Re: Amendment No. 1 to Amended and Restated
Exhibit 1.2
May 28, 2008
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Banc of America Securities LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
KeyBanc Capital Markets Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re:
|
Amendment No. 1 to Amended and Restated | |
| U.S. Distribution Agreement dated September 17, 2007 |
Ladies and Gentlemen:
We refer to the Amended and Restated U.S. Distribution Agreement dated as of September 17,
2007 (the “Distribution Agreement”), by and among Xxxxxx-Xxxxxxxx Corporation, an Ohio corporation
(the “Company”), and the Agents named therein, relating to the issue and sale from time to time by
the Company of its Medium-Term Notes, Series A, due nine months or more from date of issue (the
“Notes”).
WHEREAS, the Company has requested that the Distribution Agreement be amended to (1) provide
for the issuance pursuant to the Distribution Agreement from and after the date hereof of up to
$3,000,000,000 (or the equivalent thereof in one or more foreign currencies or composite
currencies) aggregate initial public offering price of the Notes and (2) replace ABN AMRO
Incorporated as an Agent under the Distribution Agreement with Greenwich Capital Markets, Inc.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the Company hereby agrees with each of you to amend the Distribution
Agreement in the following respects:
1. Amendment to Title. The title of the Distribution Agreement is hereby amended, as
of the date hereof, to read in its entirety as follows:
“XXXXXX-XXXXXXXX CORPORATION
$3,000,000,000
Medium-Term Notes, Series A
Due Nine Months or More from Date of Issue
AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT”
$3,000,000,000
Medium-Term Notes, Series A
Due Nine Months or More from Date of Issue
AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT”
2. Amendment of Agent Addressee. The Agent addressee ABN AMRO Incorporated is hereby
deleted in its entirety and replaced with the following:
“Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000”
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000”
3. Amendment of First Paragraph. The first paragraph of the Distribution Agreement is
hereby amended to read in its entirety as follows:
“XXXXXX-XXXXXXXX CORPORATION, an Ohio corporation (the “Company”), confirms its agreement
(this “Agreement”) with each of you with respect to the issue and sale from time to time by the
Company from and after May 28, 2008 of up to $3,000,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies) aggregate initial public offering price of its
Medium-Term Notes, Series A, due nine months or more from date of issue (the “Notes”). The Notes
will be issued under an Indenture, dated as of May 3, 1996 (the “Indenture”), between the Company
and Xxxxx Fargo Bank, N.A. (as successor to National City Bank), as Trustee (the “Trustee”), and
will have the maturities, interest rates, redemption provisions, if any, and other terms as set
forth in supplements to the Basic Prospectus referred to below.”
4. Amendment of Second Paragraph. The second paragraph of the Distribution Agreement
is hereby amended to read in its entirety as follows:
“The Company hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated, Citigroup Global Markets Inc.,
Xxxxxxx, Sachs & Co., Greenwich Capital Markets, Inc., Banc of America Securities LLC and KeyBanc
Capital Markets Inc. (individually, an “Agent” and collectively, the “Agents”) as its exclusive
agents, subject to Section 11, for the purpose of soliciting and receiving offers to
purchase Notes from the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each Agent agrees to
use reasonable efforts to solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal pursuant to the terms of
a terms agreement relating to such sale (a “Terms Agreement”) in accordance with the provisions of
Section 2(b) hereof.”
5. Amendment of Ninth Paragraph. The ninth paragraph of the Distribution Agreement is
hereby amended to read in its entirety as follows:
“All communications hereunder will be in writing and effective only on receipt, and, if sent
to Xxxxxx Xxxxxxx & Co. Incorporated, will be mailed, delivered or telefaxed and confirmed to
Xxxxxx Xxxxxxx & Co. Incorporated at 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Manager — Continuously Offered Products (telefax number: 212-761-0780), with a copy to x000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 36th floor, Attention: Investment Banking Information Center
(telefax number: 212-761-0260), if sent to Citigroup Global Markets Inc., will be mailed, delivered
or telefaxed and confirmed to Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Managing Director, Syndicate (telefax number: 212-816-7912), if sent to
Xxxxxxx, Sachs & Co., will be mailed, delivered or telefaxed and confirmed to Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Credit Department, Credit Control -
Medium-Term Notes (telefax number: 212-357-8680), if sent to Greenwich Capital Markets, Inc., will
be mailed, delivered or telefaxed and confirmed to Greenwich Capital Markets, Inc., 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Debt Capital Markets Syndicate (telefax number:
203-422-4534), if sent to Banc of America Securities LLC, will be mailed, delivered or telefaxed
and confirmed to Banc of America Securities LLC at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: High Grade Debt Capital Markets Transaction Management (telefax
number: 212-901-7881), and if sent to KeyBanc Capital Markets Inc., will be mailed, delivered or
telefaxed and confirmed to KeyBanc Capital Markets Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Xxx Xxxxxxxxx — Debt Capital Markets (telefax number: 216-433-3801) or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to the Company at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Treasurer (telefax number: 216-481-4057).”
6. Applicable Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
7. Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall constitute an original but all of which when taken together shall constitute but one
agreement.
8. Amendment. Except as specifically amended or modified hereby, the Distribution
Agreement shall continue in full force and effect in accordance with the provisions thereof. All
references in any other agreement or document to the Distribution Agreement shall, on and after the
date hereof, be deemed to refer to the Distribution Agreement as amended hereby. Notwithstanding
the foregoing, the provisions of the Distribution Agreement as in effect immediately preceding the
amendments provided
herein shall apply with respect to any Notes issued and sold thereunder prior to the date
hereof.
(Signatures on following pages)
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and you.
| Very truly yours, | ||||||
| XXXXXX-XXXXXXXX CORPORATION | ||||||
| By | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Executive Vice President — Finance and Administration and Chief Financial Officer |
|||||
| CONFIRMED AND ACCEPTED, as of the date first written above |
||||||||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||||||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||||||||
| Name: | Xxxx Xxxxxxxxxxx | |||||||||
| Title: | Executive Director | |||||||||
| CITIGROUP GLOBAL MARKETS INC. | ||||||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||||||
| Name: | Xxxxx Xxxxxxxxx | |||||||||
| Title: | Managing Director | |||||||||
| /s/ Xxxxxxx, Sachs & Co. |
||||||||||
| XXXXXXX, XXXXX & CO. |
||||||||||
| GREENWICH CAPITAL MARKETS, INC. | ||||||||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||||||||
| Name: | Xxxxx Xxxxxxxxxx | |||||||||
| Title: | Managing Director | |||||||||
| BANC OF AMERICA SECURITIES LLC | ||||||||||
| By: | /s/ Xxxx Xxxxx | |||||||||
| Name: | Xxxx Xxxxx | |||||||||
| Title: | Principal | |||||||||
| KEYBANC CAPITAL MARKETS INC. | ||||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||||
| Name: | Xxxx Xxxxxxx | |||||||||
| Title: | Director | |||||||||
