Motul South Africa
101 8th Avenue, Edenvale, Gauteng, South Africa, P. O. Box 311, Edenvale 1610, Tel: +27 11 452 8835
CUSTOMER ACCOUNT APPLICATION FORM
FOR OFFICE USE ONLY
Bank Code:
Account limit R
Sales person:
Approved / Declined
Remarks:
SERVICES REQUIRED – Please tick
Independent
Workshop
Spares Shop
Retail outlet
Account number:
ACCOUNT LIMITS APPLIED FOR:
Amount
Lubricants, Additives &
Specialty items
R ______________
APPLICANT’S DETAILS:
Registered name of Applicant:
Trading name:
Email address:
Applicant registration number:
Telephone (
)
Fax no: (
)
VAT no:
Nature of Business
TYPE OF BUSINESS:
Public company
Private company
Close Corporation
Postal address:
Partnership
SOC
Physical / Delivery address
Postal code:
Postal code:
Postal code:
DIRECTORS/MEMBERS OF APPLICANT:
Shares %
Name
ID Number
Home address
Co-owned with
CONTACT INFORMATION:
Department
Name
Contact number
Business Owner /
General Manager
Sales Manager
Parts Manager
Service Manager
Accountant
FIXED PROPERTY IN THE NAME OF THE APPLICANT:
Value of property: R
Bonded:
Address of property
Outstanding bond: R
Bond holder:
PROXY DETAILS
Proxy Number:
Email address
Yes
No
2nd Bond registered on property? Y / N
PARTS DELIVERY INFORMATION – Please tick
Delivery
Collection
STOCK PAYMENTS – Please tick
Account
Cash
APPLICANT’S BANKING DETAILS: Please supply an original cancelled cheque
Name of Bank:
Branch
Account number
TRADE REFERENCES:
Name of Creditor
Account no.
Credit limit
Monthly Purchases
Tele. Code & no.
Contact person
Applicant agrees to the terms and conditions annexed hereto.
Initials and Surname
Designation
Signature
Initials and Surname
Designation
Signatory on behalf of Applicant
Witness
FOR OFFICE USE ONLY
1.
If the APPLICANT is a company/close corporation/trust, is the APPLICANT’S assets/turnover greater than R1 million?
YES
NO
2.
YES
NO
If the APPLICANT is a company/close corporation/trust will the APPLICANT conclude any given transaction that exceeds R250 000.00?
Use this application if the answer to any of the aforementioned questions is in the affirmative.
NAME OF APPLICANT APPLYING FOR ACCOUNT FACILITY
Signature
ACCOUNT TERMS AND CONDITIONS:
PART 1 - DECLARATION
The APPLICANT undersigned does hereby:
1. apply to the BUSINESS for the opening of an account and for account facilities in respect of any transactions that may be concluded with the
BUSINESS and subject to the terms and conditions (hereinafter referred to as "the ACCOUNT TERMS") set out hereunder:
2. certify and guarantee that:
2.1. the abovementioned information on pages 1, 2 and 3 is true and correct.
2.2. The person signing this application is duly authorised to do so for and on behalf of the APPLICANT (if applicable).
2.3. the APPLICANT accepts the ACCOUNT TERMS and agrees to be bound by them.
3. undertake to immediately inform the BUSINESS should there be any change in the control or a material change in the shareholding, control
or management of the APPLICANT, failing which the signatory undertakes to be personally liable for any amount that may become due and
owing to the BUSINESS in terms hereof.
4. Agree that the Directors / Members / Partners / Trustees of the APPLICANT, shall execute a Deed of Suretyship in favour of the
BUSINESS as continuing covering security in respect of any account granted in terms hereof.
5. authorise the BUSINESS to:
5.1. contact any person and / or undertaking mentioned in this application, and without limiting the generality of the foregoing, to conduct
ITC searches and Bank checks; and
5.2. follow up any information referred to, in order to assess whether or not the account should be granted.
6. acknowledge that:
6.1. the approval of the account by the BUSINESS shall be at the sole discretion of the BUSINESS, based on reasonable grounds that are
consistent with the BUSINESS'S customary risk management practices.
6.2. the account shall be subject to the approval thereof in writing by the BUSINESS,
6.3. until such account is granted, all transactions with the BUSINESS shall be strictly cash on delivery.
7. declare that the signatory has read the contents of the ACCOUNT TERMS, understand same and regard it as binding on him/her.
8. Acknowledge that should the APPLICANT not be successful, in part or in total, with its account application, the BUSINESS shall advise
the APPLICANT in writing of the reasons for its failure to grant the account, in part or in total.
DOCUMENTATION IN SUPPORT OF DEFERRED PAYMENT FACILITY Attach certified copies of the following documents:
a) Company: Certification of Incorporation, Certificate to Commence Business, Memorandum of Incorporation.
b) Closed Corporation: Founding Statement and Association Agreement.
c) Partnership: Partnership Agreement and identity documents of the partners.
d) Individual: Identity Document.
PART 2 ACCOUNT TERMS
1. INTERPRETATION
1.1. In this AGREEMENT the following words and / or terms bear the meaning ascribed herein:
1.1.1. "ACCOUNT" means the account described in clause 2 of part 2.
1.1.2. “the ACT” means the National Credit Act 34 of 2005 together with the regulations promulgated in terms of the Act.
1.1.3. "AGREEMENT" means this agreement, together with all annexures, or any other agreement concluded between the BUSINESS and the
APPLICANT for the purchase and sale of automotive components, and the rendering of services in relation thereto.
1.1.4. "the BUSINESS" means Amalgamated Automobile Distributors Reg. No. 1972/002784/07and includes its servants and agents.
1.1.5. "ACCOUNT TERMS" means the terms and conditions contained in this AGREEMENT and find application to all the parts of this
agreement.
1.1.6. "APPLICANT" means the purchaser of the GOODS mentioned in this agreement.
1.1.7. "GOODS" means the goods and services that form the subject matter of the AGREEMENT, which shall include but not be limited to the
following; the purchase and sale of automotive components, and the rendering of services in relation thereto by the BUSINESS to the
APPLICANT.
1.2. Unless a contrary intention clearly appears words importing:
1.2.1. any one gender include the other genders;
1.2.2. the singular include the plural and vice versa; and
1.2.3. natural persons include created entities (Corporate or unincorporated) and the State and vice versa.
1.3. The headings of the clauses in these ACCOUNT TERMS are for the purpose of convenience and reference only and shall not be used in the
interpretation of nor modify nor amplify the terms of these ACCOUNT TERMS nor any clause thereof.
1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is
only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the ACCOUNT TERMS.
1.5. When any number of days is prescribed in the ACCOUNT TERMS, same shall be reckoned exclusively of the first and inclusively of the
last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which
is not a Saturday, Sunday or public holiday.
1.6. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.7. Expressions defined in the ACCOUNT TERMS shall bear the same meaning in a schedule or annexures to the ACCOUNT TERMS which
do not themselves contain their own definitions.
2. ACCOUNT
2.1. The BUSINESS may in its sole discretion grant an account to the APPLICANT and open an account (in this clause called "the account") in
the name of the APPLICANT to facilitate payment of any amounts due by the APPLICANT to the BUSINESS pursuant to this
AGREEMENT. The BUSINESS shall notify the APPLICANT from time to time in writing of the limit on the account (in this clause
called "the account limit") applicable to the account.
2.2. The account shall be conducted at all times subject to the ACCOUNT TERMS and within the account limit. The BUSINESS shall be
entitled, at any time based on reasonable commercial grounds that are consistent with the BUSINESS'S customary risk management
practices, to review the extent of the account facility granted and shall have the right to increase or decrease the account limit. The
APPLICANT shall for the purpose of such review furnish the BUSINESS with any information that it may require to evaluate the
creditworthiness of the APPLICANT. Any review of the account facility shall be subject to a re-evaluation of the APPLICANT'S
creditworthiness.
2.3. Any increase or decrease to the account limit by the BUSINESS will be communicated to the APPLICANT by giving 20 (twenty) business
days written notice by the BUSINESS.
2.4. The APPLICANT shall be entitled to reduce the account limit given by the BUSINESS.
2.5. The APPLICANT authorises the BUSINESS to debit the account with:
2.5.1. any and all amounts due by the APPLICANT to the BUSINESS pursuant to this AGREEMENT or any other agreement;
2.5.2 interest on all amounts outstanding (in terms of clause 3.5);
2.5.3 default administrative charges; and
2.5.4 collection costs
2.6. In the event of any amount contemplated in 2.5 above being debited to the account resulting in the account limit being exceeded, the
APPLICANT shall immediately make an interim payment to the BUSINESS in order to bring the account within the authorised limit.
2.7. In the event of the APPLICANT at any time exceeding the account limit or failing to pay any amount due to the BUSINESS in terms of the
AGREEMENT on the due date (as the case may be) then any and all amounts outstanding to the BUSINESS, in terms of this
AGREEMENT, shall become immediately due and payable by the APPLICANT to the BUSINESS. In this event the BUSINESS shall
have the right to refuse to perform in respect of any further AGREEMENT and without incurring any liability in respect of such refusal.
2.8. The BUSINESS shall have the right to immediately close the account at any time, in which event the full amount of the APPLICANT'S
indebtedness to the BUSINESS shall immediately become due and payable. In such event the parties shall immediately revert to cash on
delivery terms in respect of all future AGREEMENTS
2.9. The APPLICANT shall, be entitled to settle and close the account / settle the account facility at any time, with or without advance notice to
the BUSINESS. The amount payable by the APPLICANT to close the account / settle the account facility shall be the total of the amount
mentioned in clause 2.5 above
2.10. The BUSINESS shall allocate an account number to the account, which must be quoted on all correspondence, documents and payments.
3. SETTLEMENT OF ACCOUNT
3.1. The APPLICANT shall:
3.1.1. diligently observe and adhere to the account limit which is applicable from time to time.
3.1.2. make payment to the BUSINESS of all amounts debited to the ACCOUNT in the manner and within the time period specified by the
BUSINESS.
3.1.3. remain liable for all railage charges in respect of GOODS sold and delivered and not paid for in full.
3.1.4. pay interest on all outstanding amounts (where applicable)
3.1.5. The BUSINESS shall, insofar as same is applicable, tender a monthly statement to the APPLICANT in compliance with the VAT Act as
amended at such an address as the APPLICANT has appointed in writing from time to time. Such statement of account shall serve as:
3.1.5.1. an invoice for all transactions.
3.1.5.2. prima facie proof of the amount owing by the APPLICANT.
3.2. Debits raised against the ACCOUNT during any particular month shall be paid by the APPLICANT as follows:
3.2.2 sundry and parts will be payable within 30 days of receipt by the APPLICANT from the BUSINESS of a statement of account
3.3. The APPLICANT shall within 14 (fourteen) days after receipt of a statement of account have the right to dispute all or part of any particular
credit or debit entered by the BUSINESS. Should the APPLICANT fail to dispute all or part of any particular credit or debit entered by the
BUSINESS within 14 (fourteen) days after receipt of a statement of account, all debits appearing on the statement of account shall be
deemed to be correct and lawfully raised against the ACCOUNT.
3.4. The APPLICANT shall, despite any query, continue to make payment as per the monthly statement of account until such time as the query
has been attended having regard at all times to the provisions of clause 7.12 below
3.5. All amounts not paid by the due date, referred to in clause 3.2 above, shall bear interest at 2% (two percent) per month.
4. SECURITY
4.1 The APPLICANT shall, if called upon to do so by the BUSINESS, furnish the BUSINESS with such form and amount of security, for
payment of any amount due by the APPLICANT to the BUSINESS which the BUSINESS within its sole discretion considers to be
adequate and the APPLICANT shall complete and sign all such documentation as may be required in respect of such security.. This clause
will not apply for such a period in which Barloworld Motor Retail South Africa has procured an undertaking from Barloworld Group to
guarantee the payment of any debts incurred in respect of the account granted herein
5. OWNERSHIP: Ownership of the GOODS shall pass to the APPLICANT upon payment of any and all amounts owing in respect thereof to
the BUSINESS in full.
6. TERMINATION
6.1. Notwithstanding any of the other provisions of the ACCOUNT TERMS and without prejudice to any of its rights, either party shall have the
right to cancel the ACCOUNT FACILITY forthwith at any time by giving notice in writing to the other party to terminate the FACILITY
should either party learn, or believe upon reasonable grounds, that any of the following events have occurred or is likely to occur:
6.1.1. if either party commits any breach of any of the provisions of the ACCOUNT TERMS;
6.1.2. if either party makes any arrangements in contemplation of insolvency or is declared insolvent or enters into liquidation, whether
compulsory or voluntarily (otherwise than for the purpose of amalgamation or restructuring) or compounds with its creditors or takes or
suffers any similar action in consequence of a debt;
6.1.3. if either party ceases to carry on business as a going concern;
6.1.4. if either party ceases to be in a position to fulfill its obligations in terms of the AGREEMENT;
6.1.5. if there is any change in the control or a material change in the shareholding, control or management of either party which the other party,
in its sole discretion might consider to be detrimental to that party. (For the purpose of this sub-clause, "control" will without limitation,
include the power or ability of any proprietor, partner, shareholder, director or employee of either party, whether exercising such powers by
voting rights or pursuant to any agreement or arrangement, materially influence any decision or act taken or to be taken on behalf of either
party; and" management" will, without limitation include any person who is a director, quasi-director, shadow director, partner or senior
member of the management of either party).
6.2. in the event of a termination, the APPLICANT will be required to immediately pay to the BUSINESS any and all outstanding monies owed
to the BUSINESS by the APPLICANT
7. GENERAL
7.1. SEVERABILITY: If any term of provision or part hereof (in this clause called "the offending provision") contained in the ACCOUNT
TERMS shall for any reason whatsoever be declared or become unenforceable, invalid or illegal including but not limited to, a decision by
any court, an Act of Parliament or any statutory or your name goes here t/a other by-laws or regulations or any other reason whatsoever, the
remainder of the ACCOUNT TERMS shall remain in full force and effect as if the ACCOUNT TERMS had been executed without the
offending provisions appearing therein.
7.2. ENTIRE AGREEMENT: The ACCOUNT TERMS constitute the entire agreement between the parties with regard to the matters dealt
with herein and no representations, terms, conditions or warranties express or implied not contained in the ACCOUNT TERMS shall be
binding on the parties.
7.3. VARIATION OR CANCELLATION: No agreement varying, adding to, deleting from or cancelling the ACCOUNT TERMS shall be
effective unless reduced to writing and signed by or on behalf of the parties. It is recorded that there exists no collateral and or other
agreements and that this is the sole agreement entered into between the parties.
7.4. INDULGENCES: No indulgences granted by a party shall constitute a waiver of any of that party's rights under the ACCOUNT TERMS:
Accordingly, that party shall not be precluded as a consequence of having granted such indulgence from exercising any rights against the
other which may have arisen in the past or which may arise in future.
7.5. CHOICE OF LAW: All disputes concerning the validity, interpretation, or performance of the ACCOUNT TERMS, or any of its terms or
conditions, or of the rights or obligation of the parties, shall be governed by and resolved in accordance with the laws of the Republic of
South Africa.
7.6. RENOUNCEMENT: The APPLICANT hereby expressly renounces the benefits of the non causa debiti, the errore calculi, the revision of
accounts, no value recorded and, if there is more than one APPLICANT, the de duobus vel pluribus reis debendi or the ordinis seu
excussionis et divisionis.
7.7. JURISDICTION: The APPLICANT agrees to the jurisdiction of the Magistrate's Court in terms of section 45 of Magistrate's Court
Act 32 of 1944 for the recovery of any amount due in terms thereof.
7.8. COSTS: Should the BUSINESS incur costs in the enforcement of its rights in terms hereof, the APPLICANT shall pay such costs on the
attorney-and-own client scale as well as collection costs as determined by an independent auditor or collection agency plus VAT of each
and every payment made in reduction of the capital amount owing, interest and costs, provided such costs are made an order of court.
7.9. CEDE AND PLEDGE:
The BUSINESS shall be entitled to cede or pledge its interest herein or to trade therewith at its own discretion without the consent of the
APPLICANT. The BUSINESS may also in rem suam discharge or release any security partly or in full without the consent of the
APPLICANT or consent to any alteration, release, relaxation or postponement of terms hereof and such action shall not be binding on the
BUSINESS in any way whatsoever unless he has indicated in writing that such action shall be binding.
7.10. ALLOCATION OF PAYMENT: the BUSINESS may only allocate payment in such amount and to the extent is set out in the remittance
advice received from the APPLICANT.
7.11. CERTIFICATE: Any certificate issued under the signature of any of the managers of the BUSINESS that purports to certify the amount
due hereunder shall be accepted as prima facie proof of such. It shall not be necessary to prove the appointment or signature of the person
signing any such certificate.
7.12. NO WITHHOLDING OR SET-OFF: Neither party shall be entitled for any reason whatsoever to withhold or defer payment due in terms
of this agreement or to set-off any amounts owed to it, its subsidiaries or affiliates against any amounts then owed by the other party, its
subsidiaries or affiliates.
7.13. ADVANCE PAYMENTS: The APPLICANT shall be at liberty to pay any portion of the capital amount and interest due in terms of the
ACCOUNT FACILITY before the due date thereof without derogating from any right it may have in terms hereof.
8. DOMICILIUM CITANDI ET EXECUTANDI
8.1. The APPLICANT chooses as its domicilia citandi et executandi for all purposes under these ACCOUNT TERMS, whether in respect of
court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the aforesaid
address set out in the ACCOUNT APPLICATION.
8.2. The BUSINESS chooses as its domicilia citandi et executandi for all purposes under these ACCOUNT TERMS, whether in respect of court
process, notices or other documents or communications of whatsoever nature (including the exorcise of any option), the following address:
212 Bram Fischer Drive, Randburg, Republic of South Africa.
8.3. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but
any party shall be competent to give notice by telefax or electronic mail.
8.4. Any party may by notice to the other party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that party to
another physical address in RSA or its telefax number: Provided that the change shall become effective vis-à-vis that addressee on the
second business day from the deemed receipt of the notice by the addressee.
8.5. Any notice to the APPLICANT (other than legal notice which must be hand delivered):
8.5.1. sent by prepaid registered post (or by airmail if appropriate) in a correctly addressed envelope to it at its domiclium citandi et executandi
shall be deemed to have been received on the eight (8th) business day after the business day of posting (unless the contrary is proved).
8.5.2. delivered by hand to a responsible person during ordinary business hours at its domiclium citandi et executandi shall be deemed to have
been received on the day of delivery; or
8.5.3. sent by telefax to its chosen telefax number, as set out in the ACCOUNT APPLICATION, shall be deemed to have been received on the
first business day after date of dispatch (unless the contrary is proven).
8.6. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by the APPLICANT shall be
an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domiclium citandi et
executandi
*THE PARTIES HEREIN ARE NOT DEEMED TO BE CONSUMERS IN TERMS OF THE CONSUMER PROTECTION ACT DUE
TO THEIR ASSETS & TURNOVER EXCEEDING THE THRESHOLD.THIS PROVISION IN NO WAY AFFECTS THE ABILITY
OF THE PARTIES TO CLAIM ANY RIGHTS IN TERMS OF THE ACT WHERE THERE IS NO ASSET OR TURNOVER
LIMITATION IN TERMS OF THE SPECIFIC PROVISION OF SAID ACT
This done and signed at ___________________________ on this _____ day of ________________ 20 ___
Initials and Surname
Initials and Surname
Designation
Identity No. of signatory
Designation
Signatory who warrants his authority to sign
this Account Application
Signature
PART 3: DEED OF CONTINUING SURETYSHIP
To the BUSINESS:
1. SURETYSHIP
I/We the undersigned (hereinafter referred to collectively and individually as “the SURETY”) bind myself / ourselves as surety for and coprinciple debtor jointly and severally with the APPLICANT to the BUSINESS for all obligations of the APPLICANT to the BUSINESS in
terms of the APPLICANT'S account with the BUSINESS whether presently due, owing and payable or becoming due, owing and payable in the
future.
2. CONTINUING COVERING SECURITY: This suretyship is given as a continuing covering suretyship, in respect of the APPLICANT'S
account with the BUSINESS.
3. ACKNOWLEDGMENTS AND RELEASES
It is agreed that:
3.1 all admissions or acknowledgments by the APPLICANT to the BUSINESS shall be binding on the SURETY, including tacit and implied
acknowledgments.
3.2 the BUSINESS shall be at liberty, without affecting its rights hereunder, to release, abandon, realize or sell securities and to give time or
compound or make any other arrangements with:
3.2.1 the APPLICANT; or
3.2.2 the SURETY or any of them; or
3.2.3 any other SURETIES, guarantors or indemnifiers for the APPLICANT, whether before or after any obligation has fallen due for
performance.
3.3 any leniency, extension of time or waiver which may be granted to:
3.3.1 the APPLICANT; and/or
3.3.2 a SURETY in terms hereof; and/or
3.3.3 any other SURETIES for the APPLICANT; and/or
3.3.4 any third party, whether before or after the obligation has fallen due for performance shall not be construed as a waiver of any of the rights
or claims of the BUSINESS against any SURETY hereunder and the SURETY hereby waives any right to rely on any defense involving or
based on waiver, estoppel or prejudice to the SURETY as SURETY.
3.4 notwithstanding any part payment by the SURETY or on its behalf, the SURETY shall have no right to:
3.4.1 any cession of action in respect of such part payment;
3.4.2 take any action against:
3.4.2.1 the APPLICANT;
3.4.2.2 any other SURETY for the APPLICANT,
in respect thereof unless and until the indebtedness of the APPLICANT to the BUSINESS shall have been discharged in full.
3.5 the SURETY shall not be released from liability hereunder if the BUSINESS makes any payment to the APPLICANT which ought not to
have been made, withholds performance of any obligation to the APPLICANT which ought to have been performed or in any other manner
prejudices the rights of the SURETY or the APPLICANT.
3.6 the nature, extent, amount and terms of any agreement between the APPLICANT and the BUSINESS shall at all times be within the
discretion of the SURETY FULL NAMES AND SURNAME IDENTITY NUMBER ADDRESS and the SURETY shall not be released
from any liability by reason of the entering into of any such agreement or the failure on the part of the BUSINESS to perform in whole or in
part under any such agreement.
3.7 if any obligation is novated, the SURETY shall be liable for the original obligation or the novated obligation at the election of the BUSINESS
and whether or not the SURETY was aware of the novation.
3.8 the SURETY waives his or its rights to rely upon prescription of either any principal obligation or any accessory obligation created by this
deed.
4. EXTENSIONS OF TIME
If the account or any part thereof is due for payment and the BUSINESS compromises with the APPLICANT, gives the APPLICANT any
indulgence or extended time or extended terms for payment, then the BUSINESS will still be entitled to forthwith recover from the SURETY the
amount due and owing by the APPLICANT prior to any compromise, indulgence or extended time or extended terms of payment granted by the
BUSINESS to the APPLICANT.
5. APPROPRIATION
The BUSINESS is irrevocably authorised to apply any monies received by the BUSINESS from any SURETY in terms of this suretyship against
the indebtedness to the BUSINESS of the APPLICANT in such manner as the BUSINESS in its entire discretion may think fit, including the
appropriation by the BUSINESS of a payment to any debt due by the APPLICANT which for any reason is not secured hereunder.
6. ENTIRE AGREEMENT
6.1 No variation, relaxation, waiver of, addition to, deletion from or consensual cancellation of this suretyship or any of the terms thereof
(including this clause) shall be of any force or effect unless reduced to writing and signed by the SURETY and confirmed by the BUSINESS
in writing.
6.2 It is agreed that:
6.2.1 this suretyship constitutes the whole of the agreement between the SURETY and the BUSINESS;
6.2.2 there are no conditions suspending its operation which may terminate the liability of the SURETY;
6.2.3 no warranties, promises, representations or inducements of whatsoever nature have been made or given by the BUSINESS or any other
person including the APPLICANT to the SURETY to enter into this suretyship or to bind the SURETY to the terms hereof.
7. RELEASE
7.1 It is agreed that the SURETY may only be released from this suretyship by written notice from the BUSINESS releasing the SURETY. Any
such release shall be restrictively interpreted to apply only to the BUSINESS giving the release, the SURETY receiving the release and the
APPLICANT in respect of which the release is given.
7.2 Should this suretyship be terminated by any aforesaid notice or for any other reason such as, but not limited to, the termination of the facility,
the SURETY shall be and remain liable for all obligations of the APPLICANT as at the date of termination of the suretyship.
8. REVIVAL
8.1 If:
8.1.1 any performance which has the effect of reducing and/or discharging the liabilities of the SURETY hereunder is:
8.1.1.1 set aside under the Insolvency Laws or for any reason whatsoever by order of court; or
8.1.1.2 refunded to the APPLICANT, or the APPLICANT'S trustees or liquidator by agreement; or
8.1.2 any security is set aside by the court or released by agreement,
the SURETY shall be liable to the BUSINESS as SURETY for the APPLICANT in respect of the APPLICANT'S obligations to the
BUSINESS arising from or revived by the setting aside and/or refund of such payment, or the setting aside or release of such security,
notwithstanding that the same may take place after the termination of the liability of the SURETY hereunder in other respects.
8.2 All references herein to the indebtedness or debts of the APPLICANT shall accordingly be deemed to include any indebtedness arising from
or revived by the setting aside and/or refund of such payment or the setting aside or release of such security.
8.3 The BUSINESS shall accordingly be entitled to retain this suretyship document notwithstanding any termination of the SURETY'S liability
hereunder in other respects and it is agreed that this suretyship document is and shall at all times remain the property of the BUSINESS.
9. PROOF
9.1 Any obligation of the APPLICANT and/or the amount of the indebtedness of the APPLICANT and of the SURETY hereunder to the
BUSINESS at any time (including interest, the rate of interest and the method of calculation thereof) shall be determined and conclusively
proved by a certificate under the signature of any one director of the BUSINESS.
9.2 In respect of the aforementioned the provisions of clause 7.11 in PART 3 of this AGREEMENT shall apply mutatis mutandis, vis-à-vis the
BUSINESS and the SURETY.
10. ADDITIONAL SECURITY
The rights of the BUSINESS under this suretyship shall not be affected or diminished if the BUSINESS at any time obtains any additional or
other suretyships, guarantees, securities or indemnities from the SURETY or any other third party whatsoever in connection with the obligations
of the APPLICANT and/or the SURETY.
11. DISABILITY OF APPLICANT
11.1 If the APPLICANT:
11.1.1 is placed under liquidation or judicial management, business rescue or sequestration (whether provisionally, finally, compulsorily or
voluntarily); or
11.1.2 suffers any other legal disability; or
11.1.3 becomes subject to:
11.1.3.1 the provision of any law for the assistance or benefit of APPLICANTS; or
11.1.3.2 a compromise, composition or other arrangement with any creditor of the APPLICANT;
the BUSINESS shall be entitled to prove a claim against the estate of the APPLICANT for the full amount of any indebtedness due to
it, whether actual or contingent, and to accept any dividend on account and in reduction of the indebtedness without prejudice to the
rights of the BUSINESS against the SURETY.
11.2 The SURETY further acknowledges that:
11.2.1 in any of such events and for as long as any of the obligations of the APPLICANT remain undischarged, the SURETY shall not be
entitled to prove any claim against the APPLICANT without the prior written authority of the BUSINESS;
11.2.2 the BUSINESS holds in securitatem debiti all and any claims that the SURETY might have or might in the future acquire against the
APPLICANT in terms of the cession herein contained.
11.3 Should the APPLICANT be placed under judicial management, whether provisional or final, or business rescue, then in that event the
obligations of the SURETY under this suretyship shall cover all debts incurred by the APPLICANT to the BUSINESS whilst under
judicial management.
12. CESSION
12.1 As security for the discharge of the obligations assumed by the SURETY in terms hereof, the SURETY hereby individually and in
securitatem debiti cedes to the BUSINESS any claims which now are or which may hereafter become due to the SURETY by the
APPLICANT or any third party from any cause of indebtedness whatsoever (including but not limited to claims arising from signature of
this suretyship by the SURETY and from payments made by the SURETY by virtue of this suretyship).
12.2 The SURETY does hereby irrevocably and in rem suam authorise and appoint the BUSINESS with full power to sign and execute all and
any documents on behalf of the SURETY which may be necessary to give effect to or to enforce the rights afforded to the BUSINESS in
terms of this cession herein contained.
12.3 The SURETY hereby further agrees that, if prior to the signature of this suretyship the SURETY has ceded such claims to anyone
whomsoever, this cession shall be deemed to be a cession of all reversionary rights of the SURETY in and to any such claims after payment
of all amounts secured by the prior cession(s) or after the loss or abandonment for any reason of any of the rights of the
cessionary/cessionaries thereunder.
12.4 The SURETY warrants that the only prior cessions are those disclosed to the BUSINESS in terms of the schedule hereto.
12.5 The whole of such cession shall remain of full force and effect until all the liabilities of the APPLICANT to the BUSINESS have been
extinguished.
12.6 The cession hereby conferred upon the BUSINESS is conferred as continuing covering security for past, present, future, prospective and/or
contingent liabilities of the APPLICANT to the BUSINESS and is subject mutatis mutandis further to clauses 8, 9 and 10 hereof.
12.7 Should there at any stage be no APPLICANT who owes any obligation to any CREDITOR the cession herein contained shall lapse but
shall immediately and simultaneously revive if any APPLICANT thereafter owes any obligation to any CREDITOR and the SURETY is
still bound in terms thereof.
13. CASH SECURITY
For as long as the BUSINESS may think fit, at its option and in its sole and absolute discretion, any money paid by the SURETY to the
BUSINESS may be treated as cash security from the SURETY to be held by the BUSINESS free of interest until the obligations of the
APPLICANT and/or the SURETY shall have been fully discharged, or may be applied to such debt or debts of the APPLICANT as the
BUSINESS may deem fit.
14. IMMEDIATE PERFORMANCE
Should the APPLICANT fail to discharge any of its obligations to the BUSINESS or any one of its CREDITORS, the BUSINESS shall be
entitled notwithstanding any contrary arrangement with the APPLICANT, to demand from the SURETY immediate performance of all the
obligations then owing by the APPLICANT to the BUSINESS whether or not the due date for the performance of the obligations shall have
arrived.
15. OBLIGATION TO PAY
15.1 If any dispute arises between the APPLICANT and the BUSINESS and the APPLICANT contends that the debt is not due and owing, then
the SURETY:
15.1.1 will accept the written contention of the BUSINESS that such debt is due and owing; and
15.1.2 hereby waives any defence or contention which the APPLICANT may raise; and
15.1.3 will pay the amount claimed forthwith.
15.2 The BUSINESS shall repay to the SURETY the said sum or sums to the extent that a court of competent jurisdiction (including any appeal
court) finally determines that the contentions of the APPLICANT are correct.
15.3 The aforesaid sum or sums shall be repaid free of interest up to the date of final judgment.
16. INTEREST
16.1 Any sum due by the SURETY shall carry interest reckoned from the date on which such sum became owing by the
APPLICANT or interest bearing whichever is the later at the rate at which the APPLICANT is obligated to pay interest in terms of this
AGREEMENT
17. COSTS
The SURETY shall be responsible for all charges and expenses of whatsoever nature incurred by the BUSINESS in securing the implementation
of the obligations of the SURETY hereunder, or of the rights of the BUSINESS in terms hereof, including, without limitation by virtue of the
aforegoing, all legal costs, including attorney and own client costs, collection commissions and tracing agents fees.
18. WAIVER OF BENEFITS
18.1 The SURETY waives and renounces:
18.1.1 any right to claim an account from the BUSINESS;
18.1.2 any benefits which the SURETY as SURETY is entitled to in law, without detracting from the generality of the aforegoing, including the
benefits of:
18.1.2.1 excussion;
18.1.2.2 division;
18.1.2.3 cession of action;
18.1.2.4 de duobus vel pluribus reis debendi.
18.2 The SURETY acknowledges that it knows and understands the meaning and full force and effect of such benefits.
19. FORMALITIES COMPLIED WITH
The SURETY acknowledges that:
19.1 this suretyship was completed in all respects when the SURETY signed it;
19.2 the rights and obligations of the various CREDITORS, APPLICANTS and SURETIES have been incorporated into one document for
convenience only and the failure of any SURETY or APPLICANT:
19.2.1 to execute this suretyship notwithstanding that such SURETY or APPLICANT is reflected herein as a party;
19.2.2 to be bound by this suretyship for any reason after execution;
shall not vitiate, diminish or affect the obligations of any other SURETY or the rights of the BUSINESS, it being agreed that the liability
of the SURETY is not dependent, wholly or in part on the liability of any other SURETY or intended SURETY.
20. WARRANTIES BY INDIVIDUALS SIGNING ON BEHALF OF COMPANIES
20.1 Every natural person signing on behalf of any juristic person personally warrants that:
20.1.1 the giving of the SURETY by the juristic person concerned:
20.1.1.1 is within the scope of its powers, objects and authority;
20.1.1.2 does not contravene any provisions of the Companies Act 61 of 1973 in particular, but without limitation, section 226 thereof or the
Companies Act of 2008 or the Close Corporations Act, 1984;
20.1.2 all necessary steps have been taken by the juristic person to give the signatory the power to execute this suretyship on behalf of the juristic
person and in particular, but without limitation, the directors (or members in the case of a close corporation) have approved the giving of
this suretyship in specific terms
20.2 If any juristic person is not bound by this suretyship for any reason whatsoever including but not limited to a breach of any warranty
contained in 20.1, then the person shall be bound as SURETY in the place of such juristic person and he shall be conclusively deemed to
have signed this suretyship in his personal capacity.
21. DOMICILIUM
21.1 Any notice and/or process issued in terms of this suretyship shall be served, delivered or sent to the SURETY(IES) at the following
addresses:
_________________________________________
21.2 The SURETY(IES) may at any time during the existence of suretyship change the addresses in paragraph 21.1 above by giving written
notice to the other party of such change of address provided that the new domicilium shall include a postal, delivery and telefax address in
the Republic of South Africa.
22. NOTICE
In respect of the aforementioned the provisions of clause 7 and 8 in PART 3 of this AGREEMENT shall apply mutatis mutandis, vis-à-vis the
BUSINESS and the SURETY.
Signed at _________________________________ on this ____________ day of _________________________ 20 _____
___________________________________________
Signature (for and on behalf of the APPLICANT
__________________________
Print Name
____________________
Print Designation