Asset purchase is an agreement between a buyer and seller to acquire an organization's assets.
specified assets transfer ownership from seller to buyer.
Assets must be re-titled to the new owner who has the ability to determine which liabilities will be assumed.
In cases where the intending buyer does not have the required finances to fully buy the asset,
our debt finance instrument steps in to fully finance then repay the loaned out amount within the agreed period of time.
Asset finance facility is designed to enable one to acquire moveable assets with ease.This product targets SME customers and individuals.
They specifically help businesses overcome the challenges of raising the necessary capital to purchase new assets.
This provides a more targeted option than securing an overdraft or bank loan,
and allows companies and individuals to spread their payments over a longer timeframe to ease the cash flow impact.
In consideration of the Borrower applying to ACL for a loan to facilitate the Borrower to purchase of the described asset(s) the sold by the Vendor, and ACL forwarding this Loan Amount directly to the Vendor on behalf of the Borrower(as defined in the Schedule hereto):-
1 The Borrower hereby :-
a) Covenants to pay to ACL punctually and without any prior demand or deduction or set off whatsoever the consecutive monthly installments specified in the Schedule hereto and in the manner therein set out and to give effect thereto
b) Requests the Lender to open an account in the Borrowers name and to debit the Account with the Loan Amount and any other charges and interest as herein specified. The first installment shall be paid on the signing of this Agreement. Subsequent installments shall be payable monthly in advance.
c) Covenants to pay to ACL in addition to the applicable installment interest on any installment (s) or part installment which remains unpaid after becoming due at the rate of 5% per month or at such other rate of interest as ACL may specify at its sole discretion (within the limits permitted by law and without seeking the Borrower's approval thereof) such interest to accrue from day to day (as well after as before any judgment) until repaid in full.
d) Warrants to ACL that the asset purchase transaction is valid and covenants to ACL that the weather the assets purchased serves the intended purpose or notwhether due to defects at the time of purchase or after purchase,the Borrower's indebtedness with ACL remains payable
e) Confirms and acknowledges that the outstanding balance on the account shall immediately become due and payable on demand by ACL with interest accruing thereon at the rate specified above from the date of demand if the Borrower makes default on any of the Borrower's obligations hereunder or if a winding up petition or a petition for bankruptcy is filed against the Borrower or if it becomes illegal for ACL or the Borrower to continue with the present arrangement or if there are circumstances which in the sole opinion of ACL may have a material adverse effect on the ability of the Borrower to perform the Borrower's obligations hereunder and the Borrower confirms that ACL shall be at liberty upon making formal demand as aforesaid and ACL shall be entitled to recover the outstanding balance (if any) in the Account interest and charges from the Borrower by summary procedure as a liquidated debt. A statement or Certificate of ACL as to the amount outstanding shall in the absence of manifest error be binding and conclusive as against the borrower.
f) Undertakes to pay all stamp duty and other duties and taxes (if any) to which this Agreement or any other document executed pursuant to this Agreement may be subject to (which duties and taxes shall be debited in the Borrowers Account) and the Borrower further undertakes to reimburse ACL on demand all expenses including legal expenses incurred by ACL in the negotiation and preparation of this Agreement and all expenses incurred by ACL in suing for or recovering any sum due to ACL under this Agreement or otherwise in protecting or enforcing its rights under this Agreement.
g) Undertakes that if ACL shall so request the Borrower shall execute in favour of ACL by way of security a legal assign¬ment or mortgage over the Asset purchased hereunder, or the borrowers other Assets Policy to ACL and the Borrower undertakes to meet all costs and expenses including the legal fees payable as a result.
h) Confirms that no failure or delay by ACL in exercising any right power or privilege under this Agreement shall impair the same or operate as a waiver for the same nor shall any single or partial exercise of any right power or privilege preclude any further exercise of the same or the exercise of any other right power or privilege.
i) Warrants to ACL that the Borrower has the power to enter into the transaction contemplated by this Agreement and that neither the execution hereof nor the performance or observance of the Borrower's obligations hereunder will conflict with or result in any breach of any law regulation mortgage agreement or other instrument whatsoever.
j) ACL may at any time and without notice to the Borrowers combine or consolidate all or any of the Borrowers' accounts with ACL and set off or transfer any sum standing to the credit of one or more of those accounts in or towards satisfaction of any monies obligations or liabilities of the Borrower to ACL whether those liabilities be present, future, actual, contingent, primary, joint or several and the Borrowers expressly waive off any rights of set off that he may have, so far as is permitted by Law, in respect of any claim which he may know or at any time hereafter have against ACL
k) Confirms that should any cheque remitted to ACL be dishonored on presentation resulting in the non-payment of any installment(s) consist a breach of this agreement.
l) The on us to issue replacement unpaid repayment if/when the arrangements made with ACL become obsolete/voidable/ineffective for any reason whatsoever, shall always be the borrowers
2. The Guarantor
a) Understand that this Asset Purchase Loan is granted on the strength of a guarantors executed separately between ACL and the Borrower.
b) Covenants with ACL that the guarantor is bound by an agreement (contact) that validly exist between the borrower and ACL.
c) Hereby unconditionally guarantee and undertake as primarily obligor and covenants that on last day of the month in which this contract is executed, or on the pay-day whichever comers earlier, the employer shall deduct from the borrowers salary, wages, commission or bonuses the Loan plus Interest amount as indicated in this agreement, and remit the same to ACL without delay, not later than the 5th day of the next month in the agreed manner without any deduction or set off whatsoever.
d) If the Loan amount is not paid on the date on which it is due as herein provided, we undertake to pay ACL interest on such sum for the period beginning on such date until the payment is received by ACL in full at the rate of 5% per month from time to time in force or at such other rate as ACL may specify at its sole discretion (within the limits permitted by law) and we confirm that such interest shall be calculated on the basis of a 365 day year and be compounded monthly until repaid in full.
e) Warrants that the right to deduct the borrowers salary and to remit the same to ACL in settlement of the Pay-Day Loan hereunder shall override and prevail over any conflicting provisions in the Policy and the Refundable loan shall be deemed to be refundable notwithstanding that a claim has arisen or payment has been made under the policy(ies) unless the payment is made to ACL.
f) Upon cancellation of the policy(ies) hereunder the Insurer shall comply with all statutory and other common law obligations resulting from such cancellation and including without limitation the provision of notice to any third party of such a cancellation where required.
g) The right of ACL to the Refundable Loan and its interest as financier or assignee shall be noted on the Policy or by way of an endorsement to be issued in respect thereof following the execution of this agreement and the Insurer shall provide ACL written proof of compliance with this sub-clause upon demand.
3. This guarantee:
a) Shall not be affected, discharged or diminished by any act or omission which would but for this provision have exonerated a guarantor but would not have affected or discharged our liability had we been a principal debtor.
b) Shall continue in force until all the amount due to ACL on loan financed has been paid when all liability hereunder shall cease save to the extent ACL shall previously have called upon us in writing to pay specified moneys payable then remaining outstanding.
c) Does not extend to liabilities incurred after the date of receipt by you of notice of termination from us and on service of such notice we shall be at liberty to pay off any moneys or liabilities guaranteed by us and to provide cash cover in respect of any contingent liabilities guaranteed.
d) Shall be governed and interpreted in all respects in accordance with the Laws of Kenya and the parties hereto irrevocably; submit to the non-exclusive jurisdiction of the High Court of Kenya.
e) The undertakings contained in this guarantee shall override any other undertakings given by us in any other documents.
AND IT IS HEREBY AGREED THAT
1. Any notice or demand shall be deemed to have been properly served on any party hereto if delivered by hand or sent by registered post telex or facsimile or email at the address shown in the Schedule hereto or at the registered offices or the physical address shown on the Schedule hereto and in the absence of evidence of earlier receipt any notice or demand shall be deemed to have been received if delivered by hand at the time of delivery or if sent by registered post three (3) days after the date of posting (notwithstanding that it be delivered or returned undelivered) or if sent by telex or facsimile on the on the completion of transmission
2. This agreement shall not take effect and shall not be binding on ACL unless and until it is signed by ACL and other parties hereto
3. If the Borrower is more than person then all obligations on the part of the Borrower shall be joint and several
4. any dispute or difference arising between the parties to this Agreement for or in connection with this Agreement or its performance construction or interpretation shall be referred to arbitration by a single arbitrator in accordance with the provisions of the Arbitration ActNumber 4 of 1995 or any amendments or replacements thereof whose decision in relation to any such dispute or difference shall be final and binding on the parties hereto.
5. ACL shall not be liable for any failure to perform its obligations hereunder caused by reasons beyond its control or resulting directly or indirectly from the action or inaction of any Government authority, or strike, boycott, blockade, act of God, revolution or civil disturbance.
6. All terms suggesting first person singular may be construed to mean second or third person singular, or plural, personal, partnership, cooperative, corporate with or without limited liability, or public company, without any gender bias whatsoever.
7. ACL is an active member of the credit reference/rating fraternity, from whom, and to whom credit data interchange of/from ACL’s client database forms an integral part of ACL’s business process.
8. This agreement and accompanying application form, et al, is the property of ACL.
Terms and Conditions
PAY-DAY LOAN AGREEMENT:
In consideration of the Borrower applying to ACL for an emergency loan for the reason shown on the application form attached hereto:-
1 The Borrower hereby :-
a) Covenants to pay to ACL punctually and without any prior demand or deduction or set off whatsoever the consecutive monthly installments specified in the Schedule hereto and in the manner therein set out and to give effect thereto
b) Requests the Lender to open an account in the Borrowers name and to debit the Account with the Loan Amount and any other charges and interest as herein specified. The first installment shall be paid on the signing of this Agreement. Subsequent installments shall be payable monthly in advance.
c) Covenants to pay to ACL in addition to the applicable installment interest on any installment (s) or part installment which remains unpaid after becoming due at the rate of 5% per month or at such other rate of interest as ACL may specify at its sole discretion (within the limits permitted by law and without seeking the Borrower's approval thereof) such interest to accrue from day to day (as well after as before any judgment) until repaid in full.
d) Warrants to ACL that the asset purchase transaction is valid and covenants to ACL that the weather the assets purchased serves the intended purpose or not whether due to defects at the time of purchase or after purchase, the Borrower's indebtedness with ACL remains payable
e) Confirms and acknowledges that the outstanding balance on the account shall immediately become due and payable on demand by ACL with interest accruing thereon at the rate specified above from the date of demand if the Borrower makes default on any of the Borrower's obligations hereunder or if a winding up petition or a petition for bankruptcy is filed against the Borrower or if it becomes illegal for ACL or the Borrower to continue with the present arrangement or if there are circumstances which in the sole opinion of ACL may have a material adverse effect on the ability of the Borrower to perform the Borrower's obligations hereunder and the Borrower confirms that ACL shall be at liberty upon making formal demand as aforesaid and ACL shall be entitled to recover the outstanding balance (if any) in the Account interest and charges from the Borrower by summary procedure as a liquidated debt. A statement or Certificate of ACL as to the amount outstanding shall in the absence of manifest error be binding and conclusive as against the borrower.
f) Undertakes to pay all stamp duty and other duties and taxes (if any) to which this Agreement or any other document executed pursuant to this Agreement may be subject to (which duties and taxes shall be debited in the Borrowers Account) and the Borrower further undertakes to reimburse ACL on demand all expenses including legal expenses incurred by ACL in the negotiation and preparation of this Agreement and all expenses incurred by ACL in suing for or recovering any sum due to ACL under this Agreement or otherwise in protecting or enforcing its rights under this Agreement.
g) Undertakes that if ACL shall so request the Borrower shall execute in favour of ACL by way of security a legal assign¬ment or mortgage over the Asset purchased hereunder, or the borrowers other Assets Policy to ACL and the Borrower undertakes to meet all costs and expenses including the legal fees payable as a result.
h) Confirms that no failure or delay by ACL in exercising any right power or privilege under this Agreement shall impair the same or operate as a waiver for the same nor shall any single or partial exercise of any right power or privilege preclude any further exercise of the same or the exercise of any other right power or privilege.
i) Warrants to ACL that the Borrower has the power to enter into the transaction contemplated by this Agreement and that neither the execution hereof nor the performance or observance of the Borrower's obligations hereunder will conflict with or result in any breach of any law regulation mortgage agreement or other instrument whatsoever.
j) ACL may at any time and without notice to the Borrowers combine or consolidate all or any of the Borrowers' accounts with ACL and set off or transfer any sum standing to the credit of one or more of those accounts in or towards satisfaction of any monies obligations or liabilities of the Borrower to ACL whether those liabilities be present, future, actual, contingent, primary, joint or several and the Borrowers expressly waive off any rights of set off that he may have, so far as is permitted by Law, in respect of any claim which he may know or at any time hereafter have against ACL
k) Confirms that should any cheque remitted to ACL be dishonored on presentation resulting in the non-payment of any installment(s) consist a breach of this agreement.
l) The onus to issue replacement unpaid repayment if/when the arrangements made with ACL become obsolete/voidable/ineffective for any reason whatsoever, shall always be the borrowers
2. The Employer (being the guarantor)
a) Understand that this Pay-Day Loan is granted on the strength of a separate “Staff Loans Check-off Agreement” executed separately between ACL and the Employer.
b) Covenants with ACL that the Borrower is the Employers’ employee, and an employment contract validly exists and that the employers pay the employee a monthly salary in arrears.
c) Hereby unconditionally guarantee and undertake as primarily obligor and covenants that on last day of the month in which this contract is executed, or on the pay-day whichever comers earlier, the employer shall deduct from the borrowers salary, wages, commission or bonuses the Loan plus Interest amount as indicated in this agreement, and remit the same to ACL without delay, not later than the 5th day of the next month in the agreed manner without any deduction or set off whatsoever.
d) If the Loan amount is not paid on the date on which it is due as herein provided, we undertake to pay ACL interest on such sum for the period beginning on such date until the payment is received by ACL in full at the rate of 5% per month from time to time in force or at such other rate as ACL may specify at its sole discretion (within the limits permitted by law) and we confirm that such interest shall be calculated on the basis of a 365 day year and be compounded monthly until repaid in full.
e) Warrants that the right to deduct the borrowers salary and to remit the same to ACL in settlement of the Pay-Day Loan hereunder shall override and prevail over any conflicting provisions in the Policy and the Refundable loan shall be deemed to be refundable notwithstanding that a claim has arisen or payment has been made under the policy (ies) unless the payment is made to ACL.
f) Upon cancellation of the policy(ies) hereunder the Insurer shall comply with all statutory and other common law obligations resulting from such cancellation and including without limitation the provision of notice to any third party of such a cancellation where required.
g) The right of ACL to the Refundable Loan and its interest as financier or assignee shall be noted on the Policy or by way of an endorsement to be issued in respect thereof following the execution of this agreement and the Insurer shall provide ACL written proof of compliance with this sub-clause upon demand.
A 3. This guarantee:
a) Shall not be affected, discharged or diminished by any act or omission which would but for this provision have exonerated a guarantor but would not have affected or discharged our liability had we been a principal debtor.
b) Shall continue in force until all the amount due to ACL on loan financed has been paid when all liability hereunder shall cease save to the extent ACL shall previously have called upon us in writing to pay specified moneys payable then remaining outstanding.
c) Does not extend to liabilities incurred after the date of receipt by you of notice of termination from us and on service of such notice we shall be at liberty to pay off any moneys or liabilities guaranteed by us and to provide cash cover in respect of any contingent liabilities guaranteed.
d) Shall be governed and interpreted in all respects in accordance with the Laws of Kenya and the parties hereto irrevocably; submit to the non-exclusive jurisdiction of the High Court of Kenya.
e) The undertakings contained in this guarantee shall override any other undertakings given by us in any other documents.
AND IT IS HEREBY AGREED THAT
1. Any notice or demand shall be deemed to have been properly served on any party hereto if delivered by hand or sent by registered post telex or facsimile or email at the address shown in the Schedule hereto or at the registered offices or the physical address shown on the Schedule hereto and in the absence of evidence of earlier receipt any notice or demand shall be deemed to have been received if delivered by hand at the time of delivery or if sent by registered post three (3) days after the date of posting (notwithstanding that it be delivered or returned undelivered) or if sent by telex or facsimile on the on the completion of transmission
2. This agreement shall not take effect and shall not be binding on ACL unless and until it is signed by ACL and other parties hereto
3. If the Borrower is more than person then all obligations on the part of the Borrower shall be joint and several
4. Any dispute or difference arising between the parties to this Agreement for or in connection with this Agreement or its performance construction or interpretation shall be referred to arbitration by a single arbitrator in accordance with the provisions of the Arbitration Act Number 4 of 1995 or any amendments or replacements thereof whose decision in relation to any such dispute or difference shall be final and binding on the parties hereto.
5. ACL shall not be liable for any failure to perform its obligations hereunder caused by reasons beyond its control or resulting directly or indirectly from the action or inaction of any Government authority, or strike, boycott, blockade, act of God, revolution or civil disturbance.
6. All terms suggesting first person singular may be construed to mean second or third person singular, or plural, personal, partnership, cooperative, corporate with or without limited liability, or public company, without any gender bias whatsoever.
7. ACL is an active member of the credit reference/rating fraternity, from whom, and to whom credit data interchange of/from ACL’s client database forms an integral part of ACL’s business process.
8. This form is the property of ACL
Terms and Conditions
NOW THIS AGREEMENT & GUARANTEE WITNESSETH:
In consideration of ACL paying the Premium Amount to the insurer (as defined in the Schedule hereto) on behalf of the Borrower being the amount payable by the Borrower to the Insurer under the Policy (as defined in the Schedule hereto):-
1.The Borrower hereby :-
a) Covenants to pay to ACL punctually and without any prior demand or deduction or set off whatsoever the consecutive monthly installments specified in the Schedule hereto and in the manner therein set out and to give effect thereto
b) Requests the Lender to open an account in the Borrowers name and to debit the Account with the Premium Amount and any other charges and interest as herein specified. The first installment shall be paid on the signing of this Agreement. Subsequent installments shall be payable monthly in advance.
c) Covenants to pay to ACL in addition to the applicable installment interest on any installment (s) or part installment which remains unpaid after becoming due at the rate of 2% per month or at such other rate of interest as ACL may specify at its sole discretion (within the limits permitted by law and without seeking the Borrower's approval thereof) such interest to accrue from day to day (as well after as before any judgment) until repaid in full.
d) Warrants to ACL that the Policy is valid and covenants to ACL that the Policy shall remain valid throughout the course of the Borrower's indebtedness with ACL and to give effect thereto the Borrower undertakes not to cancel the Policy without ACL 's consent or do any act or commit any default whereby the Policy may become void or voidable or whereby an increased premium or charge may become payable (unless the Borrower promptly pays the additional charge or premium to the Insurer) provided that in case of default by the Borrower on any of the Borrower's obligations herein it will be lawful but not obligatory for ACL to do whatever it may deem necessary to make good such default and any money expended by ACL in that behalf with interest as provided above shall be debited in the Account and shall be repaid by the Borrower on demand. The provisions of this sub-clause shall be without prejudice to ACL 's rights set out in sub-clause (d) hereunder.
e) Confirms and acknowledges that the outstanding balance on the account shall immediately become due and payable on demand by ACL with interest accruing thereon at the rate specified above from the date of demand if the Borrower makes default on any of the Borrower's obligations hereunder or under the Policy or if a winding up petition or a petition for bankruptcy is filed against the Borrower or if it becomes illegal for ACL or the Borrower to continue with the present arrangement or if there are circumstances which in the sole opinion of ACL may have a material adverse effect on the ability of the Borrower to perform the Borrower's obligations hereunder or under the Policy and the Borrower confirms that ACL shall be at liberty upon making formal demand as aforesaid to terminate the Policy forthwith and to receive refundable premium (if any) from the Insurer and ACL shall be entitled to recover the outstanding balance (if any) in the Account interest and charges from the Borrower by summary procedure as a liquidated debt. A statement or Certificate of ACL as to the amount outstanding shall in the absence of manifest error be binding and conclusive as against the borrower.
f) Authorizes and instructs the Insurer through the signing of this Agreement to register ACL 's interest in the Policy as a premium finan¬cier as well as ACL 's right to terminate the Policy and to receive the refund on the Premium Amount and the Borrower further covenants with ACL that the Borrower shall procure that the Insurer complies with the aforesaid authorization and in any event the Borrower confirms that the Borrower shall hold any monies paid to the Borrower under the Policy by the Insurer in trust for ACL and shall immediately upon receipt surrender such monies to ACL to be credited to the Account. This obligation shall subsist until ACL confirms in writing that the Account has been redeemed in full.
g) Undertakes to pay all stamp duty and other duties and taxes (if any) to which this Agreement or any other document executed pursuant to this Agreement may be subject to (which duties and taxes shall be debited in the Borrowers Account) and the Borrower further undertakes to reimburse ACL on demand all expenses including legal expenses incurred by ACL in the negotiation and preparation of this Agreement and all expenses incurred by ACL in suing for or recovering any sum due to ACL under this Agreement or otherwise in protecting or enforcing its rights under this Agreement.
h) Appoints ACL to be the Attorney of the Borrower and in the name and on behalf of the Borrower to execute and do any assur¬ances acts and things which the Borrower ought to execute and do under the Policy including without limitation the power to terminate the Policy and to give good receipt and discharge thereof for the refund of the Premium Amount or any part thereof received by the Borrower on such termination or for any settlement paid under the Policy and the Borrower hereby ratifies all-acts or deeds done by ACL in exercise of the power herein conferred and absolves from blame any and all parties giving effect to such power AND the Borrower further confirms and agrees that any premium or part premium refunded as aforesaid or any settlement paid to ACL will first be applied towards redeeming the Account and the balance (if any) released to the Borrower.
i) Undertakes that if ACL shall so request the Borrower shall execute in favour of ACL by way of security a legal assign¬ment or mortgage over the Policy or cede the Policy to ACL and the Borrower undertakes to meet all costs and expenses including the legal fees payable as a result.
j) Confirms that no failure or delay by ACL in exercising any right power or privilege under this Agreement shall impair the same or operate as a waiver for the same nor shall any single or partial exercise of any right power or privilege preclude any further exercise of the same or the exercise of any other right power or privilege.
k) Warrants to ACL that the Borrower has the power to enter into the transaction contemplated by this Agreement and that neither the execution hereof nor the performance or observance of the Borrower's obligations hereunder will conflict with or result in any breach of any law regulation mortgage agreement or other instrument whatsoever.
l) ACL may at any time and without notice to the Borrowers combine or consolidate all or any of the Borrowers' accounts with ACL and set off or transfer any sum standing to the credit of one or more of those accounts in or towards satisfaction of any monies obligations or liabilities of the Borrower to ACL whether those liabilities be present, future, actual, contingent, primary, joint or several and the Borrowers expressly waive off any rights of set off that he may have, so far as is permitted by Law, in respect of any claim which he may know or at any time hereafter have against ACL
m) Confirms that should any cheque remitted to ACL be dishonored on presentation resulting in the non-payment of any installment(s), the subsisting policy(ies)(s) being financed will be subject to cancellation.
n) The onus to issue replacement unpaid repayment if/when the arrangements made with ACL become obsolete/voidable/ineffective for any reason whatsoever, shall always be the borrowers
2.The insurer (being the guarantor)
a) Covenants with ACL that the Policy validly exists and that the details set out in the schedule regarding the policy(ies) are correct, and free from any exclusion of material facts, and is dependable for ACL’s use.
b) Hereby unconditionally guarantee and undertake as primarily obligor and covenants that upon cancellation or termination of the Policy by ACL or the Borrower, the Insurer shall forthwith and on first demand pay ACL and in any event not later than seven days from the date of first demand the prorata refund (the Refundable Premium) of the amount due to ACL by the Insurer (as advised by ACL ) under the aforesaid policy(ies) or policies financed by ACL, without any deduction or set off whatsoever. The refundable premium shall be calculated as follows:
The Refundable Premium amount =the total amount financed by ACL x (365 days - number of days from date of premium payment to the date of demand)/365days.
c) If the Refundable Premium is not paid on the date on which it is due as herein provided, we undertake to pay ACL interest on such sum for the period beginning on such date until the payment is received by ACL in full at the rate of 2% per month from time to time in force or at such other rate as ACL may specify at its sole discretion (within the limits permitted by law) and we confirm that such interest shall be calculated on the basis of a 365 day year and be compounded monthly until repaid in full.
d) Warrants that the right to cancel the Policy and to pay the Refundable Premium shall override and prevail over any conflicting provisions in the Policy and the Refundable premium shall be deemed to be refundable notwithstanding that a claim has arisen or payment has been made under the policy(ies) unless the payment is made to ACL.
e) Upon cancellation of the policy(ies) hereunder the Insurer shall comply with all statutory and other common law obligations resulting from such cancellation and including without limitation the provision of notice to any third party of such a cancellation where required.
f) The right of ACL to the Refundable Premium and its interest as financier or assignee shall be noted on the Policy or by way of an endorsement to be issued in respect thereof following the execution of this agreement and the Insurer shall provide ACL written proof of compliance with this sub-clause upon demand.
3. This guarantee:
a) Shall not be affected, discharged or diminished by any act or omission which would but for this provision have exonerated a guarantor but would not have affected or discharged our liability had we been a principal debtor.
b) Shall continue in force until all the amount due to ACL on premium financed has been paid when all liability hereunder shall cease save to the extent ACL shall previously have called upon us in writing to pay specified moneys payable then remaining outstanding.
c) Does not extend to liabilities incurred after the date of receipt by you of notice of termination from us and on service of such notice we shall be at liberty to payoff any moneys or liabilities guaranteed by us and to provide cash cover in respect of any contingent liabilities guaranteed.
d) Shall be governed and interpreted in all respects in accordance with the Laws of Kenya and the parties hereto irrevocably; submit to the non-exclusive jurisdiction of the High Court of Kenya.
e) The undertakings contained in this guarantee shall override any other undertakings given by us in any other documents.
AND IT IS HEREBY AGREED THAT
1. any notice or demand shall be deemed to have been properly served on any party hereto if delivered by hand or sent by registered post telex or facsimile or email at the address shown in the Schedule hereto or at the registered offices or the physical address shown on the Schedule hereto and in the absence of evidence of earlier receipt any notice or demand shall be deemed to have been received if delivered by hand at the time of delivery or if sent by registered post three (3) days after the date of posting (notwithstanding that it be delivered or returned undelivered) or if sent by telex or facsimile on the on the completion of transmission
2. this agreement shall not take effect and shall not be binding on ACL unless and until it is signed by ACL and other parties hereto
3. if the Borrower is more than person then all obligations on the part of the Borrower shall be joint and several
4. any dispute or difference arising between the parties to this Agreement for or in connection with this Agreement or its performance construction or interpretation shall be referred to arbitration by a single arbitrator in accordance with the provisions of the Arbitration ActNumber 4 of 1995 or any amendments or replacements thereof whose decision in relation to any such dispute or difference shall be final and binding on the parties hereto.
5. ACL shall not be liable for any failure to perform its obligations hereunder caused by reasons beyond its control or resulting directly or indirectly from the action or inaction of any Government authority, or strike, boycott, blockade, act of God, revolution or civil disturbance.
6. All terms suggesting first person singular may be construed to mean second or third person singular, or plural, personal, partnership, cooperative, corporate with or without limited liability, or public company, without any gender bias whatsoever.
7. ACL is an active member of the credit reference/rating fraternity, from whom, and to whom credit data interchange of/from ACL’s client database forms an integral part of ACL’s business process.
8. This agreement and accompanying application form, et al, is the property of ACL.
IN WITNESS WHEREOF the Borrower the insurer and ACL have executed this Agreement the day and year first here in above written.
Terms and Conditions
NOW THIS AGREEMENT & GUARANTEE WITNESSETH:
In consideration of ACL paying the Premium Amount to the insurer (as defined in the Schedule hereto) on behalf of the Borrower being the amount payable by the Borrower to the Insurer under the Policy (as defined in the Schedule hereto):-
1.The Borrower hereby :-
a) Covenants to pay to ACL punctually and without any prior demand or deduction or set off whatsoever the consecutive monthly installments specified in the Schedule hereto and in the manner therein set out and to give effect thereto
b) Requests the Lender to open an account in the Borrowers name and to debit the Account with the Premium Amount and any other charges and interest as herein specified. The first installment shall be paid on the signing of this Agreement. Subsequent installments shall be payable monthly in advance.
c) Covenants to pay to ACL in addition to the applicable installment interest on any installment (s) or part installment which remains unpaid after becoming due at the rate of 2% per month or at such other rate of interest as ACL may specify at its sole discretion (within the limits permitted by law and without seeking the Borrower's approval thereof) such interest to accrue from day to day (as well after as before any judgment) until repaid in full.
d) Warrants to ACL that the Policy is valid and covenants to ACL that the Policy shall remain valid throughout the course of the Borrower's indebtedness with ACL and to give effect thereto the Borrower undertakes not to cancel the Policy without ACL 's consent or do any act or commit any default whereby the Policy may become void or voidable or whereby an increased premium or charge may become payable (unless the Borrower promptly pays the additional charge or premium to the Insurer) provided that in case of default by the Borrower on any of the Borrower's obligations herein it will be lawful but not obligatory for ACL to do whatever it may deem necessary to make good such default and any money expended by ACL in that behalf with interest as provided above shall be debited in the Account and shall be repaid by the Borrower on demand. The provisions of this sub-clause shall be without prejudice to ACL 's rights set out in sub-clause (d) hereunder.
e) Confirms and acknowledges that the outstanding balance on the account shall immediately become due and payable on demand by ACL with interest accruing thereon at the rate specified above from the date of demand if the Borrower makes default on any of the Borrower's obligations hereunder or under the Policy or if a winding up petition or a petition for bankruptcy is filed against the Borrower or if it becomes illegal for ACL or the Borrower to continue with the present arrangement or if there are circumstances which in the sole opinion of ACL may have a material adverse effect on the ability of the Borrower to perform the Borrower's obligations hereunder or under the Policy and the Borrower confirms that ACL shall be at liberty upon making formal demand as aforesaid to terminate the Policy forthwith and to receive refundable premium (if any) from the Insurer and ACL shall be entitled to recover the outstanding balance (if any) in the Account interest and charges from the Borrower by summary procedure as a liquidated debt. A statement or Certificate of ACL as to the amount outstanding shall in the absence of manifest error be binding and conclusive as against the borrower.
f) Authorizes and instructs the Insurer through the signing of this Agreement to register ACL 's interest in the Policy as a premium finan¬cier as well as ACL 's right to terminate the Policy and to receive the refund on the Premium Amount and the Borrower further covenants with ACL that the Borrower shall procure that the Insurer complies with the aforesaid authorization and in any event the Borrower confirms that the Borrower shall hold any monies paid to the Borrower under the Policy by the Insurer in trust for ACL and shall immediately upon receipt surrender such monies to ACL to be credited to the Account. This obligation shall subsist until ACL confirms in writing that the Account has been redeemed in full.
g) Undertakes to pay all stamp duty and other duties and taxes (if any) to which this Agreement or any other document executed pursuant to this Agreement may be subject to (which duties and taxes shall be debited in the Borrowers Account) and the Borrower further undertakes to reimburse ACL on demand all expenses including legal expenses incurred by ACL in the negotiation and preparation of this Agreement and all expenses incurred by ACL in suing for or recovering any sum due to ACL under this Agreement or otherwise in protecting or enforcing its rights under this Agreement.
h) Appoints ACL to be the Attorney of the Borrower and in the name and on behalf of the Borrower to execute and do any assur¬ances acts and things which the Borrower ought to execute and do under the Policy including without limitation the power to terminate the Policy and to give good receipt and discharge thereof for the refund of the Premium Amount or any part thereof received by the Borrower on such termination or for any settlement paid under the Policy and the Borrower hereby ratifies all-acts or deeds done by ACL in exercise of the power herein conferred and absolves from blame any and all parties giving effect to such power AND the Borrower further confirms and agrees that any premium or part premium refunded as aforesaid or any settlement paid to ACL will first be applied towards redeeming the Account and the balance (if any) released to the Borrower.
i) Undertakes that if ACL shall so request the Borrower shall execute in favour of ACL by way of security a legal assign¬ment or mortgage over the Policy or cede the Policy to ACL and the Borrower undertakes to meet all costs and expenses including the legal fees payable as a result.
j) Confirms that no failure or delay by ACL in exercising any right power or privilege under this Agreement shall impair the same or operate as a waiver for the same nor shall any single or partial exercise of any right power or privilege preclude any further exercise of the same or the exercise of any other right power or privilege.
k) Warrants to ACL that the Borrower has the power to enter into the transaction contemplated by this Agreement and that neither the execution hereof nor the performance or observance of the Borrower's obligations hereunder will conflict with or result in any breach of any law regulation mortgage agreement or other instrument whatsoever.
l) ACL may at any time and without notice to the Borrowers combine or consolidate all or any of the Borrowers' accounts with ACL and set off or transfer any sum standing to the credit of one or more of those accounts in or towards satisfaction of any monies obligations or liabilities of the Borrower to ACL whether those liabilities be present, future, actual, contingent, primary, joint or several and the Borrowers expressly waive off any rights of set off that he may have, so far as is permitted by Law, in respect of any claim which he may know or at any time hereafter have against ACL
m) Confirms that should any cheque remitted to ACL be dishonored on presentation resulting in the non-payment of any installment(s), the subsisting policy(ies)(s) being financed will be subject to cancellation.
n) The onus to issue replacement unpaid repayment if/when the arrangements made with ACL become obsolete/voidable/ineffective for any reason whatsoever, shall always be the borrowers
2.The insurer (being the guarantor)
a) Covenants with ACL that the Policy validly exists and that the details set out in the schedule regarding the policy(ies) are correct, and free from any exclusion of material facts, and is dependable for ACL’s use.
b) Hereby unconditionally guarantee and undertake as primarily obligor and covenants that upon cancellation or termination of the Policy by ACL or the Borrower, the Insurer shall forthwith and on first demand pay ACL and in any event not later than seven days from the date of first demand the prorata refund (the Refundable Premium) of the amount due to ACL by the Insurer (as advised by ACL ) under the aforesaid policy(ies) or policies financed by ACL, without any deduction or set off whatsoever. The refundable premium shall be calculated as follows:
The Refundable Premium amount =the total amount financed by ACL x (365 days - number of days from date of premium payment to the date of demand)/365days.
c) If the Refundable Premium is not paid on the date on which it is due as herein provided, we undertake to pay ACL interest on such sum for the period beginning on such date until the payment is received by ACL in full at the rate of 2% per month from time to time in force or at such other rate as ACL may specify at its sole discretion (within the limits permitted by law) and we confirm that such interest shall be calculated on the basis of a 365 day year and be compounded monthly until repaid in full.
d) Warrants that the right to cancel the Policy and to pay the Refundable Premium shall override and prevail over any conflicting provisions in the Policy and the Refundable premium shall be deemed to be refundable notwithstanding that a claim has arisen or payment has been made under the policy(ies) unless the payment is made to ACL.
e) Upon cancellation of the policy(ies) hereunder the Insurer shall comply with all statutory and other common law obligations resulting from such cancellation and including without limitation the provision of notice to any third party of such a cancellation where required.
f) The right of ACL to the Refundable Premium and its interest as financier or assignee shall be noted on the Policy or by way of an endorsement to be issued in respect thereof following the execution of this agreement and the Insurer shall provide ACL written proof of compliance with this sub-clause upon demand.
3. This guarantee:
a) Shall not be affected, discharged or diminished by any act or omission which would but for this provision have exonerated a guarantor but would not have affected or discharged our liability had we been a principal debtor.
b) Shall continue in force until all the amount due to ACL on premium financed has been paid when all liability hereunder shall cease save to the extent ACL shall previously have called upon us in writing to pay specified moneys payable then remaining outstanding.
c) Does not extend to liabilities incurred after the date of receipt by you of notice of termination from us and on service of such notice we shall be at liberty to payoff any moneys or liabilities guaranteed by us and to provide cash cover in respect of any contingent liabilities guaranteed.
d) Shall be governed and interpreted in all respects in accordance with the Laws of Kenya and the parties hereto irrevocably; submit to the non-exclusive jurisdiction of the High Court of Kenya.
e) The undertakings contained in this guarantee shall override any other undertakings given by us in any other documents.
AND IT IS HEREBY AGREED THAT
1. any notice or demand shall be deemed to have been properly served on any party hereto if delivered by hand or sent by registered post telex or facsimile or email at the address shown in the Schedule hereto or at the registered offices or the physical address shown on the Schedule hereto and in the absence of evidence of earlier receipt any notice or demand shall be deemed to have been received if delivered by hand at the time of delivery or if sent by registered post three (3) days after the date of posting (notwithstanding that it be delivered or returned undelivered) or if sent by telex or facsimile on the on the completion of transmission
2. this agreement shall not take effect and shall not be binding on ACL unless and until it is signed by ACL and other parties hereto
3. if the Borrower is more than person then all obligations on the part of the Borrower shall be joint and several
4. any dispute or difference arising between the parties to this Agreement for or in connection with this Agreement or its performance construction or interpretation shall be referred to arbitration by a single arbitrator in accordance with the provisions of the Arbitration ActNumber 4 of 1995 or any amendments or replacements thereof whose decision in relation to any such dispute or difference shall be final and binding on the parties hereto.
5. ACL shall not be liable for any failure to perform its obligations hereunder caused by reasons beyond its control or resulting directly or indirectly from the action or inaction of any Government authority, or strike, boycott, blockade, act of God, revolution or civil disturbance.
6. All terms suggesting first person singular may be construed to mean second or third person singular, or plural, personal, partnership, cooperative, corporate with or without limited liability, or public company, without any gender bias whatsoever.
7. ACL is an active member of the credit reference/rating fraternity, from whom, and to whom credit data interchange of/from ACL’s client database forms an integral part of ACL’s business process.
8. This agreement and accompanying application form, et al, is the property of ACL.
IN WITNESS WHEREOF the Borrower the insurer and ACL have executed this Agreement the day and year first here in above written.