7.Deed Poll Guarantee, Indemnity and Charge
7.1 In favour of Clarity Cru Wine Merchants Pty Ltd:
In consideration of us agreeing to provide or continuing to provide credit, and supplying or agreeing to supply goods and/or services to you, at the request of the Guarantor and for your business purposes, the Guarantor enters into this Deed.
8.Guarantee
8.1 The Guarantor unconditionally and irrevocably guarantees payment to us of the Guaranteed Money. If you do not pay the Guaranteed Money on time in accordance with this Deed or an Insolvency Event occurs, the Guarantor agrees to pay the Guaranteed Money to us on demand.
8.2 The guarantee in clause 8 is a continuing obligation and extends to all the Guaranteed Money. The Guarantor acknowledges that any arrangement in relation to the Guaranteed Money payable may be varied or replaced.
9.Indemnity
9.1 The Guarantor unconditionally and irrevocably indemnifies us against any liability, loss or Cost that we suffer or incur:
(a) if you do not or are unable to pay us the Guaranteed Money on time;
(b) if the Guarantor is not obliged to pay us under clause 8;
(c) if we are obliged or agree to pay an amount to a trustee in bankruptcy or a liquidator in connection with a payment by you or the Guarantor;
(d) if the Guarantor defaults under this Deed; or
(e) in connection with us exercising our rights under this Deed.
9.2 The Guarantor, as principal debtor, agrees to pay us on demand a sum equal to the amount of any liability, loss or Cost referred to in clause 9.
9.3 The indemnity in clause 9 is a continuing obligation, independent of the Guarantor's other obligations under this Deed and continues after those other obligations end.
10.Protection and reinstatement of our rights
10.1 This Deed binds each person who signs it as the Guarantor.
10.2 If a person claims that a transaction (including a payment) in connection with this Deed or the Guaranteed Money is void, voidable or unenforceable and such claim is upheld, conceded or compromised, then:
(a) we are immediately entitled to the rights in respect of the Guaranteed Money that we were entitled to immediately before such transaction; and
(b) at our request, the Guarantor agrees to do anything (including signing a document) to restore any Encumbrance held in our favour, immediately before such transaction.
11.Suspension of Guarantor's rights
11.1 As long as any of the Guaranteed Money remains unpaid, the Guarantor must not (without our prior written consent and subject to any conditions imposed by us):
(a) reduce the Guarantor's liability under this Deed by claiming that you or the Guarantor have a right of set-off or counterclaim against us;
(b) claim or exercise any legal rights in respect of the benefit of any Encumbrance or another guarantee or indemnity given in connection with the Guaranteed Money; or
(c) claim an amount in the administration, winding up, liquidation or bankruptcy in respect of you or another guarantor.
11.2 The Guarantor's obligations under clause 11 continue after this Deed ends.
12.Privacy statement and consent
12.1 Clause 13 applies where one or more Guarantors is an individual (Guarantor Individual).
12.2 The Guarantor Individual acknowledges that we informed it, in accordance with the Privacy Act 1988 (Cth), that certain personal information contained in or relating to the Credit Account Application in which this Deed appears might be disclosed to credit reporting bodies such as Equifax Australia. The Guarantor Individual authorises us to disclose that personal information. Information about how the Guarantor Individual can request access to its personal information and about our complaint handling policies are included in our privacy policy available by contacting us.
12.3 The Guarantor Individual agrees that we may seek a credit report from a credit reporting body or another credit reference agency, containing personal information, including consumer credit information about the Guarantor Individual to assist in deciding whether to accept the Guarantor Individual as a guarantor.
13.Declarations
13.1 The Guarantor declares that all information given by the Guarantor in this Credit Account Application is accurate, correct and complete as at the date of this Deed and acknowledges that a failure to complete or provide information may result in your application not being processed.
13.2 In respect of you or the Guarantor, the Guarantor agrees to notify us in writing as soon as practicable and in any event within 3 days of the occurrence of:
(a) a change in the legal status, ownership or control;
(b) a change in the directors (if it is a company or other body corporate) or partners (if it is a partnership);
(c) the appointment of a liquidator, administrator or receiver, or the liquidation, administration, arrangement, receivership or bankruptcy; or
(d) any step being taken to sell an asset or assets with a value of 20% or more of the gross assets, or sell, transfer, encumber or otherwise dispose of 20% or more of the shares (if the Guarantor is a company).
14.General
14.1 We may use any money paid by you or the Guarantor towards meeting any part of the amount payable by you or Guarantor, including the Guaranteed Money.
14.2 We may give the Guarantor a certificate about a matter or about any amount payable by the Guarantor under this Deed (including the Guaranteed Money). Such a certificate signed by us is sufficient evidence of the matter or amount unless it is proved to be incorrect.
14.3 The Guarantor acknowledges that we have afforded the Guarantor the opportunity to seek independent legal advice on the Guarantor’s obligations under this Deed prior to the Guarantor signing this Deed.
14.4 This Deed is governed by the laws of the State of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
15.Trustee provisions
15.1 Clause 16 applies if the Guarantor is the trustee of a trust (whether or not that matter is indicated in the Schedule to this Deed).
15.2 The Guarantor enters into this Deed and is bound by this Deed in its personal capacity and in its capacity as trustee of the trust.
15.3 The Guarantor declares that:
(a) this Deed is for the benefit of the trust;
(b) it is the sole trustee of the trust;
(c) it has authority to enter into this Deed and comply with its terms;
(d) it is not, and never has been, in default under the trust deed;
(e) it has the right to be fully indemnified out of the trust assets for obligations incurred under this Deed and the trust property is sufficient to satisfy that right of indemnity and all other obligations for which it is entitled to be indemnified out of trust property; and
(f) no action has been taken or proposed to terminate the trust nor has any event for the vesting of the trust property occurred; and
(g) it has not delegated any of its powers as trustee or exercised any power of appointment.
15.4 The Guarantor agrees to promptly notify us if the Guarantor cannot truthfully repeat all the declarations in clause 15.3.
15.5 The Guarantor must:
(a) comply with its obligations as trustee of the trust; and
(b) ensure that it remains the sole trustee of the trust.
15.6 The Guarantor must not do anything, or permit anything to be done, which may:
(a) effect or facilitate the variation of the trust deed;
(b) resettle, set aside or distribute any of the trust property; or
(c) result in the trust property being mixed with other property.
