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Exhibit 10.1
WAUSAU PAPER CORP.
$35,000,000
7.20% Series A Senior Notes due August 31,
2007
* * * * * * *
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$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
EXHIBIT A
FORM OF REAFFIRMATION AGREEMENT
See Attached.
REAFFIRMATION AGREEMENT
THIS REAFFIRMATION AGRE
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