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;
9
(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;
(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 AND OTHER
INFORMATION REASONABLY NECESSARY OR ADVISABLE FOR THE COLLECTION OF ALL ACCOUNT
RECEIVABLES PURCHASED BY THE BANK OR IN ORDER TO COMPLY IN ALL MATERIAL RESPECTS
WITH APPLICABLE LAWS AND REGULATIONS; (II) TO RETAIN ALL SUCH RECORDS AND
INFORMATION RELATING THERETO SO LONG AS ANY ACCOUNT RECEIVABLE PURCHASED BY THE
BANK REMAINS OUTSTANDING; AND (III) TO HAND COPIES OF SUCH RECORDS AND
DOCUMENTATION TO THE BANK PROMPTLY ON REQUEST; AND
(F)
NOT TO AMEND (OTHER THAN BY WAY OF EXTENSION ON SUBSTANTIALLY THE
SAME TERMS), CANCEL OR TERMINATE ANY CONTRACT TO WHICH ANY ACCOUNT RECEIVABLE
ASSIGNED TO THE BANK RELATES AND NOT TO,