CONFORMED COPY
$500,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
September 19, 1997
among
Westvaco Corporation
The Banks Listed Herein
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent,
Documentation Agent and Co-Agent,
and
The Bank of New York,
as Syndication Agent and Co-Agent
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
September 19, 1997 (this "Amendment and Restatement")
among WESTVACO CORPORATION, the BANKS listed on the
signature pages hereof, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent, Documentation
Agent and Co-Agent, and THE BANK OF NEW YORK, as
Syndication Agent and Co-Agent.
W I T N E S S E T H :
WHEREAS, certain of the parties hereto have
heretofore entered into a Credit Agreement dated as of
June 21, 1993 (as heretofore amended, the "Agreement");
and
WHEREAS, the parties hereto desire to amend the
Agreement as set forth herein and to restate the
Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as
follows:
Section 1. Definitions; References. Unless
otherwise specifically defined herein, each capitalized
term used herein which is defined in the Agreement
shall have the meaning assigned to such term in the
Agreement. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other
similar reference contained in the Agreement shall from
and after the date hereof refer to the Agreement as
amended and restated hereby and each reference to the
"Notes" shall include the Notes delivered pursuant to
Section 9 hereof.
Section 2. Extension of Facility.
(a) The date "December 31, 1997" appearing in the
definition of Termination Date is changed to "December
31, 2000".
(b) The date "December 31, 1999" appearing in the
definition of Maturity Date is changed to "December 31,
2002".
(c) The dates "June 30, 1998" and "June 30, 1999"
appearing in the definition of Commitment Reduction
Date are changed to "June 30, 2001" and "June 30, 2002",
respectively.
Section 3. Amended Pricing.
(a) The definition of "CD Margin" in Section
2.07(b) is amended to read in its entirety as follows:
"CD Margin" means 0.275% per annum.
(b) The definition of "Euro-Dollar Margin" in
Section 2.07(c) is amended to read in its entirety as
follows:
"Euro-Dollar Margin" means 0.15% per annum.
(c) The reference to "1/10th of 1%" appearing in
Section 2.08(a) is changed to "0.08%".
Section 4. Amendment of Section 2.07 of the
Agreement. Section 2.07 is amended by deleting the
reference to "Section 327.3(e)" appearing in the definition
of Assessment Rate and substituting in lieu thereof "Section
327.4(a)".
Section 5. Updated Representations.
(a) Each reference to "1991", "1992" or "1993" in
Section 4.04 is changed to "1995", "1996" or "1997",
respectively.
(b) The definition of "Borrower's 1992 Form 10-K"
is amended by changing each reference to "1992" to "1996".
Section 6. Changes to Commitments. With effect
from and including the date this Amendment and
Restatement becomes effective in accordance with
Section 10, (i) the aggregate amount of the Commitments
shall be increased to $500,000,000; (ii) each of the
Bank Brussels ▇▇▇▇▇▇▇, New York Branch and PNC Bank,
National Association (the "New Banks") shall become a
Bank party to the Agreement and (iii) the Commitment
of each Bank shall be the amount set forth opposite the
name of such Bank on the signature pages hereof.
Shawmut Bank Connecticut, N.A. (the "Departing Bank")
shall upon such effectiveness cease to be a Bank party
to the Agreement, and all accrued fees and other
amounts payable under the Agreement for the account of
the Departing Bank shall be due and payable on such
date; provided that the provisions of Sections 8.03 and
9.03 of the Agreement shall continue to inure to the
benefit of the Departing Bank.
Section 7. Agents. With the effect from and
including the date this Amendment and Restatement
becomes effective in accordance with Section 10 hereof,
▇▇▇▇▇▇ Guaranty Trust Company of New York shall be
Administrative Agent, Documentation Agent and Co-Agent
under the Agreement and The Bank of New York shall be
Syndication Agent and Co-Agent thereunder. In
furtherance thereof:
(a) The following new defined terms are added to
Section 1.01 of the Agreement in their appropriate
alphabetical position:
"Administrative Agent" means ▇▇▇▇▇▇ Guaranty
Trust Company of New York in its capacity as
Administrative Agent hereunder, and its successors
in such capacity.
"Co-Agents" means ▇▇▇▇▇▇ Guaranty Trust
Company of New York and The Bank of New York, each
in its capacity as Co-Agent hereunder.
"Documentation Agent" means ▇▇▇▇▇▇ Guaranty
Trust Company of New York in its capacity as
Documentation Agent hereunder, and its successors
in such capacity.
"Syndication Agent" means The Bank of New
York in its capacity as Syndication Agent
hereunder, and its successors in such capacity.
(b) The following definition in Section 1.01 of
the Agreement is amended to read in its entirety as
follows:
"Agent" means the Administrative Agent, the
Documentation Agent or the Syndication Agent, as
the context may require.
(c) Each reference to the "Agent" in Articles I
through VI and VIII of the Agreement is changed to the
"Administrative Agent".
(d) Section 3.01 of the Agreement is deleted.
(e) Article VII of the Agreement is amended to
read in its entirety as follows:
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes each
Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement
and the Notes as are delegated to such Agent by
the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. ▇▇▇▇▇▇
Guaranty Trust Company of New York and The Bank of
New York shall have the same rights and powers
under this Agreement as any other Bank and may
exercise or refrain from exercising the same as
though it were not an Agent, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York and The Bank of New York
and their respective affiliates may accept
deposits from, lend money to, and generally engage
in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it
were not an Agent hereunder.
SECTION 7.03. Action by Agents. The
obligations of the Agents hereunder are only those
expressly set forth herein. Without limiting the
generality of the foregoing, no Agent shall be
required to take any action with respect to any
Default, except in the case of the Administrative
Agent as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts.
Each Agent may consult with legal counsel (who may
be counsel for the Borrower), independent public
accountants and other experts selected by it and
shall not be liable for any action taken or
omitted to be taken by it in good faith in
accordance with the advice of such counsel,
accountants or experts.
SECTION 7.05. Liability of Agents. Neither
any Agent nor any of their respective affiliates
nor any of the respective directors, officers,
agents or employees of the foregoing shall be
liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the
absence of its own gross negligence or willful
misconduct. Neither any Agent nor any of their
respective affiliates nor any of the respective
directors, officers, agents or employees of the
foregoing shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in
connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of
any of the covenants or agreements of the
Borrower; (iii) the satisfaction of any condition
specified in Article III, except in the case of
the Administrative Agent receipt of notice
required to be given to such Agent; or (iv) the
validity, effectiveness or genuineness of this
Agreement, any Notes or any other instrument or
writing furnished in connection herewith. No
Agent shall incur any liability by acting in
reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank
wire, telex, facsimile or similar writing)
believed by it to be genuine or to be signed by
the proper party or parties. Without limiting the
generality of the foregoing, the use of the term
"agent" in this Agreement with reference to the
Agents is not intended to connote any fiduciary or
other implied (or express) obligations arising
under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of
market custom and is intended to create or reflect
only an administrative relationship between
independent contracting parties.
SECTION 7.06. Indemnification. Each Bank
shall, ratably in accordance with its Commitment,
indemnify each Agent (to the extent not reimbursed
by the Borrower) against any cost, expense
(including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as
result from such Agent's gross negligence or
willful misconduct) that such Agent may suffer or
incur in connection with this Agreement or any
action taken or omitted by such Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and
without reliance upon any Agent or any other Bank,
and based on such documents and information as it
has deemed appropriate, made its own credit
analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon any
Agent or any other Bank, and based on such
documents and information as it shall deem
appropriate at the time, continue to make its own
credit decisions in taking or not taking any
action under this Agreement.
SECTION 7.08. Successor Agent. Any Agent
may resign at any time by giving written notice
thereof to the Banks and the Borrower. Upon any
such resignation, the Borrower shall have the
right to appoint a successor Agent, subject to the
approval of the Required Banks. If no successor
Agent shall have been so appointed by the Borrower
and approved by the Required Banks, and shall have
accepted such appointment, within 30 days after
the retiring Agent gives notice of resignation,
then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the
laws of the United States of America or of any
State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder
by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all
the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from its
duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent,
the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be
taken by it while it was Agent.
SECTION 7.09. Syndication Agent and Co-Agents.
Nothing in this Agreement shall impose
upon the Syndication Agent, in such capacity, or
the Co-Agents, in such capacity, any duties or
obligations whatsoever.
(f) Section 9.01 of the Agreement is amended by
changing each reference to "the Agent" therein to "the
Administrative Agent".
(g) Section 9.02 is amended by changing the
reference to "the Agent or any Bank" to "any Agent or
Bank".
(h) Section 9.03(a) is amended (i) by changing
each of the first two references to "the Agent" to "the
Agents" and (ii) by changing the reference to "the
Agent or any Bank" to "any Agent or Bank".
(i) Section 9.03(b) is amended by changing the
reference to "the Agent" to "any Agent".
(j) Section 9.05 is amended (i) by changing the
first reference to "the Agent" to "any Agent" and (ii)
by changing the second reference to "the Agent" to "such
Agent".
(k) Section 9.06 is amended by changing each
reference therein to "the Agent" to "the Administrative
Agent".
(l) Section 9.07 is amended by changing the
reference to "the Agent" to "each Agent".
(m) Each reference to the Credit Agreement in the
Exhibits to the Agreement is amended to conform to the
cover page of this Amendment and Restatement.
Section 8. Representations and Warranties. The
Borrower represents and warrants that as of the date
hereof and after giving effect hereto:
(a) no Default has occurred and is continuing; and
(b) each representation and warranty of the
Borrower set forth in the Agreement after giving effect
to this Amendment and Restatement is true and correct
as though made on and as of such date.
Section 9. Governing Law. This Amendment and
Restatement shall be governed by and construed in
accordance with the laws of the State of New York.
Section 10. Counterparts; Effectiveness. This
Amendment and Restatement may be signed in any number
of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Amendment
and Restatement shall become effective on the date that
each of the following conditions shall have been
satisfied:
(i) receipt by the Documentation Agent of
duly executed counterparts hereof signed by each
of the parties hereto (or, in the case of any
party as to which an executed counterpart shall
not have been received, the Agent shall have
received telegraphic, telex or other written
confirmation from such party of execution of a
counterpart hereof by such party);
(ii) receipt by the Documentation Agent of a
duly executed Note for each New Bank;
(iii) receipt by the Documentation Agent of an
opinion of the General Counsel of the Borrower
substantially in the form of Exhibit A hereto; and
(iv) receipt by the Documentation Agent of all
documents it may reasonably request relating to
the existence of the Borrower, the corporate
authority for and the validity of the Agreement as
amended and restated hereby and any other matters
relevant hereto, all in form and substance
satisfactory to the Documentation Agent;
provided that this Amendment and Restatement shall not
become effective or binding on any party hereto unless
all of the foregoing conditions are satisfied not later
than September 19, 1997. The Documentation Agent shall
promptly notify the Borrower and the Banks of the
effectiveness of this Amendment and Restatement, and
such notice shall be conclusive and binding on all
parties hereto.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their
respective authorized officers as of the day and year
first above written.
WESTVACO CORPORATION
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Commitments
$ 75,000,000 ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
$ 75,000,000 THE BANK OF NEW YORK
By ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
$ 65,000,000 THE CHASE MANHATTAN BANK
By ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
$ 50,000,000 CITIBANK, N.A.
By ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Attorney-in-Fact
$ 50,000,000 WACHOVIA BANK, N.A.
(successor by merger to Wachovia Bank
of Georgia, N.A.)
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
$ 50,000,000 NATIONSBANK, N.A.
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
$ 25,000,000 BANKBOSTON, N.A.
By ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$ 25,000,000 THE NORTHERN TRUST COMPANY
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
$ 20,000,000 BANK BRUSSELS ▇▇▇▇▇▇▇
NEW YORK BRANCH
By ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Manager
By ▇▇▇▇▇▇▇▇ ▇.▇. Vangaever
Title: Senior Vice President - Credit
$ 20,000,000 CRESTAR BANK
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
$ 20,000,000 NATIONAL CITY BANK
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
$ 20,000,000 PNC BANK, NATIONAL ASSOCIATION
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
$ 5,000,000 per pro ▇▇▇▇▇ BROTHER ▇▇▇▇▇▇▇▇ & CO.
By ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
Title: Senior Manager
$ -0- FLEET NATIONAL BANK, formerly known as
Fleet National Bank of Connecticut, successor by
merger to Shawmut Bank Connecticut, N.A.
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
$500,000,000
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent,
Documentation Agent and Co-Agent
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Credit Administration
Telex number: 177615 MGT UT
THE BANK OF NEW YORK, as
Syndication Agent and Co-Agent
By ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A
OPINION OF
COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agents
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Documentation Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
I am General Counsel of Westvaco Corporation (the
"Borrower"), and I have acted in that capacity in
connection with the Credit Agreement dated as of June
21, 1993, as amended by Amendment No. 1 dated as of
August 22, 1994 and as amended and restated by the
Amended and Restated Credit Agreement dated as of
September __, 1997 (as so amended and restated, the
"Credit Agreement"), among the Borrower, the banks
listed on the signature pages thereof and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative
Agent, Documentation Agent and Co-Agent, and The Bank
of New York, as Syndication Agent and Co-Agent. Terms
defined in the Credit Agreement are used herein as
therein defined.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such
documents, corporate records, certificates of public
officials and other instruments and have conducted such
other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the
opinion that:
1. The Borrower is a corporation validly existing
and in good standing under the laws of Delaware, and
has all corporate powers and all material governmental
licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are
within the Borrower's corporate powers, have been
authorized by all necessary corporate action, require
no action by or in respect of, or (except for
informational filings under section 13 or 15(d) of the
Exchange Act) filing with, any governmental body,
agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding
upon the Borrower or result in the creation or
imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes
constitute valid and binding obligations of the
Borrower.
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened
against, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body,
agency or official, in which there is a reasonable
possibility of an adverse decision which could
materially adversely affect the business or
consolidated financial position of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or
which in any manner draws into question the validity of
the Credit Agreement or the Notes.
5. Each of the Borrower's Domestic Subsidiaries
is a corporation validly existing and in good standing
under the laws of its jurisdiction of incorporation,
and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
Very truly yours,