Exhibit 10.a.(xix)(b)
DEPOSITARY AGREEMENT
Dated as of April 6, 1989
The First National Bank of Chicago
One First National Plaza
Suite 0129, l-L2
Chicago, Illinois 60670-0129
Attention: Commercial Paper Product Manager
Re: California and Hawaiian Sugar Company
Gentlemen:
The undersigned, California and Hawaiian Sugar Company, a corporation
organized under the laws of the state of California (the "Issuer"), hereby
appoints you its agent to facilitate the delivery and payment of certain
commercial paper notes issued by the Issuer as herein set forth. You have
advised the undersigned that you have arranged for First Chicago Trust Company
of New York (the "Sub-Agent") to act as your sub-agent for certain purposes of
this Agreement. We hereby agree with you as follows:
1. Deposit of Notes.
(a) From time to time the Issuer will deposit in custody with you or the
Sub-Agent, to such locations as you may direct, for safekeeping commercial paper
notes of the Issuer (a "Note" or, collectively and severally, the "Notes")
substantially in the form of Exhibit A hereto. The Notes will have been duly
executed manually or by facsimile by the Issuer and will be consecutively
numbered. Each transmittal of Notes to you or the Sub-Agent will be accompanied
by a letter from the Issuer identifying the Notes transmitted therewith. You or
the Sub-Agent, as the case may be, will acknowledge receipt of such by signing
and returning a copy of such transmittal letter.
(b) Enclosed herewith is an incumbency certificate (the "Incumbency
Certificate") of the Secretary or an Assistant Secretary of the Issuer,
certifying the incumbency and specimen signatures of officers, employees and
other agents of the Issuer authorized to execute Notes, to act and to give
instructions and notice, on behalf of the Issuer (hereinafter "Issuer Agents").
Until you receive a subsequent Incumbency Certificate of the Issuer sent to you
by the Issuer, you shall be entitled to rely on the last such Certificate
delivered to you for purposes of determining which persons are Issuer Agents.
Any Note bearing the signature of an Issuer Agent on the date such signature is
affixed thereto shall bind the Issuer after the authentication and delivery of
such Note notwithstanding that such person shall have otherwise ceased to hold
his or her office on the date such Note is authenticated and delivered.
(c) The Issuer shall bear the sole risk of wastage of Notes as a result of
administrative or operational errors during the process of their completion
pursuant to this Agreement, other than errors attributable to your or the Sub-
Agent's gross negligence or willful misconduct. The Issuer shall maintain with
you and the Sub-Agent at all times a supply of Notes sufficient to enable you
and the Sub-Agent to perform the operations contemplated by this Agreement. You
or the Sub-Agent, as the case may be, shall forward to the Issuer the original
and all copies of any spoiled, mutilated, or incorrectly completed Note,
properly cancelled.
2. Completion, Authentication and Delivery of Notes.
(a) You and the Sub-Agent are each authorized and directed to complete and
authenticate any Note deposited with you or the Sub-Agent upon receipt from an
Issuer Agent, no later than 12:00 noon Chicago time on the proposed issuance
date, of instructions made in writing or otherwise pursuant to paragraph 3 below
(all such instructions being referred to herein as "Issuance Instructions"),
specifying issue date, maturity date, maturity amount, face amount and payee of
each Note and instructions for the delivery of each Note.
Each Note shall have a face amount of not less than $100,000 and will
mature no later than 270 days from the date of issuance thereof.
You or the Sub-Agent shall, in accordance with Issuance Instructions,
(i) complete each Note, and (ii) manually authenticate each Note. The place of
payment shall be your address for the time being in Chicago or, where you are
instructed to deliver a Note in the Borough of Manhattan, the Sub-Agent's
address for the time being in New York City. Unless otherwise agreed, you will
only be instructed to deliver Notes by hand within the financial district of
either the Borough of Manhattan or Chicago or by mail.
If you are instructed to deliver a Note by mail, you or the Sub-Agent
shall, unless otherwise instructed, insert as payee the name of the purchaser or
otherwise as advised to you by an Issuer Agent, and effect delivery by
registered mail, postage prepaid, insured. If you are instructed to register a
Note other than to "BEARER", in accordance with the preceding sentences or
otherwise, an Issuer Agent shall provide you with the name and address of the
registered holder of such Note.
(b) Following completion and authentication by you, or on your behalf, of
any Note, you or the Sub-Agent, as the case may be, are directed to hold such
Note in safekeeping and to deliver such Note to, and only to such person or
entity (the "Purchaser") as an Issuer Agent may instruct you, against payment.
The Issuer understands that, when you are instructed to deliver against payment,
delivery of the Notes and the receipt of payment may not be completed
simultaneously and you shall have no responsibility or liability for the credit
risks involved in your or the Sub-Agent's so delivering of such Notes.
Accordingly, you and the Sub-Agent are each hereby authorized to receive the
Purchaser's receipt for the delivery and at a later time, but on the same day,
after the Purchaser has verified the delivery against its purchase agreement
with the Issuer, to receive payment from the Purchaser by a wire transfer of
immediately available funds to the Note Account (as that term is defined below)
and the Issuer will bear the risk that the Purchaser fails to remit payment.
(c) It is understood that, as a matter of bookkeeping convenience, you may
credit the Note Account with the proceeds of Notes prior to your actual receipt
of final payment therefor and that such bookkeeping credits may be reflected on
your books, and otherwise, as "immediately available funds" or "same day funds"
or by some other similar characterization. Notwithstanding any such credit or
characterization, all such credits shall be conditional upon your actual receipt
of final payment and may be reversed by you to the extent that such final
payment is not received. The Issuer agrees to indemnify and hold you harmless
from any loss which you may suffer and any expense which you may incur as a
result of the failure of any Purchaser to remit payment in full for any Note,
and, without limiting the generality of the foregoing, the Issuer agrees that,
immediately, upon notification from you of any such failure, the Issuer shall
reimburse you in immediately available funds any amount credited to the Issuer
in anticipation of receipt of such payment plus interest thereon for each day
such proceeds remain unreimbursed. The rate of interest payable by the Issuer
to you shall be that provided for under arrangements with respect to overdraft
advances in effect at the time between the Issuer and you or, if no such
arrangements are then in effect, at 2-1/2 percent over the federal funds rate of
interest prevailing in Chicago at 11:00 a.m. daily Chicago time (as such rate is
determined by you)
For purposes of this subparagraph (c), payment for any Note shall not
be "final" until you shall have received from or for the account of the
Purchaser of such Note immediately available funds which under applicable law
and rule are irreversible, which are not subject to any security interest, levy
or other encumbrance enforceable against you or the Issuer, and which are
specifically applicable or determined by you to be applicable to the payment of
such Note. A debit by you to any account of a person to whom or for whose
account a Note shall have been delivered shall not constitute final payment to
the extent that such debit creates an overdraft or does not otherwise result in
the receipt by you of immediately available, irreversible and unencumbered
funds.
3. Instructions.
(a) In addition to, and not by way of limiting your authority, or the
authority of any person acting on your behalf, to act on receipt of and in
accordance with written instructions, the Issuer hereby authorizes you, and any
person acting on your behalf, from time to time to act on receipt of and in
accordance with Issuance Instructions received by you or such person either
electronically or telephonically from an Issuer Agent, as provided in the
following paragraphs (b) and (c) respectively.
(b) The Issuer may initiate Issuance Instructions electronically if it
enters into a nonexclusive, nontransferable license to use certain software
products and the associated printed documentation pursuant to a separate license
agreement in a form specified by you. You shall be entitled to rely on the
Issuance Instructions received electronically hereunder and may assume that all
such Issuance Instructions were transmitted by the Issuer or on the Issuer's
behalf, regardless of by whom it was actually transmitted.
(c) Telephonic Issuance Instructions shall be made to you at the telephone
number specified by you from time to time for such purpose, shall be made by an
Issuer Agent and shall (in any case) be expressed to be for the attention of any
of your or the Sub-Agent's officers or employees whose name has been specified
for the time being for such purpose by you to the Issuer. Telephonic Issuance
Instructions to you by an Issuer Agent shall be confirmed in writing by an
Issuer Agent within 24 hours of the time such instruction is received by you or
on your behalf; provided that, in the event a discrepancy exists between the
telephonic instructions and the subsequent confirmation, or in the absence of
receiving a written confirmation, the telephonic instructions shall be deemed
the proper and controlling instructions and you shall incur no liability for
acting in accordance with any such telephonic instructions reasonably believed
by you in good faith to have been given by an Issuer Agent. A "written
confirmation" may be effected by means of a tested telex or communications
directly between electro-mechanical or electronic devices or systems, including
transmission by telecopier, provided, that you and the Issuer agree to the use
of such device or system.
4. Note Account.
(a) For purposes of the transactions contemplated herein and concurrently
with the execution and delivery of this Agreement, the Issuer shall open and
maintain with you a demand deposit account (No. 58-16939 (the "Note Account").
(b) Deposits will be made in the Note Account from time to time by or on
behalf of the Issuer by delivery to you of funds to be deposited therein. All
proceeds from the issuance and delivery of the Notes shall be credited to the
Note Account. Withdrawals or other uses of the funds from the Note Account
shall be made in accordance with instructions from an Issuer Agent or to repay
amounts payable under paragraphs 2(c) or 5(e) hereof. Notwithstanding anything
in this Agreement to the contrary, you shall be entitled not to permit any
withdrawal or other use of funds from the Note Account, or honor any
instructions to those effects, if you, in your sole discretion, shall determine
that as a result thereof there would be created any overdraft or negative
balance in respect of final credits (whether in the course of any day, overnight
or otherwise) in the Note Account.
5. Payment of Notes.
(a) You hereby agree to serve as paying agent of the Issuer with respect
to each Note presented to you or the Sub-Agent. The Issuer shall on the stated
maturity date of such Note, or, if such maturity date is not a Business Day (as
hereinafter defined), on the next succeeding Business Day (such maturity date or
next succeeding Business Day, as the case may be, being hereinafter referred to
as the "Maturity Date"), deposit or cause to be deposited in the Note Account an
amount in immediately available funds equal to the face principal amount of such
Note plus interest payable thereon, if any. As used herein "Business Day" means
any day excluding Saturday, Sunday and any day which is a legal holiday under
the laws of the States of Illinois or New York or is a day on which banking
institutions located in either of such states are authorized by law or other
governmental action to close.
(b) You are hereby authorized and instructed by the Issuer, to the extent
that funds sufficient to effect such payment are available in the Note Account,
to pay, and shall pay, each Note on presentation thereof, in immediately
available funds at or before your close of business on the relevant Maturity
Date provided that presentation of the such Note is made at or prior to
3:00 p.m. New York time on the Maturity Date of such Note. You are further
hereby authorized and instructed by the Issuer to charge the Note Account in the
amount of each such payment.
(c) If any Note is presented to you or the Sub-Agent after 3:00 p.m. New
York time on the Maturity Date of such Note, you may make payment thereof if the
Issuer shall have provided you with funds for the making of such payment or to
the extent you choose in your sole discretion to extend credit to the Issuer on
terms and conditions to be agreed by you and the Issuer. You are hereby
authorized and instructed by the Issuer to charge the Note Account in the amount
of each such payment.
(d) If at any time funds in the Note Account are insufficient to cover
payment of any matured Note presented to you or the Sub-Agent prior to 3:00 p.m.
New York time on the Maturity Date of such Note, you may, at your option, either
(i) request (and subsequently confirm receipt of) an immediate wire transfer of
immediately available funds from the Issuer in an amount which will enable you
to fully pay such Note and retain such Note pending receipt of funds or (ii) pay
the Note, thus creating an overdraft for the account of the Issuer, which
overdraft shall be charged to the Note Account but in neither case shall you be
obligated to pay any Note unless and until there are sufficient collected funds
in the Note Account for that purpose or to extend any credit to the Issuer.
(e) The amount of any resulting overdraft shall represent an overdraft
advance by you to the Issuer to be promptly repaid by the Issuer with interest
thereon for each day such overdraft advance remains outstanding. The rate of
interest payable by the Issuer to you shall be that provided for under
arrangements with respect to overdraft advances in effect at the time between
the Issuer and you or, if no such arrangements are then in effect, at 2-1/2
percent over the federal funds rate of interest prevailing in Chicago at
11:00 a.m. daily Chicago time (as such rate is determined by you). To the
extent that any such overdraft advance is outstanding at any time, you may apply
funds credited to the Note Account from the proceeds of issuance of Notes or
otherwise to repay such overdraft advance. Notwithstanding anything to the
contrary herein, the Issuer undertakes to maintain sufficient immediately
available funds with you on the date any payment of Notes is due to permit you
to pay Notes on time.
(f) Notwithstanding anything to the contrary herein, if at any time funds
in the Note Account are insufficient to cover payment of all matured Notes
presented for payment and awaiting payment, you may apply such funds to the
extent available to pay whichever of the Notes, either fully or in part, as you
deem appropriate.
6. Representations and Warranties.
Each day on which an Issuance Instruction is given to you, the Issuer
shall be deemed to represent and warrant to you that (a) the issuance and
delivery of the designated Notes will not violate any state or federal
securities law, (b) the Notes have been duly and validly authorized by the
Issuer and (c) the Notes, when completed, countersigned and delivered pursuant
hereto, will constitute the legal, valid, and binding obligations of the Issuer.
7. Indemnification; Liabilities.
(a) The Issuer shall indemnify you, the Sub-Agent and your and its
respective officers, employees and agents, and hold you, the Sub-Agent and your
and its respective officers, employees and agents, harmless from and against any
and all costs, expenses, claims or liabilities (including, without limitation,
reasonable lawyers' fees) arising out of or connected with the performance of
your, the Sub-Agent's or your or its respective officers', employees' and
agents' duties hereunder, except for costs, expenses, claims or liabilities
arising out of the gross negligence or willful misconduct of you, the Sub-Agent
or any of your or its respective officers, employees, agents or representatives.
You may rely and shall be protected, as agent for the Issuer, in acting upon any
resolution, certificate, opinion, instructions (whether oral or otherwise),
receipt, or other document reasonably believed by you to be (i) genuine and
(ii) to have been signed or given by the proper party or parties.
(b) In acting with respect to the Notes, and generally in acting under the
provisions hereof, you will be required by the Issuer to perform only such
duties as are specifically set forth herein and this Agreement shall not be
construed to subject you to any implied covenants or obligations. Except in the
case of your gross negligence or willful misconduct, you shall not be liable to
the Issuer for any action taken or omitted by you and reasonably believed by you
to be authorized or within the powers conferred upon you hereby and in no event
shall you be liable for consequential, indirect or special damages, even if you
have been advised of the possibility of such damages. You shall also not be
liable for any action taken, or any failure to take any action in connection
with this Agreement or the services provided hereunder or otherwise to fulfill
your obligations in connection with this Agreement, in the event and to the
extent that the taking of such action or such failure arises out of or is caused
by mechanical breakdown, computer or system failure or other failure of
equipment, failure or malfunctioning of any communications media for whatever
reason, provided that you undertake to use reasonable efforts to cure any such
failure or breakdown of equipment. It is understood by the Issuer that
provision of services under this Agreement is dependent upon the availability to
you and the Issuer of telecommunication facilities provided by third party
vendors and that you cannot warrant such availability.
8. Miscellaneous.
(a) You or the Issuer may terminate this Agreement upon ten (10) days'
prior written notice to the other party; provided, however, that to the extent
there are then outstanding any Notes, they shall notwithstanding such
termination, remain valid obligations of the Issuer and shall continue to be
subject to the provisions of this Agreement and, provided further, that no
termination of this Agreement shall affect the rights and obligations of the
parties hereto with respect to transactions initiated prior to such termination.
In the event that you shall give the Issuer such notice of termination, the
Issuer shall not issue on or after the date of such notice any Notes having a
maturity in excess of thirty (30) days. Upon receipt of a termination notice,
you will promptly return to the Issuer all blank Notes held by you, properly
cancelled.
(b) The fee for your services hereunder shall be as mutually agreed upon
between you and the Issuer, and shall be payable by the Issuer in accordance
with such agreement.
(c) No amendment or modification of this Agreement shall be effective
unless the same shall be in writing and signed by both of the parties hereto.
No waiver of, nor any consent to any departure from, any provision of this
Agreement shall be effective unless signed by the party intended to be bound.
No such amendment, modification, waiver or consent shall adversely affect the
rights of a holder, from time to time, of a Note outstanding at the time of such
amendment, modification, waiver or consent.
(d) Except as otherwise provided herein, you may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents, including, without limitation, the Sub-Agent, or attorneys and shall not
be responsible for the acts of such agents (other than the Sub-Agent or
attorneys appointed with due care hereunder.
(e) You may consult with legal counsel regarding matters arising under
this Agreement and shall not be liable for any action taken in good faith in
reliance upon the legal advice of such counsel.
(f) You, in your individual or any other capacity, may become the owner or
pledgee of Notes with the same rights you would have if you were not acting
hereunder.
(g) You shall be under no liability for interest on any moneys received by
you hereunder except such as you may agree with the Issuer to pay thereon.
(h) Except as otherwise expressly provided herein, whenever, in the
administration of this Agreement, you shall deem it necessary that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate or instructions of an Issuer Agent and such certificate or
instructions shall be full warranty to you for any action taken, suffered or
omitted under the provisions of this Agreement upon the faith thereof.
(i) Any corporation into which you may be merged, converted or with which
you may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which you shall be a party, shall succeed to all
your rights, obligations and immunities hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
(j) Your countersignature of a Note shall be for authentication purposes
only and neither you nor anyone countersigning on your behalf shall have any
liability on a Note. Except with respect to your own actions in completing and
authenticating the Notes pursuant to Issuance Instructions, you shall not be
liable for the authorization, validity or legality of any Note delivered by you
in accordance with Issuance Instructions.
9. Notices.
(a) Any notices, demands, instructions and other communications required
or permitted to be given or made upon either party shall be in writing and shall
be personally delivered or sent by first class mail, postage prepaid, or by
prepaid telex or telegram (or telecopier, as permitted hereunder), and shall be
effective for purposes of this Agreement upon receipt by the intended recipient
thereof at the address designated by such recipient, or on the next succeeding
Business Day if received on other than a Business Day. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this paragraph (or with respect to Issuance Instructions, as
permitted hereunder), notices, demands, instructions and other communications in
writing shall be addressed to the addresses indicated below:
If to you in your capacity The First National Bank of Chicago
as agent hereunder: One First National Plaza
Suite 0129, l-L3
Chicago, Illinois 60670-0129
Attn: Commercial Paper
Product Manager
Telephone: (312) 732-7672
Telex: 4330253
Answbck: FNBCUI
Telecopier: (312) 732-6014
If to the Issuer: California and Hawaiian Sugar Company
1390 Willow Pass Road
Concord, California 94520
Attn: Beth Abercrombie
Telephone: (415) 356-6043
Telex: (415) 356-6037
Answbck: None
Telecopier: None
(b) Where any provision of this Agreement specifically contemplates
telephone communication made by one person to another, such communication shall
be made to that other person at the telephone number specified by it from time
to time for the purpose. Each such telephone communication to you by or on
behalf of the Issuer shall be made by an Issuer Agent and shall (in any case) be
expressed to be for the attention of the officer whose name has been specified
for the time being for such purpose by you to the Issuer. Each such telephone
communication to the Issuer shall be expressed to be for the attention of the
Issuer Agent whose name has been specified for the time being for such purpose
by the Issuer. Each of you and the Issuer Agent shall promptly confirm by
telex, telecopier or otherwise in writing any telephone communication made by it
to the other pursuant to this Agreement, but the absence of such confirmation
shall not affect the validity of such communication.
10. Assignment. Neither party hereto may assign any of its rights or
obligations hereunder without the consent of the other party hereto.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
12. Counterparts. This Agreement may be executed in any number of counterparts
and by each party 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 Agreement.
If the foregoing is acceptable to you, please sign and return the
enclosed copy.
CALIFORNIA AND HAWAIIAN SUGAR COMPANY
By: /s/ David G. Koncelik
Title: Chief Financial Officer
ACCEPTED AND AGREED TO as of the
day of _________, 1988:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
EXHIBIT A
FORM OF NOTE
CALIFORNIA AND HAWAIIAN SUGAR COMPANY
NOTE NUMBER ISSUE DATE MATURITY DATE MATURITY AMOUNT
PAY TO THE ORDER OF:
THE SUM OF:
PAYABLE AT:
CALIFORNIA AND HAWAIIAN AUTHENTICATED (without recourse,
SUGAR COMPANY warranty or liability) by
The First National Bank of Chicago,
By: /s/ David G. Koncelik as Issuing Agent
Authorized Signature
By:
Authorized Signature
OR
By: First Chicago Trust Company of
New York, ON BEHALF OF THE
ISSUING AGENT
By:
Authorized Signature