COLLECTING AGENCY AGREEMENT
THIS AGREEMENT dated the … … … day of … … … … … … Two Thousand and........ is made
BETWEEN
XXXXX N.A. a national banking association organized and existing under the
laws of the State of Delaware in the United States of America and registered as
a bank pursuant to the provisions of the Banking Act (Chapter 488 of the Laws
of Kenya) in the Republic of Kenya and having its registered office in Nairobi
in the said Republic and of Post Office Box Number xxxxx, Nairobi aforesaid
(hereinafter referred to as “the Principal” which expression shall where the
context so admits include its successors and assigns) of the one part
AND
XXXXX KENYA LIMITED a Limited Liability Company incorporated in the Republic of Kenya
and of Post Office Box Number xxxxx Nairobi in the said Republic (hereinafter
referred to as “the Agent” which expression shall where the context so admits
include its successors and assigns) of the other part:
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WHEREAS:
(A)
The Principal has, at the
request of the Agent agreed to provide loans (hereinafter called the “Loan
Facilities”) to the Agent’s employees.
(B)
The Agent has, at the request
of the Principal, agreed to be appointed as the Principal’s agent for the
collection of all repayment sums due in respect of the Loan Facilities.
(C)
The Agent has further agreed
that the Principal shall debit the Agent’s Account with the total loan
repayment sums due to the Principal, whether collected by the Agent or not.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED AND
DECLARED as follows:
1.
DEFINITIONS AND
INTERPRETATION
In this agreement,
unless the context otherwise requires:
1.1
“Facility Application” means the prescribed Loan Application forms
submitted by the Agent’s employees under the staff loan scheme arranged by the
Agent and accepted by the Principal.
1.2
“Agent’s Account” means the bank account maintained by the Agent with the
Principal.
1.3
“Debtor” means each of the Agent’s employees who have been granted Loan
Facilities by the Principal.
1.4
“Loan Facilities” means the total amount of the loans granted to the
Agent’s employees pursuant to the Facility Application.
1.5
“Repayment Sums” means the total monthly installments payable by the
Agent’s employees in respect of the Loan Facilities granted to them pursuant to
the Facility Application.
1.6
The singular includes the plural and vice versa.
1.7
Any reference in this agreement
to any provision of a statute shall be construed as a reference to that
provision as amended, re-enacted or extended at the relevant time.
1.8
The headings in this agreement
are for convenience only and shall not affect its interpretation.
2.
APPOINTMENT OF AGENT
2.1
Subject to the terms and
conditions of this agreement, the Principal appoints the Agent as its agent to
collect all Repayment Sums due under the Facility Application in accordance
with clause 3.3.
2.2
The Agent shall be the agent of
the Principal and, accordingly, the Agent shall be liable to the Principal for
the collection of all Repayment Sums, and shall account to the Principal
therefor in accordance with clause 3.4.
3. THE AGENT’S DUTIES
The Agent agrees
with the Principal:
3.1 Entry
into Facility Application
Before signing any Loan Application:
3.1.1
To take such steps as may be
necessary to ensure to the reasonable satisfaction of the Agent that the Debtor
is a fit and proper person to enter into the Agreement.
3.1.2
To procure the Debtor’s
signature to the Agreement having ensured that before such signature all parts
of the Agreement have been fully and correctly completed.
3.1.3
To ensure that the Debtor’s
signature is verified and confirmed by the duly authorized signatories of the
Agent.
3.1.4
To comply with all other
requirements of the contracts between the Principal and the Agent.
3.2
Terms of the Facility Application
3.2.1
To ensure that each Facility
Application signed pursuant to clause 3.1 is in the appropriate standard form
supplied to the Agent by the Principal and not to vary or add to the terms or the layout of any such Facility Application without the prior consent in writing of
the Principal.
3.3
Collection
3.3.1
Without charge to the
Principal, to collect punctually as agent of the Principal all repayment sums
due under each Facility Application and to ensure that the Agent’s Account
shall always have sufficient or adequate funds or facilities in respect of all
Repayment Sums due under each Facility Application in order to enable the
Principal to debit the Agent’s Account with the total loan Repayment Sums due
under the Facility Application.
3.3.2
In the event that the Agent’s
Account does not have adequate or sufficient funds or facilities to meet the
Repayment Sums due under the Facility Application, the Agent shall, within
three (3) business days immediately following the last date of each calendar
month, transfer into the Agent’s Account such funds or facilities as shall be
adequate to meet the said Repayment Sums.
3.3.3
In the event that the Agent
fails to comply with the provisions of clause 3.3.2 or defaults in the payment
of any indebtedness of the Debtor when due, the Principal shall be entitled to
make a demand for such payment from the Agent pursuant to the Guarantee and
Indemnity provided by the Agent.
3.4
Accounts
The Agent shall at its own cost and
expense:
3.4.1
Maintain proper accounts on
behalf of the Principal in the names of the Debtors showing the amounts paid by
and due from the Debtors and, on request, to permit the Principal and any
person authorised by the Principal to inspect and audit such accounts and to
take extracts and copies.
3.4.2
Provide the Principal on
request with copies of any accounts maintained pursuant to clause 3.4.1
3.5
Guarantee and Indemnity
If the Loan Facilities are
determined by reason of any default on the part of the Debtor or by reason of
the Agent exercising any power of termination vested in him by any contract
between the Debtor and the Agent, the Agent hereby:
3.5.1
Irrevocably and unconditionally
guarantees, as principal obligor, to pay to the Principal on demand all monies
and liabilities which shall have been advanced to such Debtor and which shall
then be outstanding under the Facility Application.
3.5.2
Undertakes to indemnify and
keep indemnified the Principal on demand against all losses, costs and expenses
suffered or incurred by the Principal in relation to this agreement or which it
may sustain in consequence of any default in payment by the Debtor.
3.6
Interest on Overdue Payments
3.6.1
If the Agent fails to pay the
sums due under clauses 3.3.2 and 3.6, such sum shall bear interest from the due
date until payment is made (irrespective of whether the date of payment is
before or after any judgement or award in respect of the same) at the rate of
…… percent above the Principal’s base rate from time to time subject to a
minimum rate of …… per cent per annum.
3.6.2
The Agent shall make all
payments of the sums payable under clauses 3.3.2, 3.6 and 3.7.1 to the
Principal without any deduction or net of such deductions (if any).
4. PRINCIPAL’S
OBLIGATIONS
4.1
The Principal agrees with The agent that upon receipt of the Facility Application the Principal shall pay the
proceeds of the Loan Facilities to the nominated person in accordance with the
Facility Application.
4.2
The Principal reserves the
right to refuse to disburse the proceeds of the Loan Facilities in accordance
with clause 4.1 provided that this right shall only be exercised on reasonable
grounds.
5. DURATION AND TERMINATION
5.1
This agreement shall come into
force on the date of this agreement and, subject as provided in clause 5.2
shall continue in force for a period of 5 years and thereafter unless or until
terminated by either party giving to the other written notice expiring at or at
any time after the end of that period.
5.2
The Principal shall be entitled
to terminate this agreement by written notice to the Agent if:
5.2.1
the Agent fails to pay within
seven (7) days after the due date any sum payable by it under this agreement or
any Related Document when due. Provided that the Principal shall not be
entitled to terminate this agreement if the failure to pay occurs solely for
administrative or technical reasons affecting the transfer of funds despite
timely payment instructions by the Agent and that payment is received by the
Bank within 2 Business Days after the due date, or;
5.2.2
any other event or series of
events or any circumstances whether related or not occur(s) or arise(s) which,
in the opinion of the Principal; may be likely to have a material adverse
effect on the Agent or its ability or willingness to perform or comply with any
of its obligations under this agreement and/or any Related Document.
5.3
Either party shall be entitled
to terminate this agreement by written notice to the other if:
5.3.1
this agreement or any Related
Document is or becomes (or is alleged to be) unlawful or unenforceable in any
respect; or
5.3.2
that other party commits a
breach of this agreement (not being a repudiatory breach of this agreement);
5.3.3
an encumbrancer takes
possession or a receiver is appointed over any of the property or assets of
that other party;
5.3.4
that other party makes any
voluntary arrangement with its creditors or becomes subject to an
administration order;
5.3.5
that other party goes into
liquidation (except for the purposes of amalgamation or reconstruction and in
such manner that the company resulting therefrom effectively agrees to be bound
by or assume the obligations imposed on that other party under this agreement);
5.3.6
anything which, under the law
of any jurisdiction is analogous to any of the acts or events specified in
clauses 5.3.3, 5.3.4 and 5.3.5;
5.3.7
that other party ceases, or
threatens to cease, to carry on business.
5.4
The rights to terminate this
agreement given by this clause shall be without prejudice to any other right or
remedy of either party in respect of the breach concerned (if any) or any other
breach.
6. CONSEQUENCES OF TERMINATION
Upon the termination of this agreement for any reason:
6.1
Any obligation of the Principal
to grant the Loan Facilities shall be terminated;
6.2
The Loan Facilities shall become immediately due and payable,
whereupon the Agent shall forthwith repay the same together with all interest
accrued and all other sums payable under this agreement.
6.3
If the Agent fails to ensure
that the Agent’s Account has sufficient funds or facilities to meet the
Repayment Sums due at the date of termination of this agreement, the Principal
shall be entitled to enforce its rights under the Guarantee and Indemnity
provided by the Agent.
7. NATURE OF AGREEMENT
7.1
The Principal shall be entitled
to perform any of the obligations undertaken by it and to exercise any of the
rights granted to it under this agreement through any other company which at
the relevant time is its holding company or subsidiary and any act or omission
of any such company shall for the purposes of this agreement be deemed to be
the act or omission of the Principal.
7.2
The Principal may assign this
agreement and rights and obligations under it.
7.3
If any provision of this
agreement is held by any court or other competent authority to be void or
unenforceable in whole or part, this agreement shall continue to be valid as to
the other provisions and the remainder of the affected provision.
8. ARBITRATION AND PROPER LAW
8.1
This agreement shall be
governed by and construed in all respects in accordance with the Laws of Kenya,
and each party agrees that the courts of the Republic of Kenya shall have
jurisdiction to hear and determine any suit action or proceeding, and to settle
any disputes, which may arise out of or in connection with this agreement and
for such purposes hereby irrevocably submit to the jurisdiction of such courts.
9. NOTICES AND SERVICE
9.1
Any notice or other information
required or authorized by this agreement to be given by either party to the
other may be given by hand or sent (by registered post) to the other party at
the address referred to on page 1 of this agreement.
9.2
Any notice or other information
sent by cable, facsimile transmission, e-mail or comparable means of communication
shall be deemed to have been duly sent on the date of transmission, provided
that a confirming copy is sent by registered post to the other party at the address referred to in clause 8.1 within 24 hours after transmission.
IN WITNESS WHEREOF
this agreement has been duly executed by the parties the day and year first
hereinbefore written.
SEALED with the Common Seal of )
XXXXX KENYA )
LIMITED in the presence of:- )
)
Director )
)
Director/Secretary )
SIGNED by … … … … … … … … )
the duly
Authorized Attorney of )
XXXXX N. A. in the
presence of: )
)
)
)
Advocate )
DRAWN BY:-
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