FINCOBOX FORFAITING AGREEMENT

 

 

Please read this Fincobox Forfaiting Agreement carefully before using the Forfaiting Service (as defined below) and the Operator Platform (as defined below).

 

By using the Forfaiting Service, you confirm that you have carefully and fully understood all of this Fincobox Forfaiting Agreement (including the terms in relation to your obligations and liabilities, the limitation of your rights, the exemption and limitation of Fincobox's liability, the dispute resolution procedure and the governing law).

 

In the event, that you have any queries in relation to this Fincobox Forfaiting Agreement, please contact the Fincobox (e-mail: accounts@Fincobox.com) for answers. Before that, please do not take any further action otherwise you will be deemed to have accepted all of the terms and conditions set out in this Fincobox Forfaiting Agreement and will have agreed to be bound by this Fincobox Forfaiting Agreement.

 

This forfaiting agreement (this Agreement) is made between:

 

1. you [] a [company OR establishment] incorporated in [⚫] and having its registered address at [⚫] (the Client); and

 

2. ARNIFI TECHNOLOGIES FORFAITING SERVICES CO. L.L.C, a limited liability company incorporated in the United Arab Emirates and having its registered address at Office 1820, Burjuman Office Tower, Bur Dubai, Dubai, UAE, as authorized by the DED under the Forfaiting services license to carry on the forfaiting services to merchant partners (the Provider).

 

BACKGROUND:

1. The Client generates Receivables (as defined below) by providing certain goods and/or services (including products, advertising services, application purchases, in-app purchases or other types of goods and services) (the Prospect Services) to various Counterparties (as defined below) via online marketplaces or ecosystems (Counterparty Ecosystems) or otherwise.

 

2. In order to generate or increase liquidity and improve cashflows, the Client wishes to utilise the Forfaiting Services through the Operator Platform to facilitate receipt of Forfaitings in relation to the Receivables owed to it by Approved Counterparties by assigning that Receivable to the Provider under this Agreement.

 

3. The Provider provides the Facility (as defined below) on an uncommitted basis and only in relation to Approved Counterparty Ecosystems (as defined below) and Relevant Counterparties (as defined below).

 

4. The approach for accessing the Forfaiting Service differs between whether the Forfaiting Service relates to an Approved Counterparty Ecosystem or not:

 

1. Where the Forfaiting Service is provided through an Approved Counterparty Ecosystem (the Approved Counterparty Ecosystem Service), the Request shall automatically set out the terms of the assignment of that Receivable, the Client's submission of that Request shall be irrevocable and the Provider shall approve or reject that Request by notifying the Client through the Operator Platform, following which the assignment of that Receivable will be effective; and

2. Where the Forfaiting Service is not provided through an Approved Counterparty Ecosystem (the Alternative Service), upon a Request by the Client in relation to a Receivable, the Provider shall provide a proposal outlining the Purchase Price and other terms of any assignment of that Receivable in accordance with the Provider's internal methodologies. The Client may then choose to accept or reject the terms of that proposal, following which the assignment of that Receivable will be effective.

 

5. Any Purchase Price in relation to a Receivable shall (subject to the other terms of this Agreement) only be disbursed by the Provider to the Client after the assignment of that Receivable becomes effective.

 

6. Following assignment of any Receivable, the Provider shall have the right to collect and retain that Receivable directly from (in relation to the Approved Counterparty Ecosystem Service) that Approved Counterparty Ecosystem or (in relation to the Alternative Service) a Relevant Counterparty.

 

7. As security for the amount of any Assigned Receivable collected by the Provider being less than the face value of that Assigned Receivable, the Client agrees to irrevocably pledge future Receivables from any Approved Counterparty Ecosystem or any Relevant Counterparty until the Client has recovered an amount equal to the face value of that Assigned Receivable in its entirety and any other amounts due under this Agreement.

 

8. The Client and the Provider agree to carry out the transactions contemplated in relation to the assignment of Receivables in accordance with this Agreement.

 

NOW, THEREFORE, THE CLIENT AND THE PROVIDER AGREE AS FOLLOWS:

1. Definitions and interpretation

 

1. Definitions

 

In this Agreement, the following terms shall have the following meanings (unless the context otherwise requires):

 

Alternative Service has the meaning given to it in recital D.

 

Alternative Service Availability Period means (in relation to a Requested Assigned Right requested in relation to the Alternative Service) the period commencing from the date of the Alternative Service Proposal in accordance with Clause 4.1(b) (Acceptance of a Request) until the date specified in the Alternative Service Proposal.

 

Alternative Service Proposal has the meaning given to it in Clause 4.1(b)(i)(B) (Acceptance of a Request).

 

Anti-Corruption Law means the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 and any similar laws or regulations in any jurisdiction relating to bribery, corruption or any similar practices.

 

Approved Counterparty means any person that is:

 

1. (in relation to the Approved Counterparty Ecosystem Service) listed in the Operator Platform; or

 

2. (in relation to the Alternative Service) approved by the Provider in writing.

 

Approved Counterparty Ecosystem means a Counterparty Ecosystem acceptable to and approved by the Provider.

 

Approved Counterparty Ecosystem Service has the meaning given to it in recital D.

 

Assigned Receivable means a Receivable that forms part of the Assigned Rights (the details of which have been (or will be) uploaded on the Operator Platform).

 

Assigned Right means (in relation to any Receivable) a Relevant Right in relation to that Receivable (including that Receivable) that has been assigned to the Provider in accordance with this Agreement (the details of which have been (or will be) uploaded on the Operator Platform).

 

Available Balance means (at any time):

 

1. (in relation to the Approved Counterparty Ecosystem Service) the available balance that is automatically populated in the Request; and

 

2. (in relation to the Alternative Service) the available balance set out in the Alternative Service Proposal,

 

5. a breach by the Client of any obligation set out in this Agreement or any other document executed in accordance with (or in relation to) this Agreement;

 

6. a breach by a Relevant Counterparty of any obligation in relation to a Relevant Right or Relevant Contract;

 

7. the assignment or Security Interest contemplated by this Agreement becomes invalid or unenforceable for any reason;

 

8. an Insolvency Event; and

 

9. any other event resulting in an Event of Default.

 

Relevant Contract means an agreement between the Client and an Approved Counterparty in relation to the provision of the Prospect Services and contains Relevant Rights that are (or are proposed to be) Assigned Rights or Pledged Rights.

 

Relevant Counterparty means an Approved Counterparty that:

 

1. (in relation to the Approved Counterparty Ecosystem Service) participates in that Approved Counterparty Ecosystem; and/or

 

2. (in relation to the Alternative Service) is a party to a Relevant Contract.

 

Relevant Rights means (in relation to each Relevant Contract) all rights, benefits, title and interest (present and future, actual or contingent) in and to that Relevant Contract including:

 

1. each Receivable,

 

2. all claims, rights and remedies all claims, rights and remedies of the Client arising out of (or in relation to) a breach of or default under (or in relation to) that Relevant Contract or any indemnity payments (to the extent they relate to the payment of each Receivable); and

 

3. any Security Document.

 

Repurchase Notice means (in relation to any Assigned Right) a notice from the Provider to the Client requiring it to accept re-assignment absolutely of that Assigned Right made or delivered:

1. (in relation to the Approved Counterparty Ecosystem Service) electronically through the Operator Platform or via email; and

 

2. (in relation to the Alternative Service) electronically through the Operator Platform or via email, in the form set out it in Schedule 3 (Form of Repurchase Notice) or any other form acceptable to the Provider,

 

(in each case, in accordance with this Agreement).

 

Repurchase Price means (in relation to any Assigned Right) the repurchase price specified in the Repurchase Notice in relation to that Assigned Right, being:

 

1. the amount of the Assigned Receivable in relation to that Assigned Right that has not been received by the Provider on the date of the relevant Repurchase Notice; less

 

2. the Purchase Price Final Instalment in relation to that Assigned Right.

 

Request means (in relation to a Requested Assigned Right) an irrevocable request by the Client to assign absolutely that Requested Assigned Right made or delivered:

 

1. (in relation to the Approved Counterparty Ecosystem Service) electronically through the Operator Platform; and

 

2. (in relation to the Alternative Service) electronically through the Operator Platform, in the form set out it in Schedule 1 (Form of Request) or any other form acceptable to the Provider,

 

(in each case, in accordance with this Agreement).

 

Requested Assigned Right means any Relevant Right requested to be assigned in a Request until such time as that Relevant Right is an Assigned Right or rejected for assignment by the Provider.

 

Requested Assigned Receivable means a Receivable forming part of any Requested Assigned Right.

 

Request Date means (in relation to a Relevant Right) the date on which a Request is submitted to the Provider in relation to that Relevant Right.

 

Sanctions has the meaning given to it in Clause 15.2 (Sanctions).

 

Security Documents means (in relation to any Assigned Right) any indemnity, guarantee or other form of credit enhancement or any Security Interest in relation to that Assigned Right.

 

Security Interest means a mortgage, charge of any kind, pledge, lien or other encumbrance securing any obligation of any person or any other type of preferential arrangement (including title transfer, trust and retention arrangements) having a similar effect.

 

Total Facility Limit means:

 

1. (in relation to the Approved Counterparty Ecosystem Service) the limit specified in the Request; and

 

2. (in relation to the Alternative Service) the limit specified in the latest Alternative Service Proposal.

 

UAE means the United Arab Emirates.

 

VAT means any value-added tax or any other tax of a similar nature imposed under any applicable law.

 

1. Construction

 

Unless a contrary indication appears, any reference in this Agreement to:

 

1. assets includes present and future properties, revenues and rights of every description;

 

2. the Provider or the Client shall be construed so as to include their respective successors in title (including successors by merger or by operation of law), permitted assigns and permitted transferees;

 

3. a communication to be made or delivered in relation to this Agreement shall be construed so as to include an instruction, direction, notice, demand, document or other information to be made or delivered in relation to this Agreement;

 

4. the Provider shall be construed so as to include the Provider 's authorised persons and (in circumstances where there is more than one person acting as the Provider) the Provider shall be construed as a reference to each such person (jointly and severally);

 

5. a document is a reference to the same as amended, varied, supplemented, replaced or restated in any manner from time to time (in each case) as interpreted by the Provider;

 

6. the words include(s), including and in particular shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words;

 

7. a provision of law is a reference to any applicable local or foreign law, regulation, ordinance, decree or treaty as amended or re-enacted from time to time;

 

8. a liability includes any obligation whether incurred as principal or as surety (whether or not in relation to indebtedness, whether present or future, actual or contingent and whether owed jointly or severally) or in any other capacity;

 

9. a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, joint venture, consortium, partnership, sole proprietor or other entity (whether or not having a separate legal personality);

 

10. a regulation includes any regulation, rule, official directive, requirement or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organization; and

11. a time of day is a reference to Dubai time.

 

2. Forfaiting Services

 

The Provider agrees to make available to the Client (on an uncommitted basis) a Facility in accordance with which the Client may (from time to time) request to assign to the Provider any Requested Assigned Rights and the Provider may (subject to being satisfied (in its absolute discretion)) agree to accept such assignment in accordance with this Agreement.

 

3. Requests

 

1. Delivery of a Request

 

Subject to Clause 3.2 (Conditions precedent to a Request), the Client may utilise the Facility in relation to a Requested Assigned Right by submitting to the Provider a duly completed Request.

 

2. Conditions precedent to a Request

 

1. The Client may not deliver a Request under Clause 3.1 (Delivery of a Request) in relation to any Requested Assigned Rights unless the following conditions have been satisfied (or waived by the Provider) in form and substance satisfactory to the Provider:

 

1. the Provider has received:

 

1. the Client's constitutional documents or (as applicable) approved identification card;

 

2. (if applicable) a power of attorney or corporate resolution(s) of the Client approving and authorising the entry into this Agreement and the transactions contemplated thereby;

 

3. a specimen of the signature of each authorised signatory of the Client;

 

4. the Client's VAT registration certificate (if any);

 

5. the Client's trade and/or commercial licence (if any);

 

6. a signed and certified copy of an account authorisation letter; and

 

7. any other document or assurance that the Provider may reasonably require;

 

2. (in relation to the Approved Counterparty Ecosystem Service):

 

1. the aggregate face value of all Requested Assigned Receivables in relation to that Request (shown in the Operator Platform as the "Total Invoice Amount or Requested Amount");

2. the Purchase Price Relevant Percentage in relation to all Requested Assigned Receivables (shown in the Operator Platform as the "Est Advance (AED)");

 

3. the aggregate Purchase Price Initial Instalment in relation to all Requested Assigned Receivables in relation to that Request (shown in the Operator Platform as "Est. Payment (AED)");

 

4. the aggregate Purchase Commission in relation to all Requested Assigned Receivables in relation to that Request (shown in the Operator Platform as "Est. Fees (inc VAT)");

 

5. the invoice number of each invoice in relation to all Requested Assigned Receivables in relation to that Request, notwithstanding the foregoing, the Provider may at its sole discretion defer the requirement of submission of invoice number if the invoice numbers are not available with the Client at the time of submission of the Request;

 

6. a link to the copy of each invoice in relation to all Requested Assigned Receivables in relation to that Request, notwithstanding the foregoing, the Provider may at its sole discretion defer the requirement of submission of invoice number if the invoice copies are not available with the Client at the time of submission of the Request;

 

7. the amount (in AED) of each invoice in relation to all Requested Assigned Receivables in relation to that Request; and

 

8. the Maturity Date of each invoice in relation to all Requested Assigned Receivables in relation to that Request (shown in the Operator Platform as "Due Date"),

 

(in each case) as set out and populated on the "request" screen of the Operator Platform;

 

3. (in relation to the Alternative Service) the Provider has received:

 

1. copies (certified, if requested by the Provider) of each Relevant Contract in relation to such Requested Assigned Rights (together with any invoices issued in relation to such Requested Assigned Rights); and

 

2. details of such Requested Assigned Rights, including the principal amount of such Requested Assigned Rights and the Maturity Date of such Requested Assigned Rights; and

 

4. the counterparty in relation to such Requested Assigned Rights is a Relevant Counterparty and such Requested Assigned Rights conform to the Provider's requirements set out from time to time;

 

5. the Relevant Counterparty in relation to such Requested Assigned Rights has not issued a request to suspend or delay payments or a termination notice in relation to the Prospect Services or any Requested Assigned Rights, any other Assigned Rights or any Receivable in relation to such Requested Assigned Rights or any other Assigned Rights; and

 

6. the Relevant Counterparty in relation to such Requested Assigned Rights has not otherwise communicated to the Client and/or to the Provider that it will not adhere to the payment obligations under the Relevant Contract or any Receivable in relation to such Requested Assigned Rights or any other Assigned Rights.

 

3. Facility

 

1. Acceptance of a Request

 

Following receipt of a Request in relation to any Requested Assigned Rights:

 

1. (in relation to the Approved Counterparty Ecosystem Service):

 

1. a ticket will be created for that Request and shown on the 'Under Review' section in the Operator Platform;

 

2. the Provider may (in its sole discretion) accept or reject that Request through the Operator Platform;

 

3. the Request shall be deemed accepted by the Provider once the ticket is listed in the "Approved" section in the Operator Platform; and

 

4. the acceptance of the Request by the Provider has the effect of automatically assigning all Relevant Rights in relation to the Receivable subject to that Request to the Provider without any further action and in accordance with

1. Clause 10 (Trueassignment of Assigned Rights); and

 

2. (in relation to the Alternative Service):

 

1. the Provider may (in its sole discretion):

 

1. accept that Request and confirm to the Client which Requested Assigned Rights it will accept to be assigned in accordance with this Agreement; or

 

2. provide to the Client a proposal setting out the terms of any assignment of such Requested Assigned Rights (based on that accepted Requested Assigned Rights and the Available Balance) including the Purchase Price, the Purchase Commission, the Alternative Service Availability Period, the Total Facility Limit and other terms as deemed necessary by Provider (including whether an assignment will be on a disclosed or undisclosed basis and whether a Notice of Assignment is required under Clause 4.2(h)) (the Alternative Service Proposal);

 

2. the Client may (within the Alternative Service Availability Period) accept that Alternative Service Proposal by confirming its acceptance to the Provider in writing in any form acceptable by the Provider;

 

3. the Provider may (from time to time prior to the acceptance of any Alternative Service Proposal in accordance with Clause 4.1(b)(ii) (Acceptance of a Request)) amend or modify any term in the Alternative Service Proposal (at its sole discretion); and

4. the acceptance of the Alternative Service Proposal by the Client has the effect of automatically assigning all Relevant Rights in relation to the Receivable subject to that Request to the Provider without any further action and in accordance with Clause 10 (Trueassignment of Assigned Rights).

 

2. Conditions precedent to the payment of the Purchase Price

 

The Provider shall only be obliged to pay all or any part of the Purchase Price in relation to any Requested Assigned Right in accordance with Clause 4.3 (Payment of the Purchase Price) if (on the Request Date and the proposed Purchase Date) the following conditions have been met (or waived) in form and substance satisfactory to the Provider:

 

1. (in relation to the Approved Counterparty Ecosystem Service) the Request has been accepted by the Provider in accordance with Clause 4.1(a) (Acceptance of a Request);

 

2. (in relation to the Alternative Service) the Alternative Service Proposal has been accepted by the Client in accordance with this Agreement and that Alternative Service Proposal;

 

3. no Recourse Event or potential Recourse Event has occurred in relation to that Requested Assigned Right;

 

4. the representation and warranties made by the Client under Clause 13 (Representationsand Warranties), Clause 15.1.1(Anti-CorruptionLaws) and Clause 15.2.1 (Sanctions) are true in all respects;

 

5. no Assigned Receivables remain unpaid after the Maturity Date in relation to such Assigned Receivables;

 

6. the Total Facility Limit would not be exceeded;

 

7. all fees and other amounts then due and payable by the Client to the Provider under this Agreement (other than any fees that would be deducted from the Purchase Price) have been paid;

 

8. (in relation to the Alternative Service):

 

9. (where the relevant Alternative Service Proposal requires that the assignment be on a disclosed basis) a signed and dated Notice of Assignment along with an acknowledgment signed by the Relevant Counterparty, or

 

(ii) (where the relevant Alternative Service Proposal requires that the assignment be on an undisclosed basis) a signed but undated Notice of Assignment;

 

9. evidence that the Client has complied with its obligations in Clause 5.1(b) (Collectionof Receivables); and

 

9. each Security Document requested by the Provider under Clause 6 (Security Interests) has been executed and perfected in favour of the Provider.

3. Payment of the Purchase Price

 

Subject to Clauses 4.1 (Facility), Clause 4.2 (Conditions precedent to the payment of the Purchase Price) and 22.2 (Miscellaneous), the Provider shall pay the Purchase Price in relation to any Assigned Receivable as follows:

 

1. the Purchase Price Initial Instalment on the Purchase Date; and

 

2. (subject to Clause 22.2 (Miscellaneous)) the Purchase Price Final Instalment on the date on which the Provider receives the full amount of that Assigned Receivable and any other outstanding payments in relation to that Assigned Receivable from the Approved Counterparty Ecosystems or the Relevant Counterparty (as applicable).

 

4. Purchase Commission

 

1. The Parties acknowledge that the Provider shall be entitled to a Purchase Commission on each Assigned Receivable, which shall be taken into account in Purchase Price.

 

2. The amount of any Purchase Commission is non-refundable.

 

5. Purpose

 

The Client will apply all proceeds of each Purchase Price under this Agreement solely to its business and commercial endeavours and shall not use such proceeds for any household, personal or any other purposes.

 

6. Characterisation

 

The payment of the Purchase Price made by the Provider to the Client under this Agreement shall be treated as a non-interest bearing acquisition facility in a form of a contractual assignment of any Assigned Receivables and not as a loan by the Provider to the Client.

 

3. Collection of Receivables

 

1. Upon acceptance of (in relation to the Approved Counterparty Ecosystem Service) a Request or (in relation to the Alternative Service) an Alternative Service Proposal:

 

1. (if required by the Provider) the Provider shall appoint the Client as its agent to administer each Relevant Contract and collect each Assigned Receivable and Pledged Receivable, with a fiduciary duty to account to the Provider in relation to that Assigned Receivable;

 

2. the Client shall (irrespective of whether any Notice of Assignment has been given to a Relevant Counterparty or whether any Assigned Receivable is being purchased on an undisclosed basis):

 

1. inform and instruct each Relevant Counterparty to make any payments in relation to any Assigned Receivable or any Pledged Receivable directly into the Operator Account and modify its payment information provided to each Relevant Counterparty to that effect;

 

2. procure payment by each Relevant Counterparty of any Assigned Receivable or any Pledged Receivable directly into the Operator Account; and

3. ensure that any invoice in relation to any Assigned Receivable or any Pledged Receivable contains an instruction for the Relevant Counterparty to pay such invoiced amounts into the Operator Account and into no other account.

 

2. The Client shall (as agent of the Provider):

 

1. take all reasonable steps to ensure the collection of each Assigned Receivable and each Pledged Receivable and any taxes in relation to each Assigned Receivable and each Pledged Receivable;

 

2. take and comply with the Provider's instructions in relation to the variation or adjustment of any Assigned Receivable or any Pledged Receivable under any Relevant Contract; and

 

3. not agree with any Relevant Counterparty to any variation or adjustment to any Assigned Receivable or any Pledged Receivable (without the Provider's prior written consent).

 

3. The Client shall:

 

1. keep full and accurate records in relation to the billing and collection of each Assigned Receivable and each Pledged Receivable;

 

2. (on reasonable notice from the Provider) make those records available during normal business hours if required by the Provider for inspection and copying;

 

3. (promptly) notify the Provider if any part of any Assigned Receivable or any Pledged Receivable is not paid in full on or before the Maturity Date; and

 

4. take such action on the Provider's behalf as the Provider may request to procure payment in full into the Operator Account.

 

4. Without prejudice to Clause 11 (Approved Counterparty Ecosystem access), the Provider may access the Client's premises, accounts and/or electronic systems for the purposes of auditing the collection procedures used by the Client for the collection of any Assigned Receivable or any Pledged Receivable. The Client shall use its reasonable endeavours to assist any such audit.

 

5. The Client shall fully indemnify, keep harmless and indemnified and defend the Provider for any Loss suffered or incurred by the Provider arising out of (or in relation to) a breach by the Client of this Clause 5 (Collectionof Receivables).

 

6. The Client shall not be entitled to any fee or commission for acting as the Provider's agent nor shall it be entitled to be indemnified for any Loss it suffers or incurs as the Provider's agent (other than as expressly set out in this Agreement).

 

3. Security Interests

 

In relation to any Assigned Receivable, the Client shall (to the extent required by the Provider) fully and irrevocably:

 

1. grant any Security Interest over any (present or future) Relevant Rights that are not Assigned Rights in favour of the Provider to be enforced by the Provider in case of an Event of Default in relation to that Assigned Receivable; and

 

2. grant or procure the granting of any indemnity, guarantee or other form of credit enhancement (including any security cheque in favour of the Provider) or any Security Interest in relation to that Assigned Receivable.

 

3. Notice of Assignment

 

If (in relation to an Assigned Receivable):

 

1. a Notice of Assignment is required under Clause 4.2(h)(ii) (Conditions precedent to the payment of the Purchase Price) in relation to that Assigned Receivable; and

 

2. at any time:

 

1. an Event of Default has occurred in relation to that Assigned Receivable; or

 

2. (in the Provider's sole opinion) an Event of Default is reasonably likely to occur in relation to that Assigned Receivable,

 

the Provider may date and serve that Notice of Assignment on the applicable Relevant Counterparty and direct that Relevant Counterparty to make all future payments in relation to that Assigned Receivable to the Operator Account (in each case, in such manner and form as it deems fit).

 

3. Further assurance and power of attorney

 

1. The Client shall take such action as may be required to:

 

1. (where an assignment is required to be on a disclosed basis in accordance with Clause 4.2(h)(i) (Conditions precedent to the payment of the Purchase Price) or the Provider is entitled to date and serve a Notice of Assignment in accordance with Clause 7 (Notice of Assignment)) perfect an irrevocable legal assignment to the Provider of each Assigned Right so that the Provider shall be entitled to receive or take action to recover all of that Assigned Right without the Client being required to join in, be a party to or take in its own name legal action against the applicable Relevant Counterparty;

 

2. (where a Security Interest is required in accordance with Clause 6 (Security Interests)) perfect that Security Interest so that the Provider shall be entitled to receive or take action to recover all of that Security Interest without the Client being required to join in, be a party to or take in its own name legal action against the applicable Relevant Counterparty;

 

3. assist the Provider in recovering all (or any part) of any Assigned Right or Pledged Right (including (at the request of the Provider) joining in and being a party to any legal or other action that the Provider has taken (or wishes to take) against any applicable Relevant Counterparty);

 

4. hold amounts received or otherwise recovered by the Client in relation to any Assigned Right or Pledged Right to the Provider's order and in accordance with the Provider's instructions; and

5. execute, deliver, file or register any document or instrument and do all such acts and things as the Provider may reasonably request or as may be necessary to give effect to the requirements of this Agreement or protect the Provider's rights and benefits in relation to any Assigned Right, any Pledged Right or this Agreement.

 

2. The Client (as security for its obligations under this Agreement) irrevocably appoints the Provider to be its attorney to carry out any actions that the Client is required to carry out in accordance with this Agreement or in relation to any Assigned Receivable or Pledged Receivable. The Client further authorises the Provider to deal directly with each Relevant Counterparty in the place of the Client in relation to any Assigned Right or any Pledged Receivable.

 

3. The Client ratifies and confirms and agrees to ratify and confirm whatever the Provider may lawfully do or attempt to do in exercise of any of the rights referred to in this Clause 8 (Furtherassurance and power of attorney).

 

3. Recourse and Recourse Events

 

1. The Provider has full recourse to the Client if a Recourse Event in relation to an Approved Counterparty and/or any Assigned Receivable occurs.

 

2. The Client agrees to notify the Provider immediately upon becoming aware of any Recourse Event in relation to an Approved Counterparty and/or any Assigned Receivable and give the Provider full details of that Recourse Event.

 

3. If a Recourse Event occurs in relation to an Approved Counterparty and/or any Assigned Receivable, the Provider may (at its sole discretion):

 

1. (by serving a Repurchase Notice) require the Client to repurchase any Assigned Right in relation to which the Provider has not received the full amount of the Assigned Receivable and any other outstanding amounts (if any) in relation to that Approved Counterparty or that Assigned Right (whereupon, the Client shall (within the period specified in that Repurchase Notice) pay to the Provider the Repurchase Price for each Assigned Right that it is required to repurchase in accordance with that Repurchase Notice;

 

2. require the Client to prepay all other amounts due under this Agreement and in relation to that Approved Counterparty or that Assigned Right (whereupon such amounts shall become immediately due and payable);

 

3. cancel the Facility (whereupon the Facility shall automatically be cancelled and the Total Facility Limit shall be reduced to zero); and/or

 

4. enforce any rights it may have under Security Document provided under Clause 6 (SecurityInterests) in relation to that Approved Counterparty or that Assigned Right.

 

4. If a Recourse Event in relation to an Approved Counterparty and/or any Assigned Receivable occurs, the Client shall pay interest in relation to an Assigned Receivable or any other amount due and payable in relation to that Assigned Receivable at the rate per annum specified:

 

1. (in relation to the Approved Counterparty Ecosystem Service) in the "Pending" section under the "Payments" tab in relation to that Assigned Receivable; and

2. (in relation to the Alternative Service) in the Alternative Service Proposal in relation to that Assigned Receivable,

 

on the amount of any payment required to be paid under Clause 9.3 (Recourse and Recourse Events) on any overdue amount from (in relation to the principal amount of that Assigned Receivable) the Maturity Date of that Assigned Receivable or (otherwise) from the date of that amount becoming due and payable (in each case) up to the date of actual payment.

 

5. The irrevocable receipt in full by the Provider of the Repurchase Price for an Assigned Right shall have the effect of reassigning to the Client the right, title and interest in and to all moneys due from the Relevant Counterparty in relation to that Assigned Right as the Provider has at that time (on an as-is where is basis and without any representation or warranty in relation to the same).

 

6. Any Security Interest granted to the Provider in relation to any Assigned Right shall not be released until the Repurchase Price in relation to that Assigned Right and any other amounts then due and payable under this Agreement are fully paid to the Provider.

 

3. True assignment of Assigned Rights

 

1. Subject to Clause 10.3 (Trueassignment of Assigned Rights), each assignment of an Assigned Right to the Provider under this Agreement shall constitute an absolute and irrevocable assignment of all rights, title, benefits and interests to (and in) that Assigned Right.

 

2. Upon an assignment of an Assigned Right to the Provider, the Client:

 

1. relinquishes all its right, title, benefit and interest to (and in) that Assigned Right in favour of the Provider; and

 

2. represents and warrants to the Provider that the Provider shall hold full legal and beneficial ownership of that Assigned Right.

 

3. Notwithstanding the provisions of this Agreement:

 

1. the Client shall remain fully liable to observe and perform all the obligations, conditions and covenants assumed by it under (or in relation to) each Assigned Right, each Pledged Right and each Relevant Contract; and

 

2. the Provider shall have no obligations or liabilities under (or in relation to) any Assigned Right, any Pledged Right or Relevant Contract or towards the Client or any Relevant Counterparty.

 

3. Approved Counterparty Ecosystem access

 

1. Where the Forfaiting Service is provided in relation to an Approved Counterparty Ecosystem, the Client agrees to provide the Provider immediately with its username, password and any other login details in relation to that Approved Counterparty Ecosystem (the Approved Counterparty Ecosystem Credentials) and grant any authorisation, permission and access to enable the Provider to:

 

1. receive and collect any sums in relation to any Assigned Receivables or any Pledged Receivables; and

2. monitor and audit the payment and collection procedures in relation to any Assigned Receivables or any Pledged Receivables.

 

2. By providing Provider with the Approved Counterparty Ecosystem Credentials, the Client grants to the Provider a license to:

 

1. access, view, alter and otherwise use the Client's rights in relation to that Approved Counterparty Ecosystem and copy any information in relation to that Approved Counterparty Ecosystem;

 

2. create sub-accounts, user access profiles and further login credentials in relation to in relation to that Approved Counterparty Ecosystem; and

 

 

3. store and maintain any Approved Counterparty Ecosystem Credentials. (in each case) as necessary or useful:

 

1. to assist in determining Client’s sales, returns, financial status, changes in business and future Receivables;

 

2. to evaluate Client’s business status in relation to this Agreement and any transactions or potential transactions under this Agreement; or

 

 

3. for any other purpose which relates to the business of the Provider deemed appropriate by the Provider (in its absolute discretion).

 

 

3. Other than as necessary to exercise its rights under this Agreement, the Provider will not sell, transfer, grant or otherwise provide the Approved Counterparty Ecosystem Credentials to any third party.

 

3. Access to Operator Platform

 

1. The Client is solely responsible for maintaining the security of the information provided to it for accessing the Operator Platform.

 

2. The Client hereby releases each Indemnitee from any Loss:

 

1. incurred by the Client (or any of its affiliates) for any unauthorised use by:

 

1. the Client; and/or

 

2. any person to whom the Client provides the password to the Operator Platform and/or otherwise provides access to the Operator Platform; and/or

 

2. attributable to any person who receives access to the Operator Platform (directly or indirectly) from the Client or any person to whom Client provides such password or such access.

 

3. The Client acknowledges that the conditions in relation to the use of the Operator Platform by persons (including lenders) to whom the Client provides passwords are posted in the Operator Platform.

 

4. The Client shall not:

   1. sell, resell, rent, exchange, add, modify, temper, distribute, lease, sub-license, loan, provide, or otherwise make available, the Operator Platform in any form (in whole or in part) to any person without the prior written consent of the Provider;

 

2. copy the Operator Platform (in whole or in part) (other than as part of the normal use of the Operator Platform or where it is necessary for the purpose of back-up or operational security);

 

3. translate, merge, adapt, vary, alter or modify, the whole or any part of the Operator Platform nor permit the Operator Platform (in whole or in part) to be combined with (or become incorporated in) any other programmes (other than to the extent necessary for the purpose of using the Operator Platform on devices as permitted in accordance with this Agreement);

 

4. disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Operator Platform nor attempt to do so.

 

5. The Client hereby undertakes to comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the Operator Platform.

 

3. Representations and Warranties

 

The Client makes the following representations and warranties on the date of this Agreement and (also in relation to each Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right) each Request Date and each Purchase Date in relation to that Requested Assigned Right with reference to the facts and circumstances then existing:

 

1. this Agreement constitutes its legal, valid and binding obligations enforceable in accordance with its terms, and the provisions of this Agreement and the Request in relation to that Requested Assigned Right is valid and effective to assign that Requested Assigned Right;

 

2. there are no restrictions or limitations on the Client (whether in its constitutional documents, any partnership agreement or otherwise) to enter into this Agreement or perform the transactions contemplated thereby, and all necessary consents required for the Client to enter into this Agreement and perform the transactions contemplated thereby have been obtained are in full force and effect;

 

3. the entry into this Agreement and the performance of the transactions contemplated thereby form part of the ordinary business of the Client;

 

4. (immediately prior to the assignment of that Requested Assigned Right to the Provider) the Client was the sole legal and beneficial owner of that Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right and it has not assigned, transferred or otherwise disposed of (or created any encumbrance or Security Interest over) that Requested Assigned Right or any Pledged Right in relation to that Requested Assigned Right (other than as expressly contemplated by this Agreement);

 

5. (other than as expressly set out in the Request in relation to that Requested Assigned Right) that Requested Assigned Right and each Pledged Right in relation to that

6. Requested Assigned Right is freely assignable or (as applicable) capable of being subject to a Security Interest and constitutes amounts due and payable by the Relevant Counterparty in relation to that Requested Assigned Right or that Pledged Right on the relevant Maturity Date;

 

7. the Client has the power and authority to enter into this Agreement and its authorised signatories have the power to enter into this Agreement on its behalf;

 

8. each Relevant Contract in relation to that Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right represents the legal, valid and binding obligations of the Client and the Relevant Counterparty in relation to that Requested Assigned Right or that Pledged Right and complies with all statutory and other requirements for its validity;

 

9. (other than as expressly set out in the Request in relation to that Requested Assigned Right) the Client is entitled (without the consent of the Relevant Counterparty in relation to that that Requested Assigned Right, any Pledged Right in relation to that Requested Assigned Right, any guarantor or any third party) to assign or grant a Security Interest over (with full title guarantee and free from all Security Interests) all of its right, title and interest in that Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right;

 

10. it is not aware of any condition or circumstance that may result in the Provider not receiving (and it does not consider there is any likelihood that the Relevant Counterparty in relation to that Requested Assigned Right or that Pledged Right will not pay) the amount due under that Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right on the Maturity Date of that Requested Assigned Right or (as applicable) that Pledged Right in relation to that Requested Assigned Right;

 

11. the Relevant Counterparty in relation to that Requested Assigned Right and each Pledged Right in relation to that Requested Assigned Right is not entitled to (nor will it be required to) exercise any set-off right or counterclaim or make any deduction or withholding from any payment it makes in relation to that Requested Assigned Right or any Pledged Right in relation to that Requested Assigned Right (or any Relevant Contract in relation to that Requested Assigned Right or that Pledged Right); and

 

12. all information furnished to the Provider by the Client or on the Client's behalf is (as of the date that information is provided) true, accurate and complete in all respects.

 

3. Covenants

 

1. The Client shall not (without the prior written consent of the Provider):

 

1. assign (by operation of law or otherwise) dispose of, grant any option in relation to, or create or suffer to exist any adverse claim upon any Assigned Right, any Pledged Right or any Relevant Contract (other than as expressly contemplated by this Agreement);

 

2. grant any extension of time for payment or accept any request by a Relevant Counterparty to delay or suspend any payment in relation to any Assigned Right, any Pledged Right or Relevant Contract;

3. compromise or settle any Assigned Right or any Pledged Right for less than the full amount thereof;

 

4. release (in whole or in part) any Relevant Counterparty of any of its obligations under any Relevant Contract, any Assigned Right or any Pledged Right;

 

5. create any Security Interest over any Assigned Right or any Pledged Right (other than to the Provider); and

 

6. grant any credit, discount, allowance, deduction, return authorisation or the like in relation to any Assigned Right or any Pledged Right.

 

2. The Client shall defend the right, title and interest of the Provider to (and in) all Assigned Rights and all Pledged Rights against all adverse claims of third parties.

 

3. Anti-Corruption Laws and Sanctions

 

1. Anti-Corruption Laws

 

1. The Client represents and warrants that it has conducted its businesses in compliance with applicable Anti-Corruption Laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

2. The Client shall not (and shall ensure that none of its subsidiaries will) directly or indirectly use the proceeds of the Facility for any purpose which would breach any Anti-Corruption Laws.

 

3. The Client shall (and shall ensure that each of its subsidiaries will):

 

1. conduct its businesses in compliance with applicable Anti-Corruption Laws; and

 

2. maintain policies and procedures designed to promote and achieve compliance with such laws.

 

2. Sanctions

 

1. The Client represents and warrants that none of the Client or any of its subsidiaries (or any director, officer, employee, agent or affiliate of the Client or any of its subsidiaries) is an individual or entity that is (or is owned or controlled by a person that is):

 

1. the target or subject of any sanctions administered or enforced by the US Department of the Treasury’s Office of Foreign Assets Control, the US Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Hong Kong Monetary Authority or the United Arab Emirates (collectively, Sanctions); or

 

2. located, organised or resident in a country or territory that is, or whose government is, the target or subject of Sanctions (including, currently, the Crimea region, Cuba, Iran, North Korea and Syria) (other than to the extent that such representation and warranty would result in a violation of Council Regulation (EC) No 2271/96 (as amended), including as in effect in the United Kingdom as retained EU law within the meaning of the European Union (Withdrawal) Act 2018)

 

(a Sanctioned Person).

2. The Client shall not (directly or indirectly) use the proceeds of the Facility or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Sanctioned Person:

 

1. to fund any activities or business of or with any Sanctioned Person or in any country or territory, that (at the time of such funding) is (or whose government is) the target or subject of Sanctions; or

 

2. in any other manner that would result in a violation of Sanctions by any person (other than to the extent that such covenant would result in a violation of Council Regulation (EC) No 2271/96 (as amended), including as in effect in the United Kingdom as retained EU law within the meaning of the European Union (Withdrawal) Act 2018).

 

3. Indemnities and liability

 

1. The Client shall keep harmless and indemnified, defend and (on demand) pay or (if an Indemnitee has paid) reimburse each Indemnitee (on a full indemnity basis) for all Loss suffered or incurred by that Indemnitee in relation to:

 

1. the Provider performing its obligations under this Agreement;

 

2. the protection or preservation of that Indemnitee's rights under this Agreement;

 

3. any stamp, documentary, registration or other like duties or taxes and all notarial fees payable in relation to this Agreement or any transaction contemplated by it;

 

4. any unauthorized use of the Operator Platform referred to in Clause 12.2(Accessto

Operator Platform);

 

5. any Purchase Price not being made on the proposed Purchase Date following submission of a Request and (in relation to the Alternative Service) acceptance of an Alternative Service Proposal (other than any direct loss which has been finally judicially determined to have been caused by that Indemnitee's fraud, gross negligence or willful misconduct);

 

6. any repurchase of any Assigned Right not being made on the date specified following a submission of a Repurchase Notice by the Provider;

 

7. any Recourse Event; and/or

 

8. any breach by the Client of any contractual obligation in relation to:

 

9. any Relevant Contract; or

 

(ii) any other agreement made between the Client and the Relevant Counterparty.

 

2. Where a dispute, claim, difference or controversy arises between the Client and the Relevant Counterparty in relation to any Relevant Contract, an Indemnitee may (immediately) enforce the indemnity set out in Clause 16.1 (Indemnities) without waiting for the outcome of that dispute, claim, difference or controversy to be resolved.

 

3. Each Indemnitee may (without further enquiry) rely on any communication which that Indemnitee believes in good faith to be given or made by the Client (whether through

the Operator Platform or by any other means) irrespective of any error or fraud contained in the communication or the identity of the individual who sent the communication and the Client shall indemnify and hold that Indemnitee harmless from and against all Losses of any nature which that Indemnitee may suffer, incur or sustain as a consequence of accepting and/or acting upon any such communication.

 

4. No director, officer, employee or agent of the Provider has any liability to the Client under (or in relation to) this Agreement notwithstanding that it is an Indemnitee.

 

5. Any Indemnitee may enforce or enjoy the benefit of this Agreement expressed to be in its favour notwithstanding that it is not a party to this Agreement (although the Provider may agree to waive or amend the rights of any director, officer, employee or agent of the Provider without the consent of that director, officer, employee or agent).

 

6. The Provider shall not be liable for:

 

1. any Loss arising out of (or in relation to) any event outside the Provider's control;

 

2. any indirect, incidental, or consequential Loss howsoever caused (whether foreseeable or not and regardless of whether the Provider has received actual or constructive notice and whether arising from negligence, breach of contract or otherwise, even if informed of the possibility of those losses or damages); or

 

3. any Loss arising out of (or in relation to) any of its actions or omissions to act under this Agreement (other than to the extent that any such losses are caused by Provider's willful misconduct, fraud or gross negligence).

 

3. Termination

 

1. Subject to Clauses 17.2 (Termination), 17.3 (Termination) and 22.9 (Miscellaneous), this Agreement may be terminated by:

 

1. an agreement between the Provider and the Client;

 

2. (if the Provider has breached its material obligation to provide the Forfaiting Service in accordance with this Agreement and this breach has not been cured within 45 days of such notice) by:

 

1. (where the Forfaiting Service is provided using the Operator Platform) the Client by disabling the Client's account in the Operator Platform; or

 

2. (where the Forfaiting Service is not provided using the Operator Platform) sending a written termination notice to the Provider;

 

3. by the Provider (at any time, without prior written notice to Client) by:

 

1. (where the Forfaiting Service is provided using the Operator Platform) disabling the Client from the Operator Platform; or

 

2. (where the Forfaiting Service is not provided using the Operator Platform) sending a written termination notice to the Client.

1. The Client may not terminate this Agreement if there are any unpaid amounts then due to the Provider in relation to any Assigned Receivable.

 

3. Any termination under this Clause 17 (Termination) shall not (in any way):

 

1. affect the respective rights and obligations of the parties or any Indemnitee under (or in relation to) this Agreement or any Assigned Right or Pledged Right prior to the date of such termination; nor

 

2. waive or limit the Provider's or any Indemnitee's rights or the Client's obligations under this Agreement.

 

3. Intellectual property rights

 

1. The Client acknowledges that:

 

1. the Operator Platform contains proprietary and confidential information that is protected by applicable intellectual property and other laws; and

 

2. the Provider owns and retains all right, title and interest in and to the Operator Platform and content (including all Intellectual Property Rights therein and thereto).

 

2. All rights in relation to the Operator Platform not expressly granted are strictly reserved by the Provider.

 

3. For the purpose of this Clause 18,Intellectual Property Rights means any and all rights existing before and after your acceptance to this Agreement under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

 

3. Confidentiality

 

1. Operator Confidential Information

 

1. Confidentiality

 

The Client agrees:

 

1. to keep all Operator Confidential Information confidential and not to disclose it to anyone (other than to the extent permitted by Clause 19.1.2 (Disclosure of Operator Confidential Information)); and

 

2. to ensure that all Operator Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

 

2. Disclosure of Operator Confidential Information

 

The Client may disclose to any person:

 

1. to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or in accordance with any applicable law or regulation;

2. to whom information is required to be disclosed in relation to (and for the purposes of) any litigation, arbitration, administrative or other investigations, proceedings or disputes; or

 

3. with the consent of the Provider,

 

(in each case) such Operator Confidential Information provided that: