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EXHIBIT 2.05
November 22, 1996
Vista Gold Corp.
Suite 3000
370 Seventeenth Street
Denver, Colorado
USA 80202
Attention: Mr. A. J. Ali
Vice-President Finance
and Chief Financial Officer
RE: ESTABLISHMENT OF OPERATING CREDIT
FACILITY IN FAVOUR OF VISTA GOLD CORP.
Dear Sirs:
The Bank of Nova Scotia (the "Bank") is pleased to advise that,
subject to your acceptance, the Bank will make available to Vista Gold Corp.
(the "Borrower") the operating credit facility described in this Agreement upon
the following terms and conditions:
CREDIT Operating Credit: For general operating purposes.
FACILITY
$3,000,000 U.S., under which are available U.S. and Canadian
dollar advances, together with certain
Documentary Instruments, the details of which
are contained in Schedule "A" hereto;
(the "Credit", with each availment thereunder being an
"Availment").
BOOKING POINT Vancouver Commercial Banking Centre
650 West Georgia Street
Vancouver, B.C.
V6B 4P6
(the "Branch")
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CREDIT Advances. Canadian and U.S. dollar advances obtained under the
AVAILMENTS Credit by the Borrower selecting in respect of each such
advance one of the interest options as follows:
(1) Canadian dollars as Prime Rate Advances in whole
multiples of $100,000 Cdn.: Prime Lending Rate.
(2) U.S. dollars as Base Rate Advances in whole multiples
of $100,000 U.S.: Alternate Base Rate.
Documentary Instruments. Refer to the attached Schedule "A"
to this Agreement.
MATURITY Termination. The Credit shall revolve, may be terminated in
whole or in part and amounts outstanding thereunder (including
the contingent liability of the Bank under Documentary
Instruments) shall be due in whole or in part upon demand.
The Borrower agrees that a reasonable period of notice to
effect such a termination and demand shall be in both cases a
maximum of 30 days' notice provided that, without limitation,
if there is non-payment of amounts due hereunder or the
Borrower and any of the Borrower's subsidiaries, or any of
them, either individually or collectively, fail to pay
principal indebtedness aggregating $2,500,000 Cdn. or more (or
the equivalent in other currencies) when due and such failure
continues after any applicable grace period specified in an
agreement or instrument relating to such indebtedness or the
Borrower or any subsidiary of the Borrower permits any default
under any agreement or instrument relating to its
indebtedness, or any other event, to occur and to continue
after any applicable grace period specified in such agreement
or instrument and the effect of such default or event is to
accelerate, or to permit the acceleration of, in the case of
the Borrower and any of its subsidiaries, or any of them,
either individually or collectively, the maturity of such
indebtedness aggregating $2,500,000 Cdn. or more (or the
equivalent in other currencies) or any breach of a covenant
hereunder continues after expiry of a 30 day cure period or a
receiver or receiver and manager has been appointed over, or
possession by a third party has been effected directly or
indirectly of, all or substantially all of the Borrower's
assets, the right to terminate the Credit and make such demand
and take steps to recover all such outstanding amounts
thereunder shall take effect immediately.
Documentary Instruments. Refer to the attached Schedule "A"
to this Agreement.
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CALCULATION Determination of Rates. "Prime Lending Rate" is a variable per
& PAYMENT annum reference rate of interest (as announced and adjusted by
the Bank from time to time) for loans made by the Bank in Canada
in Canadian dollars. "Alternate Base Rate" is a fluctuating
interest rate per annum (as shall be in effect from time to time)
(rounded to the nearest 1/100 of 1%) equal to the greater of: (a)
the annual rate of interest announced from time to time by the
Bank in Canada as its "Base Rate Canada"; and (b) the Federal
Funds Effective Rate plus 1/2 of 1% per annum. The "Federal
Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal, for each day during such period,
to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by Federal Funds brokers as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, for any day on which
such rate is not so published for such day by the Federal Reserve
Bank of New York, the average of the quotations for such day for
such transactions received by the Bank from three Federal Funds
brokers of recognized standing selected by the Bank. If for any
reason the Bank shall have determined (which determination shall
be conclusive, absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason,
including without limitation, the inability or failure of the
Bank to obtain sufficient bids or publications in accordance with
the terms hereof, the rate announced by the Bank in Canada as its
"Base Rate Canada" shall be the Alternate Base Rate until the
circumstances giving rise to such inability no longer exist.
Interest Calculation and Payment. Interest computed with
reference to Prime Lending Rate or Alternate Base Rate shall
accrue from day to day for the actual number of days elapsed
and shall be calculated and payable monthly, not in advance,
on the 22nd day of each calendar month. Interest computed
with reference to Prime Lending Rate shall be calculated on
the basis of a 365 day year, but interest computed with
reference to the Alternate Base Rate shall be calculated on
the basis of a year of 360 days.
Default of Payment. Interest payable for amounts not paid
when due hereunder shall accrue from day to day for the actual
number of days elapsed and shall be calculated and payable
upon demand at the same rates as applicable to advances
hereunder plus 2% per annum, and compounded monthly until
paid. The rights of the Bank under this paragraph shall
continue to apply from the
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date of such default for so long as such default shall continue,
both before and after demand and judgment.
Interest Act (Canada). Whenever a rate of interest hereunder
is calculated on the basis of a year (the "deemed year") which
contains fewer days than the actual number of days in the
calendar year of calculation, such rate of interest shall be
expressed as a yearly rate for purposes of the Interest Act
(Canada) by multiplying such rate of interest by the actual
number of days in the calendar year of calculation and
dividing it by the number of days in the deemed year.
REPAYMENTS The Borrower may make any repayment of an advance in a whole
multiple of $100,000 Cdn. in respect of a Prime Rate Advance
and of $100,000 U.S. in respect of a Base Rate Advance.
SECURITY Unsecured.
NEGATIVE The Borrower hereby covenants not to create, incur,
PLEDGE assume or suffer to exist any lien, mortgage, charge, pledge,
hypothecation, security interest or encumbrance (including a
lien or retained title or security interest of a conditional
vendor or financing lessor) of any kind (each a "Lien") or any
right of set-off (arising other than by operation of law) or
any type of preferential arrangement upon or with respect to
any assets, whether now owned or hereafter acquired or held by
or on behalf of the Borrower , or assign any right to receive
income, other than
(a) Liens which currently exist;
(b) any Lien created to secure all or any part of the
purchase price or to secure debt incurred or assumed
to pay all or any part of the purchase price or cost
of construction, of property (or any improvement
thereon) acquired or constructed by the Borrower
after the date hereof provided that:
(i) any such Lien shall extend solely to the item
or items of such property (or improvement
thereon) so acquired or constructed and, if
required by the terms of the instrument
originally creating such Lien, other property
(or improvement thereon) which is an
improvement to or is required for a specific
use in connection with such acquired or
constructed property (or improvement thereon)
or which is real property being improved by
such acquired or constructed property (or
improvement thereon),
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(ii) the principal amount of the debt secured by
any such Lien shall at no time exceed an
amount equal to the lesser of (A) the cost to
the Borrower of the property (or improvement
thereon) so acquired or constructed and (B)
the fair market value as determined in good
faith by the board of directors of the
Borrower of such property (or improvement
thereon) at the time of such acquisition or
construction;
(iii) any such Lien shall be created
contemporaneously with, or within 90 days
after the acquisition or construction of such
property; and
(iv) the assets or property on which the Lien is
created are neither replacements of similar
assets or property nor assets or property
that have been owned or held by or on behalf
of the Borrower or any of its subsidiaries
prior to the date of acquisition;
(c) any Lien existing on property of a corporation
immediately prior to it being consolidated with or
merged into the Borrower, or any Lien existing on any
property acquired by the Borrower at the time such
property is so acquired (whether or not the debt
secured thereby shall have been assumed), provided
that (i) no such Lien shall have been created or
assumed in contemplation of such consolidation or
merger, and (ii) each such Lien shall extend solely
to the item or items of property so acquired and, if
required by the terms of the instrument originally
creating such Lien, other property which is an
improvement to or is acquired for specific use in
connection with such acquired property;
(d) any renewal or replacement Lien for indebtedness
secured by a Lien refered to in paragraphs (a), (b)
or (c) above up to the principal amount outstanding
with respect to such Lien at the time of its renewal
or replacement;
(e) Liens for taxes, assessments or other governmental
charges;
(f) statutory Liens of landlords and Liens of carriers,
warehouseman, mechanics, materialman and other
similar Liens, in each case, incurred in the ordinary
course of business for sums not yet due;
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(g) Liens incurred or deposits made in the ordinary course of
business of the Borrower in connection with workers
compensation, unemployment insurance and other types of
social security or retirement benefits;
(h) Liens incurred or deposits made in the ordinary course of
business of the Borrower to secure the performance of
tenders, statutory obligations, surety bonds, appeal
bonds, bids, leases, performance bonds, purchase,
construction or sales contracts and other similar
obligations, in each case
(i) securing sums or obligations not exceeding
$50,000 U.S. per Lien or deposit; and
(ii) not incurred or made in connection with the
borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase
price of property;
(i) any attachment of judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry
thereof, have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay;
(j) leases or subleases granted to others, easements,
rights of way, restrictions and other similar charges or
encumbrances, in each case incidental to, and not
interfering with the ordinary conduct of the business
of the Borrower or any of its subsidiaries, provided
that such Liens do not, in the aggregate, materially
detract from the value of such property; and
(k) Liens over shares in the capital stock of subsidiaries
of the Borrower which are legally and beneficially owned
by the Borrower, provided that the Borrower has
obtained the Bank s prior written consent to the
creation of each such Lien and has fulfilled, to the
Bank s satisfaction, all of the Bank s requirements, if
any, as to security to be given by the Borrower to the
Bank before such Lien may be created.
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CONDITIONS TO The right of the Borrower to obtain at any time any drawdown of
UTILIZATION an Availment (including the initial drawdown) or "Utilization")
is subject to the receipt by the Bank of this Agreement, and
evidence, in form and substance satisfactory to the Bank, of all
appropriate corporate authorization and to the conditions
precedent that at the time of such Utilization:
(1) in the case where such Utilization is a drawdown, no
event or circumstance has occurred and is continuing,
or would result from the making of such Utilization,
which when considered by itself or together with
other past or then existing events or circumstances,
constitutes or would constitute a material adverse
change in the business prospects or financial
condition of the Borrower or any of its subsidiaries;
(2) the Bank has received an undertaking, duly executed
in the name and on behalf of TD Asset Management Inc.
("TDAM"), under which TDAM undertakes to the Bank
that it shall, at any time and each such time when
the aggregate fair market value of the cash and
readily marketable securities beneficially owned by
the Borrower and held by TDAM on behalf of the
Borrower shall fall below $3,000,000 U.S.,
immediately advise the Bank in writing thereof, such
undertaking to be in form and substance satisfactory
to the Bank; and
(3) the Bank has received such other approvals, opinions
or documents as the Bank may have reasonably
requested.
NOTICE (1) The Borrower shall give to the Bank same Business
Day's notice of each Utilization or repayment in
respect of any type of Availment. Notice to the Bank
hereunder must be given prior to 11:00 a.m. Toronto
time on a Business Day in order to be effective on
that Business Day. The Bank may rely upon oral
(including telephone) requests for funds from persons
believed, in good faith, to be properly authorized to
make such requests. Further, the Bank may consider
the receipt of a cheque or wire transfer drawn on an
account of the Borrower at the Branch, the honoring
of which would cause such account to go into
overdraft, as a request for an advance under the
Credit to the extent necessary to avoid such
overdraft.
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(2) As used herein, a "Business Day" means any day other
than a Saturday, or a Sunday, or a day that banks are
lawfully closed for business in Vancouver, or, if in
respect of a Base Rate Advance, New York City.
(3) Each notice or communication given by a party
hereunder shall be binding on it and shall not be
revocable without the other party's consent.
REPORTING The Borrower shall provide to the Bank, to the attention of
Vice-President, Corporate Banking - Mining, 44 King Street
West, Toronto, Ontario M5H 1H1:
(1) unaudited, quarterly, consolidated financial
statements of the Borrower within 60 days of the end
of each of the first 3 quarters of each of its fiscal
years;
(2) audited, annual, consolidated financial statements of
the Borrower within 120 days of each of its fiscal
year-ends; and
(3) such other information as the Bank may reasonably
request.
INDEMNITY FOR The Borrower hereby represents and warrants that its
ENVIRONMENTAL business and assets and those of its subsidiaries are
HAZARDS operated in compliance with applicable environmental laws,
rules, regulations and orders ("Environmental Laws") and that
no enforcement action in respect thereof is threatened or
pending and covenants to and to cause its subsidiaries to
continue to so operate. If the Bank is required to expend any
funds in compliance with Environmental Laws, the Borrower
shall indemnify the Bank in respect of such expenditures as if
an advance had been made to the Borrower under this Agreement
for such purpose.
EXPENSES All reasonable fees and out-of-pocket expenses of the Bank in
respect of preparation and enforcement of this Agreement will
be for the account of the Borrower.
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EXCHANGE The U.S. dollar exchange equivalent of Canadian
EQUIVALENCIES dollars on any day shall be determined by the Bank in
accordance with the Bank of Canada noon rate of exchange as
published by the Bank of Canada for that day. The aggregate
amount of U.S. dollar Availments and the U.S. dollar exchange
equivalent of Canadian dollar Availments outstanding at any
time under the Credit shall not exceed the U.S. dollar
authorized limit of the Credit at such time, and for such
purposes the Bank may require any such excess resulting for
any reason to be repaid within 30 days of notice thereof to
the Borrower and until such repayment may refuse to allow a
drawdown under the Credit.
PAYMENTS Unless otherwise directed by the appropriate party, all
disbursements to the Borrower shall be made into an account
designated by the Borrower and all payments to the Bank shall
be made in the currency in respect of which the obligations
requiring such payment arose by depositing such payments
(whether by wire transfer or otherwise) into an account
designated by the Bank at the Branch for value on the due
date. The Borrower authorizes and directs the Bank to
automatically debit, by mechanical, electronic or manual
means, any bank account of the Borrower for all amounts
payable under this Agreement, including but not limited to,
the repayment of principal and the payment of interest, fees
and all charges for the keeping of such bank account. The
currency of account of all payments contemplated hereunder
shall be of the essence of this Agreement.
EVIDENCE OF The Borrower acknowledges that the actual recording of
INDEBTEDNESS any Availment under the Credit and interest, fees and other
amounts due therefor under this Agreement in an account of the
Borrower maintained by the Bank in respect thereof and
payments made under the Credit in accordance with this
Agreement shall constitute, except for manifest error,
conclusive evidence of the Borrower's indebtedness and
liability from time to time under this Agreement in respect of
the Credit; provided that the failure of the Bank to record
same in such account shall not affect the obligation of the
Borrower to pay or repay such indebtedness and liability in
accordance with this Agreement.
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JUDGMENT The obligation of the Borrower hereunder to make
CURRENCY payments in any currency other than Canadian dollars (the
"Other Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or
converted into Canadian dollars except to the extent to which
such tender or recovery shall result in the effective receipt
by the Bank of the full amount of such Other Currency so
payable hereunder. Accordingly, the obligation of the
Borrower shall be enforceable as an alternative or additional
cause of action for the purpose of recovery in Canadian
dollars of the amount (if any) by which such effective receipt
shall fall short of the full amount of such Other Currency so
payable hereunder and shall not be affected by any judgment
being obtained for any other sums due hereunder.
SEVERABILITY The invalidity or unenforceability of any particular provision
of this Agreement shall not affect any other provision herein
and the Agreement shall be construed as if the invalid or
unenforceable provision had been omitted.
ASSIGNABILITY The Borrower may not assign this Agreement. The Bank may
assign or grant participations in its rights and obligations
hereunder with the Borrower's prior consent thereto, such
consent not to be unreasonably withheld. The Bank may, after
receiving such consent from the Borrower, disclose to any
assignee or participant or to any potential assignee or
participant in respect of which the Borrower has provided, in
the manner described in the preceding sentence, such consent,
information regarding the business, assets and financial
condition of the Borrower and its affiliates and any other
information provided under or otherwise relating to this
Agreement.
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GOVERNING LAW This Agreement shall be construed in accordance with the laws
of the Province of British Columbia.
* * *
Please indicate your acceptance of this Agreement by signing and returning the
enclosed duplicate copy of this letter on or before December 6, 1996. This
offer replaces the Bank's earlier offer to establish an operating credit
facility in your favour on the terms and conditions contained in its letter of
September 19, 1996, which earlier offer has expired and is of no force and
effect.
Yours truly,
Accepted this 26 day of
November, 1996. THE BANK OF NOVA SCOTIA
VISTA GOLD CORP.
by: /s/ MICHAEL B. RICHINGS by: /s/ C. P. THOMAS
---------------------------- ------------------------
Name: Michael B. Richings C. P. Thomas
--------------------------
Title: President & CEO
-------------------------
by: /s/ A. J. ALI
----------------------------
Name: A. J. Ali by: /s/ J. C. REGAN
-------------------------- ------------------------
Title: VP Finance & CFO J. C. Regan
-------------------------
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SCHEDULE "A"
DOCUMENTARY INSTRUMENTS
This Schedule is part of the letter loan agreement (the
"Agreement") dated November 22, 1996, between The Bank of Nova Scotia (the
"Bank") and Vista Gold Corp. (the "Applicant"). Canadian and U.S. dollar
denominated standby letters of credit (each a "Documentary Instrument") shall
be Availments which may be obtained under the Operating Credit (the "Credit")
referred to in the Agreement, subject in each case to issuance at the Bank's
discretion, provided that each Documentary Instrument shall be in form
satisfactory to the Bank. All other capitalized terms not defined herein shall
have the respective meanings given to them in the Agreement.
IN CONSIDERATION of the Bank issuing each Documentary
Instrument, the Applicant hereby agrees as follows:
1. The availability of the Credit shall reduce by the face amount
of each Documentary Instrument for and during the period of time that the Bank
has a contingent liability thereunder. The Applicant shall pay (i) on issuance
of each Documentary Instrument, an issuance fee of 7/8 of 1% per annum
calculated, in accordance with the Bank's prevailing practice, on the face
amount of such Documentary Instrument for the number of days to elapse from and
including the date of issuance of such Documentary Instrument to the date of
expiry of such Documentary Instrument, subject to a minimum fee of $250 Cdn.
per Documentary Instrument and (ii) on demand, other fees and charges in
respect of each Documentary Instrument upon terms and in amounts in accordance
with the then prevailing practice of the Bank. Each Documentary Instrument may
be converted to another Availment, but only on the expiry of such Documentary
Instrument. All drafts, bills of exchange, receipts, acceptances, demands and
other requests for payment drawn or issued under a Documentary Instrument (any
such instrument being a "Draft") and all other amounts paid by the Bank under
or in connection with any Documentary Instrument shall constitute under the
Credit a Prime Rate Advance to the extent that such amounts are in Canadian
dollars and a Base Rate Advance to the extent that such amounts are in U.S.
dollars.
2. The Applicant shall pay to the Bank all of the Bank's
contingent liability in respect of (i) any Documentary Instrument outstanding
upon any termination of the Credit, and (ii) any Documentary Instrument which
becomes the subject matter of any order, judgment, injunction or other such
determination (an "Order"), or any petition or other application for any Order
by the Applicant or any other party, restricting payment by the Bank under and
in accordance with such Documentary Instrument or extending the Bank's
liability under such Documentary Instrument beyond the expiration date stated
therein, provided that payment in respect of each such Documentary Instrument
shall be due forthwith upon demand and in the currency in which such
Documentary Instrument is denominated (the "Instrument Currency").
3. The Bank hereby agrees that it will, with respect to each
Documentary Instrument subjected to any such demand for payment under the
preceding section, upon the later of:
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(a) the date on which any final and non-appealable order,
judgment or other such determination has been
rendered or issued either terminating any applicable
Order, or permanently enjoining the Bank from paying
under such Documentary Instrument; and
(b) the earlier of:
(i) the date on which either the original
counterpart of such Documentary Instrument is
returned to the Bank for cancellation or the
Bank is released by the beneficiary thereof
from any further obligations in respect of
such Documentary Instrument; and,
(ii) the expiry of such Documentary Instrument;
pay to the Applicant an amount in the applicable Instrument Currency equal to
any excess of the amount received by the Bank hereunder in respect of the
Bank's contingent liability under such Documentary Instrument (the "Received
Amount") over the equivalent in such Instrument Currency of the total of
amounts applied to reimburse the Bank for amounts paid by it under or in
connection with such Documentary Instrument (the Bank having the right to so
appropriate such funds), together with an additional amount in such Instrument
Currency computed by applying a per annum rate as set out below to the amount
of such excess from time to time. The applicable per annum rate shall equal 3%
per annum less than the Bank's Prime Lending Rate, if the applicable
Documentary Instrument is denominated in Canadian dollars and 3% per annum less
than the Bank's Base Rate Canada, if the applicable Documentary Instrument is
denominated in U.S. dollars. Such additional amount shall be calculated daily
on the basis of a 365 day year for the actual number of days elapsed from and
including the date of payment to the Bank of the Received Amount to (but not
including) the date of return to the Applicant of the excess.
4. Amounts not paid when due hereunder shall, for the purposes of
the Agreement, be deemed to be amounts not paid when due for Prime Rate
Advances if in respect of Canadian dollars and amounts not paid when due for
Base Rate Advances if in respect of U.S. dollars.
5. The obligations of the Applicant hereunder shall be absolute,
unconditional and irrevocable and shall not be reduced by any event or
occurrence including, without limitation, any lack of validity or
enforceability of a Documentary Instrument, or any Draft paid or acted upon by
the Bank or any of its correspondents being fraudulent, forged, invalid or
immaterially insufficient in any respect, or any claims which the Applicant may
have against any beneficiary or transferee of any Documentary Instrument. The
obligations of the Applicant hereunder shall remain in full force and effect
and shall apply to any alteration to or extension of the expiration date of any
Documentary Instrument or any standby letter of credit issued to replace,
extend or alter any Documentary Instrument.
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6. Any action, inaction or omission taken or suffered by the Bank
or any of the Bank's correspondents under or in connection with a Documentary
Instrument or any Draft made thereunder, if in good faith and in conformity
with foreign or domestic laws, regulations or customs applicable thereto shall
be binding upon the Applicant and shall not place the Bank or any of its
correspondents under any resulting liability to the Applicant. Without
limiting the generality of the foregoing, the Bank and its correspondents may
receive, accept or pay as complying with the terms of a Documentary Instrument,
any Draft thereunder, otherwise in order which may be signed by, or issued to,
the administrator or any executor of, or the trustee in bankruptcy of, or the
receiver for any property of, or other person or entity acting as the
representative or in the place of, such beneficiary or its successors and
assigns. The Applicant covenants that it will not take any steps, issue any
instructions to the Bank or any of its correspondents or institute any
proceedings intended to derogate from the right or ability of the Bank or its
correspondents to honour and pay any Draft or Drafts.
7. The Applicant agrees to pay on demand all costs and expenses
of the Bank incurred in the enforcement of the Bank's rights under this
Agreement and, further, will indemnify the Bank on demand against all loss or
damage to the Bank arising out of the issuance of or other action taken by the
Bank in connection with any Documentary Instrument including, without
limitation, the costs relating to any legal process instituted by any party
restraining or seeking to restrain the Bank from accepting or paying any Draft.
The Applicant also agrees that the Bank shall have no liability to it for any
reason in respect of the issuance of any Documentary Instrument other than on
account of the Bank's gross negligence or wilful misconduct. All payments to
be made to the Bank hereunder shall be made for value on the date due and free
of any withholding tax or levy, other than taxes imposed on the net income of
the Bank, and such taxes or levies, other than as excepted, shall be paid by
the Applicant. The provisions of this paragraph will survive payment in full
hereunder.
8. This Schedule shall be binding upon the Applicant, its
successors and assigns and shall enure to the benefit of the Bank, its
successors, transferees and assigns. Any provision of this Schedule which is
void or unenforceable shall be ineffective to the extent void or unenforceable
and shall be severable from the other provisions hereof and this Schedule shall
be interpreted as if such provision were not included herein. Time and the
currency of payment hereunder shall be deemed to be of the essence hereof.
None of the terms of this Schedule shall be amended except in writing signed by
the Bank and any waiver by the Bank shall not constitute any further waiver.
The Uniform Customs and Practice for Documentary Credits as most recently
published by the International Chamber of Commerce (the "UCP") shall in all
respects apply to each standby letter of credit and shall be deemed for such
purpose to be a part hereof as if fully incorporated herein. In the event of
any conflict between the UCP and the governing law of the Agreement, the UCP
shall prevail to the extent necessary to remove the conflict.