Exhibit 4.1
DOMTAR
CORPORATION,
THE SUBSIDIARY GUARANTORS PARTY
HERETO
and
THE BANK OF NEW YORK
MELLON,
as Trustee
THIRD SUPPLEMENTAL
INDENTURE
Dated as of June 9,
2009
10.75% Senior Notes due June 1,
2017
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
D EFINITIONS
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Section 1.01.
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Relation to
Original Indenture
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2
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Section 1.02.
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Definition
of Terms
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2
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ARTICLE 2
THE N OTES
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Section 2.01.
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Designation
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2
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Section 2.02.
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Principal
Amount
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3
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Section 2.03.
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Form of
Notes; Global Form
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3
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Section 2.04.
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Restrictive
Legends
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3
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Section 2.05.
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Registration, Registration of Transfer and
Exchange
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4
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ARTICLE 3
R EDEMPTION OF THE N OTES
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Section 3.01.
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Redemption
by the Company
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4
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ARTICLE 4
D EFEASANCE
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Section 4.01.
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Defeasance
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4
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ARTICLE 5
M ISCELLANEOUS
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Section 5.01.
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Ratification
of Indenture
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5
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Section 5.02.
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Trustee Not
Responsible for Recitals
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5
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Section 5.03.
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Governing
Law
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5
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Section 5.04.
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Separability
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5
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Section 5.05.
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Counterparts
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5
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THIS THIRD SUPPLEMENTAL INDENTURE
(this “ Supplemental Indenture ”) dated as of
June 9, 2009 is among DOMTAR CORPORATION, a Delaware
corporation (together with its successors and assigns, the “
Company ”), the subsidiary guarantors listed on the
signature pages hereto (each a “ Subsidiary Guarantor
,” and together, the “ Subsidiary Guarantors
”) under the Indenture referred to below and THE BANK OF NEW
YORK MELLON (successor to The Bank of New York), a New York banking
corporation, as Trustee (the “ Trustee ”) under
the Indenture referred to below.
R E C I T A L S
WHEREAS, the Company has heretofore
executed and delivered to the Trustee a Senior Indenture, dated as
of November 19, 2007, among the Company, Domtar Paper Company,
LLC and the Trustee (the “ Original Indenture
”), as supplemented by the Supplemental Indenture, dated as
of February 15, 2008, among the Company, the subsidiary
guarantors party thereto and the Trustee (the “ First
Supplemental Indenture ”) and the Second Supplemental
Indenture, dated as of February 20, 2008, among the Company,
the subsidiary guarantors party thereto and the Trustee (the
“ Second Supplemental Indenture ” and, together
with this Supplemental Indenture, the Original Indenture and the
First Supplemental Indenture, the “ Indenture
”), providing for the issuance from time to time of series of
the Company’s Securities (as defined in the Original
Indenture);
WHEREAS, Section 901(5) of the
Original Indenture provides for the Company, the Subsidiary
Guarantors and the Trustee to enter into an indenture supplemental
to the Original Indenture to establish the form or terms of
Securities of any series as permitted by Sections 201 or 301 of the
Original Indenture;
WHEREAS, pursuant to
Section 301 of the Original Indenture, the Company wishes to
provide for the issuance of a new series of Securities to be known
as its 10.75% Senior Notes due 2017, the form and terms of such
Securities and the terms, provisions and conditions thereof to be
set forth as provided in this Supplemental Indenture (the “
Notes ”);
WHEREAS, the Company has requested
that the Trustee execute and deliver this Supplemental Indenture
and all requirements necessary to make this Supplemental Indenture
a valid, binding and enforceable instrument in accordance with its
terms, and to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid, binding and
enforceable obligations of the Company.
NOW, THEREFORE, in consideration of
the covenants and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company, the Subsidiary Guarantors and
the Trustee hereby agree as follows:
ARTICLE 1
D EFINITIONS
Section 1.01 . Relation to
Original Indenture. This Supplemental Indenture constitutes an
integral part of the Original Indenture.
Section 1.02 . Definition of
Terms. For all purposes of this Supplemental
Indenture:
(a) Capitalized terms used herein
without definition shall have the meanings specified in the
Original Indenture;
(b) a term defined anywhere in this
Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural
and vice versa;
(d) headings are for convenience of
reference only and do not affect interpretation;
(e) the following terms have the
meanings given to them in this Section 1.02(e):
Each of the following terms is
defined in the section set forth opposite such term:
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Company
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Preamble
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First Supplemental Indenture
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Recitals
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Global
Note
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Section
2.03(b)
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Indenture
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Recitals
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Original
Indenture
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Recitals
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Second Supplemental Indenture
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Recitals
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Subsidiary
Guarantor(s)
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Preamble
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Supplemental
Indenture
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Preamble
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Trustee
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Preamble
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ARTICLE 2
THE N OTES
Section 2.01 .
Designation . The Company hereby establishes a series of
Securities for issuance under the Indenture designated the
“10.75% Senior Notes due 2017.”
2
Section 2.02 . Principal
Amount. (a) The Notes shall be initially limited to an
aggregate principal amount of $400,000,000.
(b) For all purposes of the
Indenture, all Notes shall constitute one series of Securities and
shall Act together as one series of Securities.
Section 2.03 . Payment of
Interest; Record Date. The Regular Record Date for the interest
payable on any Interest Payment Date of the Securities shall be the
fifteenth day of the month preceding the Interest Payment
Date.
Section 2.04 . Form of
Notes; Global Form. (a) The Notes shall be substantially
in the form of Exhibit A hereto. The terms and provisions contained
in the form of Note set forth in Exhibit A shall constitute, and
are hereby expressly made, a part of the Indenture.
Any of the Notes may have such
letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers
executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the
provisions of the Indenture, or as may be required by the
Depositary or with any rule or regulation of any securities
exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special
limitations or restrictions to which any particular Notes are
subject.
(b) So long as the Notes are
eligible for book-entry settlement with the Depositary, or unless
otherwise required by law, or otherwise contemplated by
Section 305 of the Original Indenture, all of the Notes shall
be represented by one or more Notes in global form registered in
the name of the Depositary or the nominee of the Depositary
(collectively, the “ Global Notes ”) and shall
be deposited with the Depositary or the Trustee as custodian
therefor. The transfer and exchange of beneficial interests in any
such Global Note shall be effected through the Depositary in
accordance with the Indenture and the applicable procedures of the
Depositary. Except as provided in Section 305 of the Original
Indenture, beneficial owners of a Global Note shall not be entitled
to have certificates registered in their names, will not receive or
be entitled to receive physical delivery of certificates in
definitive form and will not be considered Holders of such Global
Note.
Any Global Note shall represent such
of the Outstanding Notes as shall be specified therein and shall
represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of Outstanding
Notes represented thereby shall be made by the Trustee in such
manner and upon instructions given by or through the Depositary in
accordance with the Indenture. Payment of principal of and interest
and premium, if any, on any Global Note shall be made to the Holder
of such Note in accordance with the procedures of the
Depositary.
Section 2.05. Restrictive
Legends . Each Global Note shall bear the following legend on
the face thereof:
3
UNLESS THIS SECURITY IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“ DTC ”), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH
NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE
Section 2.06. Registration,
Registration of Transfer and Exchange . The Notes shall be
subject to the provisions governing registration, registration of
transfer and exchange in accordance with the terms and conditions
set forth in Section 305 of the Original Indenture.
ARTICLE 3
R EDEMPTION OF THE N OTES
Section 3.01. Redemption by
the Company . The Notes may be redeemed at the option of the
Company on the terms and conditions set forth in the form of Note
attached as Exhibit A hereto.
ARTICLE 4
D EFEASANCE
Section 4.01 .
Defeasance. The Notes shall be subject to defeasance at the
option of the Company in accordance with the terms and conditions
set forth in Section 1301 of the Original
Indenture.
4
ARTICLE 5
M ISCELLANEOUS
Section 5.01 . Ratification
of Indenture. The Original Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed,
and this Supplemental Indenture shall be deemed part of the
Original Indenture in the manner and to the extent herein and
therein provided.
Section 5.02 . Trustee Not
Responsible for Recitals. The recitals herein contained are
made by the Company and not by the Trustee, and the Trustee assumes
no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this
Supplemental Indenture.
Section 5.03 . Governing
Law. THIS SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
Section 5.04 .
Separability. In case any one or more of the provisions
contained in this Supplemental Indenture or in the Notes shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, then, to the extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Supplemental Indenture or of the Notes, but this
Supplemental Indenture and the Notes shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein or therein.
Section 5.05 .
Counterparts. This Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same
instrument.
5
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed,
as of the day and year first written above.
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DOMTAR
CORPORATION
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By:
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Name:
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Razvan
Theodoru
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Title:
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Vice President
and Secretary
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DOMTAR PAPER COMPANY, LLC,
as
Subsidiary Guarantor
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By:
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Name:
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Razvan
Theodoru
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Title:
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Secretary
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CONBORD INC.,
as
Subsidiary Guarantor
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By:
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Name:
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Razvan
Theodoru
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Title:
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Secretary
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DOMTAR A.W. LLC,
as
Subsidiary Guarantor
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By:
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Name:
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Razvan
Theodoru
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Title:
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Secretary
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DOMTAR INDUSTRIES INC.,
as
Subsidiary Guarantor
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By:
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Name:
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Razvan
Theodoru
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Title:
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Secretary
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Signature Page to Third Supplemental
Indenture
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DOMTAR MAINE LLC,
as
Subsidiary Guarantor
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By:
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Name:
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Razvan
Theodoru
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Title:
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Secretary
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DOMTAR WISCONSIN DAM CORP.,
as
Subsidiary Guarantor
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