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EXHIBIT 3.13
GUARANTEE
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
FORTY-FOUR XXXXXX JUNCTION ANDOVER LLC (the "Landlord") to make the foregoing
lease (the "Lease") with DURASKID (NEW ENGLAND), L.L.C. (the "Tenant"), the
undersigned, DURA PRODUCTS INTERNATIONAL, INC., a Canadian corporation (the
"Guarantor"), unconditionally guarantees the full performance and observance of
all the covenants, conditions and agreements therein provided to be performed
and observed by the Tenant, the Tenant's successors and assigns, and expressly
agrees that the validity of this agreement and the obligations of the Guarantor
shall in no wise be terminated, affected or impaired by reason of the granting
by the Landlord of any indulgences to the Tenant or by reason of the assertion
by the Landlord against the Tenant of any of the rights or remedies reserved to
the Landlord pursuant to the provisions of the Lease or by the relief of the
Tenant from any of the Tenant's obligations under the Lease by operation of law
or otherwise (including, but without limitation, the rejection of the Lease in
connection with proceedings under the bankruptcy laws now or hereafter enacted);
the Guarantor hereby waiving all suretyship defenses. The obligations of the
Guarantor include the payment to Landlord of any monies payable by Tenant under
any provisions of the Lease, at law, or in equity, including, without
limitation, any monies payable by virtue of the breach of any warranty, the
grant of any indemnity or by virtue of any other covenant of Tenant under the
Lease.
The Guarantor further covenants and agrees that this Guarantee shall
remain and continue in full force and effect as to any renewal, modification or
extension of the Lease, whether or not the Guarantor shall have received any
notice of or consented to such renewal, modification or extension. The Guarantor
further agrees that its liability under this Guarantee shall be primary (and
that the heading of this instrument and the use of the word "guarantee(s)" shall
not be interpreted to limit the aforesaid primary obligations of the Guarantor),
and that in any right of action which shall accrue to the Landlord under the
Lease, the Landlord may, at its option, proceed against the Guarantor, any other
guarantor, and the Tenant, jointly or severally, and may proceed against the
Guarantor without having commenced any action against or having obtained any
judgment against the Tenant or any other guarantor. The Guarantor irrevocably
waives any and all rights the Guarantor may have at any time (whether arising
directly or indirectly, by operation of law or by contract or otherwise) to
assert any claim against the Tenant on account of payments made under this
Guarantee, including, without limitation, any and all rights of or claim for
subrogation, contribution, reimbursement, exoneration and indemnity, and further
waives any benefit of and any right to participate in any security deposit or
other collateral which may be held by the Landlord; and the Guarantor will not
claim any set-off or counterclaim against the Tenant in respect of any liability
the Guarantor may have to the Tenant. The Guarantor further represents to the
Landlord as an inducement for it to -make the Lease, that the Guarantor owns all
of the entire outstanding capital stock of the Tenant, that the execution and
delivery of this Guarantee is not in contravention of its charter or by-laws or
applicable state laws, and has been duly authorized
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by its Board of Directors.
It is agreed that the failure of the Landlord to insist in any one or
more instances upon a strict performance or observance of any of the terms,
provisions or covenants of the Lease or to exercise any right therein contained
shall not be construed or deemed to be a waiver or relinquishment for the future
of such term, provision, covenant or right, but the same shall continue and
remain in full force and effect. Receipt by the Landlord of rent with knowledge
of the breach of any provision of the Lease shall not be deemed a waiver of such
breach.
No subletting, assignment or other transfer of the Lease, or any
interest therein, shall operate to extinguish or diminish the liability of the
Guarantor under this Guarantee; and wherever reference is made to the liability
of the Tenant named in the Lease, such reference shall be deemed likewise to
refer to the Guarantor.
All payments becoming due under this Guarantee and not paid when due
shall bear interest from the applicable due date until received by the Landlord
at the interest rate set forth in Section 4.2.6 of the Lease.
It is further agreed that all of the terms and provisions hereof shall
inure to the benefit of the heirs, executors, administrators and assigns of the
Landlord, and shall be binding upon the successors and assigns of the Guarantor.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
executed in its corporate name by its duly authorized representative, and its
corporate seal to be affixed hereto this day of
, 1998.
Attest: DURA PRODUCTS INTERNATIONAL, INC.
______________________________ By:______________________________
Secretary Its President
Hereunto duly authorized
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ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF ) , 1998
On this day, before me, personally appeared , who being by me duly
sworn, did say that he is President of Dura Products International, Inc., that
said instrument was signed and sealed on behalf of said corporation by authority
of its Board of Directors; and said acknowledged said instrument to be
the free act and deed of said corporation.
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Notary Public
My Commission Expires:
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