EXHIBIT 4.6
REVOLVING BUSINESS NOTE
$12,500,000.00 March 9, 2001
FOR VALUE RECEIVED, the undersigned, WAUSAU-MOSINEE PAPER CORPORATION,
a Wisconsin corporation (the "Borrower"), hereby unconditionally promises
to pay on or before the Termination Date (as defined below), to the order
of M&I MARSHALL & ILSLEY BANK, a Wisconsin banking corporation (the
"Bank"), at the offices of the Bank located at 770 North Water Street,
Milwaukee, Wisconsin 53202, in lawful money of the United States of
America and in immediately available funds, the aggregate unpaid principal
amount of all Revolving Business Loans (as defined below) made by the Bank
to the Borrower pursuant hereto. For purposes hereof, the Termination
Date shall mean March 8, 2002, or such earlier date as the Bank's
commitment to make Revolving Business Loans may terminate pursuant to
Paragraph 4, below.
The Borrower also unconditionally promises to pay interest in like
money to said offices of the Bank on the unpaid principal amount hereof
from time to time outstanding for the period from and including the date
hereof until such amount shall be paid in full, at the rates set forth on
EXHIBIT A attached hereto. Interest shall be payable to the Bank monthly
commencing April 1, 2001, and on the first day of each month thereafter
and on the Termination Date. Interest shall be calculated on the basis of
a three hundred sixty (360) day year for the actual days elapsed. If any
payment to be made hereunder shall be stated to be due on a day which is
not a date the Bank is open for business, such payment may be made on the
next succeeding day that the Bank is open for business and such extension
of time shall be included in the computation of interest hereunder. All
payments (including prepayments) by the Borrower on account of principal,
interest and fees, shall be made without set-off or counterclaim. The
Bank is hereby authorized to debit the Borrower's Account No. 319406 at
the Bank by the amount of any interest due hereunder.
The Bank, by its acceptance hereof, agrees to make one or more loans
("Revolving Business Loans") to the Borrower from time to time during the
term hereof; PROVIDED, THAT, the aggregate outstanding principal amount of
Revolving Business Loans shall not exceed, at any time, Twelve Million
Five Hundred Thousand Dollars ($12,500,000.00) (the "Total Loan
Commitment"). During the term hereof, the Borrower may use the Total Loan
Commitment by borrowing, repaying Revolving Business Loans and
reborrowing. The Borrower may obtain Revolving Business Loans against the
Total Loan Commitment by making a verbal or written request for a
Revolving Business Loan prior to 3:00 p.m. on the requested borrowing date
of a Revolving Business Loan. Such request shall specify (i) the date on
which such Revolving Business Loan is to be made and (ii) the amount of
the Revolving Business Loan requested; PROVIDED, THAT, each Revolving
Business Loan shall be in an amount of not less than Two Hundred Fifty
Thousand Dollars ($250,000.00) or an integral multiple of Fifty Thousand
Dollars ($50,000.00) in excess thereof. Upon receipt of such notice from
the Borrower, the Bank shall deposit prior to 5:00 p.m. on the borrowing
date in the Borrower's account with the Bank the amount of the Revolving
Business Loan to be made in accordance with the Borrower's request.
The Bank is hereby authorized to record the date and amount of each
Revolving Business Loan made by the Bank, and the date and amount of each
payment or prepayment of principal thereof, either on the schedule annexed
to and constituting a part of this Revolving Business Note or otherwise
and any such recordation shall constitute PRIMA FACIE evidence of the
accuracy of the information so recorded.
In addition to other payments required hereunder, if, as of any day
the sum of the aggregate principal amount of Revolving Business Loans
outstanding hereunder exceeds the amount of the Total Loan Commitment as
of such date, the Borrower shall on that date repay the amount of such
excess. The Bank is authorized, without further notice to the Borrower,
to debit the Borrower's Account No. 319406 at the Bank by the amount of
any excess borrowings.
1. USE OF PROCEEDS. The proceeds of the Revolving Business Loans
shall be used by the Borrower for working capital and general corporate
purposes.
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Bank to
make the Revolving Business Loans herein provided for, and in recognition
that the Bank is acting in reliance thereupon, the Borrower hereby
covenants, represents and warrants to the Bank as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and
is duly qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary. The Borrower has
all requisite corporate powers and authority to own or lease and operate
its properties and to carry on its business as now conducted and as
proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of
this Revolving Business Note are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, do not
contravene (i) the Borrower's charter or bylaws, (ii) any law, rule or
regulation applicable to the Borrower, or (iii) any contractual or legal
restriction binding on or affecting the Borrower, and will not result in
or require the imposition of any lien or encumbrance on, or security
interest in, any property (including, without limitation, accounts or
contract rights) of the Borrower.
(c) This Revolving Business Note is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance
with its terms.
(d) The representations and warranties of the Borrower contained
in the Bank of America Agreement (as defined below) are true and correct
as of the date of this Revolving Business Note as though made on and as of
the date of this Revolving Business Note, except to the extent any such
representation and warranty relates to an earlier date, which
representation and warranty shall remain true and correct in all material
respects as of such earlier date.
3. CONDITION PRECEDENT. The Bank shall not be required to make any
Revolving Business Loan hereunder, unless the Bank shall have received a
certificate of the secretary of the Borrower as to: (i) the incumbency and
signatures of the officers of the Borrower signing this Revolving Business
Note; (ii) the adoption and continued effect of resolutions of the Board
of Directors of the Borrower authorizing the execution, delivery and
performance of this Revolving Business Note; and (iii) the accuracy of the
copy of the Articles of Incorporation and the Bylaws of the Borrower
attached thereto all in a form acceptable to the Bank.
4. DEFAULT. An "Event of Default" shall be deemed to have occurred
if:
(a) The Borrower shall fail to pay any principal, interest or
any other amount payable hereunder when due in accordance with the terms
hereof;
(b) An "Event of Default" occurs under that certain Credit
Agreement by and among the Borrower, certain of its subsidiaries, various
lenders from time to time party to the Credit Agreement and Bank of
America, N. A., as administrative agent, dated as of December 10, 1999, as
amended (the "Bank of America Agreement") or any further change,
modification or amendment to, or waiver of any term, provision or covenant
of, the Bank of America Agreement is affected without obtaining the prior
written consent of the Bank;
(c) Any representation or warranty made by or on behalf of the
Borrower herein or by or on behalf of the Borrower (or any of its
officers) in connection with the Bank of America Agreement shall prove to
have been incorrect in any material respect when made or deemed made; or
(d) This Revolving Business Note shall, at any time after its
execution and delivery, and for any reason, cease to be in full force and
effect or shall be declared null and void, or be revoked or terminated, or
the validity or enforceability hereof shall be contested by the Borrower,
or the Borrower shall deny that it has any or further liability or
obligation hereunder.
If an Event of Default specified in any of Sections 11.1 (i), (j), (k) or
(l) of the Bank of America Agreement shall occur, the Bank's obligation to
make Revolving Business Loans hereunder shall immediately terminate and
any Revolving Business Loan or Loans (with accrued interest thereon) and
all other amounts owing hereunder shall immediately become due and
payable. If any other Event of Default shall occur, the Bank may (i) by
notice of default to the Borrower, declare the Bank's obligation to make
Revolving Business Loans hereunder terminated forthwith, whereupon such
obligation shall terminate, and/or (ii) by notice of default to the
Borrower, declare, any Revolving Business Loans and all amounts owing
hereunder to be due and payable forthwith, whereupon the same shall become
immediately due and payable. Except as expressly provided above,
presentment, demand, protest or further notice of any kind are hereby
expressly waived.
5. COMMITMENT FEE. During the term hereof, the Borrower shall pay
the Bank a quarterly commitment fee in the amount of Seven Thousand Eight
Hundred Twelve and 50/100 Dollars ($7,812.50). Such commitment fees shall
be payable on April 1, 2001, July 1, 2001, October 1, 2001 and January 1,
2002.
6. MISCELLANEOUS.
(a) The Borrower shall (i) pay or reimburse the Bank for all of
its out-of-pocket costs and expenses incurred in connection with the
negotiation, consideration, preparation and/or execution of, and any
amendment, supplement or modification to, this Revolving Business Note or
any other documents prepared in connection herewith (whether or not any
such amendment, supplement, or modification is effected or consummated),
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel to
the Bank, and (ii) pay or reimburse the Bank for all of its costs and
expenses including, but not limited to, litigation costs or costs incident
to any proceeding relating to the Borrower pursuant to 11 U.S.C. Section
101 ET SEQ. incurred in connection with the enforcement or preservation of
any rights or questions arising under or interpretations of this Revolving
Business Note or any related documents, including, without limitation,
fees and disbursements of counsel, legal assistants or paralegals to the
Bank. The obligations in this subsection shall survive repayment of all
amounts payable hereunder.
(b) In addition to any rights or remedies provided by law, or
any other rights or remedies provided for herein, upon the occurrence of
any Event of Default, the Bank is hereby irrevocably authorized, at any
time and from time to time without prior notice to the Borrower, any such
notice being expressly waived by the Borrower, to set off, appropriate and
apply any and all deposits (general or special, time or demand,
provisional or final), in any currency and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect or
contingent or matured or unmatured, at any time held or owing by the Bank
to or for the credit or the account of the Borrower, or any part thereof,
in such amounts as the Bank may elect, against and on account of the
obligations and liabilities of the Borrower to the Bank hereunder and
claims of every nature and description of the Bank against the Borrower
arising hereunder whether or not the Bank has made any demand for payment
and although such obligations, liabilities and claims may be contingent or
unmatured.
(c) All communications or notices required or permitted by this
Revolving Business Note shall be in writing and shall be deemed to have
been given or made when delivered in hand, three (3) days after deposited
in the mail, or sent by facsimile. Communications or notices shall be
delivered personally or by certified or registered mail, postage prepaid,
or by facsimile and addressed as follows, unless and until either of such
parties notifies the other in accordance with this paragraph of a change
of address:
The Borrower: Wausau-Mosinee Paper Corporation
1244 Kronenwetter Drive
Mosinee, Wisconsin 54455-9099
Attention: Gary P. Peterson
Facsimile: (715) 692-2082
The Bank: M&I Marshall & Ilsley Bank
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Ronald J. Carey
Facsimile: (414) 765-7625
(d) The Bank and the Borrower may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
changing in any manner the rights of the Bank or of the Borrower
hereunder, and the Bank may execute and deliver to the Borrower a written
instrument waiving, on such terms and conditions as the Bank may specify
in such instrument, any of the requirements of this Revolving Business
Note or any Event of Default and its consequences. In the case of any
waiver, the Borrower and the Bank shall be restored to their former
position and rights under this Revolving Business Note, and any Event of
Default waived shall be deemed to be cured and not continuing. However,
no waiver of an Event of Default shall extend to any subsequent or other
Event of Default, or impair any right consequent thereon. No amendment,
supplement, modification, or waiver shall be effective except if in
writing and duly executed by the Bank and the Borrower.
(e) This Revolving Business Note shall be binding upon and inure
to the benefit of the Borrower, the Bank, all future holders hereof and
their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights under this Revolving Business Note
without the prior written consent of the Bank.
(f) This Revolving Business Note and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted
in accordance with the laws of the State of Wisconsin. Venue for the
settlement of disputes under this Revolving Business Note shall be in the
United States District Court for the Eastern District of Wisconsin or the
Circuit Court of Milwaukee County, Wisconsin. The Borrower consents to
the exercise of jurisdiction by these courts and the vesting of venue
therein. THE BORROWER WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
IT AND CONSENTS TO ALL SUCH SERVICE OF PROCESS MADE BY MAIL OR BY
MESSENGER DIRECTED TO IT AT THE ADDRESS SPECIFIED IN PARAGRAPH 5(c)
HEREOF.
(g) Neither the Bank nor any of its affiliates, directors,
officers, agents, attorneys or employees shall be liable to Borrower for
any action taken, or omitted to be taken, by it or them or any of them
under this Revolving Business Note or in connection herewith except that
no person shall be relieved of any liability imposed by law for gross
negligence or willful misconduct. No claim may be made by the Borrower
against the Bank, or any of its affiliates, directors, officers,
employees, attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any breach of wrongful conduct (whether the
claim is based on contract or tort or duty imposed by law) arising out of
or related to the transactions contemplated by this Revolving Business
Note or any act, omission or event occurring in connection herewith.
(h) Any provision of this Revolving Business Note which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) This Revolving Business Note and the Exhibits attached
hereto constitute the entire agreement between the Borrower and the Bank
relating to the subject matter hereof, and all prior agreements,
correspondence, discussions and understandings of the Borrower and the
Bank (whether oral or written) are merged herein and made a part hereof.
(j) The Borrower hereby acknowledges and agrees that each
determination by the Bank of the Adjusted Interbank Rate (as defined in
EXHIBIT A) in connection with Revolving Business Loans shall be conclusive
and binding upon the Borrower in the absence of demonstrable error.
WAUSAU-MOSINEE PAPER CORPORATION
By:
By:
Accepted this 9th day of March, 2001.
M&I MARSHALL & ILSLEY BANK
By:
By:
EXHIBIT A TO REVOLVING BUSINESS NOTE
This Revolving Business Note bears interest on the unpaid principal
balance before maturity (whether upon demand, acceleration or otherwise)
at an annual rate equal to the Adjusted Interbank Rate (as defined below)
plus one hundred (100) basis points, which rate will change as of the
first day of each calendar month. If the first day of any calendar month
is not a regular Business Day, the Adjusted Interbank Rate shall be
established on the preceding Business Day. "Business Day" shall mean any
day other than a Saturday, Sunday, public holiday or other day when
commercial banks in Wisconsin are authorized or required by law to close.
Unpaid principal and interest bear interest after maturity (whether by
acceleration or lapse of time) until paid at the prime rate of interest
adopted by Lender as its base rate determinations from time to time which
may or may not be the lowest rate charged by Lender ("Prime Rate") (with
the rate changing as and when that Prime Rate changes) plus 3%.
Borrower may, from time to time and without premium or penalty, borrow and
repay the Revolving Business Loans in whole or in part; PROVIDED requests
for advances or repayments occur prior to 3:00 P.M. on any Business Day.
"Adjusted Interbank Rate" means an annual rate for all loans evidenced by
this Revolving Business Note (the "Revolving Business Loans") (rounded
upwards, if necessary, to the nearest 1/100 of 1%), determined pursuant to
the following formula:
Interbank Rate
Adjusted Interbank Rate = 1 - Interbank Reserve Requirement
"Interbank Rate" means with respect to any Revolving Business Loan, the
rate per annum equal to the rate (rounded upwards, if necessary, to the
nearest 1/16 of 1%) quoted as the rate at which dollar deposits in
immediately available funds are offered on the first day of each calendar
month in the interbank Eurodollar market on or about 9:00 A.M., Milwaukee
time, for a period of one (1) calendar month. If the first day of any
calendar month is not a regular Business Day, the Interbank Rate shall be
established on the preceding Business Day. Lender currently uses the
Knight Ridder Information Service to provide information with respect to
the interbank Eurodollar market, but Lender may change the service
providing such information at any time. Each such determination shall be
conclusive and binding upon the parties hereto in the absence of
demonstrable error.
"Interbank Reserve Requirement" means a percentage (expressed as a
decimal) equal to the aggregate reserve requirements in effect on the
first day of each calendar month (including all basic, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements during each
calendar month) specified for "Eurocurrency Liabilities" under Regulation
D of the Board of Governors of the Federal Reserve System, or any other
regulation of the Board of Governors which prescribes reserve requirements
applicable to "Eurocurrency Liabilities" as presently defined in
Regulation D, as then in effect as applicable to the class or classes of
banks of which Lender is a member. As of the date of this Revolving
Business Note, the Interbank Reserve Requirement is 0%.
INCREASED COSTS. If, Regulation D of the Board of Governors of the
Federal Reserve System, or the adoption of any applicable law, rule or
regulation of general application, or any change therein, or any
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Lender with any request or
directive of general application (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(a) shall subject Lender to any tax, duty or other charge with
respect to the Revolving Business Loans, the Revolving Business Note or
its obligation to make Revolving Business Loans, or shall change the basis
of taxation of payments to Lender of the principal of or interest on the
Revolving Business Loans or any other amounts due under this Revolving
Business Note in respect of the Revolving Business Loans or its obligation
to make Revolving Business Loans (except for changes in the rate of tax on
the overall net income of Lender); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to this Revolving Business Note),
special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, Lender; or
(c) shall affect the amount of capital required or expected to be
maintained by Lender or any corporation controlling Lender; or
(d) shall impose on Lender any other condition affecting the
Revolving Business Loans, the Revolving Business Note or its obligation to
make Revolving Business Loans;
and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D referred to above, to impose a cost on) Lender of
making or maintaining any Revolving Business Loans, or to reduce the
amount of any sum received or receivable by Lender under this Revolving
Business Note with respect thereto, then within ten (10) days after demand
by Lender (which demand shall be accompanied by a statement setting forth
the basis of such demand), Borrower shall pay directly to Lender such
additional amount or amounts as will compensate Lender for such increased
cost or such reduction. Determinations by Lender for purposes of this
section of the effect of any change in applicable laws or regulations or
of any interpretations, directives or requests thereunder on its costs of
making or maintaining Revolving Business Loans or sums receivable by it in
respect of Revolving Business Loans, and of the additional amounts
required to compensate Lender in respect thereof, shall be conclusive,
absent manifest error.
DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE.
(a) If Lender is advised that deposits in dollars (in the applicable
amount) are not being offered to banks in the relevant market for a period
of one (1) calendar month, or Lender otherwise determines (which
determination shall be binding and conclusive on all parties) that by
reason of circumstances affecting the interbank Eurodollar market adequate
and reasonable means do not exist for ascertaining the applicable
Interbank Rate; or
(b) If lenders similar to Lender have determined that the Interbank
Rate will not adequately and fairly reflect the cost to such lenders of
maintaining or funding loans based on the Interbank Rate, or that the
making or funding of such Interbank Rate loans has become impracticable as
a result of an event occurring after the date of this Revolving Business
Note which in the opinion of Lender materially affects such Interbank Rate
loans;
then so long as such circumstances shall continue, Lender shall not be
under any obligation to make or continue Revolving Business Loans based on
the Interbank Rate and on the first Business Day of the next calendar
month, such Revolving Business Loans shall bear interest at the Prime
Rate, with the rate changing as and when the Prime Rate changes. If such
an agreement cannot be reached, such Revolving Business Loans shall be
repaid in full by Borrower.
CHANGE IN LAW RENDERING INTERBANK RATE LOANS UNLAWFUL. In the event that
any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it unlawful for any lender to make,
maintain or fund Revolving Business Loans based on the Interbank Rate,
then: (a) Lender shall promptly notify Borrower; (b) the obligation of
Lender to make or continue Revolving Business Loans based on the Interbank
Rate shall be suspended for the duration of such unlawfulness; and (c) on
the first Business Day of the following calendar month, such Revolving
Business Loans shall bear interest at the Prime Rate, with the rate
changing as and when the Prime Rate changes.
Dated as of March 9, 2001.
WAUSAU-MOSINEE PAPER M&I MARSHALL ILSLEY BANK
CORPORATION
By: By:
Gary P. Peterson Ronald J. Carey
Senior Vice President of Finance Vice President