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EXHIBIT 10.1(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") dated as
of November 5, 1999, but to be effective as of September 30, 1999 (the "First
Amendment Effective Date"), is made and entered into by and among
PENNZOIL-QUAKER STATE COMPANY (formerly known as Pennzoil Products Company), a
Delaware corporation (the "Borrower"), the LENDERS party hereto (the "Lenders"),
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative Agent (the
"Administrative Agent").
RECITALS
WHEREAS, the Borrower, the Administrative Agent and the Lenders are
parties to a Credit Agreement dated as of November 17, 1998 (the "Credit
Agreement");
WHEREAS, pursuant to Section 3.11 of the Credit Agreement, on the
Effective Date the Borrower represented that certain reprogramming procedures
necessary for the Borrower and its Material Subsidiaries to be materially year
2000 compliant would be completed by October 1, 1999;
WHEREAS, the Borrower has now determined that, as more fully set forth
below, such reprogramming procedures will not be completed by October 1, 1999;
and
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
agreed, on the terms and conditions herein set forth, that the Credit Agreement
be amended in certain respects;
NOW, THEREFORE, IT IS AGREED:
Section 1. Definitions. Terms used herein which are defined in the
Credit Agreement shall have the same meanings when used herein unless otherwise
provided herein.
Section 2. Waiver of Default. The Administrative Agent and the Lenders
hereby waive the default of the Borrower existing prior to the First Amendment
Effective Date with respect to a breach of its representation contained in
Section 3.11 of the Credit Agreement.
Section 3. Amendment to the Credit Agreement. Section 3.11 of the
Credit Agreement is hereby amended to read in its entirety as follows:
Any reprogramming required to permit the proper functioning, in and
following the year 2000, of (a) the Borrower's, or any Material
Subsidiary's, computer systems and (b) equipment containing embedded
microchips (including systems and equipment supplied by others or with
which Borrower's, or any Material Subsidiary's, systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will
be completed by October 31, 1999, except (i) the point-of-sale systems
at less than 200 Q Lube Stores which are in the process of being sold
or converted to Jiffy Lube point-of-sale systems, which sale/conversion
process will be materially completed by December 31, 1999, provided
that those store that are converted to Jiffy Lube point-of-sale systems
will be programmed for
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proper functioning in and following the year 2000 at the time of such
conversion, and (ii) in connection with immaterial computer systems and
equipment containing embedded microchips that are not necessary in
primary lines of business. The cost to the Borrower and its Material
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower will not result
in a Default or a Material Adverse Effect.
Section 4. Limitations. The amendments set forth herein are limited
precisely as written and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Credit Agreement (other
than as specifically set forth in Section 2 of this First Amendment), or (b)
except as expressly set forth herein, prejudice any right or rights which the
Lenders may now have or may have in the future under or in connection with the
Credit Agreement or any of the other documents referred to therein. Except as
expressly modified hereby or by express written amendments thereof, the terms
and provisions of the Credit Agreement or any other documents or instruments
executed in connection with the Credit Agreement are and shall remain in full
force and effect. In the event of a conflict between this First Amendment and
any of the foregoing documents, the terms of this First Amendment shall be
controlling.
Section 5. Representations and Warranties. On and as of the date
hereof, after giving effect to this First Amendment, the Borrower represents and
warrants the following:
(a) All of the representations and warranties in Article IV of the
Credit Agreement are true and correct in all material respects as if made on and
as of the date of this First Amendment, except to the extent any such
representation or warranty relates specifically to an earlier date;
(b) No Default or Event of Default has occurred and is continuing, or
would result from the effectiveness of this First Amendment; and
(c) The execution and delivery by the Borrower of this First Amendment
are within the Borrower's powers and have been duly authorized by all necessary
corporate or other action.
Section 6. Payment of Expenses. The Borrower agrees, whether or not the
transactions hereby contemplated shall be consummated, to reimburse and save the
Administrative Agent harmless from and against liability for the payment of all
reasonable substantiated out-of-pocket costs and expenses arising in connection
with the preparation, execution, delivery, amendment, modification, waiver and
enforcement of, or the preservation of any rights under this First Amendment,
including, without limitation, the reasonable fees and expenses of any local or
other counsel for the Administrative Agent, and all stamp taxes (including
interest and penalties, if any), recording taxes and fees, filing taxes and
fees, and other charges which may be payable in respect of, or in respect of any
modification of, the Credit Agreement. The provisions of this Section shall
survive the termination of the Credit Agreement and the repayment of the Loans.
Section 7. Governing Law. This First Amendment and the rights and
obligations of the parties hereunder and under the Credit Agreement shall be
construed in accordance with and be governed by the laws of the State of New
York and the United States of America.
Section 8. Descriptive Headings, etc. The descriptive headings of the
several Sections of this First Amendment are inserted for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
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Section 9. Entire Agreement. This First Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof, including, without limitation, any commitment letters regarding
the transactions contemplated by this First Amendment.
Section 10. Counterparts. This First Amendment may be executed in any
number of counterparts and by different parties on separate counterparts and all
of such counterparts shall together constitute one and the same instrument.
Section 11. Amended Definitions. As used in the Credit agreement
(including all Exhibits thereto) and all other instruments and documents
executed in connection therewith, on and subsequent to the First Amendment
Effective Date the term "Agreement" shall mean the Credit Agreement as amended
by this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered by their respective duly authorized officers
effective as of the First Amendment Effective Date.
PENNZOIL-QUAKER STATE COMPANY,
as Borrower
By /s/ LAURIE K. STEWART
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Name: Laurie K. Stewart
Title: Vice President and Treasurer
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION,
individually, as Issuing Bank and
as Administrative Agent
By /s/ RUSSELL A. JOHNSON
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Name: Russell A. Johnson
Title: Vice President
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CITIBANK, N.A.
individually and as Syndication Agent
By /s/ MARK STANFIELD PACKARD
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Name: Mark Stanfield Packard
Title: Vice President
BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A., individually and as
Documentation Agent
By /s/ JAMES R. ALLRED
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Name: James R. Allred
Title: Managing Director
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, individually and as Syndication
Agent
By /s/ DENNIS WILCZEK
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Name: Dennis Wilczek
Title: Associate
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By /s/ ALEXANDER KAROW
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Name: Alexander Karow
Title: Assistant Vice President
By /s/ SUSAN L. PEARSON
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Name: Susan L. Pearson
Title: Director
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ DEBORAH SLUSARCZYK
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Name: Deborah Slusarczyk
Title: Vice President
By /s/ KEN HAMILTON
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Name: Ken Hamilton
Title: Senior Vice President
ROYAL BANK OF CANADA
By /s/ GIL J. BENARD
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Name: Gil J. Bernard
Title: Senior Manager
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THE BANK OF NOVA SCOTIA
By /s/ F.C.H. ASHBY
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Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
BANK ONE, NA (Main Office Chicago),
formerly known as The First National Bank
of Chicago
By /s/ JEFF DALTON
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Name: Jeff Dalton
Title: Authorized Officer
MELLON BANK, N.A.
By /s/ ROGER E. HOWARD
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Name: Roger E. Howard
Title: Vice President
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By /s/ J. ALAN ALEXANDER
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Name: J. Alan Alexander
Title: Vice President
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By /s/ JOHN STACY
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Name: John Stacy
Title: Vice President
THE BANK OF NEW YORK
By /s/ HELEN L. SARRO
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Name: Helen L. Sarro
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /s/ I. OTANI
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Name: I. Otani
Title: Deputy General Manager
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WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By /s/ FELICIA LA FORGIA
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Name: Felicia La Forgia
Title: Vice President
By /s/ THOMAS LEE
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Name: Thomas Lee
Title: Associate
SUNTRUST BANK, ATLANTA
By /s/ DEBORAH S. ARMSTRONG
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Name: Deborah S. Armstrong
Title: Vice President
By /s/ RYAN SIMMONS
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Name: Ryan Simmons
Title: Officer
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