FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of March 29, 2004 by and among Noveon, Inc., (formerly the PMD Group Inc.),
a Delaware corporation (the "Company"), the guarantors set forth on
Schedule A hereto, (the "Guarantors") and Wells Fargo Bank, National
Association, as successor by merger to Wells Fargo Bank Minnesota, National
Association, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Company, the Guarantors and the Trustee heretofore
executed and delivered to the Trustee, an Indenture, dated as of February
28, 2001 (the "Indenture"), providing for the issuance of an aggregate
principal amount of up to $275,000,00 of 11% Senior Subordinated Notes due
2011 (the "Securities");
WHEREAS, the Company, the Guarantors and the Trustee intend to
reconcile an inconsistency between the "Description of Notes" in the
Company's Registration Statement on Form S-4 (file no. 333-61812), as
amended, registering the Securities, and Section 4.07(iii) of the
Indenture;
WHEREAS, in accordance with Section 9.01(a) of the Indenture, when
authorized by a resolution of the Board of Directors, the Company and the
Guarantors may amend or supplement the Indenture without the consent of any
Holder of a Note;
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company and the Guarantors.
NOW, THEREFORE, in consideration for the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
the Company, the Guarantors and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein but not otherwise
defined have the meanings ascribed thereto in the Indenture.
2. Amendments. Subject to paragraph 3 hereof, the Indenture is hereby
amended in the following respect:
By deleting in its entirety the following provision of Section
4.07(iii):
(iii) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by clauses (a) (to the
extent that the declaration of any dividend referred to therein
reduces amounts available for Restricted Payments pursuant to
this clause (iii)), (b) through (i), (k) through (o) and (q) of
the next succeeding paragraph), is less than the sum, without
duplication, of:
and replacing it with the following:
(iii) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by clauses (a) (to the
extent that the declaration of any dividend referred to therein
reduces amounts available for Restricted Payments pursuant to
this clause (iii)), (b) through (i), (k) through (o) and (q)
through (s) of the next succeeding paragraph), is less than the
sum, without duplication, of:
3. Effect of Supplemental Indenture. Upon the execution and delivery
of this Supplemental Indenture by the Company, each of the Guarantors and
the Trustee, the Indenture shall be supplemented in accordance herewith,
and this Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter
authenticated and delivered under the Indenture shall be bound hereby.
4. Indenture Remains in Full Force and Effect. Except as supplemented
hereby, all provisions in the Indenture shall remain in full force and
effect.
5. Indenture and Supplemental Indenture Construed Together. This
Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
6. Confirmation and Preservation of Indenture. The Indenture as
supplemented by this Supplemental Indenture is in all respects confirmed
and preserved.
7. Conflict with the Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act of 1939, as amended ("TIA") that is required under
the TIA to be a part of and govern any provision of this Supplemental
Indenture, the provision of the TIA shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the TIA that
may be so modified or excluded, the provision of the TIA shall be deemed to
apply to the Indenture as so modified or to be excluded by this
Supplemental Indenture, as the case may be.
8. Severability. In case any provision in this 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.
9. Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture or the Securities, 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 Securities, any benefit of any legal
or equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Securities.
10. Successors. All agreements of the Company and each of the
Guarantors in this Supplemental Indenture shall bind their respective
successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
11. Certain Duties and Responsibilities of the Trustee. In entering
into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture and the Securities relating to
the conduct or affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
12. Governing Law. This Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York 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.
13. Multiple Originals. The parties may sign any number of copies of
this Supplemental Indenture, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. Headings. The Section headings herein are inserted for convenience
of reference only, are not intended to be considered a part hereof and
shall not modify or restrict any of the terms or provisions hereof.
15. The Trustee. The Trustee shall not be responsible in any manner
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 are made by the Company and each of the Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
NOVEON, INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Vice President and Treasurer
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Jane Y. Schweiger
-----------------------------------
Name: Jane Y. Schweiger
Title: Vice President
NOVEON CHINA INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON DIAMALT, INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON FCC, INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON HILTON DAVIS INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON KALAMA, INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON TEXTILE CHEMICALS, INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
FCC ACQUISITION CORPORATION
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
NOVEON HOLDING CORPORATION
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
PERFORMANCE MATERIALS I INC.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
PERFORMANCE MATERIALS II LLC
By: Noveon, Inc., its Sole Member
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Vice President and Treasurer
NOVEON IP HOLDINGS CORP.
By: /s/ Sean M. Stack
-----------------------------------
Name: Sean M. Stack
Title: Treasurer
SCHEDULE A
GUARANTORS
Noveon China Inc.
Noveon Diamalt, Inc.
Noveon FCC, Inc.
Noveon Hilton Davis Inc.
Noveon Kalama, Inc.
Noveon Textile Chemicals, Inc.
FCC Acquisition Corporation
Noveon Holding Corporation
Performance Materials I Inc.
Performance Materials II LLC
Noveon IP Holdings Corp.