Exhibit 4.1
AMENDMENT NO. 1
TO
NOTE PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") to that certain Note Purchase
Agreement dated as of August 31, 1999 among Wausau Paper Corp. (formerly known
as Wausau-Mosinee Paper Corporation (the "Company")) and the parties thereto
(the "Agreement") is entered into as of June 28, 2005, among (i) the Company,
(ii) the subsidiaries of the Company which are parties to the Agreement as
Guarantors, and (iii) the holders of the Notes who execute the signature pages
hereto ("Holders").
RECITALS
The Company has requested, and the Holders have agreed to, an amendment
of the terms of the Agreement as set forth below.
AGREEMENT
Now, Therefore, the parties hereto agree as follows:
1. DEFINED TERMS. All capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Agreement.
2. AMENDMENT TO SECTION 10.3 OF THE AGREEMENT. Section 10.3 of the Agreement
is hereby amended in its entirety to read as follows:
10.3 Consolidated Net Worth
The Company will not at any time permit Consolidated
Net Worth to be less than $280,000,000 plus, as of the end of each
fiscal quarter commencing with the fiscal quarter ending September
30, 2004, (i) 25% of Consolidated Net Income for the fiscal quarter
then ended (with no deduction for a net loss in any such fiscal
quarter) and (ii) 100% of the proceeds of the issuance of any
Equity Interests, such increases to be cumulative.
3. AMENDMENT TO SECTION 10.4 OF THE AGREEMENT. Section 10.4 of the Agreement
is hereby amended in its entirety to read as follows:
10.4 Limitation on Consolidated Funded Indebtedness.
The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with
respect to any Consolidated Funded Indebtedness, unless on the date
the Company or such Subsidiary becomes liable
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with respect to any such Consolidated Funded Indebtedness and
immediately after giving effect thereto and the concurrent
retirement of any other Consolidated Funded Indebtedness:
(i) no Default or Event of Default exists,
(ii) the ratio of Consolidated Funded Indebtedness to
Consolidated Total Capitalization would not exceed .55 to
1.0, and
(iii) in the case that such Consolidated Funded
Indebtedness constitutes Priority Debt, such Priority Debt is
permitted by Section 10.5.
4. AMENDMENT TO SECTION 10.5 OF THE AGREEMENT. Section 10.5 of the Agreement
is hereby amended in its entirety to read as follows:
10.5 Limitation on Priority Debt.
The Company will not at any time permit Priority Debt
to exceed 25% of Consolidated Net Worth (determined as of the then
most recently ended fiscal quarter of the Company).
5. RESTRICTED SUBSIDIARIES AND UNRESTRICTED SUBSIDIARIES. From and after the
date of this Amendment:
(a) each use of, or reference to, the term "Restricted Subsidiary" or
"Unrestricted Subsidiary" in the Agreement shall be deemed to be the use of, or
reference to, the term "Subsidiary;" and
(b) Section 9.7 of the Agreement is hereby amended in its entirety to
read as follows:
Section 9.7 [Reserved]
6. AMENDMENT OF SCHEDULE B (DEFINED TERMS).
(a) Schedule B to the Agreement is hereby amended by (x) adding the
defined terms contained in subsections (i), (ii), (v), (vi), and (vii) of this
Section 6(a) and (y) amending and restating the defined terms in the Agreement
corresponding to subsections (iii) and (iv) of this Section 6(a):
(i) "ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in
respect of any capital lease of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease payments
under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a capital lease.
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(ii) "CONSOLIDATED FUNDED INDEBTEDNESS" means, as of any date, all
Funded Indebtedness of the Company and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
(iii) "CONSOLIDATED NET INCOME" means, for any period, the net
income, after taxes, of the Company and its consolidated Subsidiaries for
such period determined on a Consolidated basis in accordance with GAAP,
but excluding, to the extent reflected in determining such net income,
(a) extraordinary gains and losses for such period and (b) any equity
interests of the Company or any Subsidiary in the un-remitted earnings of
any Person that is not a Subsidiary.
(iv) "CONSOLIDATED TOTAL CAPITALIZATION" means Consolidated Funded
Indebtedness plus Consolidated Net Worth.
(v) "EQUITY INTERESTS" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit interests
in) such Person, all of the warrants, options, or other rights for the
purchase or acquisition from such Person of shares of capital stock of
(or other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants,
rights, or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or
profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights, or other interests are outstanding on
any date of determination.
(vi) "FUNDED INDEBTEDNESS" of any Person means at any date,
without duplication, the sum of the following calculated in accordance
with GAAP:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person;
(c) all Funded Indebtedness of others secured by (or for
which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, property owned or acquired
by such Person, whether or not the obligations secured thereby have
been assumed, provided that for purposes hereof the amount of such
Funded Indebtedness shall be calculated at the greater of (i) the
amount of such Funded Indebtedness as to which there is recourse to
such Person and (ii) the fair market value of the property which is
subject to the Lien;
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(d) all Guaranties of such Person with respect to Funded
Indebtedness of others;
(e) the Attributable Indebtedness in respect of capital
leases and Synthetic Lease Obligations;
(f) the maximum amount of all standby letters of credit
issued or bankers' acceptances facilities created for the account
of such Person and, without duplication, all drafts drawn
thereunder (to the extent un-reimbursed); and
(g) the aggregate amount of uncollected accounts receivable
subject at such time to a sale or securitization of receivables (or
similar transaction) (whether or not such transaction would be
reflected on the balance sheet of such Person in accordance with
GAAP).
The Funded Indebtedness of any Person shall include the
Funded Indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer, but only to
the extent to which there is recourse to such Person for payment of
such Funded Indebtedness.
(vii) "SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of
such Person but which, upon the insolvency or bankruptcy of such Person,
would be characterized as the indebtedness of such Person (without regard
to accounting treatment).
(b) Schedule B to the Agreement is hereby amended by deleting the
definitions of "ADJUSTED CONSOLIDATED NET WORTH," "CONSOLIDATED TOTAL DEBT,"
"RESTRICTED INVESTMENT," "RESTRICTED SUBSIDIARY," and "UNRESTRICTED
SUBSIDIARY."
7. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and warrants
to the Holders that:
(a) no Default or Event of Default exists or would result from the
execution of this Amendment;
(b) all of the representations and warranties set forth in the Agreement
are true and correct as of the date hereof (except for those that expressly
state that they are made as of an earlier date);
(c) it has no claims, counterclaims, offsets, credits or defenses to its
obligations under the Notes or, to the extent it does, they are hereby released
in consideration of the Required Holders entering into this Amendment; and
(d) immediately prior to the effectiveness of this Amendment, no
Unrestricted Subsidiaries of the Company were in existence, and all
Subsidiaries of the Company were Restricted Subsidiaries.
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8. CONDITIONS PRECEDENT. The effectiveness of this Amendment is subject to (a)
receipt by the Company, of signature pages to this Amendment duly executed by
the Company, the Guarantors, and not less than the Required Holders with
respect to an amendment of the Agreement and (b) receipt by each holder (as
defined in the Agreement) of the fees pursuant to Section 11 of this Amendment.
9. RATIFICATION OF AGREEMENT. The term "this Agreement" and all similar
references as used in the Agreement and any documents prepared or executed in
connection therewith, shall hereafter mean the Agreement as amended by this
Amendment. Except as herein specifically agreed, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
10. AUTHORITY/ENFORCEABILITY. Each of the Company and the Guarantors
represents and warrants as follows:
(a) it has taken all necessary action to authorize the execution,
delivery and performance of this Amendment;
(b) this Amendment has been duly executed and delivered by such Person
and constitutes such Person's legal, valid and binding obligations, enforceable
in accordance with its terms, except as such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally, and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity); and
(c) no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery, or
performance by such Person of this Amendment.
11. FEES. The Company agrees to pay to each holder (as defined in the
Agreement) an amount equal to 10 basis points (.10%) multiplied by the
outstanding principal amount of the Notes registered in the name of such holder
as of the effective date of this Amendment. Such amount shall be paid by the
Company to each holder on or before the close of business on the first business
day subsequent to the date on which the condition precedent set forth in
Section 8(a) has been satisfied. Payment shall be made in the same manner by
which interest on Notes is paid to such holder.
12. COUNTERPARTS/TELECOPY. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered by the
executing Person.
13. GOVERNING LAW. This Amendment shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State
of New York excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
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14. ENTIRE AGREEMENT. This Amendment embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof. This Amendment represents the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
oral agreements between the parties.
15. EFFECTIVE DATE. This Amendment shall be deemed to be effective as of the
date the conditions precedent contained in Section 8 of this Amendment are
satisfied.
WAUSAU PAPER CORP.
By: SCOTT P. DOESCHER
Scott P. Doescher
Senior Vice President, Finance
(Signatures of Holders and Guarantors appear on the following pages.)
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The foregoing is hereby agreed to as of the date first above written.
ACACIA LIFE INSURANCE COMPANY ACACIA LIFE INSURANCE COMPANY
By: Ameritas Investment Advisors, Inc., By: Ameritas Investment Advisors, Inc.,
as Agent as Agent
By: ANDREW S. WHITE By: ANDREW S. WHITE
Andrew S. White Andrew S. White
Title: Vice President Title: Vice President
AMERITAS LIFE INSURANCE GROUP AMERITAS VARIABLE LIFE
By: Ameritas Investment Advisors, Inc., INSURANCE COMPANY
as Agent By: Ameritas Investment Advisors,
Inc., as Agent
By: ANDREW S. WHITE By: ANDREW S. WHITE
Andrew S. White Andrew S. White
Title: Vice President Title: Vice President
Mellon Bank, N.A., solely in its capacity as JEFFERSON PILOT FINANCIAL
Custodian for Aviva Life-Principal Glob Priv INSURANCE COMPANY
General Account Universal Life (as directed
by the Principal Global Investors, LLC),
and not in its individual capacity
(MAC & CO) - Nominee Name
By: BERNADETTE RIST By:
Bernadette Rist
Title: Authorized Signatory Title:
MODERN WOODMEN OF AMERICA THRIVENT FINANCIAL FOR
LUTHERANS
By: DOUGLAS A. PANNIER By: MARK O. SWENSON
Douglas A. Pannier Mark O. Swenson
Title: Supervisor, Private Placements Title: Vice President
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NATIONWIDE LIFE & NATIONWIDE LIFE & ANNUITY
ANNUITY COMPANY OF AMERICA INSURANCE COMPANY
By: WAYNE T. FRISBEE By: WAYNE T. FRISBEE
Wayne T. Frisbee Wayne T. Frisbee
Title: Authorized Signatory Title: Authorized Signatory
STATE FARM LIFE AND ACCIDENT STATE FARM LIFE INSURANCE
ASSURANCE COMPANY COMPANY
By: By:
Title: Title:
TEACHERS INSURANCE AND THE NORTHWESTERN MUTUAL
ANNUITY ASSOCIATION OF AMERICA LIFE INSURANCE COMPANY
By: LISA M. FERRARO By: MARK E. KISHLER
Lisa M. Ferraro Mark E. Kishler
Title: Director Title: Its Authorized Representative
REASSURE AMERICA LIFE INSURANCE
COMPANY
By: Swiss Re Asset Management (Americas) Inc.
By: CHRISTOPHER J. WEIHS
Christopher J. Weihs
Title: Managing Director
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CONSENT AND REAFFIRMATION OF GUARANTORS
The undersigned hereby consents to this Amendment No. 1 and reaffirms its
obligations under the Guaranty Agreement.
BAY WEST PAPER CORPORATION THE MIDDLETOWN HYDRAULIC
COMPANY
By: SCOTT P. DOESCHER By: SCOTT P. DOESCHER
Scott P. Doescher Scott P. Doescher
Senior Vice President, Finance Senior Vice President, Finance
MOSINEE HOLDINGS, INC. MOSINEE PAPER CORPORATION
By: SCOTT P. DOESCHER By: SCOTT P. DOESCHER
Scott P. Doescher Scott P. Doescher
Senior Vice President, Finance Senior Vice President, Finance
RHINELANDER PAPER COMPANY, THE SORG PAPER COMPANY
INC.
By: SCOTT P. DOESCHER By: SCOTT P. DOESCHER
Scott P. Doescher Scott P. Doescher
Senior Vice President, Finance Senior Vice President, Finance
WAUSAU PAPERS OF WAUSAU PAPERS OTIS MILL, INC.
NEW HAMPSHIRE, INC.
By: SCOTT P. DOESCHER By: SCOTT P. DOESCHER
Scott P. Doescher Scott P. Doescher
Senior Vice President, Finance Senior Vice President, Finance
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