DEED OF GUARANTEE AND INDEMNITY

To be signed by individuals who in their personal capacity are giving this guarantee and indemnity to the Supplier. Without limitation, this includes all directors of the Applicant, if it is a company.

 

TO:       DIXIE CUMMINGS ENTERPRISES PTY LTD (ACN 006 530 749) AND ITS SUCCESSORS AND ASSIGNS IN LAW (“Dixie”)

In consideration of Dixie having agreed to supply goods and/or services to the person(s) or entity/entities named as the Applicant in the application accompanying this deed of guarantee and indemnity, or of which this deed of guarantee and indemnity forms part, or to the Applicant's successors or assigns in law, executors and administrators (together, the Applicant and its successors or assigns in law, executors and administrators are the Customer), the person or persons signing below (individually and together, the Guarantor) hereby guarantee (jointly and severally, if there is more than one Guarantor) to Dixie the due and punctual payment of all monies which are now payable or may in the future become payable by the Customer to Dixie for goods and/or services supplied from time to time by Dixie to the Customer (the secured monies) and the Guarantor further agrees and covenants as follows:

1.         The secured monies shall include collection, legal and other associated costs on an indemnity basis incurred by Dixie in connection with the default by the Customer and any default interest payable.

2.                Dixie is at liberty without notice to the Guarantor at any time and without in any way discharging the Guarantor from any liability hereunder to grant time, waiver, release or other indulgence to the Customer and to accept from the Customer payment in cash, cheque, electronic funds transfer or otherwise.

3.                Nothing in this deed is binding or conditional upon Dixie continuing to supply goods or services or both to the Customer, or upon Dixie refusing to allow the Customer to exceed any nominated credit limit.

4.                Dixie may exercise its rights under this deed at any time and the Guarantor shall pay the secured monies forthwith upon receipt of a written demand, or its delivery to the last known address of the Guarantor. It shall not be a condition precedent to the issue of any such demand that Dixie shall have exercised or exhausted its legal rights against the Customer.

5.                As a separate undertaking, the Guarantor hereby indemnifies (jointly and severally, if there is more than one Guarantor) Dixie against any losses or expenses whatsoever directly or indirectly arising from or in connection with any default whatsoever on the part of the Customer with respect to the secured monies or any breach by the Customer of any obligation owed to Dixie.  It is not necessary for Dixie to incur expenses or make payment before enforcing this right of indemnity.

6.                This guarantee and indemnity shall not be considered wholly or partially discharged by the payment at any time hereafter of any of the secured monies or by settlement of account and shall apply to the present and any future balance of the secured monies.

7.                This guarantee and indemnity is a continuing guarantee and indemnity (unaffected by the death of any Guarantor) for all debts whatsoever and whenever owed by the Customer in respect of the goods and services or both supplied to the Customer by Dixie, and shall be binding upon the Guarantor's executors, successors and assigns.

8.                Dixie shall be entitled at any time to assign its rights under this deed to its successors or assigns, and to vary its terms of credit or the terms and conditions of trade or terms of any contract between Dixie and the Customer from time to time (including, without limitation, the terms and conditions of trade originally attached to or forming part of the Customer’s commercial credit application to Dixie) without notice to the Guarantor, and this deed shall not be in any way affected or discharged pursuant to such assignment or variation.

9.                The Guarantor may not, without Dixie's written consent:

(a)            raise a set off or counterclaim available to the Guarantor or Dixie against the Customer in reduction of the Guarantor's liability under this deed;

(b)            claim to be entitled by way of contribution, indemnity, subrogation, marshalling or otherwise to the benefit of any security or guarantee held by Dixie under or in connection with this deed or otherwise; or

(c)             prove in competition with Dixie if a liquidator, provisional liquidator, receiver, official manager or trustee in bankruptcy is appointed in respect of the Customer, or the Customer is otherwise unable to pay its debts when they fall due;

from the date of this deed until all of the secured monies are paid, and all obligations and liabilities of the Customer and the Guarantor to Dixie are satisfied.

10.             If a claim that a payment or transfer to Dixie by the Customer is void or voidable (including, but not limited to, a claim under laws relating to liquidation, insolvency or protection of creditors) is upheld, conceded or compromised then Dixie will be entitled immediately, as against the Guarantor, to the rights to which Dixie would have been entitled under this deed if the payment or transfer had not occurred.

11.             The terms of this deed are binding jointly on all Guarantors and severally on each Guarantor and shall be effective notwithstanding that one or more of the intended co-Guarantors have not executed this deed or that this deed has been held to be ineffective or unenforceable against one or more Guarantors.

12.             The Guarantor certifies that they have obtained, or had the opportunity to obtain, independent commercial, financial and legal advice concerning their entry into this deed.

13.             The Guarantor confirms they have read and understood the Customer's application to Dixie for credit, and gives and makes each acknowledgement, undertaking and agreement expressed to be given or made by the Guarantor in that application.

14 .             The Guarantor freely charges and mortgages, as security for all of their obligations and liability to Dixie under this deed, all of the Guarantor's real and personal assets (being present and after-acquired property) and agrees to execute on demand by Dixie such mortgages, charges and general security agreements (in registrable form, if applicable) in favour of Dixie as mortgagee/chargee/secured party, over all or any part of the Guarantor's a estate containing such covenants as Dixie may require, and agrees to Dixie placing a caveat on the title to any real estate the Guarantor owns in respect of this clause 14, and agrees to Dixie registering each security interest hereby granted on the Personal Property Securities Register (if so registrable).  The Guarantor irrevocably appoints Dixie as its attorney for the purpose of doing either in its own name or in its capacity as attorney all such acts, matters and things as Dixie from time to time considers necessary or expedient for the purpose of effecting all the powers and authorities conferred by this clause 14 .