In this agreement:
1.1. “Lender” means Hazini and its successors and assigns in title.
1.2. “Borrower” means applicants specified in the Borrower’s application and their successors and assigns in title.
1.3. “Application” means the Borrower’s application for a Loan or Credit Facility from the Lender attached to these Conditions.
1.4. “Conditions” means these Conditions.
1.5. “Repayment Date” means the day corresponding to the date of first instalment of the Loan or any part of the Loan in each calendar month following the date of such instalment provided that, if there is no such corresponding day for the month in question, the Repayment Date for that month shall be the last day of the month.
1.6. “Agreement” means this Loan Application Form.
1.7. “Terms” means the terms contained in the Application.
1.8. “Security” means any security required as a condition for disbursement of the Loan referred to in this Loan Application.
1.9. “Loan” means the aggregate of the Loan Amount referred to in this Application or so such much thereof as may have been disbursed and is from time to time owing by the Borrower.
1.10. “Commitment Fee” means a fee levied by the Lender to the Borrower for the services provided by the Lenders in evaluating the Loan proposal by the Borrower
1.11. “Credit Charge” means a fixed percentage of the Loan payable together with the Loan, by the Borrower, in equal monthly instalments.
1.12. “Late Payment Charge” means a late payment or handling charge at the rate of five percent (5%) of the total account balance as a penalty for monthly balances which have become due but remain unpaid on the Repayment Date.
1.13. Reference to the masculine gender shall include reference to the female gender and vice versa.
1.14. Reference to the singular shall include reference to plural and vice versa.
2.1 The Borrower acknowledges that the Lender shall appraise his Loan request according to the Lender’s loan appraisal and vetting processes and that the Lender reserves the right, at its sole discretion, and without assigning any reason to approve or decline his application for a Loan.
2.2. Subject to approval of the Loan requested or sought by the Borrower, the Lender shall lend and disburse to you an amount to be determined by the Lender in its sole discretion.
2.3. The proceeds of the Loan shall be remitted and disbursed to the Borrower through the payment method chosen and opted by the Borrower and the Borrower acknowledges and consents and that credited into your approved and confirmed Account subject to any deductions on account of applicable Credit Charge fees expenses taxes or duties.
2.4. In consideration of the Lender granting the Borrower the Loan, the Borrower shall pay a Credit Charge as may be determined by the Lender which shall be paid together with the Loan on the Repayment Date. If the Borrower does not pay the Loan on the Repayment Date the Lender shall automatically charge a Late Payment Charge. The Borrower acknowledges and agrees that the Late Payment Charge represents a reasonable pre-estimate of the loss to be suffered by the Lender in funding the default requirements of the Borrower.
The Borrower shall pay to the Lender any charges, fees, expenses, taxes, duties, impositions and expenses incurred by the Lender in complying with his Loan request.
2.6. The Lender reserves the right to vary the terms of the Loan including the credit charge fees default charge payable thereon from time to time.
2.7. The Lender grants the Loan or part thereof to the Borrower subject to:
2.7.1. the availability of funds;
2.7.2. there being no change in applicable law or regulation or existing requirements of, or new requirements being imposed by any governmental, fiscal, monetary, regulatory or other authority the result of which in the sole opinion of the Lender is to increase the cost to the Lender of funding, maintaining or making available the Service (or any undrawn amount thereof);
2.7.3. the Conditions Precedent being met/complied with (unless expressly waived by the Lender in writing);
2.7.4. no Event of Default having occurred and no event having occurred which, with the giving of notice and/or lapse of time and/or upon the Bank making the relevant determination, would constitute an Event of Default; and
2.7.5. The Borrower’s compliance with these terms and conditions.
3.1. The Borrower shall pay the Loan together the Credit Charge to the Lender with equated monthly repayments or instalments by way of cleared funds on each Repayment Date.
3.2. Loan repayment will commence from the date of drawdown until the Loan is repaid in full. The Borrower shall pay to the Lender the first repayment on the date of drawdown and the Borrower agrees and authorises the Lender to recover the first repayment from the proceeds of the Loan including such fees, charges, costs and expenses as described in Clause 5 of this Agreement.
3.3. All payments made by the Borrower and received by the Lender in respect of the Loan shall be credited and receipted towards payment of the Loan only when such payments shall be received in cleared funds.
3.4. The Borrower shall pay to the Lender a Default Charge for any payments that will be due and owing from the Borrower but remain unpaid on the Repayment Date which will be debited to the Loan.
4.1. The Lender shall charge the Borrower a Credit Charge for the Loan granted and lent to the Borrower in this Agreement from the date of draw down (as well as before any demand or judgment or the liquidation of the Borrower) at a rate of xxxxxxxxxxxx (XX%) per annum or at such other rate as may be determined by the Lender from time to time at its sole discretion.
4.2. The Lender shall charge the Borrower a Commitment Fee at the rate of four per cent (4%) of the Loan amount lent by the Lender to the Borrower.- subject to change or declared null & void
5.1. The Borrower shall indemnify the Lender forthwith upon demand for any costs, expenses, charges or fees incurred by the Lender in taking any steps to obtain payment of monies due and owing to the Lender under this Agreement including costs of an advocate, auctioneer, court process server or any other agent appointed by the Lender to collect such monies that are due and owing from the Borrower on an own client basis.
5.2. The Borrower shall indemnify the Lender upon demand for any expenses, costs, fees or charges that the Lender shall incur for the establishment of any Security that the Lender shall require for the Loan.
5.3. The Lender shall procure, get and obtain Credit Life Insurance for the Borrower for sums and monies lent and advanced to the Borrower and the Borrower consents and authorises the Lender to deduct any premiums payable towards such cover from the Loan. The Borrower expressly consents and gives the Lender the authority to provide his information and data to the Insurer for the purposes of procuring and obtaining the Credit Life Insurance.
5.4. The Lender shall apply and utilise any funds or remittances received with respect to the Credit Life Insurance towards the settlement of the Borrower’s Loans.
The Lender may effect payment of all fees, expenses and other sums due and payable by the Borrower under the clauses 4.2, 5.1, 5.2, 5.3 and 5.4 out of and by deduction from the Loan and the Borrower authorises the Lender to recover any or all of these expenses from the Loan.
The Lender shall not be obliged to advance the Loan or, where the Loan has been advanced, may by written notice to the Borrower terminate its obligations under this Agreement and or demand immediate payment of all the amounts outstanding due and owed under this Agreement together with accrued interest and all other amounts due and the Borrower will comply with such demand forthwith in the event that:
6.1. The Borrower fails to pay any sum payable hereunder on its due date for payment.
6.2. The Borrower fails to perform and observe any of its obligations under the Agreement.
6.3. The Lender has reason to believe that the Borrower or any of them is, or are likely to become insolvent or have committed an act of bankruptcy.
6.4. If any circumstances arise which in the opinion of the Lender have or may have a material adverse effect on the Borrower’s ability to perform its obligations under this Agreement.
6.5. The Borrower admits in writing its inability to pay or shall become unable to pay its debts generally as they fall due, or become bankrupt or insolvent, or file any petition or action for relief under any bankruptcy, re-organisation or insolvency law.
6.6. Any of the Borrower’s indebtedness is not paid on its Repayment date or becomes due prior to its stated maturity or any guarantee given by the Borrower is not honoured when due or called upon.
7.1. The Borrower expressly authorises the Lender to conduct, carry out and perform credit checks with, and/or obtain the Borrower’s credit information, or such other information, from any or all licensed credit reference bureaus, with respect to this Agreement, and/or the Lender maintaining a Loan for the Borrower.
7.2. The Borrower expressly consents, allows and authorises the Lender to forward personal data and full file credit information to Licensed Credit Reference Bureaus (CRBs) and other Credit Providers.
8.1. The Security (if any) held by the Lender in respect of the Borrower’s obligations under this Agreement together with any security held by the Lender in respect of the Borrower or which may hereafter be held will secure all monies and liabilities which shall from time to time be due and owing or incurred to the Lender by the Borrower whether actually or contingently.
8.2. If there is any conflict between this Application Form and a subsequent Charge/Mortgage or other Security the provisions of that subsequent Security shall prevail.
9.1. If there is no agreement between the Lender and the Borrower on the appointment of professional advisers such as, but not limited to, assessors, advocates and others, then the Lender shall have the sole right to appoint such advisers and the Borrower shall be solely responsible for all the professional fees, costs and charges payable for this purpose.
9.2. The Lender’s appointed Advocates will also act for the Borrower for the purpose of the transfer of title and the creation of any securities.
10.1. No indulgence by the Lender in respect of any of its rights hereunder will operate as a waiver of its said rights nor will it constitute a novation thereof.
10.2. The Borrower acknowledges that no representations or inducements to enter this Agreement have been made whether orally or otherwise other than those specifically referred to herein.
Every notice, request or other communication shall:
11.1. be in writing delivered personally or by registered post or electronic mail or short messaging services or facsimile transmissions;
11.2. be deemed to have been received by the Borrower, if delivered by hand, at the time of delivery or if sent by registered post, seven (7) Business Days after the date of posting (notwithstanding that it be undelivered or returned undelivered) or in the case of a facsimile or electronic mail transmission or short messaging service (SMS) 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 5:00 p.m. on a Business Day it shall be deemed to have been received at the opening of business on the next Business Day); and
11.3 to the Borrower at the address set out in the Application; to the Lender at the address shown in the Application, or to such other address in Kenya as may be notified in writing by the one Party to the other PROVIDED THAT communication may only be made by electronic mail to the extent that the Parties agree that, unless and until notified to the contrary, it shall be an accepted form of communication and that the Parties shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail.
11.4. Any notice, request or communication given to the Lender shall be in writing and shall be effective only on actual receipt by the Lender.
12.1. The Application and the Terms and Conditions shall be governed by and construed in accordance with the Laws of Kenya and the parties submit to the non-exclusive jurisdiction of the Kenyan courts. Nothing in this clause shall limit the right of the Lender to take proceedings against the Borrower or any Relevant Party in any other court of competent jurisdiction nor shall the taking of proceedings at one or more jurisdictions preclude the taking of proceedings in another jurisdiction whether concurrently or not.
12.2. Any dispute arising out of or in connection with this Agreement that is not resolved by the Lender shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Borrower and the Lender or in default of such agreement within 60 days of the notification of a dispute, upon the application of either party, by the Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch). Such arbitration shall be conducted in the English language in Nairobi in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995.
12.3. To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
I/We hereunder confirm that I/We have perused, read, understood and accepted the aforesaid terms and conditions to which I/We have agreed to be bound by without exclusion whatsoever. I/We further state that I/We are jointly and severally liable for the entire Loan, that shall be lent by Hazini, inclusive of the Credit Charge amount and any Late Payment Charges that shall be levied by Hazini.
