TIME TO TIME FOLLOWING CONSULTATION WITH THE SUPPLIER, PROVIDED
THAT IF THE PURCHASE PRICE RELATING TO AN ACCOUNT RECEIVABLE PURCHASED BY THE
BANK UNDER THIS AGREEMENT WOULD BE LESS THAN 95 PERCENT OF THE PAYMENT AMOUNT OF
SUCH ACCOUNT RECEIVABLE (THE MINIMUM LEVEL), THE BANK SHALL ADJUST THE RELEVANT
PERCENTAGE TO ENSURE THAT THE PURCHASE PRICE DOES NOT FALL BELOW THE MINIMUM
LEVEL.
5
REPRESENTATIONS AND WARRANTIES
The Supplier hereby makes the following representations and warranties as of the
date hereof, as of each day a Purchase Pack is delivered hereunder and as of
each proposed date for the purchase of an Account Receivable by the Bank as if
made on each such date with reference to the facts and circumstances then
8
existing (it being understood that representations and warranties with respect
to Account Receivable are made only with respect to the Account Receivable that
are the subject of the applicable Purchase Pack):
(A)
IT IS DULY ORGANISED AND VALIDLY EXISTING UNDER THE LAWS OF
ENGLAND AND WALES AND POSSESSES THE CAPACITY TO SUE OR TO BE SUED IN ITS OWN
NAME AND THE POWER TO OWN ITS PROPERTY AND ASSETS AND CARRY ON ITS BUSINESS AS
IT IS NOW BEING CONDUCTED AND IT HAS TAKEN ALL NECESSARY STEPS TO AUTHORISE THE
EXECUTION OF THIS AGREEMENT AND EACH PURCHASE PACK AND THE TRANSACTIONS
CONTEMPLATED THEREBY;
(B)
THE CONTRACT RELATING TO EACH ACCOUNT RECEIVABLE ASSIGNED TO THE
BANK IS IN FULL FORCE AND EFFECT AND LEGAL, VALID AND BINDING ON THE BUYER AND
THE SUPPLIER IS NOT IN BREACH THEREOF OR IN DEFAULT THEREUNDER THAT WOULD RESULT
IN THE BUYER BEING ENTITLED TO EXERCISE ANY SET OFF RIGHTS OR COUNTERCLAIM OR TO
WITHHOLD, EXTEND OR DELAY PAYMENT OF ANY SUCH ACCOUNT RECEIVABLE;
(C)
THIS AGREEMENT AND EACH PURCHASE PACK CONSTITUTE OR WILL, WHEN
EXECUTED, CONSTITUTE ITS LEGAL, VALID AND BINDING OBLIGATIONS ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS AND EACH PURCHASE PACK WHEN DULY EXECUTED IS EFFECTIVE
TO ASSIGN THE ACCOUNT RECEIVABLES REFERRED TO THEREIN TO THE BANK;
(D)
EACH ACCOUNT RECEIVABLE ASSIGNED TO THE BANK IS FREELY ASSIGNABLE
AND CONSTITUTES AMOUNTS DUE AND PAYABLE BY THE BUYER ON THE RELEVANT MATURITY
DATE AND EACH ACCOUNT RECEIVABLE ASSIGNED TO THE BANK PURSUANT TO A PURCHASE
PACK CONSTITUTES AN UNCONDITIONAL, LEGAL, VALID AND BINDING OBLIGATION OF THE
BUYER AND HAS NOT, TO ANY EXTENT, BEEN PREPAID;
(E)
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