Exhibit 4.6
AMENDED AND RESTATED
REVOLVING BUSINESS NOTE
$12,500,000.00 March 8, 2002
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 7, 2003, 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, 2002, 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 Amended and Restated Revolving Business
Note ("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 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 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 Note as though made on and as of the date of this
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.
-2-
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 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
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 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
-3-
Twelve and 50/100 Dollars ($7,812.50). Such commitment fees shall be payable
on April 1, 2002, July 1, 2002, October 1, 2002 and January 1, 2003.
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 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 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
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: Scott P. Doescher
Facsimile: (715) 692-2082
-4-
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 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
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 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 Note without the prior written
consent of the Bank.
(f) This 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 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 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 Note or any act, omission or event occurring in
connection herewith.
-5-
(h) Any provision of this 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 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. This Note amends, restates and
replaces but is not issued in payment or satisfaction of, that certain
Revolving Business Note issued by the Borrower to the Bank as of March 9,
2001 in the same amount ("Old Note"). Revolving Business Loans made
pursuant to the terms of the Old Note which are outstanding as of the date
hereof shall be deemed to be Revolving Business Loans made hereunder.
(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: SCOTT P. DOESCHER
Accepted this 9th day of March, 2002.
M&I MARSHALL & ILSLEY BANK
By: RONALD J. CAREY
-6-
EXHIBIT A TO REVOLVING BUSINESS NOTE
This Amended and Restated Revolving Business Note ("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 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 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, this 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 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 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, this 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 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
-2-
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 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 4, 2002.
WAUSAU-MOSINEE PAPER M&I MARSHALL ILSLEY BANK
CORPORATION
By: SCOTT P. DOESCHER By: RONALD J. CAREY
Scott P. Doescher Ronald J. Carey
Senior Vice President of Finance Vice President
-3-