IMMEDIATELY PRIOR TO THE EXECUTION OF EACH
PURCHASE PACK BY THE SUPPLIER, THE SUPPLIER WAS THE LEGAL AND BENEFICIAL OWNER
OF EACH ACCOUNT RECEIVABLE ASSIGNED IN SUCH PURCHASE PACK AND IT HAS NOT
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, OR CREATED ANY ENCUMBRANCE OR
SECURITY INTEREST OVER ANY SUCH ACCOUNT RECEIVABLE, OTHER THAN TO THE BANK;
(F)
IT IS NOT AWARE OF ANY REASON WHY THE BANK
SHOULD NOT RECEIVE, THE AMOUNT DUE IN RESPECT OF ANY ACCOUNT RECEIVABLE ASSIGNED
TO THE BANK IN EACH PURCHASE PACK;
(G)
NO INVOICE FOR AMOUNTS DUE FROM THE SUPPLIER
TO THE BUYER UNDER OR OUTSIDE THE COMMERCIAL CONTRACT REMAINS UNPAID BY THE
SUPPLIER FOR:
(I)
IN RELATION TO ANY INVOICE WITH A DUE
DATE OF 45 DAYS OR MORE, 15 DAYS AFTER SUCH DUE DATE; OR
(II)
IN RELATION TO ANY INVOICE WITH A DUE DATE
OF LESS THAN 45 DAYS, 60 DAYS FROM THE DATE ON WHICH THE RELEVANT INVOICE IS
RECEIVED BY THE SUPPLIER,
UNLESS AND ONLY TO THE EXTENT THAT PAYMENT OF SUCH INVOICE IS BEING CONTESTED IN
GOOD FAITH AND THE AGGREGATE AMOUNT OF INVOICES SO CONTESTED UNDER THE
COMMERCIAL CONTRACT DOES NOT EXCEED 5% OF THE AGGREGATE AMOUNT OF ALL
OUTSTANDING INVOICES FOR AMOUNTS DUE FROM THE SUPPLIER TO THE BUYER UNDER OR
OUTSIDE THE COMMERCIAL CONTRACT AT THE RELEVANT TIME; AND
(H)
THE SUPPLIER HAS NOT RECEIVED NOTICE FROM THE
BUYER UNDER THE COMMERCIAL CONTRACT OF THE BUYER'S INTENTION TO EXERCISE ITS
RIGHT TO OFFSET VALID INVOICES UNDER THE COMMERCIAL CONTRACT BY AMOUNTS DUE AND
OWING FROM THE SUPPLIER TO THE BUYER.
6
UNDERTAKINGS
6.1
THE SUPPLIER HEREBY AGREES AND UNDERTAKES:
(A)
NOT TO CREATE OR PERMIT TO SUBSIST ANY
ENCUMBRANCE OVER ANY OF THE SUPPLIER'S RIGHTS, TITLE AND INTEREST IN AND TO ANY
ACCOUNT RECEIVABLE THE SUBJECT OF A PURCHASE PACK AND NOT TO ASSIGN, TRANSFER OR
OTHERWISE DEAL WITH ANY OF ITS RIGHTS IN RESPECT OF ANY ACCOUNT RECEIVABLE THE
SUBJECT OF A PURCHASE PACK;
(B)
IN RELATION TO THE COMMERCIAL CONTRACT:
(I)
TO USE REASONABLE AND USUAL CARE, SKILL
AND FORETHOUGHT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE COMMERCIAL
CONTRACT;
(II)
TO TAKE ALL PRACTICAL MEASURES TO PREVENT
OR MINIMISE LOSS ARISING IN CONNECTION WITH THE COMMERCIAL CONTRACT;
(III)
TO PROMPTLY NOTIFY THE BANK UPON BECOMING
AWARE OF ANY MATERIAL BREACH OF ANY COMMERCIAL CONTRACT OR OF ANY EVENT
MATERIALLY AFFECTING THE PERFORMANCE OF THE COMMERCIAL CONTRACT;
10
(C)
FORTHWITH TO PAY ANY AMOUNT RECEIVED BY IT
IN RESPECT OF AN ACCOUNT RECEIVABLE TO THE BANK AND PENDING SUCH PAYMENT HOLD
THAT AMOUNT ON TRUST FOR THE BANK;
(D)
TO ASSIST THE BANK IN EVERY WAY TO RECOVER
EACH ACCOUNT RECEIVABLE ASSIGNED TO THE BANK AND/OR TO ASSIST THE BANK TO
PERFECT THE ASSIGNMENT TO THE BANK OF ANY ACCOUNT RECEIVABLE IN RESPECT OF WHICH
THE BANK HAS MADE PAYMENT TO THE SUPPLIER;
(E)
(I) TO MAINTAIN AND IMPLEMENT ADMINISTRATIVE
AND OPERATING PROCEDURES AND TO KEEP AND MAINTAIN ALL DOCUMENTS, BOOKS, RECORDS