this Second Supplemental Indenture a valid
instrument legally binding on the Company, the Additional Obligor, the Successor
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 Additional Obligor, the
Successor 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 Second 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 Second Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company, the
Additional Obligor, the Successor and the Trustee.
ARTICLE 2
From this date, in accordance with Section 9.1 and by executing this
Second Supplemental Indenture, the Successor whose signature appears below
hereby expressly assumes all the Obligations of the Company under the Notes and
the Indenture as fully as though the Successor is the Company named therein and
agrees that it is subject to the provisions of the Indenture to the extent
provided for in Section 5.2 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.
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 Second Supplemental Indenture. This
Second 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 SECOND SUPPLEMENTAL INDENTURE AND THE NOTES AND THE
GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. EACH
OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECOND SUPPLEMENTAL INDENTURE, THE NOTES OR THE GUARANTEES.
Section 3.04. The parties may sign any number of copies of this Second
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]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, all as of the date first written above.
ICO P&O, INC., a Texas corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
ADDITIONAL OBLIGOR
ICO, INC., a Texas corporation
(formerly ICO Holdings, Inc.)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
SUCCESSOR
ICO P&O, INC., a Delaware corporation
(successor to ICO P&O, Inc. (Texas)
in the merger described herein)
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
STATE STREET BANK AND
TRUST COMPANY, as Trustee
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
