EXHIBIT 10.57
AGREEMENT FOR COMMERCIAL LETTER OF CREDIT
In consideration of the issue by The Bank of Nova Scotia (hereinafter
called "the Bank") from time to time of a Letter of Credit or Letters of Credit
(hereinafter called "a credit"), prepared in accordance with an Application or
Applications which have been or will be entered into by the Undersigned from
time to time during the currency of this Agreement, the Undersigned, and if more
than one, each of them jointly and severally, hereby agrees with the Bank as
follows:
1. The Undersigned shall provide for all bills, drafts, cable and written
demands for payments, receipts and acceptances drawn or issued under a Credit
(any such instrument being hereinafter called a "xxxx") by payment of the
amounts thereof to the Bank at the Branch named in the said Application as
follows:
(a) in the case of a sight xxxx, upon demand by the Bank together with
interest from the date of payment by the Bank at the Bank's
appropriate current rate;
(b) in the case of a xxxx other than a sight xxxx, at least one clear
business day prior to maturity or, if the xxxx is not payable at
the place of issue of a Credit, then in time for the funds to
reach the place at which the xxxx is payable in the ordinary
course of mail at least one clear business day prior to maturity;
and in every case a xxxx payable in the currency of the place of issue of a
Credit shall be provided for by payment in that currency and a xxxx payable in a
foreign currency shall be provided for by payment in the currency of the place
of issue of a Credit at the Bank's current rate of exchange for cable or
electronic transfers in such foreign currency to the place at which the xxxx is
payable, or in such foreign currency by banker's demand draft approved by the
Bank.
2. The Undersigned shall pay to the Bank on demand the Bank's prevailing
fees and charges for issuing a Credit, effecting payment of any xxxx drawn or
issued thereunder, holding any unused part of a Credit available for drawings
and making any amendment to a Credit at the request of the Undersigned.
3. The Undersigned shall pay to the Bank on demand interest on all overdue
payments at the Bank's appropriate current rate and shall indemnify the Bank
with interest at the said rate for all payments, costs, charges and other
expenses paid or incurred by the Bank in connection with a Credit or under the
authority of this Agreement or in connection with any claim, suit, action or
other proceeding brought against the Bank by reason of a Credit or this
Agreement.
4. The Undersigned shall give the Bank from time to time security by way of
bills of lading, warehouse receipts, policies or certificates of insurance,
security under Section 427 of the Bank Act of Canada and any other security
required by the Bank covering all goods, wares, merchandise and other
commodities which may be purchased or shipped under or by virtue of a Credit
(hereinafter called the "the goods") and this undertaking shall be deemed to be
a promise to give such security within the meaning of Section 429 of the Bank
Act.
5. The Undersigned shall keep the goods insured in amounts, against risks,
and in companies satisfactory to the Bank with loss payable to the bank and
shall deliver the policies or certificates of insurance to the Bank and in the
event that the Undersigned fails to keep the goods insured or the insurance is
for any reason unsatisfactory to the Bank, the Bank may, at the expense of the
Undersigned, obtain insurance satisfactory to the Bank.
6. The Bank shall have the absolute right and title to and the unqualified
right to the possession and disposal of the goods, whether or not released to
the Undersigned on trust or bailee receipt or otherwise, and all bills of
lading, warehouse receipts, policies or certificates of insurance and other
documents accompanying or relative to any xxxx and the proceeds of each and all
of the foregoing and shall be entitled to exercise all the rights of the
Undersigned as unpaid sellers of the goods, until such time as all the
obligations and liabilities at any time incurred by the Undersigned and any of
them to the Bank under or in connection with a Credit or this Agreement as well
as all other obligations and liabilities to the Bank heretofore or hereafter
incurred by the Undersigned and any of them (all of the aforesaid obligations
and liabilities being hereinafter called "the obligations and liabilities") have
been fulfilled and paid, the whole being hereby assigned, pledged and
hypothecated to the Bank as security for the fulfillment and payment of the
obligations and liabilities, and for the full amount of such obligations and
liabilities, and the Bank, whenever it thinks fit, may, without notice to the
Undersigned, without prejudice to any of its claims or rights against the
Undersigned and at the cost and expense of the Undersigned, place the goods in
charge of any broker, warehouseman or other agent, either for storage or for
sale, and the Bank shall not incur any liability whatever for the default of any
such broker, warehouseman or other agent.
7. The Undersigned shall from time to time, whenever requested by the Bank,
give to it additional security satisfactory to it in nature and amount, for the
obligations and liabilities, and the Bank may hold all property of any kind
belonging to the Undersigned and any of them at any time in possession of the
Bank or under its control as security for the fulfillment and payment of the
obligations and liabilities.
8. If a Credit does not specify the unit price of the goods and does not
state that partial shipments are not permitted, the Bank shall be entitled to be
paid the full amount of any xxxx honoured in respect of a partial shipment
notwithstanding that it is for an amount that is disproportionate to the
relative partial shipment.
9. The Undersigned shall obtain promptly all necessary permissions and
licenses in respect of the shipping, export and import of the goods and shall
comply with all foreign and domestic governmental requirements with regard
thereto, the whole to the exoneration of the Bank, and shall deliver to the Bank
such certificates in respect thereof as it may require from time to time.
10. Any act or omission by the Bank or its agents or correspondents under or
in connection with a Credit or any relative document, if such act or omission be
in conformity with such foreign or domestic laws, customs or regulations as the
Bank or its
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agents or correspondents may deem to be applicable, shall be binding on the
Undersigned and shall not place the Bank or its agents or correspondents under
any liability to the Undersigned.
11. The Bank, whenever in its discretion it deems it necessary for its
protection, may, as permitted by law, without regard to the maturity of any of
the obligations and liabilities, without advertisement and without notice to the
Undersigned, sell by public or private sale or realize in such other manner as
the Bank thinks fit all or any of the goods, before or after arrival and whether
or not released to the Undersigned on trust or bailee receipt or otherwise, and
all or any other security held by it, upon such terms and conditions and for
such price in money or other consideration as the Bank thinks fit; and any
moneys received by the Bank as proceeds of any such sale, after deduction of all
fees and expenses in connection therewith which with interest shall be borne by
the Undersigned, shall be applied against the obligations and liabilities as the
Bank thinks fit and the Undersigned shall remain liable for and shall pay to the
Bank on demand the balance of the obligations and liabilities.
12. In the event of the breach or non-performance of any of the terms and
conditions contained herein or in a Credit, or in the event of failure to
fulfill or pay at maturity any of the obligations and liabilities, or if the
Undersigned or any of them suspend payment or become bankrupt or insolvent or
make an assignment for the benefit of creditors or become subject to the
provisions of any bankruptcy or insolvency or winding-up legislation, whether
proceedings thereunder be taken or not, or if proceedings be taken against the
Undersigned or any of them for the appointment of a receiver or liquidator, or
if any attachment be issued against any property of the Undersigned or any of
them, then any and all of the obligations and liabilities shall, at the option
of the Bank then or thereafter exercised, become and be immediately due and
payable without notice or demand.
13. All users of a Credit shall be deemed to be agents of the Undersigned and
neither the Bank nor its agents or correspondents shall be responsible for the
negligence or fraudulence of any user of a Credit, for the existence, nature,
condition, description, value, quality or quantity of the goods, for the
packing, shipment, export, import, handling, storage or delivery thereof, or for
the safety or preservation thereof at any time, and neither the Bank nor its
agents or correspondents shall be liable for any loss resulting from the total
or partial destruction of or damage to or deterioration or fall in value of the
goods, or from the delay in arrival or failure to arrive of either the goods or
of any of the documents relating thereto, or from the inadequacy or invalidity
of any document or insurance, or from the default or insolvency of any insurer,
carrier or other person issuing any document with respect to the goods, or from
failure to give or delay in giving notice of arrival of the goods or any other
notice, or from any error in or misinterpretation of or default or delay in the
sending, transmission, arrival or delivery of any message, whether in cipher or
not, by post, telegraph, cable, wireless or otherwise, and the obligations
hereunder of the Undersigned to the Bank shall not be in any way lessened or
affected if any xxxx or document accepted, paid or acted upon by the Bank or its
agents or correspondents is in any or all respects invalid, insufficient,
fraudulent or forged or if any xxxx or document does not bear a reference or
sufficient reference to a Credit or if no note thereof is made on a Credit.
14. In the case of a variance between documents or bills required under a
Credit and those presented by or on behalf of a beneficiary, the Undersigned
shall be deemed to have ratified and confirmed the Bank's acceptance of the
documents or bills so presented as complying with the Credit and to have waived
any right to object to the variance unless immediately upon receipt of the
documents or bills the Undersigned shall have advised the Bank in writing of any
variance to which it objects and shall have returned all documents or bills
received by it to the Bank duly endorsed or transferred to the Bank as the Bank
may instruct for the Bank's disposition as it sees fit.
15. Except as the Bank and the Undersigned may otherwise expressly agree, the
Uniform Customs and Practice for Documentary Credits of the International
Chamber of Commerce, current at the time of issuance of a Credit, shall be
incorporated herein as part of this Agreement and shall apply to a Credit.
16. In the event of any issuance of a further Credit for which the
Undersigned may apply from time to time hereafter, or, of any extension of the
maturity or time for presentation of any xxxx, or, of any renewal, extension or
increase in the amount of a Credit or any other modifications of its terms, this
Agreement shall continue in force and apply to the further Credit so issued, or,
to a Credit so renewed, extended, increased or otherwise modified, or, to any
xxxx, document or property covered thereby and to any action taken by the Bank
or its agents or correspondents in accordance with such issuance, renewal,
extension, increase or other modification.
17. This Agreement shall continue in force and apply notwithstanding any
change for any cause or in any manner whatsoever in the composition or
membership of any firm which is a party hereto or may be a user of a Credit, and
shall be binding upon the Undersigned and upon the heirs, executors,
administrators, successors, and assigns of the Undersigned and each of them and
shall ensure to the benefit of the Bank and its successors and assigns.
QUEBEC ONLY
18. The parties have requested that this Agreement and all
related documents be drawn up in English. Les parties ont exige que ce
contrat et tous les documents y afferents soient rediges en anglias.
DATED this 14th day of December, 2001.
REGAL GREETING & GIFTS CORPORATION
Per.
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Authorized Signing Officer
