The Borrower hereby declares and warrants in respect of the Application Form, these Terms and Conditions and the Security Agreement (including the various documents incorporated therein) that:
a. I am legally empowered to borrow the full amount of the loan facility on the terms set out in these Terms and Conditions and there is no legal or other restriction on my ability to perform my obligations in respect of the loan facility;
b. all information submitted by me to the Lender inter alia, on my financial position, net worth, details of indebtedness, presents accurately my state of affairs and my financial position as at such date;
c. I have presented original and authentic documents in support of my loan application to the Lender;
d. there has been no material adverse change in my financial position from that set forth in the Application Form;
e. my obligations in terms hereof will become binding on me immediately upon my signature of these Terms and Conditions;
f. I have considered the Monthly Instalments repayable as stipulated in the Repayment Schedule and I confirm that I have sufficient means to support myself and my dependents after meeting all of my debt obligations;
g. I declare that there are no reasons or financial obligations in my current circumstance which would cause me to default on the repayment of the loan facility as per the Repayment Schedule;
h. I consent to the joint registration of the Collateral (as more fully described in the Application Form and Schedule “S1” of the Security Agreement) in the name of the Lender and I and I have provided the Collateral specifically to secure the loan facility and, in the event of my default hereunder, the Lender may exercise its right to take possession of and to dispose of the Collateral by private sale or public auction without a court order to recover any outstanding amounts owed by me to the Lender including but not limited to the principal loan amount, interest, loan charges and fees, default interest, legal fees and any other expenses relative to registration, repossessing, preparing for disposition, processing and disposing of the Collateral;
i. the Bank Account as stated in the Application Form will remain open and I will not close this account without first informing the Lender and making arrangements for alternative bank account(s) in which I then receive my income;
j. should my source of income or employment with the Employer as stipulated in the Application Form be changed or terminated for any reason during the duration of this loan facility, I will provide the details of my new source of income or employer, or the status of my employment, to the Lender in writing within 7 (seven) days;
k. there is no material litigation arbitration or administrative proceedings pending or, to the best of my knowledge threatened against me;
l. to the best of my knowledge and belief after due inquiry, I am not in violation of any of the Environmental and Social Laws or environmental, health and safety guidelines of Kenya;
m. I am not in violation of any statute or regulation of any competent authority in Kenya and no judgement or order has been issued which has or is likely to have any material adverse effect on my business prospects or financial condition (as the case may be) or make it improbable that I will be able to observe or perform my obligations under these Terms and Conditions;
n. all applicable taxes due and payable by me to the Kenya Revenue Authority or any other relevant authority have been paid;
o. I have read these Terms and Conditions and the Security Agreement, or they have been read to me, and I understand the content thereof and agree to be bound thereby;
p. the representations and warranties set out above are given and made on and as of the date of these Terms and Conditions, shall survive the acceptance of these Terms and Conditions and are continuing representations and warranties which are deemed to be repeated during the continuance of the loan facility.
2. The Borrower hereby gives consent to the Lender to:
a. contact any registered bank for purposes of determining whether the Borrower holds an account at such bank and obtaining details relating to the Borrower’s Bank Account and receipt of this instruction by the Lender shall be regarded as also having been received by the relevant bank;
b. contact any third party to verify any information supplied by the Borrower and obtain any information which the Lender, at its sole discretion, may require;
c. obtain credit reports on the Borrower from any licensed credit bureau for the purpose of credit management and process and disseminate such information at its discretion;
d. request correct and accurate information from the Borrower when he/she is contacted, telephonically or otherwise, by the Lender’s employees or agents;
e. contact the Borrower‘s current or future employer/s to confirm the Borrower‘s employment, his/her salary payment date and/or his/her bank account details at any time;
f. assign, transfer and make over, without the Borrower’s consent or notice, all or a portion of its rights in terms of this loan facility and/or the Security Agreement to any third party that the Lender may nominate at its sole discretion; and
g. manage any insurance claim in respect of the Collateral on the Borrower’s behalf.
3. The Borrower agrees that the Lender may:
a. hold and process, by computer or otherwise, any information obtained about the Borrower as a consequence of the application for the loan facility;
b. include personal data of the Borrower in the Lender’s computer systems which may be accessed by other companies in the Lender’s group for credit assessment, statistical analysis including behaviour and scoring and to identify products and services (including those supplied by third parties) which may be relevant to the Borrower; and
c. permit other companies within the Lender’s group to use personal data and any other information it holds about the Borrower on the Lender’s computer systems to bring to its attention products and services which may be of interest to the Borrower.
4. The Borrower agrees that the Lender may disclose any information relevant to the Borrower and the loan facility in the Lender’s possession relating to the Borrower on terms that such recipient is to treat in confidence any confidential information so disclosed to it and further agrees that the Lender may disclose personal data and/or information relating to the Borrower or any relevant party outside the Lender’s group whether such personal data and/or information is obtained after the Borrower ceases to be the Lender’s customer or during the continuance of the lender-customer relationship or before such relationship was in contemplation:
a. for fraud prevention purposes;
b. to the Lender’s external lawyers, auditors and sub-contractors or other persons acting as agents of the Lender;
c. to any person who may assume the Lender’s rights under the Terms and Conditions;
d. to any regulatory, fiscal or supervisory authority;
e. if the Lender has a right or duty to disclose or is permitted or compelled to do so by law; and
f. for purposes of exercising any power, remedy, right, authority or discretion relevant to the Terms and Conditions or the Collateral following the occurrence of an Event of Default and/or Default in Payment.
5. The Borrower acknowledges and agrees that, notwithstanding the terms of any other agreement between the Borrower and the Lender, the disclosure by the Lender of information relevant to the Borrower and the loan facility in the circumstances contemplated in this clause does not violate any duty owed to the Borrower either in common law pursuant to any agreement between the Lender and the Borrower or in the ordinary course of lending business and the customs, usage and practice related thereto and further that the disclosure as aforesaid may be made without reference to or further authority from the Borrower and without inquiry by the Lender as the justification or validity of such disclosure.
Conditions Precedent
6. The Lender shall not be obliged to make any disbursement of the loan facility until it has:
a. approved the Borrower’s application for the loan facility by providing the Borrower with a Repayment Schedule, which Repayment Schedule the Borrower accepts; and
b. the Borrower duly executes the security documents relating to the Collateral and any other documentation which the Lender may reasonably require in a form and substance satisfactory to it in relation to the loan facility before disbursement.
Collateral
7. The security to be held by the Lender shall be in a form agreed by the Lender and shall be prepared, executed and perfected at the Borrower’s expense by advocates of the Lender’s choice.
8. The Borrower, by executing the Security Agreement, assigns and transfers all his/her rights, title, estate and interest in and to the Collateral described in Schedule “S1” of the Security Agreement as a continuing security right to secure payment and satisfaction in full of all the Borrower’s obligations in terms hereof.
9. Unless otherwise agreed by the Lender, any security that is presently held by the Lender for other facilities will also serve as security for this loan facility and no property of the Borrower which is subject to a charge, pledge or lien in favour of or vested in the Lender shall be redeemed except on payment of all moneys secured under these Terms and Conditions.
10. Unless otherwise explicitly stated herein, it is hereby acknowledged and agreed by the Borrower that there shall be no restriction on the right of the Lender of consolidating all securities which the Lender may from time to time hold from the Borrower on any account whatsoever and it is hereby declared that no such security in favour of the Lender shall be redeemed and/or discharged except on payment of all monies secured by every such other security.
11. In respect of a Motor Vehicle that has been provided as Collateral pursuant to the Security Agreement, the Borrower undertakes to:
a. keep and maintain the Motor Vehicle in good order and condition (fair wear and tear only excepted), as the Borrower shall be fully responsible for any loss or damage thereto however occurred;
b. not remove or change the Motor Vehicle engine or registration number plates;
c. keep the Motor Vehicle comprehensively insured at all times, in terms of which the Lender shall be entitled to the full benefit of the insurance policy, including claims that might at any time be outstanding. Any monies received by virtue of such insurance shall, at the sole discretion of the Lender, be applied in replacing or restoring any loss or damage to the Motor Vehicle in respect of which the same is received or towards liquidation of the amount owed by the Borrower to the Lender under the loan facility;
d. endorse the Lender on the insurance policy as the principal beneficiary (loss payee) of any payments arising from an insurance claim relating to the Motor Vehicle;
e. provide the Lender with confirmation of comprehensive insurance of the Motor Vehicle in the form of the Letter of Comprehensive Insurance Confirmation;
f. notify the Lender in writing immediately in the event of an insurance claim being made relating to the Motor Vehicle;
g. pay any excess payable in respect of an insurance claim relating to the Motor Vehicle;
h. not use the Motor Vehicle or permit it to be used for any purpose not permitted by the terms and conditions of the insurance policy, or permit to be done any act or thing by reason of which such insurance policy may be invalidated;
i. notify the insurer and the Lender immediately in the event of any loss or damage to the Motor Vehicle;
j. not take, or allow to be taken, the Motor Vehicle outside the borders of the Republic of Kenya;
k. punctually pay all licenses, duties, fees, insurance renewals, and registration charges in respect of the Motor Vehicle, as and when they fall due; and
l. enable a tracking device to be installed in the Motor Vehicle for the duration of the loan facility by the Lender’s nominated service provider; and allow the tracking device to be removed from the Motor Vehicle upon the termination of the loan facility.
12. The Borrower hereby indemnifies the Lender against any damage or loss of whatsoever nature suffered by the Borrower arising as a result of the installation or removal of the tracking device from the Motor Vehicle and/or provision of tracking services by the Lender’s nominated service provider/s.
13. The Borrower hereby further indemnifies the Lender against any damage, loss, injury or liability of whatsoever nature suffered by the Borrower and/or any third party, which may arise as a result of the use of the Motor Vehicle by Borrower or any other driver of the Motor Vehicle.
14. The Borrower shall be solely liable for any loss or damage to the Motor Vehicle and/or liability to any third party in the event of repudiation of an insurance claim by the insurer of the Motor Vehicle for any reason whatsoever.
15. The Borrower agrees that, in the event of devaluation of the Collateral, the Lender may at its sole and absolute discretion, require that the Borrower provides additional security to adequately secure the loan facility and/or require the Borrower to reduce the amount owing under the loan facility to match the appropriate loss in market value of the Collateral. If the Borrower fails to comply with such requirement within five (5) business days, then the Lender may at its sole and absolute discretion exercise any or all of its rights under the events of default clause below.
16. Upon full payment of all amounts under the loan facility and the discharge of all of the Borrower’s obligations hereunder, the Lender undertakes to execute a transfer of the Collateral back into the name of the Borrower and cause the same to be registered in accordance with Movable Property Security Rights Act (No. 13 of 2017).
Facility Fees and Interest
17. The Borrower shall be liable to the Lender for all the fees and charges stipulated in the Repayment Schedule, including but not limited to Total Interest, Administration Fees, Monthly Tracking Device Fees, Insurance Premiums and Other Fees.
18. Interest charged on the loan facility will be calculated at the Fixed Monthly Interest Rate stipulated in the Repayment Schedule.
19. The Lender may by 30 (thirty) days prior written notice change the Fixed Monthly Interest Rate, and any such change will not prejudice in any way the Lender’s right to recover Interest charged subsequent to such change.
20. Should the Borrower fail to repay any amount on its due date a maximum default interest of 10% (ten percent) of the total amount in arrears will be charged per month from the day any amount becomes outstanding until paid in full. The default interest charged on such outstanding amounts shall accrue and be billed every 14 (fourteen) days in advance whereupon it shall become due and payable by the Borrower immediately upon its accrual.
Loan Facility Repayment
21. The Borrower will owe to the Lender the net loan amount disbursed to the Borrower immediately upon its disbursement, which shall be repaid by the Borrower in the Monthly Instalment amounts, inclusive of interest, all fees and charges and insurance premiums, as reflected in the Repayment Schedule.
22. Although the Borrower has agreed to repay the Monthly Instalments via the repayment method selected in the Application Form, the Borrower is solely responsible for ensuring that the monthly repayments are received by the Lender by the due dates.
23. Repayments will be used to settle any legal and collection costs first and thereafter be applied to reducing or settling any default interest, then the fees, insurance premiums and interest due, and lastly to reduce or settle the principal loan.
24. In addition to default interest, unpaid cheques will be subject to recovery of Ksh3000.00 (three thousand Kenyan Shillings) as collection costs.
25. Should the Borrower fail to pay any Monthly Instalment on its due date, the repayment term may be increased at the sole discretion of the Lender in which event the default interest and all applicable fees, charges, insurance premiums, tracker fees and interest shall be payable by the Borrower for the duration of the extended term of the loan facility.
26. Payments made by the Borrower in cash or otherwise to any account or person other than the Lender shall not constitute payment for the purpose of these Terms and Conditions.
Early Settlement
27. The Borrower may settle the loan facility earlier than the repayment term stipulated in the Repayment Schedule in which case the Borrower will be required to provide to the Lender a 30 (thirty) days written notice of the intention to settle early.
28. The Lender will, on receipt of the notice of intention to settle, prepare a settlement quotation reflecting the outstanding principal amount, interest and all other applicable charges, fees, interest, tracker fees and insurance premiums.
29. The Lender provides settlement quotations to borrowers who have provided written notice of intention to settle on the 15th and 30th of every month.
30. The Borrower shall, within 7 (seven) days of the receipt of the settlement quotation, be required to give a written notice of the acceptance of the quotation together with a banker’s cheque for the full amount owing in terms of the settlement quotation drawn in the name of the Lender. Failure by the Borrower to pay the full amount owing in terms of the settlement quotation within the 7 (seven) days will amount to rescinding of the offer to settle. The acceptance of the settlement amount received by the Lender shall be without prejudice of the rights to demand further payment in the event that there was an error regarding the settlement quotation and the Borrower shall be liable to the Lender for any additional outstanding amounts.
Default
31. The following shall be considered a Default in Payment:
a. Failure by the Borrower to make payment of any Monthly Instalment, charge, fee and/or insurance premium on the due date for payment as per the Repayment Schedule; and/or
b. Failure by the Borrower to make payment of any amount which becomes due as per these Terms and Conditions.
32. Upon Default in Payment the Borrower shall be liable to pay the default interest as provided for in clause 30 above and all legal and collection costs incurred by the Lender in the recovery of any outstanding amounts. The Borrower shall also be liable for all applicable fees, charges, insurance premiums and tracker fees in respect of the Collateral until all amounts owing by the Borrower to the Lender under the loan facility have been recovered in full.
33. The Borrower understands and agrees that the Lender shall be entitled to terminate the loan facility with immediate effect, and the whole loan facility amount together with all accrued charges, fees, default interest, interest, tracker fees and insurance premiums shall, at the Lender’s option, become immediately due and payable upon Default in Payment and/or the occurrence of one or more of the following Events of Default:
a. The Borrower breaches any provision or covenant in these Terms and Conditions or the Annexes;
b. The Lender finds that any representation by the Borrower during the loan application process was untrue, incorrect or misleading;
c. The Borrower, in the Lender’s opinion, engages in any activity or conducts himself/herself in a manner that puts repayment of the loan facility and/or the Collateral at risk;
d. The Borrower ceases or threatens to cease, to carry on the business/employment he/she carries on at the date hereof;
e. The Borrower makes any amendments to the insurance policy in respect of the Collateral without giving the Lender prior written notice thereof;
f. There is a lapse of insurance cover in respect of the Collateral for any reason whatsoever;
g. The Borrower interferes with and/or removes the car tracker installed in the Collateral;
h. A distress, execution or other legal process being levied against any of the assets of the Borrower and not being discharged or paid within 7 (seven) days;
i. The Borrower commits an act of bankruptcy, insolvency or a significant deterioration in the Borrower’s financial situation occurs in any other way which threatens the ability of the Borrower to fulfill his/her obligations under this loan facility;
j. The Borrower becomes incapacitated or of unsound mind;
k. The Borrower defaults on, or breaches an agreement for, any of its other indebtedness beyond this loan facility;
l. The Borrower fails to comply with the provisions of the Proceeds of Crime and Anti-Money Laundering laws;
m. The Borrower participates or is deemed to participate in illegal activities, money laundering, cheque kiting or corrupt activities or is charged or convicted of such activities by any court of competent jurisdiction.
34. The Lender’s right to take possession of the Collateral pledged as security in terms of the Security Agreement shall accrue upon Default in Payment and/or an Event of Default in which event the Lender shall have the option to exercise its rights under Security Agreement and the laws of Kenya, including the right to take possession of and dispose of the Collateral without a court order.
35. Upon Default in Payment and/or an Event of Default the Lender shall have the option to (i) invoke the Borrower’s direct debit instruction / authorization as per the Application Form to draw against the Borrower’s Bank Account any Monthly Instalment and/or other amount owing by the Borrower under the loan facility (ii) institute legal proceedings against the Borrower for the recovery of the loan amount together with interest, applicable charges, fees and any other amount owing by the Borrower hereunder, and/or (iii) exercise its right to take possession of and dispose of the Collateral as per clause 34 above.
36. The Lender reserves the right to recover any legal and collection costs incurred by it in the recovery of any outstanding amounts or the enforcement of any rights which it has under these Terms and Conditions and/or the Security Agreement, including but not limited to all expenses relative to repossessing, storage, preparing for disposition, processing and disposing of the Collateral, collection fees and attorneys’ costs, whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment.
37. In the event that the proceeds of the disposal of the Collateral are not sufficient to discharge the amount then outstanding in terms of the loan facility, together with the legal and collection costs, the Borrower shall be liable to the Lender for the balance of the amount outstanding.
38. Under no circumstances may the Borrower withhold any repayment of the loan facility by reason of any alleged breach, counterclaim or any other reason whatsoever.
39. In the event of a dispute, the Borrower shall be obliged to continue with all Monthly Instalment repayments until such time as the dispute is resolved.
40. The parties shall submit to a court of competent jurisdiction should a dispute arise.
Notices
41. Every notice, request or other communication provided by one party to the other shall:
a. be in writing and delivered personally or by registered post or electronic mail;
b. be deemed to have been received by the addressee, if delivered by hand, at the time of delivery or if sent by registered post, 7 (seven) days after the date of posting (notwithstanding that it be undelivered or returned undelivered) or in the case of electronic mail transmission at the time of transmission (provided that if the date of transmission is not a business day or if the time of transmission is after 5:00p.m. on a business day it shall be deemed to have been received at the opening of business on the next business day); and
c. be sent to the addressee’s chosen domiclium citandi et executandi (domicilium).
42. The Borrower elects as his/her domicilium the Residential Address as stipulated in the Application Form and the Lender elects as its domicilium its address stipulated in the heading of the Application Form, or such other address in Kenya as may be notified in writing by the one party to the other.
43. Communication may only be made by electronic mail to the extent that the parties agree and, unless and until notified to the contrary, it shall be an accepted form of communication. The Borrower by providing the electronic mail address in the Application Form or any other document to the Lender hereby consents to the receipt of communication by electronic mail.
General
44. These Terms and Conditions shall form and constitute part of the Security Agreement between the Lender and the Borrower.
45. No amendment, addition, deletion or variation of any of the provisions of these Terms and Conditions, including this clause, shall be of any force or effect unless reduced to writing and signed by both parties.
46. If any term or provision in these Terms and Conditions shall be held to be illegal, invalid or unenforceable, in whole or part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of these Terms and Conditions but the validity and enforceability of the remainder of these Terms and Conditions shall not be affected.
47. No waiver, delay or failure by the Lender in enforcing any provision of these Terms and Conditions and/or the Security Agreement shall prejudice or restrict the rights of the Lender under these agreements, nor shall waiver by the Lender of any breach operate as a waiver of any subsequent breach.
48. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Kenya, including but not limited to the provisions of the Movable Property Security Rights Act, No. 13 of 2017.