Exhibit 10(i)(12)
. AMENDMENT TO THE ISSUING AND PAYING AGENCY AGREEMENT
This Amendment dated as of January 15, 1999 (the "IPA Amendment")
to the Issuing and Paying Agency Agreement, described below, is among The
Southland Corporation (the "Company"), Ito-Yokado Co., Ltd., as guarantor
(the "Guarantor") and Sakura Trust Company, as issuing and paying agent
(the "Issuing and Paying Agent").
RECITALS
WHEREAS, there has heretofore been executed and delivered to the
Company an Issuing and Paying Agency Agreement (the "Agreement") dated
August 17, 1992 among the Company, the Guarantor and the Issuing and
Paying Agent;
WHEREAS, the Agreement may be supplemented, modified or amended if
such supplement, modification or amendment is in writing and is signed by
each of the parties hereto so long as such supplement, modification or
amendment does not adversely affect the rights of holders of the
theretofore issued Notes which are unpaid at the time; and,
WHEREAS, the Company, the Issuing and Paying Agent, and the
Guarantor desire to amend the Agreement to increase the maximum aggregate
principal amount of Notes from U.S. $400,000,000 to U.S. $650,000,000,
and to make certain other amendments to the Agreement as more fully
described below.
NOW THEREFORE, the Company, the Guarantor and the Issuing and
Paying Agent covenant and agree with each other to amend the Agreement as
follows:
(1) the Incumbency Certificate of the Company dated as of August
17, 1992 will be replaced by an Incumbency Certificate on the date hereof
with respect to each officer of the Company whose signature appears on
the Notes, together with specimen signatures of such officers (each such
officer being herein referred to as an "Authorized Company Signatory");
(2) the Incumbency Certificate of the Guarantor dated as of August
17, 1992 will be replaced by an Incumbency Certificate on the date hereof
with respect to each officer of the Guarantor whose signature appears on
the Guarantees, together with specimen signatures of such officers
(each such officer being herein referred to as an "Authorized Guarantor
Signatory");
Tab 2
(3) the Certificate of Designation dated as of August 17, 1992 will
be replaced by a Certificate of Designation on the date hereof with respect
to each individual authorized, empowered and employed by the Company to
give instructions to any commercial paper issuing and paying agent or
dealer pursuant to the Agreement or a commercial paper dealer agreement;
(4) the maximum aggregate principal amount of Notes which are
authenticated (and not cancelled) by the Issuing and Paying Agent at any
one time pursuant to this Agreement shall be increased from U.S.
$400,000,000 to, but in no event shall exceed, U.S. $650,000,000;
(5) in no event shall Guarantees be affixed to Notes (or shall Notes
be authenticated) if greater than U.S. $650,000,000 aggregate principal
amount (or such lesser aggregate principal amount as is notified by the
Guarantor to the Issuing and Paying Agent) of authenticated Notes (which
are not cancelled) would be outstanding at any one time or if the Guarantor
instructs the Issuing and Paying Agent to no longer affix Guarantees to
Notes; and,
(6) notwithstanding any contrary instructions received from the
Company or an Authorized Company Officer or Designated Company Individual,
the Issuing and Paying Agent shall not complete, authenticate, issue or
deliver any Notes, if the issuance of such Notes would cause the aggregate
principal amount of outstanding Notes at any one time to exceed the
authorized maximum aggregate principal amount of U.S. $650,000,000 (or such
lesser maximum aggregate principal amount as is notified by the Guarantor
to the Issuing and Paying Agent) or if the Guarantor instructs the Issuing
and Paying Agent to cease affixing Guarantees to Notes.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement.
This IPA Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that no party hereto may assign any of its rights or obligations
hereunder except with the prior written consent of the other parties
hereto.
This IPA Amendment may be executed in any number of counterparts and
by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute
one and the same IPA Amendment.
This IPA Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York. Each of the Company and the
Guarantor agrees that all actions and proceedings relating directly or
indirectly to this Agreement shall, at your option, be litigated in any of
the New York State Supreme Court, New York County, the New York State
Supreme Court Appellate Division, First Department, and the Federal
District Court of the Southern District of New York, and that each such
court is a convenient forum, and each of the Company and Guarantor submits
to personal jurisdiction thereof and consents that service of process upon
the Company may be made by certified or registered mail, return receipt
requested, directed to the Company at the Company's address appearing on
your records, and service so made shall be deemed completed on the date of
certified receipt. Service of process upon the company may also be sent by
Federal Express or any other public or private form of address delivery
service that can certify actual delivery, and in such event shall be deemed
to have been given on the date of certified receipt. Each of you, the
Company and the Guarantor waives any right to trial by jury in any action
or proceeding relating directly or indirectly to this IPA Amendment. Each
of the Issuing and Paying Agent, the Company and the Guarantor waives the
right to assert in any action or proceeding relating directly or indirectly
to this IPA Amendment any offsets or counterclaims (other than
counterclaims directly relating to this Agreement) which you, the Company
or the Guarantor, as the case may be, may have.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and us in accordance with its terms.
Very truly yours,
THE SOUTHLAND CORPORATION
By:
------------------------------
Name:
Title:
ITO-YOKADO CO., LTD.
By:
------------------------------
Name: Toshifumi Suzuki
Title: President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written
SAKURA TRUST COMPANY
By:
-------------------------
Name: Hajime Tada
Title: President
