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EXHIBIT 3.14
INDEMNIFICATION AGREEMENT
This Agreement, effective as of March 2, 1998, is made by and among
DURA PRODUCTS INTERNATIONAL, INC., a corporation incorporated under the laws of
Ontario (the "Guarantor"), whose address is 00 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0 and the undersigned individuals, all of whom are members
(the "Members") of Environmental Composite Products, LLC (the "LLC"), in
connection with the execution and delivery by the Guarantor of a certain
Guarantee dated as of March 2, 1998 (the "Guarantee") pursuant to which the
Guarantor has guarantied 100% of the obligations of Duraskid (New England)
L.L.C. (the "Tenant") to Forty-Four Xxxxxx Junction Andover LLC (the "Landlord")
under that certain lease (the "Lease") dated as of March 2, 1998 covering the
premises located at 00 Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx.
The parties hereby agree as follows:
1. Responsibility. The Guarantor shall be responsible for 51% of all
amounts paid to the Landlord under the Guarantee (the "Guarantor's Portion") and
the Members shall be responsible for 49% of all amounts paid to the Landlord
under the Guarantee (the "Members' Portion"). Except as provided in Section
2(d), no Member shall be responsible for more than his Share of the Members'
Portion. A Member's "Share" means the fractional share set forth on Schedule A
hereto.
2. Indemnification.
(a) In the event that the Guarantor receives notice from the Landlord
that the Landlord is exercising or intends to exercise its rights under the
Guarantee (the "Landlord Demand"), the Guarantor shall promptly notify the
Members thereof in writing and shall deliver with said notice a copy of the
Landlord Demand and all correspondence from the Landlord, its
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agents and its attorneys, sent in connection with the Landlord Demand. The
Members shall have thirty (30) days to review the Landlord Demand, during which
time the Guarantor shall not make or cause to be made any payments to the
Landlord pursuant to the Landlord Demand. After the expiration of such 30-day
period, the Guarantor may make, or cause to be made, payment to satisfy the
Landlord Demand and, upon making of such payment, the Guarantor shall become
entitled to indemnification from the Members in accordance with provisions of
this Section 2.
(b) In the event that at any time the Guarantor shall pay or cause to
be paid to the Landlord any amount (a "Guarantee Payment") as a result of the
Landlord's exercise or enforcement of its rights under the Guarantee, other than
by a settlement of a cause of action brought in any court of law not consented
to by a majority of the Members, each Member shall be liable to the Guarantor
for and shall pay to the Guarantor an amount (the "Indemnification Payment")
equal to such Member's Share of the Guarantee Payment paid by the Guarantor.
(c) Amounts due under Section 2(b) or Section 2(d) below shall be paid
within thirty (30) days of receipt of written notice from the Guarantor, which
notice shall specify the amount of the Guarantee Payment paid by the Guarantor.
Any payment due to the Guarantor from any Member which is not made when due
shall bear interest at the rate of 18% per annum commencing ten (10) days after
receipt of the notice of the payment by the Guarantor and such interest shall be
due and payable together with the payment of the principal amount due hereunder.
(d) If any Member fails to make his Indemnification Payment within
sixty (60) days after receipt of written notice from the Guarantor, the
Guarantor shall give written notice to the remaining Members and such
Indemnification Payment shall be made by all of the other
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Indemnification Members in proportion to their individual Shares. Such payment
shall be in addition to, and not in lieu of, the Indemnification Payment
required under Section 2(b).
(e) In the event that the Guarantor learns that the Landlord is
exercising or intends to exercise its rights under the Guarantee or receives any
correspondence from the Landlord, its agents or its attorneys sent in connection
with the exercise or enforcement of the Landlord's rights under the Guarantee,
the Guarantor shall promptly notify the Members thereof in writing and shall
deliver with said notice a copy of all such correspondence.
(f) All costs and expenses paid or incurred by the Guarantor in
opposing or contesting the Landlord's exercise or enforcement of its rights
under the Guarantee shall be borne by the Guarantor without any right to
indemnity or reimbursement hereunder from the Members, unless a majority of the
Members consents to the action taken by the Guarantor in opposing or contesting
the Landlord's claim under the Guarantee, in which event all such costs and
expenses shall be deemed to be Guarantee Payments and the Members shall
indemnify the Guarantor for 49% thereof in accordance with the provisions of
subsections (b)-(d) above.
(g) The Guarantor may interplead any and all of the Members into, and
otherwise make such persons parties to, any matter, action or proceeding in
which the Landlord is seeking to enforce its rights under the Guarantee; each
Member hereby consents to being interpleaded and being made a party to any such
matter, action or proceeding; each Member hereby consents to the personal
jurisdiction and venue of any court or other body in which such matter, action
or proceeding is pending or has been brought; and each Member hereby waives any
rights or privileges he may have to object to the exercise of such jurisdiction
and venue by any such court or body.
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3. Costs of Enforcement. In the event that any Member fails to perform
his payment obligations under Section 2 hereof, said Member shall reimburse and
pay, in addition to the amounts owned under Section 2, all costs and expenses of
collection of amounts due hereunder and enforcement of this Agreement (including
without limitation reasonable attorneys' fees) to the Guarantor or any Members
paying or incurring such costs and expenses.
4. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and legal
representatives.
(b) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together one and the same agreement, and in pleading or proving
any provision of this Agreement, it shall not be necessary to produce more than
one of such counterparts.
(c) This Agreement shall be deemed to be a contract made under
the laws of the Commonwealth of Massachusetts, and for all purposes it shall be
construed in accordance with and governed by such laws.
(d) No failure or successive failure on the part of any party
to enforce any covenant or agreement, and no waiver or successive waivers of any
conditions of this Agreement, shall operate as a discharge of such covenant,
agreement or condition, or render the same invalid, or impair the right of such
party to enforce the same in the event of any similar or subsequent breach.
(e) Any communication, notice, report, payment, consent,
waiver or other document made or delivered hereunder shall be made in writing
and shall be sent and deemed sufficiently given if delivered in person by hand
or if sent by registered or certified mail, postage
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prepaid, or by an overnight delivery service, if to the Guarantor, to the
address set forth above, and if to a Member, at the address listed on Schedule A
hereto, or to such other address as the addressee shall have provided by notice
given in the manner set forth herein.
(f) In case any provision of this Agreement shall be or become
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall remain unaffected and unimpaired thereby.
(g) The captions and headings of this Agreement are for
convenience only and shall not affect the construction hereof.
(h) This Agreement may only be altered, assigned, modified or
amended and any provision or performance waived, by a written instrument
executed by all the parties hereto affected thereby.
IN WITNESS WHEREOF, the Guarantor and the Members have executed this
Agreement as a sealed instrument.
MEMBERS:
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Xxxx Xxxxxxx Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxx Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
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GUARANTOR:
DURA PRODUCTS INTERNATIONAL, INC.
By:___________________________________
Xxxxx Xxxxxxxx, President
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SCHEDULE A
Names, Addresses and Shares of Members
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Name and Address
of Members Fractional Shares
---------- -----------------
Xxxx Xxxxxxx 1/6
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxx 1/6
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx 1/6
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx 1/6
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 1/6
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 1/18
000 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 1/18
00 Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 1/18
X.X. Xxx 00
Xxxxxxx Xxxxx, XX 00000
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