Exhibit 10.1
WAUSAU PAPER
CORP.
$35,000,000
7.20% Series A Senior Notes due August
31, 2007
* * * * * *
* *
$68,500,000
7.31% Series B Senior Notes due August
31, 2009
* * * * * *
* *
$35,000,000
7.43% Series C Senior Notes due August
31, 2011
* * * * * *
* *
AMENDMENT NO. 2 TO NOTE PURCHASE
AGREEMENT
Dated as of December 21 ,2006
AMENDMENT NO. 2
TO
NOTE PURCHASE AGREEMENT
THIS AMENDMENT NO. 2, dated as of
December 21, 2006 (the “ Amendment ”), is made
among Wausau Paper Corp. (formerly known as Wausau-Mosinee Paper
Corporation (the “ Company ”)) and the holders
of the Notes who execute the signature pages hereto.
RECITALS:
A.
The Company is a party to a Note Purchase
Agreement, dated as of August 31, 1999, between it and each of the
holders (the “ Holders ”) of Notes issued
pursuant thereto (as amended by that certain Amendment No. 1 dated
as of June 28, 2005, the “ Note Purchase
Agreement ”).
B.
The Company has requested an amendment to
the Note Purchase Agreement as set forth herein and each of
the Holders that is a party hereto has agreed to such request
subject to the terms and conditions hereof.
AGREEMENT:
In consideration of the terms and
conditions contained herein, and other good and valuable
consideration the receipt and sufficiency are hereby acknowledged,
the parties hereto agree as follows:
SECTION
1.
Definitions
. All capitalized terms used but
not otherwise defined herein shall have the meanings given such
terms in the Note Purchase Agreement.
SECTION
2.
Amendments
.
Subject to the terms and conditions of this Amendment, the Note
Purchase Agreement shall be amended as follows:
2.1.
Article 9 is amended by adding after Section 9.7 thereof
the following:
“ 9.8. Most
Favored Lender’s Covenant. If at any time a
Principal Lending Agreement shall include any Covenant (or any
Covenant set forth in a Principal Lending Agreement shall be
amended or otherwise modified) and such Covenant is not contained
in this Agreement or would be more beneficial to the holders of
Notes than any analogous Covenant contained in this Agreement (any
such Covenant being an “Additional Covenant” ),
then the Company shall provide written notice thereof (including a
copy, certified by the Company as true and complete, of the
agreement setting forth such Additional Covenant) to the holders of
Notes within five (5) Business Days of such Additional Covenant
taking effect. Thereupon, unless waived in writing by the
Required Holders within five (5) Business Days of receipt of such
notice by the holders of the Notes, such Additional Covenant shall
be deemed automatically incorporated by reference into this
Agreement, mutatis mutandis , as if set forth fully herein,
without any further action required on the part of any Person,
effective as of the date when such Additional Covenant is effective
under such Principal Lending Agreement. The Company further covenants
to promptly execute and deliver at its expense (including the
reasonable fees and expenses of
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counsel for the
holders of the Notes) an amendment to this Agreement in form and
substance satisfactory to the Required Holders evidencing the
amendment of this Agreement to include such Additional Covenants,
provided that the execution and delivery of such amendment
shall not be a precondition to the automatic effectiveness of such
Additional Covenant in this Agreement as provided for in this
Section 9.8 , but shall merely be for the convenience of the
parties hereto . Any Additional
Covenant incorporated into this Agreement pursuant to this
Section
9.8 shall remain unchanged in this
Agreement notwithstanding any subsequent waiver, amendment or other
modification of such Additional Covenant under the applicable
Principal Lending Agreement or the termination of the applicable
Principal Lending Agreement.
For purposes of this Section: (a) the
term “ Covenant ” shall mean any covenant (or
other provision having a similar effect) that provides credit
support including, without limitation, any provision involving a
measurement of the Company’s leverage, ability to cover
expenses, earnings, net income, fixed charges, interest expense,
net worth or other component of the Company’s consolidated
financial position, results of operations, shareholders’
equity, assets or liabilities (however expressed and whether stated
as a ratio, as a fixed threshold, as an event of default or
otherwise); and (b) the term “Principal Lending
Agreement” shall mean (i) that certain Credit Agreement
dated as of July 27, 2006 among the Company, certain Subsidiaries
of the Company, Bank of America, as Administrative Agent, and
certain other financial institutions, as amended, restated or
otherwise modified from time to time and any renewal, refinancing,
refunding or replacement thereof, and (ii) any other evidence of
Indebtedness in an aggregate outstanding principal amount of at
least $10,000,000.”
2.2.
Section 10.2(b)
is amended and restated as follows:
“immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
and”.
2.3.
Section 10.3 is amended and restated as follows: “The
Company will not at any time permit Consolidated Net Worth to be
less than: (i) $285,410,000 plus (ii) the sum, as of the end
of each fiscal quarter commencing with the end of the fiscal
quarter ended June 30, 2006, of (a) 25% of Consolidated Net Income
for the fiscal quarter then ended (with no deduction for a net loss
in any such fiscal quarter), and (b) 100% of the proceeds of the
issuance of any Equity Interests, such increases to be cumulative,
minus (iii) for the most recent fiscal quarter (commencing with the
fiscal quarter ended December 31, 2006) the lesser of (a)
$35,000,000 and (b) the excess, if any, of (1) the actual liability
recorded for underfunded defined benefit postretirement plans over
(2) the actual asset recorded for overfunded defined benefit
postretirement plans pursuant to FASB No. 158. For purposes
hereof, the term “ FASB No. 158 ” shall mean
FASB No. 158 promulgated by the Financial Accounting Standards
Board of the American Institute of Certified Public
Accountants.”
2.4.
Section 10.4 is amended and restated as follows:
“ 10.4
Additional Financial
Covenants.
(a)
Maximum Consolidated Leverage
Ratio . As of the end of
each fiscal quarter, the Company will not permit the Consolidated
Leverage Ratio to be greater than 55.00%.
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(b)
Minimum Consolidated Interest Coverage
Ratio . As of the end of
each fiscal quarter, the Company will not permit the Consolidated
Interest Coverage Ratio to be less than 3.00 to
1.00.”
2.5.
Section 10.8(b)
is amended and restated as follows:
“immediately before and after giving effect to the Asset
Disposition, no Default or Event of Default would exist;
and”.
2.6.
Schedule B to the Note Purchase Agreement is hereby amended by
amending and restating the following term as follows:
“ Consolidated Net Worth
” means, as of any date, as applied to the Company and its
consolidated Subsidiaries, Shareholders’ Equity.
2.7.
Schedule B to the Note Purchase Agreement is hereby further
amended by adding thereto the following terms (in the appropriate
alphabetical order):
“ Consolidated EBITDDA
” means, for any period, as applied to the Company and its
consolidated Subsidiaries without duplication, the sum of the
amounts for such period of: (i) Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) all federal and state income
tax expense and (iv) all depreciation, depletion and amortization
expense, all of the foregoing as determined and computed on a
consolidated basis in accordance with GAAP.
“ Consolidated Interest
Expense ” means, for any period, as applied to the
Company and its consolidated Subsidiaries, all interest expense
(whether paid or accrued) and capitalized interest, including
without limitation (a) the amortization of debt discount and
premium, (b) the interest component under capital leases and
Synthetic Lease Obligations and (c) the implied interest component,
discount or other similar fees or charges in connection with any
asset securitization program, in each case determined on a
consolidated basis in accordance with GAAP.
“ Consolidated Interest Coverage
Ratio ” means, as of the last day of any fiscal quarter,
the ratio of (a) Consolidated EBITDDA to (b) Consolidated
Interest Expense, in each case for the period of four (4)
consecutive fiscal quarters ending as of such day.
“ Consolidated Leverage
Ratio ” means, as of the last day of any fiscal quarter,
the ratio of (a) Consolidated Funded Indebtedness on such day to
(b) Consolidated Total Capitalization on such day, expressed as a
percentage.
“ Shareholders’ Equity
” means, as of any date of determination, consolidated
shareholders’ equity of the Company and its Subsidiaries as
of that date determined in accordance with GAAP.
SECTION 3.
Conditions Precedent
. Section 2 of
this Amendment shall not become effective until, and shall become
effective as of the date hereof on the date (provided such date is
on or before December 31, 2006) when, the last of each and every
one of the following conditions shall have been completely
satisfied (such date being the “ Effective Date
”):
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3.1.
Each Holder shall have received: (a) a
copy of this Amendment duly executed and delivered by the Company
and the Required Holders; (b) a Reaffirmation Agreement, in the
form of Exhibit A hereto, duly executed and delivered by
each party to the Guaranty Agreement; (c) a Guaranty Agreement, in
the form of Exhibit B hereto, duly executed and delivered by
each party thereto; (d) a certificate duly executed and delivered
by the Secretary or an Assistant Secretary of the Company in form
and substance acceptable to the Required Holders; (e) an opinion
letter from Ruder Ware L.L.S.C., counsel for the Company, covering
such matters incident to the transactions contemplated hereby as
the Required Holders may reasonably request and otherwise being in
form and substance acceptable to the Required Holders; and (f) such
other documents, certificates and assurances as the Required
Holders may reasonably request.
3.2.
Without limiting the provisions of
Section 15.1 of the Note Purchase Agreement, the
Company shall have paid the reasonable fees and disbursements of
Schiff Hardin LLP, special counsel to the Holders in
connection with this Amendment.
SECTION 4.
Representations and
Warranties .
The Company hereby represents and
warrants to the Holders as follows as of the date hereof (and, if
different, as of the Effective Date): (a) it is duly organized,
validly existing and in active status under the laws of its
jurisdiction of organization; (b) the
execution, delivery and performance by the Company of this
Amendment are within its powers, have been duly authorized by all
necessary action, and do not violate, result in a breach of or
constitute (alone or with due notice or lapse of time or both) a
default under (i) its articles of incorporation or bylaws, (ii) any
applicable law, (iii) any order of any court or any rule,
regulation or order of any other agency or government binding upon
the Company, or (iv) any provision of any instrument or
agreement to which the Company is a party or by which its
properties or assets are or may be bound; (c) no consent, license,
permit, approval or authorization of, or registration, filing or
declaration with any Governmental Authority or other Person is
required in connection with the execution, delivery or performance
of this Amendment by the Company or the validity or enforceability
of this Amendment against the Company; (d) this Amendment has been
duly executed and delivered by the Company; (e) each of this
Amendment and the Note Purchase Agreement (after giving effect
hereto) constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally or
by general principles of equity; (f) each of the Company’s
Subsidiaries is a party to the Guaranty Agreement, and each such
Subsidiary has duly executed and delivered the Reaffirmation
Agreement pursuant to Section 3.1(b) hereof; (g) neither the
Company nor any of its Subsidiaries has any claims, counterclaims,
offsets, credits or defenses to its obligations under the any Note
Documents (as defined below) or, to the extent that it does, they
are hereby released in consideration of the Required Holders
entering into this Amendment; (h) no Default or Event of Default
has occurred and is continuing; and (i)
except as set forth on Schedule 4(i) hereto, 1
the representations and warranties made by the Company in the Note
Purchase Agreement are true and complete as if made on the date
hereof, except for such representations and warranties limited by
their terms to a specific date in which case, such representations
and warranties are true and complete as of such specific
date.
1
Ruder Ware: Please let
us know if any representations need updating...e.g., Section
5.12(b).
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SECTION 5.
Miscellaneous
.
(a)
Except as specifically amended hereby,
the terms of the Note Purchase Agreement and all other agreements,
instruments and documents delivered in connection therewith
(collectively, the “ Note Documents ”) shall
remain in full force and effect and hereby are ratified and
confirmed in all respects. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, be deemed to be an amendment, modification or
waiver of any provision of the Note Purchase Agreement or any other
Note Document or any right, power or remedy of the Holders in
connection therewith whether arising before or after the date
hereof. This Amendment shall not preclude the future exercise
of any right, remedy, power or privilege available to the Holders
whether under the Note Purchase Agreement or any other Note
Documents, at law or otherwise.
(b)
Each reference in the Note Purchase
Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of similar
import shall mean and be a reference to the Note Purchase Agreement
as amended by this Amendment, and each reference herein or in any
other Note Document or any other document or instrument to the Note
Purchase Agreement shall mean and be a reference to the Note
Purchase Agreement as amended and modified by this
Amendment.
(c)
This Amendment may be executed in any
number of counterparts (including by facsimile), and by the
different parties hereto on the same or separate counterparts, each
of which shall be deemed to be an original instrument but all of
which together shall constitute one and the same agreement.
Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other
party provided that the Company shall furnish original signature
pages upon request to the Holders. The descriptive headings
of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof or thereof.
(d)
This Amendment, the Note Purchase
Agreement and the other Note Documents constitute the final, entire
agreement and understanding between the parties with respect to the
subject matter hereof and thereof and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements
between the parties, and shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto and
thereto. There are no unwritten oral agreements between the
parties with respect to the subject matter hereof and
thereof.
(e)
If any provision of this Amendment
is adjudicated to be invalid under applicable laws or regulations,
such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the
remainder of this Amendment which shall be given effect so far as
possible.
(f)
THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
CHOICE OF LAW PROVISIONS SET FORTH IN SECTION 22.6 OF THE NOTE
PURCHASE AGREEMENT
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AND SHALL BE SUBJECT TO THE NOTICE
PROVISIONS OF SECTION 18 0F THE NOTE PURCHASE AGREEMENT.
(g)
The Company may not assign, delegate or
transfer this Amendment or any of its rights or obligations
hereunder and any delegation, transfer or assignment in violation
hereof shall be null and void. No rights are intended to be
created under this Amendment for the benefit of any Person other
then the parties hereto. This Amendment shall be binding upon each
of the Company and the Holders and their respective successors and
permitted assigns.
(h)
All representations and warranties made
in this Amendment shall survive the execution and delivery of this
Amendment and no investigation by any of the Holders shall affect
such representations or warranties or the right of any of the
Holders to rely upon them.
[SIGNATURES APPEAR ON FOLLOWING
PAGES]
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IN WITNESS WHEREOF, each party hereto has
caused this Amendment to be duly executed and delivered as of the
day and year first above written.
WAUSAU PAPER CORP.
By: SCOTT P. DOESCHER
Name:
Scott P. Doescher
Title:
Senior Vice President, Finance
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: DAVID A. BARRAS
Name:
David A. Barras
Title:
Its Authorized Representative
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
By: LISA M. FERRARO
Name:
Lisa M. Ferraro
Title:
Director
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By: THOMAS M. POWERS
Name:
Thomas M. Powers
Title:
Vice President
Signature Page to
Amendment No.2
to Note Purchase
Agreement
NATIONWIDE LIFE INSURANCE COMPANY OF
AMERICA
By: THOMAS M. POWERS
Name:
Thomas M. Powers
Title:
Vice President
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY OF AMERICA
By: THOMAS M. POWERS
Name:
Thomas M. Powers
Title:
Vice President
MODERN WOODMEN OF
AMERICA
By: DOUGLAS A. PANNIER
Name:
Douglas A. Pannier
Title:
Supervisor – Private
Placements
REASSURE AMERICA LIFE INSURANCE
COMPANY
By:
Swiss Re Asset Management (Americas)
Inc.
By: JOHN H. DEMALLIE
Name:
John H. DeMallie
Title:
Vice President
Signature Page to
Amendment No.2
to Note Purchase
Agreement
AMERITAS LIFE INSURANCE
CORP.
By:
Ameritas Investment
Advisors
By: ANDREW S. WHITE
Andrew S. White
Vice President – Fixed Income
Securities
ACACIA LIFE INSURANCE
COMPANY
By:
Ameritas Investment Advisors
Inc.,
as Agent
By: ANDREW S. WHITE
Andrew S. White
Vice President – Fixed Income
Securities
Signature Page to
Amendment No.2
to Note Purchase
Agreement
