Guarantee & Indemnity

Interpretation

In this deed poll:

1. Capitalised terms have the same meaning as in the McPhee Freight Terms and Conditions of Trade;
2. Commercial Credit Application means the Commercial Credit Application in Part 1 of this document.
3. Client means the person/s at whose request or on whose behalf of, the Company provides the Services. The Client includes any person/s acting on behalf of and with the authority of the Client. If there is more than one, it is a reference to each person jointly and severally.
4. Guarantor means the person(s) listed in the Commercial Credit Application as a guarantor (jointly and severally);
5. Real Property means all real property owned by the Guarantors now or in the future, solely or jointly;
6. Terms and Conditions of Trade means the McPhee Freight Terms and Conditions of Trade, a copy of which has been provided to the Client;
   1. 'including' and 'includes' (and any other similar expressions) are not words of limitation;
   2. a word that is derived from a defined word has a corresponding meaning; and
   3. the singular includes the plural and the converse.

Guarantee and Indemnity

1. Each Guarantor warrants to McPhee Freight that all information set out in the Commercial Credit Application is true and correct and not misleading.
2. Each Guarantor acknowledges and agrees that they have read and understand this deed poll and, prior to its execution, have had the opportunity to obtain independent legal advice.
3. Each Guarantor is an officer or associate of the Client and has requested McPhee Freight to supply Goods and/or Services from time to time to the Client on credit in accordance with the Terms and Conditions of Trade.
4. In consideration of McPhee Freight supplying Goods and/or Services, each Guarantor guarantees to McPhee Freight the due payment of all monies and due performance of all obligations required to be performed by the Client under the Agreement, including the obligation to pay money without set-off or deduction.
5. Each Guarantor indemnifies McPhee Freight against any Claim McPhee Freight may sustain or incur arising from or in connection with any breach of the Agreement by the Client.
6. The guarantee and indemnity in this clause 2 is a continuing guarantee and indemnity and will not be affected by any or all of the following;
   1. if McPhee Freight grants any extension of time or other indulgence to the client or varies the terms of the Client's account;
   2. by the release of any of the Guarantors or if this deed poll is or becomes unenforceable against one or more of the Guarantors;
   3. by any payment by the Client being later avoided by law, whether or not any Guarantor has been given notice of that matter.

Security

1. As security for the obligations and liabilities of the Guarantor, each Guarantor:
   1. charges all their legal and equitable interests (including as beneficial owner, both present and future) of whatsoever nature held in any and all Real Property in favour of the Client; and
   2. on request by McPhee Freight, will execute any document and do all things reasonably required by the Client to register a mortgage security over any Real Property.
2. In the event that the Guarantor fails to deliver the requested documents, each Guarantor hereby agrees that McPhee Freight may appoint a lawful attorney for the purposes of executing and registering such documents.
3. Each Guarantor indemnifies McPhee Freight on a full indemnity basis against all costs and expenses incurred by McPhee Freight in connection with the preparation and registration of such mortgage documents.
4. Each Guarantor unconditionally consents to McPhee Freight lodging a caveat(s) noting its interest in any Real Property.
5. If the charge in clause 3a. above is or becomes void or unenforceable, it may be severed from this deed poll without any effect on McPhee Freight 's rights against any Guarantor.

Credit Application

1. Each Guarantor authorises McPhee Freight to:
   1. obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed the Commercial Credit application and from any other credit provider or credit reporting agency for the purpose of assessing the Commercial Credit Application or in connection with any guarantee given by the Guarantor;
   2. use, disclose or exchange with other credit providers and McPhee Freight 's related bodies corporate, information about the Guarantor's credit arrangements in order to assess the Commercial Credit application, monitor credit worthiness and collect overdue accounts; and
   3. disclose the contents of any credit report on the Guarantor to McPhee Freight 's related bodies corporate and any of their solicitors and mercantile agents.
2. If a Guarantor does not provide the information requested in the Commercial Credit Application, McPhee Freight may be unable to process the Commercial Credit Application.

General

1. Each Guarantor must advise McPhee Freight in writing of the occurrence of any insolvency event or circumstances which may result in the Guarantor being unable to pay its debts when due and payable, any change in the name, ownership or control of the Guarantor, or any step being taken to sell an asset (separately or together having a value being greater than 20% in value of a Guarantor's gross assets) as soon as practicable and no later than within two business days of such event, change or step occurring.
2. This deed poll will not in any way be affected by McPhee Freight granting time or other indulgence to the Client.
3. Neither this deed poll nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
4. If the Guarantor comprises two or more persons, each of them is jointly and severally liable for obligations and liabilities under the Agreement.
5. A waiver by McPhee Freight is only effective if it is in writing signed by a Director of McPhee Freight.
6. A reference to a party to this deed poll includes that party's executors, administrators, substitutes, successors and permitted assigns.
7. The deed poll is governed by the Law applicable in Queensland and the parties submit to the jurisdiction of the courts in Queensland.
8. This deed poll is given for the benefit of McPhee Freight and is enforceable by McPhee Freight against each Guarantor.