"Lender" means the organization which has granted credit, being Pacific Customs Brokers Ltd., Pacific Customs Brokers Inc., PCB Freight Management Ltd., PCB Highway Sufferance Warehouse (a division of P.C.B. Properties Ltd.) or any affiliate thereof.
TO: the Lender
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the guarantor (the "Guarantor") hereby irrevocably and unconditionally guarantees, as primary obligant and not merely as surety, without offset or deduction, the punctual payment when due by the company requesting credit (the "Borrower") of all amounts which may from time to time become due and payable by the Borrower to the Lender (such payment obligations being hereinafter called the "Liabilities");
AND THE GUARANTOR HEREBY AGREES WITH THE LENDER AS FOLLOWS:
- The Lender may grant time, renewals, extensions, indulgences, releases and discharges to, take securities (which word as used herein includes other guarantees) from and give the same and any or all existing securities up to, abstain from taking securities from or from perfecting securities of, cease or refrain from giving credit or making loans or advances to, accept compositions from and otherwise deal with, the Borrower and others and with all securities as the Lender may see fit, and may apply all moneys at any time received from the Borrower or others or from securities upon such part of the Liabilities as the Lender deems best and change any such application in whole or in part from time to time as the Lender may see fit, the whole without in any way limiting or lessening the liability of the Guarantor under this guarantee, and no loss of or in respect of any securities received by the Lender from the Borrower or others, whether occasioned by the fault of the Lender or otherwise, shall in any way limit or lessen the liability of the Guarantor under this guarantee.
- This guarantee shall be a continuing guarantee and shall cover all the Liabilities, and it shall apply to and secure any ultimate balance due or remaining unpaid to the Lender.
- The Lender shall not be bound to exhaust its recourse against the Borrower or others or securities it may at any time hold before being entitled to payment from the Guarantor of the Liabilities. The Guarantor renounces all benefits of discussion and division.
- All indebtedness and liability, present and future, of the Borrower to the Guarantor or either of them are hereby assigned to the Lender and postponed to the Liabilities, and all moneys received by the Guarantor in respect thereof shall be received in trust for the Lender and forthwith upon receipt shall be paid over to the Lender, the whole without in any way limiting or lessening the liability of the Guarantor under the foregoing guarantee. The term "Liabilities", as previously defined, for purposes of the postponement feature provided by this agreement and this section in particular, includes any funds advanced or held at the disposal of the Borrower under any line(s) of credit.
- This guarantee shall not be affected by the death of or loss or diminution of capacity of the Guarantor or by any change in the name of the Borrower or by the acquisition of the Borrower's business by a corporation, or by any change whatsoever in the objects, capital structure or constitution of the Borrower or by the Borrower's business being amalgamated with a corporation, but shall notwithstanding the happening of any such event continue to apply to all the Liabilities whether theretofore or thereafter incurred or arising and in this instrument the word "Borrower" shall include every such firm and corporation.
- This guarantee shall not be considered as wholly or partially satisfied by the payment or liquidation at any time or times of any sum or sums of money for the time being due or remaining unpaid to the Lender, and all dividends, compositions, proceeds of security valued and payments received by the Lender from the Borrower or from others or from estates shall be regarded for all purposes as payments in gross without any right on the part of the Guarantor to claim reduction of the liability under this guarantee the benefit of such dividends, compositions, proceeds or payments or securities held by the Lender or proceeds thereof, and the Guarantor shall have no right to be subrogated to any rights of the Lender until the Lender shall have received payment in full of the Liabilities.
- All moneys, advances, renewals and credits in fact borrowed or obtained from the Lender shall be deemed to form part of the Liabilities, notwithstanding any lack or limitation of status or of power, incapacity or disability of the Borrower or of the directors, partners or agents thereof, or that the Borrower may not be a legal or sueable entity, or any irregularity, defect or informality in the borrowing or obtaining of such moneys, advances, renewals or credits, the whole whether known to the Lender or not; and any sum which may not be recoverable from the Guarantor on the footing of a guarantee shall be recoverable from the Guarantor as sole principal debtor in receipt thereof and shall be paid to the Lender on demand with interest.
- This guarantee is in addition to and not in substitution for any other guarantee, by whomsoever given, at any time held by the Lender, and any present or future obligation to the Lender incurred or arising otherwise than under a guarantee, of the Guarantor or any other obligant, whether bound with or apart from the Borrower; excepting any guarantee surrendered for cancellation on delivery of this instrument.
- The Guarantor shall be bound by any account settled between the Lender and the Borrower, and if no such account has been so settled immediately before demand for payment under this guarantee, any account stated by the Lender shall be accepted by the Guarantor as conclusive evidence of the amount which at the date of the account so stated is due by the Borrower to the Lender or remains unpaid by the Borrower to the Lender.
- No suit based on this guarantee shall be instituted until demand for payment has been made, and demand for payment shall be deemed to have been effectually made upon any Guarantor three (3) business days following the date upon which an envelope containing such demand, addressed to such Guarantor at the address of such Guarantor last known to the Lender, or in the case of a corporate Guarantor to the address of its registered office, is posted postage prepaid, in the post office. Moreover, when demand for payment has been made, the Guarantor shall also be liable to the Lender for all legal costs (on a solicitor and own client basis) incurred by or on behalf of the Lender resulting from any action instituted on the basis of this guarantee.
- All payments hereunder shall be made to the Lender at 101, 17637 - 1st Avenue, Surrey, British Columbia V3Z 9S1 Canada or such other address as the Lender may advise from time to time.
- This instrument covers all agreements between the parties hereto relative to this guarantee and assignment and postponement and none of the parties shall be bound by any representations or promise made by any person relative thereto which is not embodied herein.
- This Agreement shall extend to and enure to the benefit of the Lender and its successors and assigns, and every reference herein to the Guarantor or to each of them or to any of them, is a reference to and shall be construed as including the Guarantor and the heirs, executors, administrators, legal representatives, successors and assigns of the Guarantor or of each of them or of any of them, as the case may be, to and upon all of whom this guarantee and agreement shall extend and be binding.
- This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia (the "Jurisdiction"). The Guarantor irrevocably submits to the courts of the Jurisdiction in any action or proceeding arising out of or relating to this Agreement, and irrevocably agrees that such actions and proceedings may be heard and determined in such courts, and irrevocably waives, to the fullest extent possible, the defence of an inconvenient forum. The Guarantor agrees that a judgment or order in any such action or proceeding may be enforced in other jurisdiction in any manner provided by law; provided, however, that the Lender may serve legal process in any manner permitted by law or may bring an action or proceeding against the Guarantor or the property or assets of the Guarantor in the courts of any other jurisdiction.
- In this Guarantee and Postponement of Claim, references to "this guarantee" mean the guarantee from the Guarantor provided for herein, and references to "this Agreement" mean this Guarantee and Postponement of Claim.
- If the Guarantor consists of more than one person, the obligations of such persons under this Guarantee shall be joint and several.
- The Guarantor hereby acknowledges receipt of a copy of this Agreement.
- The Guarantor hereby waives the Guarantor's right to receive a copy of any financing statement or financing change statement registered by the Lender in connection with this Agreement.
Last Updated: January 26, 2011