Edition: December 2012

DPTI Example Corporate Guarantee

DEED OF GUARANTEE
[Illustration only]
DEED dated

..........................................

BY:
Pty Ltd (ACN xxx xxx xxx) of [address] (Parent)
IN FAVOUR OF:
The Commissioner of Highways, a body corporate established pursuant to the Highways Act, 1926 (SA),
of 136 North Terrace, Adelaide, South Australia, 5000 ("Principal")
IN RESPECT OF
.. Pty Ltd (ACN xxx xxx xxx) of [address] (Contractor)
RECITALS
A.

The Principal has or is about to enter into a Contract ("Contract") with the Contractor for the
supply of certain goods or services / design and construction of works to the Principal.

B.

The Contractor is a subsidiary of the Parent.

C.

The Principal requires as a condition to its entry into the Contract with the Contractor that the
Parent guarantee the performance by the Contractor of its obligations under the Contract, and
indemnify the Principal against any cost or expense, loss or damage may incur or suffer as a
result of any breach by the Contractor of the Contract.

D.

The Parent has agreed to provide the guarantee and indemnity in this Deed of Guarantee.

AGREED TERMS
1.

GUARANTEE

The Parent guarantees to the Principal the performance by the Contractor of all its obligations under the
Contract and if the Contractor fails to execute and perform its obligations under the Contract, the
Parent must if required to do so by the Principal complete or cause to be completed the obligations of
the Contractor in accordance with the Contract.
2.

INDEMNITY

The Parent indemnifies the Principal and must keep the Principal indemnified against any liability,
cost, expense, loss, charge or damage which the Principal incurs or suffers as a result of any breach by
the Contractor of any or all of its obligations under the Contract.
3.

NO ABROGATION

Neither the guarantee nor the indemnity given under this Deed will be affected in any way by:
(a)

any variation, modification, addition or alteration to the Contract whether with or without
the consent of the Parent

(b)

any waiver, extension of time or other indulgence granted by the Principal to the
Contractor;

(c)

any failure by the Principal to give notice of any breach by the Contractor of the Contract;

(d)

the whole or any part of the Contract becoming void, voidable or unenforceable;

Edition: December 2012

DPTI Example Corporate Guarantee

(e)

the insolvency of the Parent or the Contractor; or

(f)

a repeal of, or amendment to, the legislation constituting the Principal.

It is the intention of the Parent and the Principal that the guarantee and indemnity contained in this
Deed are unconditional and absolute in all circumstances.
4.

CONTINUING GUARANTEE AND INDEMNITY

The guarantee and indemnity contained in this Deed are continuing, irrevocable and remain in full
force and effect until the Contractor performs, observes and discharges all its obligations under the
Contract.
5.

PAYMENT

The Parent must pay any amount due under this Deed within seven days of demand by or on behalf of
the Principal under this Deed.
The Parent must pay interest at the Prescribed Rate on any amounts due under this Deed, but not paid.
Prescribed Rate means the rate of interest of 11%.
6.

PROPER LAW

The law in force in South Australia apply to this Deed.

7.

JURISDICTION OF COURTS

The courts of South Australia will have exclusive jurisdiction to determine any proceedings in relation
to this Deed.
Any proceedings brought in a Federal Court must be instituted in the Adelaide Registry of that Federal
Court.
8.

NOTICES

A notice or demand to the Parent under this Deed must be in writing and signed by the Principal or on
behalf of the Principal by any person duly authorised by the Principal to do so. It will be presumed that
a person who signs a notice or demand on behalf of the Principal is duly authorised to do so in the
absence of proof to the contrary.
A notice of demand must be:
(a)

delivered to the Parents address;

(b)

sent by pre-paid mail to the Parents address; or

(c)

transmitted by facsimile to the Parents address.

The address of the Parent, Principal and Contractor for the purposes of this Deed shall be as stated in
Schedule 1 or such other address as is notified to the other parties from time to time.
A notice of demand given to the Parent in accordance with this clause is treated as having been given
and received:
(a)

on the day of delivery if delivered before 5.00 pm on a Business Day, otherwise on the
next Business Day;

(b)

if sent by pre-paid mail, on the third Business Day after posting; or

(c)

if transmitted by facsimile and a correct and complete transmission report is received on

the day of transmission: on that day if the report states that the transmission was
completed before 5.00 pm on a Business Day, otherwise on the next Business Day,
provided that:

Edition: December 2012

(d)

9.

DPTI Example Corporate Guarantee

if the recipient receives by facsimile transmission a notice that is illegible, the recipient
must notify the sender immediately and the sender must continue to retransmit the notice
until the recipient confirms that it has received a legible notice. The rules in relation to
transmission reports as stated above apply.
INTERPRETATION

Business Day means any day that is not a Saturday or Sunday or a public holiday in Adelaide, South
Australia.
Any term used but not defined in this Deed but defined in the Contract has the meaning ascribed to that
term in the Contract.

EXECUTED as a Deed
SIGNED for and on behalf of
XXXX Pty Ltd (ACN xxx xxx xxx)
in accordance with section 127 of the
Corporations Act 2001 by

a director, and by

a director / the secretary

..
(signature)

..
(signature)

Edition: December 2012

DPTI Example Corporate Guarantee

SCHEDULE 1
ADDRESSES FOR NOTICES
For the Principal:

Department for Transport, Energy and

Infrastructure,
77 Grenfell Street,
Adelaide SA 5000.
Facsimile
Attention: Mr / Ms

For the Contractor:

,
,
..
Facsimile
Attention: Mr / Ms

For the Parent:

,
,
..
Facsimile
Attention: Mr / Ms