FIRST SUPPLEMENTAL INDENTURE dated as of April 10, 2008 between POLYONE CORPORATION and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Successor Trustee
EXHIBIT 4.2
dated as of April 10, 2008
between
POLYONE CORPORATION
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Successor Trustee
as Successor Trustee
8.875% Senior Notes Due 2012
THIS FIRST SUPPLEMENTAL INDENTURE (the “First Supplemental Indenture”) is entered into as of
April 10, 2008, between PolyOne Corporation, an Ohio Corporation (the “Company”), and The Bank of
New York Trust Company, N.A., as successor trustee (the “Trustee”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture (defined below).
RECITALS
WHEREAS, the Company and the Trustee entered into an indenture, dated as of April 23, 2002
(the “Indenture”), relating to the Company’s 8.875% Senior Notes Due 2012 (the “Notes”);
WHEREAS, in accordance with Sections 2.03 and 2.18 of the Indenture, the Trustee shall at any
time and from time to time, upon receipt of an Officers’ Certificate, authenticate for original
issue Additional Notes in the aggregate principal amount specified in such Officers’ Certificate,
provided that certain conditions set forth in Sections 2.03 and 2.18 of the Indenture are
satisfied;
WHEREAS, in accordance with Sections 2.03 and 2.18 of the Indenture, subject to applicable
law, the aggregate principal amount of the Notes which may be authenticated and delivered under the
Indenture is unlimited;
WHEREAS, in accordance with Section 9.01 of the Indenture, the Company and the Trustee may
amend or supplement the Indenture without the consent of the Holders to, among other things, make
any change that does not adversely affect the rights of Holders;
WHEREAS, the Board of Directors has authorized the amendment of the Indenture pursuant to this
First Supplemental Indenture to update the provisions of the Indenture governing Transfer
Restricted Securities to reflect changes in law, in connection with the issuance of $80,000,000
aggregate principal amount of Additional Notes on the date hereof; and
WHEREAS, all things necessary to make this First Supplemental Indenture a valid supplement to
the Indenture according to its terms have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, and of other valuable consideration the sufficiency
of which is hereby acknowledged, the Company agrees with the Trustee, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE I
AMENDMENTS
Section 1.1. Amendment to Section 2.02. Section 2.02(a)(i) of the Indenture is hereby
amended and restated in its entirety as follows:
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(i) Each Global Note and Physical Note that constitutes a Restricted Security
or is sold in compliance with Regulation S shall bear the following legend (the
“Private Placement Legend”) on the face thereof until after the first anniversary of
the later of the Issue Date and the last date on which the Company or any Affiliate
of the Company was the owner of such Note (or any predecessor note), or such longer
period of time as may be required under the Securities Act or applicable state
securities laws in the opinion of counsel for the Company, unless otherwise agreed
by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN (OR THEREIN) 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 OR ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE THAT IS
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THIS SECURITY (THE “RESALE
RESTRICTION TERMINATION DATE”) OTHER THAN (1) TO EITHER ISSUER OR ITS SUBSIDIARIES,
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT IN
BOOK-ENTRY FORM), (3) TO A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” (AS SUCH
TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR (5) PURSUANT TO AN
EFFECTIVE
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING
CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY
OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL,
AND SUBJECT TO THE RIGHT OF THE ISSUER OR THE TRUSTEE FOR THE SECURITIES PRIOR TO
ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO CLAUSE (4) ABOVE (OTHER THAN
SALES PURSUANT TO RULE 144) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Section 1.2. Amendment to Section 2.09(a). Section 2.09(a) of the Indenture is
hereby amended and restated in its entirety as follows:
(a) Transfers of Restricted Securities. The following provisions shall
apply with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security (excluding transfers to a QIB pursuant to Rule
144A under the Securities Act):
(i) the Registrar shall register the transfer of any Note constituting a
Restricted Security whether or not such Note bears the Private Placement Legend, if:
(w) the requested transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(x) the requested transfer is effected after the first anniversary of
the Issue Date;
(y) the requested transfer is effected after the date that is six
months after the Issue Date and prior to the first anniversary of the Issue
Date and no written request by the Company suspending the operation of this
Section 2.09(a)(i)(y) has been received by the Trustee, which written
request has not been rescinded by the Company; provided, however, that the
Company may only suspend the operation of this Section 2.09(a)(i)(y) when
adequate current public information, within the meaning of Rule 144 under
the Securities Act, is not available with respect to the Company; or
(z) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in the
form of Exhibit C hereto and any legal opinions and certifications
required
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thereby or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto; and
(ii) in the case of a transfer pursuant to Paragraph 2.09(a)(i)(w), (x) or (y),
upon receipt by the Registrar of written instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar reflect on its books and
records the date and an increase in the principal amount of a Global Note that does
not bear the Transfer Restricted Securities Legend in an amount equal to the
principal amount of the Notes to be transferred (and if no such Global Note exists,
the Company shall execute and the Trustee shall authenticate and deliver a Global
Note that does not bear the Transfer Restricted Securities Legend in an amount equal
to the principal amount of the Notes to be transferred) and (x) if the transfer
involves the transfer of outstanding Physical Notes, the Trustee shall cancel the
Physical Notes so transferred or (y) if the transfer involves a beneficial interest
in a Global Note, the Registrar shall reflect on its books and records the date and
a decrease in the principal amount of such Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be transferred;
(iii) in the case of a transfer pursuant to Paragraph 2.09(a)(i)(z)(1), if the
proposed transferor is a Participant holding a beneficial interest in the Global
Note, upon receipt by the Registrar of (x) the certificate, if any, required by
paragraph (i)(z) above and (y) written instructions given in accordance with the
Depositary’s and the Registrar’s procedures; whereupon (a) the Registrar shall
reflect on its books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the principal amount of such
Global Note in an amount equal to the principal amount of the beneficial interest in
the Global Note to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver, one or more Physical Notes of like tenor and amount;
and
(iv) in the case of a transfer to a non-U.S. Person pursuant to Paragraph
2.09(a)(i)(z)(2), if the proposed transferee is a Participant, and the Notes to be
transferred consist of Physical Notes which after transfer are to be evidenced by an
interest in a Regulation S Global Note, upon receipt by the Registrar of written
instructions given in accordance with the Depositary’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of such Regulation S Global Note in an amount equal
to the principal amount of the Physical Notes to be transferred, and the Trustee
shall cancel the Physical Notes so transferred.
Section 1.3. Amendment to Section 2.09(c). Section 2.09(c) of the Indenture is hereby
amended and restated in its entirety as follows:
(c) Transfer Restricted Securities Legend. Upon the transfer, exchange
or replacement of Notes not bearing the Transfer Restricted Securities
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Legend, the Registrar shall deliver Notes that do not bear the Transfer Restricted
Securities Legend. Upon the transfer, exchange or replacement of Notes bearing the
Transfer Restricted Securities Legend, the Registrar shall deliver only Notes that
bear the Transfer Restricted Securities Legend unless:
(i) the requested transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(ii) the requested transfer is effected after the first anniversary of
the Issue Date;
(iii) the requested transfer is effected after the date that is six
months after the Issue Date and prior to the first anniversary of the Issue
Date and no written request by the Company suspending the operation of this
Section 2.09(c)(iii) has been received by the Trustee, which written request
has not been rescinded by the Company; or
(iv) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act;
provided, however, that the Company may only suspend the operation of
Section 2.09(c)(iii) when adequate current public information, within the
meaning of Rule 144 under the Securities Act, is not available with respect
to the Company.
Section 1.4. Amendment to Section 2.09(e) Paragraph 2.09(e) of the Indenture is
hereby amended and restated in its entirety as follows:
(e) General. By its acceptance of any Note bearing the Transfer
Restricted Securities Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and agrees that it
will transfer such Note only as provided in this Indenture. The Registrar shall not
register a transfer of any Note unless such transfer complies with the restrictions
on transfer of such Note set forth in this Indenture. In the case of a transfer
other than a transfer pursuant to Sections 2.09(a)(i)(x) or (y), the Registrar shall
be entitled to receive and rely on written instructions from the Company verifying
that such transfer complies with such restrictions on transfer.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.08 hereof or this Section 2.09. The
Company shall have the right to inspect and make copies of all such letters, notices
or other written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar.
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Section 1.5. Amendment to Exhibit A. The third paragraph of Exhibit A to the
Indenture is hereby amended and restated in its entirety as follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN (OR THEREIN) 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 OR ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE THAT IS
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THIS SECURITY (THE “RESALE
RESTRICTION TERMINATION DATE”) OTHER THAN (1) TO EITHER ISSUER OR ITS SUBSIDIARIES,
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT IN
BOOK-ENTRY FORM), (3) TO A NON-“U.S. PERSON” IN AN “OFFSHORE TRANSACTION” (AS SUCH
TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR
THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUER OR THE TRUSTEE
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FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO
CLAUSE (4) ABOVE (OTHER THAN SALES PURSUANT TO RULE 144) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE
RESALE RESTRICTION TERMINATION DATE.
Section 1.6. Amendment to Exhibit C. The fifth numbered paragraph of Exhibit C to the
Indenture is hereby amended and restated in its entirety as follows:
(5) We understand that the offer and sale of the Notes have not been registered
under the Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should sell
any Notes prior to the date that is one year after the last original issue date of
the Notes, we will do so only (A) to the Company or any subsidiary thereof, (B) to a
“Qualified Institutional Buyer” (as defined in Rule 144A under the Securities Act)
in compliance with Rule 144A under the Securities Act, (C) to an institutional
“accredited investor” (as defined above) that, prior to such transfer, furnishes to
you a signed letter substantially in the form of this letter and, an opinion of
counsel acceptable to the Company that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available) or (F) pursuant to a registration statement
which has been declared effective under the Securities Act (and continues to be
effective at the time of such transfer), and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1. Documents to Be Given to Trustee. Pursuant to the provisions of Sections
9.06 and 10.04 of the Indenture, the Company will deliver to the Trustee an Opinion of Counsel and
an Officers’ Certificate, each dated as of April 10, 2008, satisfying the provisions of Sections
9.06, 10.04 and 10.05 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1. Trustee’s Acceptance. The Trustee accepts the provisions of this First
Supplemental Indenture upon the terms and conditions set forth in the Indenture; provided,
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however, that the foregoing acceptance shall not make the Trustee responsible in any manner
whatsoever for the validity or sufficiency of this First Supplemental Indenture or the correctness
of recitals or statements by other parties herein.
Section 3.2. Indenture to Remain in Full Force and Effect. Except as hereby expressly
provided, the Indenture, as supplemented and amended by this First Supplemental Indenture, is in
all respects ratified and confirmed and all its terms, provisions and conditions shall be and
remain in full force and effect.
Section 3.3. Trust Indenture Act Controls. The Indenture is subject to the provisions
of the TIA which are required to be part of the Indenture, and shall, to the extent applicable, be
governed by such provisions.
Section 3.4. Notices. Any notice or communication to the Company or the Trustee is
duly given if in writing and delivered in person or mailed by first-class mail to the address set
forth below:
If to the Company, addressed to the Company:
with a copy to:
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Trustee or Paying Agent:
The Bank of New York Trust Company, N.A.
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by first-class mail to his address
shown on the Register kept by the Registrar. Failure to mail a notice or communication to a Holder
or any defect in such notice or communication shall not affect its sufficiency with respect to
other Holders.
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If a notice or communication is mailed or sent in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except that notice to the
Trustee shall only be effective upon receipt thereof by the Trustee.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
Section 3.5. Duplicate Originals. The parties may sign any number of copies of this
First Supplemental Indenture. One signed copy is enough to prove this First Supplemental
Indenture.
Section 3.6. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
Section 3.7. No Adverse Interpretation of Other Agreements. This First Supplemental
Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or
any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret
this First Supplemental Indenture.
Section 3.8. Successors. All agreements of the Company under this First Supplemental
Indenture shall bind its successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successor.
Section 3.9. Severability. In case any provision in this First Supplemental Indenture
is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.10. Counterpart Originals. This First Supplemental Indenture may be signed
in one or more counterparts. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 3.11. No Personal Liability. No director, officer, employee, incorporator,
Affiliate or holder of capital stock of the Company shall have any liability for any obligations of
the Company under the Notes, the Indenture or this First Supplemental Indenture or for any claim
based on, in respect of, or by reason of, such obligations. Each Holder of Notes, by accepting a
Note, waives and releases all such liability. The waiver and release shall be part of the
consideration for the issuance of the Notes.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date and year first above written.
| POLYONE CORPORATION |
||||
| By: | /s/ W. Xxxxx Xxxxxx | |||
| Name: | W. Xxxxx Xxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
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| THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee |
||||
| By: | /s/ X. Xxxxxx | |||
| Name: | X. Xxxxxx | |||
| Title: | Vice President | |||
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