To: Transwest Fuels Pty Ltd ACN 161 266 664
In consideration of Transwest doing any one or more of the following, at the request of the Guarantor, for the business purposes of the Customer:
1. providing or containing to provide Goods, or
2. giving credit to the Customer, or
3. not commencing or not continuing legal action against the Customer
The Guarantor enters this Deed and agrees to perform his, her or its obligations under this Deed.
1. DEFINITIONS AND INTERPRETATIONS
1.1. Definitions
In this deed, unless the context requires otherwise:
“Credit Application” means the Credit Application annexed to this Deed and executed on or about the date of this Deed.
“Customer” means the applicant set out in the Credit Application.
“Deed” means this Deed of Guarantee, Indemnity and Charge.
“Goods” means all goods, produce, products, merchandise and services which have been supplied or which may be supplied in the future at the Customer’s request on credit extended by Transwest to the Customer.
“Guarantor” means any person or company or other body set out in the Credit Application as the Customer’s guarantor or other person signing or purporting to sign this Deed as Guarantor and that person’s personal representative
“Transwest” means Transwest Fuels Pty Ltd ACN 161 266 664 and its associated and related companies and successors or assigns.
“Law” includes common law, principles of equity and any requirements of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
“Money” means all moneys which are now payable or which may become payable in the future (whether contingently or otherwise) by the Customer to Transwest for any reason, whether alone or jointly with another person. The term includes, without limitation, money owed by the Customer for the supply of Goods, all money Transwest pays or becomes liable to pay at the request of the Customer (including loans), amounts or obligations assigned to Transwest before or after the date of this Deed and all losses and expenses (including taxes, fees, charges, interest and legal costs on a full indemnity basis) arising directly or indirectly from any dealing or default by the Customer or by the Guarantor or otherwise incurred by Transwest in connection with entering, enforcing or terminating this Deed.
“Personal Information” has the meaning given to it in the Privacy Act.
“Personal Information about the Guarantor” means Personal Information (if any) about the Guarantor collected by Transwest in connection with this Deed that includes but us not limited to information about the Guarantor’s financial circumstances, credit worthiness, credit history, credit standing and credit capacity.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Privacy Act” means the Privacy Act 1988 (Cth).
“Property” means all property of the Guarantor, now and in the future, wherever situated, including without limitation all real and personal property, business and trading assets, stock, choses in action, goodwill and uncalled capital and called but unpaid capital from time to time.
1.2. Interpretation
In this Deed “includes” and “including” are not words of limitation; the singular includes the plural and vice versa; a gender includes all gender; and “person” includes and individual, a body corporate, a partnership or any unincorporated association.
2. GUARANTOR OBLIGATIONS
The Guarantor agrees:
a. to unconditionally and irrevocably guarantee and be responsible for the due and punctual payment of the Money by the Customer and observance of all of the terms and conditions contained herein (and in the Credit Application), notwithstanding that at times there may be no Money owed by the Customer to Transwest or any Guarantor’s obligations;
b. to pay the Money to Transwest on demand without set-off, counterclaim or deduction (equitable or otherwise);
c. to waive any rights the Guarantor has of first requiring Transwest to enforce any other right or power against the Customer or to claim payment from the Customer or any other person before claiming from the Guarantor under this Deed;
d. that Transwest may at any time in its discretion and without giving any notice to the Guarantor refuse to provide further goods to the Customer;
e. that where the Guarantor consists of more than one person, this Deed is enforceable against all persons signing as Guarantor together and against each Guarantor separately;
f. that where the Guarantor has the right to prove in any insolvency administration of the Customer or another guarantor of the Customer’s obligations or to claim an amount from the Customer obligations or to claim an amount from the Customer or another guarantor of the Customer’s obligations under a right of indemnity, the Guarantor may do so only with Transwest’s consent and must hold any dividends received on trust for Transwest;
g. that the Guarantor will provide Transwest with information concerning the Guarantor’s financial position, business, assets and (where the Guarantor is a company) its shareholders and any person or entity related to or associated with the Guarantor as may be reasonably required by Transwest from time to time; and
h. Indemnify Transwest and keep it indemnified from and against loss, damages, costs, and expenses incurred by Transwest as a result of any breach or non performance of the Customer’s obligations under the Credit Application.
3. GUARANTOR ACKNOWLEDGEMENT
The Guarantor acknowledges and agrees that:
a. it has read and understood this Guarantee;
b. Transwest has afforded it full and unrestricted opportunity to seek independent legal advice on the Guarantor’s obligations under this Deed prior to signing this Deed and has strongly recommended that it obtain independent legal advice;
c. it has not relied upon any representation made by Transwest’s servants in agreeing to guarantee the obligations owed by the Customer to Transwest;
d. it has made its own enquiries of the Customer regarding the Customer’s past and prospective dealings with Transwest
and its satisfied as to the extent of its obligations as Guarantor under this Deed;
e. Transwest is under no obligation to notify the customer of any changes to Transwest’s trading terms or dealings with the Customers, even if these changes increase the Guarantor’s liability under this Deed;
f. This Deed is continuing guarantee to Transwest for the Money;
g. Transwest is not obligated to make any demand of the Customer or claim on any other security before requesting payment of the Money by the Guarantor;
h. Transwest’s right under this Deed are not affected by any act or omission by Transwest or by anything else that may affect those rights at Law or otherwise, including:
i. the variation of replacement of Transwest’s agreement with the Customer;
ii. arrangements Transwest makes with the Customer such as releases or time concessions;
iii. the fact that Transwest releases, loses the benefit of, does not obtain or fail to register any security;
iv. the fact that Transwest releases any other guarantor of the Customer’s obligations;
v. the fact that the obligations of another guarantor of the Customer’s obligations may be unenforceable or that another guarantor has failed to effectively guarantee the Customer’s obligations;
vi. any legal limitation, disability, incapacity or other fact (actual or asserted) relating to the Customer, the Guarantor or any other person (irrespective of whether Transwest had or should have had knowledge of that fact); and
vii. any fact which could or might have the effect of prejudicing or discharging the Guarantor’s liability under this Deed;
viii. this Deed is enforceable jointly and severally against each person signing as Guarantor;
i. Transwest may at any time release or discharge any Guarantor from the Guarantor’s obligations under this Deed or grant time to pay or other indulgence, accept a composition from or enter other arrangements with the Customer or any Guarantor, delay or make mistakes or omissions without affecting the liability of any other Guarantor under this Deed;
j. any payment which is made by or on behalf of the Customer and which is later avoided by the application of any Law shall be deemed not to discharge the Customer’s indebtedness or the Guarantor’s liability and in such a case, the parties are restored to the position which each respectively would have had if the payment had not been made;
l. the Guarantor’s obligations under this Deed are valid and binding, that if the Guarantor is a corporation it benefits under this Deed, that the Guarantor is solvent and does not enter this Deed in the capacity of trust or settlement; and
m. the Guarantor will not be entitled to the discharge of any security which secures the Guarantor’s obligation under this Deed until all money has been paid to Transwest and the Guarantor has provided evidence to Transwest’s reasonable satisfaction that no further Money will become owing.
4. INDEMNITY
a. the Guarantor indemnifies Transwest from and against any and all losses and expenses of any nature (including stamp duty if any legal costs on a full indemnity basis) which arise in any way out of Transwest’s dealings with the Customer or the Guarantor, including losses and expenses incurred if the Customer or the Guarantor does not, is not obliged to or is unable to pay the Money to Transwest when due or in connection with any person exercising rights under this Deed.
b. It is not necessary for Transwest to incur expense before a right of indemnity under this Deed.
c. The Indemnity in clause 4(a) is a continuing obligation, independent of the Guarantor’s other obligations under this Deed.
5. CHARGE
For the purpose of securing payment of Transwest of the Money, the Guarantor:
a. agrees to deliver Transwest, within seven (7) days or written demand, an executed mortgage and/or security interest in respect of any of the Guarantor’s Property in a form acceptable to Transwest together with any documents required to obtain registration of the mortgage;
b. charges to Transwest all its Property (wherever situated) to secure its obligations under this Deed and authorizes and consents to Transwest lodging a caveat, security interest under the PPSA or other similar document to give effect to this Deed;
c. agrees that any and all charges described in this clause 5 should be taken to be a purchase money security interest for the purposes of the PPSA;
d. consents to Transwest registering any and all charges described in this clause 5 on the personal property security register as a purchase money security interest;
e. acknowledges that the charges granted by the Guarantor under this clause 5 give Transwest a power of sale over all of the Guarantor’s Property if the Guarantor is in default of this Deed; and
f. irrevocably appoints Transwest and persons nominated by Transwest separately as the attorney of the Guarantor with power to sign and lodge such caveat, security interest or other similar document to give effect to this Deed.
6. MISCELLANEOUS PROVISIONS
a. If any provision of this Deed is or becomes void or unenforceable, it may be deleted from this Deed without any effect on the validity of the remainder of this Deed.
b. This Deed (and the Guarantor’s guarantee and indemnity under this Deed) shall not be affected by any laches, acts, omissions or mistakes on the part of Transwest.
c. A certificate signed by a Director, Secretary or other officer of Transwest shall be prima facie evidence of the amount of the Money owed by the Customer or Guarantor (or both) at that time.
d. Each party agrees to promptly do all things reasonably necessary or desirable to give full effect to this Deed and the transactions contemplated by is, including obtaining consents and signing documents.
e. Time is of the essence of this Deed.
f. Transwest may assign or otherwise deal with its rights under this Deed in any way it considers appropriate in its absolute discretion.
g. If any provision of this Deed is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed without affecting the validity or enforceability of the remaining provisions of this Deed.
h. This Deed (and the Guarantor’s guarantee and indemnity under this Deed) shall continue to be binding upon the Guarantor notwithstanding:
i. the death, bankruptcy, insolvency or liquidation of the Customer, the Guarantor, or any one of them;
ii. any change or alteration in the ownership of financial position of the Customer or the Guarantor (or any one of them); or
iii. the happening of any thing or event which under the law, but for this provision, would have the effect of releasing the Guarantor from this Deed or of terminating this Deed.
i. In the event that any part of this Deed is severed then the Guarantor shall not be entitled to rely on or claim the benefit of any such severance.
j. This Deed will governed by the laws of the New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
7. PRIVACY
a. Transwest needs to collect Personal Information about the Guarantor for the purpose of this Deed. If Transwest cannot collect this information, it may be unable to process the credit application by the Customer. Transwest will only collect, use and disclose Personal Information about the Guarantor in accordance with the Privacy Act.
b. The Guarantor can access Personal Information about the Guarantor held by Transwest in accordance with the Privacy Act. To request access, as a privacy-related question or request a copy of Transwest’s Privacy Policy Statement, the Guarantor must write to the Privacy Compliance Officer, Transwest Fuels Pty Ltd, PO BOX 1 Walcha NSW 2354.
c. The Guarantor agrees that, subject to the Privacy Act, Transwest may:
i. disclose Personal Information about the Guarantor to Transwest’s Fuels associated entities or third parties engaged to provide services to Transwest;
ii. obtain credit reports about the Guarantor from credit reporting agencies to assess the Customer’s application for commercial credit or to collect overdue payments from the Guarantor;
iii. obtain and verify Personal Information about the Guarantor from a motor vehicle or land title registry or from a business that provides commercial credit worthiness information;
iv. provide to and exchange Personal Information about the Guarantor with any person whose name the Guarantor provides to Transwest;
v. provide to and exchange Personal Information about the Guarantor with Tranwest’s collection agents if the Guarantor defaults on its obligations under this Deed;
vi. disclose Personal Information about the Guarantor to credit reporting agencies. This includes, but is not limited to:
(A) identity particulars - name, sex, address (and the previous two address), date of birth, employer and drivers license number;
(B) the fact that the Guarantor is a guarantor under this Deed;
(C) advice about payments at least 60 days overdue and which are in collection (and advice that payments are no longer overdue);
(D) advice that a cheque(s) drawn by the Guarantor which is for an amount greater than $100 has been dishonored;
(E) the fact that the Guarantor has committed a serious credit infringement; and
(F) the fact that this Deed has been discharged;
d. exchange Personal Information about the Guarantor with another credit provider who is named in the credit application of the Customer or a credit report issued by a credit reporting agency or who provides credit to the Customer or who is a beneficiary of a guarantee by the Guarantor. This is for purposes including but not limited to:
i. assessing the Guarantor’s financial position in connection with giving the guarantee under this Deed;
ii. assisting the Guarantor to avoid defaulting in the Guarantor’s obligations as guarantor;
iii. assessing the Guarantor’s position if the Guarantor falls into arrears;
iv. notifying other credit providers of the Guarantor’s default;
v. exchanging information about the Guarantor’s obligations as guarantor with other credit providers; and
vi. administering this Deed;
e. The Guarantor agrees that, when the Guarantor provides Transwest with personal information about another person, the Guarantor must, prior to providing such information, inform that person that:
i. the Guarantor intends to provide the person’s Personal Information to Transwest for the purposes of this Deed;
ii. without the information, Transwest may not be able to accept the execution of this Deed; and
iii. that person can access the information about him/her held by Transwest by writing to the Privacy compliance Officer at the address at clause 7(b);
f. The Guarantor agrees that Transwest may:
i. use Personal information about the guarantor to send the Guarantor marketing material and offers about products and services including products and services supplied by third parties. If the guarantor does not wish to receive this material, the Guarantor must write to Transwest’s Privacy compliance Officer at the address in clause 7(b);
ii. provide Personal Information about the Guarantor, as reasonably necessary, to a likely buyer of the whole or part of Transwest’s business.