Exhibit 10.07
LEASE
THIS INDENTURE, made this 15th day of April, 1988,between
GEOFFREY ETHERINGTON, II, of Jupiter, Florida, (herein-after
called "Landlord") and USP COMPOSITES, INC. whose address is
172 East Aurora Street, Waterbury, Connecticut, (hereinafter
called "Tenant").
W I T N E S S E T H
That for and in consideration of the payment by Tenantof the
rent hereinafter reserved and the performance by Tenant of
the covenants and agreements hereinafter agreed to be
performed by Tenant in accordance with the provisions
hereinafter set forth, Landlord does hereby let and demise
unto Tenant and Tenant does hereby take and hire from
Landlord, that certain real property (hereinafter referred
to as the 'leased premises"), described in Exhibit "A"
attached hereto and made a part hereof by reference, for the
term commencing on April 15, 1988 and ending on December 31,
1992 at a rent of $175,380.00 per annum, payable to Landlord
in equal monthly installments of $14,615.00 in advance,
without notice, on the first day of each month during the
term of this Lease. Tenant shall have the one time right to
extend the term of this Lease for a period of up to five (5)
years by written notice given not later than June 30, 1992.
During such extended term all of the terms and conditions of
the Lease shall remain in full force and effect except that
the rent during such extended term shall be fixed at one
time and shall be the fair market rent for the leased
premises for such extended term (but in no event less than
$175,380.00 per annum).
If Tenant, not later than June 30, 1992, shall have given
written notice as aforesaid of the exercise of its right to
extend the term of this Lease, then, for the purposes of the
foregoing, "fair market rent' shall be determined as
follows: Landlord shall make the initial determination of
fair market rent. Landlord shall give notice to Tenant of
Landlord's determination of fair market rent prior to July
15, 1992. If Tenant shall dispute Landlord's determination,
Tenant shall give notice of such dispute within fifteen (15)
days after receipt of Landlord's determination. Within
fifteen (15) days thereafter, if both parties fail to agree
as to fair market rent then both parties shall agree to the
appointment of a disinterested person of recognized
competence in the field as an appraiser. The appraiser thus
appointed shall as promptly as possible determine fair
market rent. If Tenant shall dispute any determination by
the appraiser, or if both parties cannot agree as to an
appraiser prior to September 1, 1992, fair market rent shall
be determined by arbitration before the American Arbitration
Association of Hartford, Connecticut, in accordance with its
rules then obtaining. All costs of any arbitration pursuant
to the foregoing shall be borne by Landlord and Tenant
equally. In the event of any arbitration pursuant to the
foregoing, or in the event that Landlord and Tenant for any
reason fail to agree as to fair market rent prior to
September 1, 1992, then notwithstanding anything to the
contrary contained herein, the last date upon which Tenant
shall have the right to give notice of exercise of the
option to purchase provided for in Paragraph 20(A)(iii)
hereof shall be extended from December 31, 1992 until a date
which is 45 days after fair market rent has been determined
by such arbitration or Landlord and Tenant have agreed as to
fair market rent. In the event that the Closing (as defined
in Paragraph 20(A)) shall be scheduled to occur after
December 31, 1992, Tenant shall be entitled to remain in
occupancy of the leased premises until the Closing (but not
beyond June 30, 1993 unless this Lease shall have been
extended for the extended term as provided above), during
which pre-Closing period all provisions of this Lease shall
continue in effect as if this Lease had been so extended and
Tenant shall pay the fair market rent. Notwithstanding
anything in this Lease to the contrary, if Tenant shall give
notice of its exercise of its option to purchase the leased
premises on or after June 30, 1992 and Tenant shall have
given written notice of the exercise of its right to extend
the term of this Lease not later than June 30, 1992, Tenant
may (a) delay the Closing to a date not more than 45 days
after the fair market rent shall have been determined or
agreed upon as aforesaid and (b) rescind such purchase
option exercise at any time during such 45-day period.
In the event during the initial term or any renewal term
hereof, any monthly installment of rental reserved herein
shall not be paid within ten (10) days after the same shall
become due, Tenant shall pay to Landlord a late charge which
shall be equal to two percent (2%) of the rental payment
due.
If, however, the date on which Tenant is given possession
begins on a date other than the first day of any month, then
the rental payment for the period from the date of
possession to the beginning of the term shall cover the pro
rata rent for a fractional part of the month from the date
possession begins through the last day of that calendar
month.
This Lease is made upon the foregoing and the following
agreements, covenants, and conditions, all and every one of
which Landlord and Tenant agree to keep and perform during
the initial term of this Lease and any renewal thereof:
1. USE OF PREMISES Tenant may use and occupy the leased
premises for any lawful business purposes. Tenant will
comply with any and all laws, ordinances, orders, and
regulations of any governmental authority which are
applicable to his use of the leased premises.
2. TAXES, ASSESSMENTS, AND UTILITY CHARGES Tenant shall pay
all real estate taxes, assessments, licenses, permits and
charges of any nature which are levied, imposed or assessed
upon or against the leased premises by any governmental
body.
Tenant shall pay all charges for sewage disposal,
janitorial services, electricity, water and gas or other
fuel or other utilities consumed by it upon the leased
premises.
It is the intent of the parties hereto that this
Lease shall be a pure net lease and that Landlord receive
all rents hereunder free of any and all impositions, charges
or expenses relating to the leased premises in any part or
aspect thereof (excepting only mortgages, liens or
encumbrances placed (or suffered to be placed) on the leased
premises by Landlord) all of which shall be paid by Tenant.
3. INSURANCE Tenant shall procure and maintain a standard
fire insurance policy with extended coverage and additional
extended coverage in an amount equal to the full replacement
value from time to time of building and improvements on the
leased premises naming Landlord as an additional insured and
the loss payee with respect to the leased premises and
covering all mortgagees on the leased premises under
standard Connecticut
mortgagee endorsements. "Full replacement value" for the
purpose of this Lease shall.be deemed to be $3,250,000
(subject to a deductible not exceeding $100,000), which full
replacement value will be adjusted annually based upon the
recommendation of the insurer as to the then full
replacement value of the leased premises.
Tenant shall also procure and maintain in force during
the period of time this Lease is in effect general liability
insurance insuring the Landlord and Tenant (naming them both
in the policy) against any liability whatsoever occasioned
by accident on or about the leased premises, or any
appurtenances thereto, such policy to be in an amount of not
less than Five Million ($5,000,000.00) Dollars in respect to
injury, including death, of any one person, and in amount of
not less than Five
Million ($5,000,000.00) Dollars in respect to any one
accident and not less than Five Hundred Thousand
($500,000.00) Dollars for property damage.
The original policies of fire insurance and general
liability insurance referred to above or certificates
thereof shall be furnished by Tenant to the Landlord prior
to the commencement of the term of this Lease, with a copy
thereof to be provided to the Connecticut Development
Authority as promptly thereafter as practicable, and said
policies shall be renewed from time to time not less than
ten (10) days prior to the expiration date of the policies,
certificates of renewals to be promptly furnished to the
Landlord, and the Connecticut Development Authority.
4. MAINTENANCE AND REPAIRS Tenant at its sole cost and
expense shall at all times maintain and keep in good repair
and condition and make all necessary repairs to and
replacements of all or any part of the leased premises,
including, but not limited to, all glass, all electrical,
heating, air conditioning and plumbing systems and, during
the initial term of this Lease, all structural members,
exterior walls and roof; provided, however, that, during the
renewal term of this Lease, Tenant shall provide ordinary
maintenance for all structural members, exterior walls and
roof, and Landlord shall be responsible for all necessary
repairs to and replacements of said structural members,
exterior walls and roof unless the same is necessitated by
Tenant's act or omission (other than ordinary wear and tear)
or those or its agents, employees or contractors. Tenant
shall commit no waste nor suffer the same to be committed on
the leased premises.
Tenant shall bear all risk of loss from the use and
occupation of the leased premises, except as provided in the
preceding paragraph and except loss for which Tenant has
obtained fire and extended coverage insurance protection but
only to the extent that Landlord receives sums from such
insurance carriers on account of any such loss. Landlord
shall assign to Tenant all manufacturers' warranties upon
the roof and the heat@ing and cooling equipment if any. Upon
the commencement of the renewal term Tenant shall reassign
to Landlord such warranties as relate to the roof.
Landlord shall have the right to enter upon the leased
premises from time to time in order to inspect the same, but
this right shall be exercised in such manner as not to
interfere with Tenant's use and enjoyment of the leased
premises and shall be subject to any and all laws, orders,
or regulations of the United States Government or any
department or agency thereof, relating to information
affecting the national security which may at any time apply
to Tenant's use of the leased premises.
Tenant shall comply with the requirements, with
respect to the use, occupancy and/or maintenance of the
leased premises, of the Connecticut Development Authority as
contained in the Mortgage Deed between the Connecticut
Development Authority and Landlord dated June 19, 1981,
provided, however, that Tenant, unless otherwise provided
herein, shall not be obligated in any way with respect to
the note secured by such Mortgage Deed, any tax obligations
contained in such Mortgage Deed, any insurance obligations
contained in such Mortgage Deed including, without
limitation, any insurance for the loan secured by such
Mortgage Deed, any insurance on the leased premises or
improvements thereto and any insurance on the life or well
being of any person) and any other obligations contained in
such Mortgage Deed which do not relate directly to the use,
occupancy and/or maintenance of the leased premises by a
tenant thereof, and further provided that the foregoing
shall not in
any way be deemed to be an assumption by Tenant of any of
Landlord's obligations under such Mortgage Deed.
5. ACTION OF PUBLIC AUTHORITIES In the event that any
exercise of the power of eminent domain by any governmental
authority, Federal, State, County, or Municipal, or by any
other party vested by law with such power shall at any time
prevent the full use and enjoyment of the leased premises
Tenant for the purposes set forth in Section 1, Tenant shall
have the right thereupon to terminate this Lease. In the
event of any such action both Landlord and Tenant shall have
the right to claim, recover, and retain from the
governmental authority or other party taking such action the
damages suffered by them respectively as a result of such
action.
6. IMPROVEMENTS BY TENANT Tenant, upon receipt of approval
from or failure to object after a reasonable time by the
Connecticut Development Authority after due notice thereto,
shall have the right to make such structural and
non-structural alterations, additions, or improvements in or
to the leased premises as it shall consider necessary or
desirable for the conduct-of its business, provided that all
such work shall be done in a good and workmanlike manner,
and the structural integrity of the building shall not be
impaired, and that no liens shall attach to Landlord's
interest in the leased premises by reason thereof. Upon the
termination of this lease, Tenant's alterations, additions,
or improvements shall at the option of the Landlord (1)
become the property of Landlord, or (2) be removed by the
Tenant at Tenant's expense and Tenant shall restore to its
original condition any part of the leased premises damaged
by the removal of such alterations, additions, or
improvements, reasonable wear and tear being excepted.
Tenant may, at Tenant's expense, raise the height of the
roof of the treater room approximately 25 feet over an area
of approximately 1,000 square feet. If Tenant raises said
roof then upon the termination of this Lease Tenant shall
not be required to lower said roof to its original height.
7. FIXTURES AND SIGNS Tenant shall have the right to
install in or place on the leased premises such fixtures,
machines, tools, or other equipment (including but not
limited to trade fixtures, lighting fixtures, water coolers,
or other equipment) as it may choose. Such fixtures,
machines, tools or other equipment shall at all times remain
the personal property
of Tenant regardless of the manner or degree of attachment
thereof-to the leased premises and may be removed at any
time by Tenant whether at the termination of this Lease or
otherwise; provided, however, that Tenant shall make proper
restoration of the leased premises in the event that any
damage is done thereto in the removal of any such property.
Tenant shall have the right to install or erect on the
leased premises or to affix to the building which is a part
of the leased premises, such signs as it may deem necessary
or appropriate to advertise its name and business; provided
that such signs comply with all appropriate governmental
regulations and provided that upon the termination of this
Lease, Tenant shall remove all signs placed upon the leased
premises and restore any part of the leased premises
affected by the removal of Tenant's sign to its original
condition.
8. DEFAULT If Tenant shall fail to pay any rent to Landlord
when the same is due and payable under the terms of this
Lease and such default shall continue for a period of ten
(10) days after written notice thereof has been given to
Tenant by Landlord, or if the Tenant shall fail to perform
any other duty or obligation imposed upon it by this Lease
and such default shall continue for a period of thirty (30)
days after written notice thereof has been given to Tenant
by Landlord except that if such default cannot be cured
within thirty (30) days Tenant shall not be deemed in
default by reason thereof unless Tenant fails to commence to
cure such default within said thirty (30) day period and
thereafter diligently prosecute the curing of such default,
or if the Tenant shall be adjudged bankrupt, or shall make a
general assignment for the benefit of its creditors, or if a
receiver of any property of Tenant in or upon the leased
premises be appointed in any action, suit, or proceeding by
or against Tenant and such appointment shall not be vacated
or annulled within sixty (60) days, or if the interest of
Tenant in the leased premises shall be sold under execution
or other legal process, then and in any such event upon ten
(10) days written notice by Landlord to Tenant and Tenant's
failure to cure such default within said ten (10) day period
the balance of all rentals then due and/or provided for
under the terms
hereof shall become immediately due and payable and Landlord
shall have the right to enter upon the leased premises and
again have, possess, and enjoy the same as if this Lease had
not been made, and thereupon this Lease shall terminate,
without prejudice, however, to the right of Landlord to
recover from Tenant all rent due under this Lease together
with all costs of collection and legal expenses including a
reasonable attorney's fee. In the event of any such default
and re-entry, Landlord shall attempt in good faith to relet
the leased premises for the remainder of the then existing
term whether such term be the initial term of this Lease or
any renewed or extended term for the highest rent then
obtainable and permitted by Connecticut Development
Authority, and to recover from Tenant the difference between
the rent reserved by this Lease and the amount obtained
through such reletting less the costs and expenses
reasonably incurred by Landlord.
9. ASSIGNMENT: SUBLETTING Tenant shall have the right to
assign this Lease or to sublet the leased premises or any
part thereof subject to the written consent of Landlord and
of the Connecticut Development Authority which consent shall
not unreasonably be withheld; provided, however, that no
such assignment or subletting shall relieve Tenant from its
duty to perform all of the agreements, covenants, and
conditions set forth in this Lease, and Tenant shall remain
primarily liable hereunder provided that if Tenant's
assignee defaults hereunder Tenant shall have the right to
be reinstated as the Tenant under this Lease.
10. TITLE Landlord covenants and warrants that Landlord has
lawful title and right to make this Lease, that Landlord
will maintain Tenant in full and exclusive possession of the
leased premises, and that, if Tenant shall pay the rent and
perform all the agreements, covenants, and conditions
required by this Lease to be performed by it, Tenant may
freely, peaceably, and quietly occupy and enjoy the leased
premises without molestation or hindrance, lawful or
unlawful, of any person or entity whomsover.
11. SURRENDER When this Lease shall terminate in accordance
with the terms hereof, Tenant shall quietly and peaceably
deliver up possession to Landlord without notice from
Landlord. Tenant expressly waives the benefits of all laws
now or hereafter in force requiring notice from Landlord
with respect to termination. Tenant shall deliver up
possession of the leased premises in as good order, repair,
and condition as the same are in at the beginning of the
term of this Lease except for reasonable wear and tear, and
subject to such damage or destruction or condition as Tenant
is not required to restore or remedy under other terms and
conditions of this Lease.
12. NOTICE Any notice or demand required by the provision
of the Lease to be given to Landlord shall be deemed to have
been given adequately if sent by Certified mail to Landlord
at the following address:
Geoffrey Etherington, II
P.O. Box 706
New Haven, Connecticut 06503
With a copy to:
Arthur S. Sachs, Esq.
Sachs, Berman, Rashba & Shure, P.C.
One Church Street
New Haven, Connecticut 06510
Any notice or demand required by the provisions of
this Lease to be given to Tenant shall be deemed to have
been given adequately if sent by Certified Mail to Tenant at
the following address:
President
USP Composites, Inc.
172 East Aurora Street
Waterbury, Connecticut
With a copy to:
Park Electrochemical Corp.
5 Dakota Drive
Lake Success, New York 10042
Attn: Harry Linzer
Any notice or demand required by the provisions of this
Lease to be given to the Connecticut Development Authority
shall be deemed to have been given adequately if sent by
Certified Mail to the Connecticut Development Authority at
the following address:
Stanley Piorkowski, Esq.
Connecticut Development Authority
217 Washington Street
Hartford, Connecticut
Any party shall have the right to change its address as
above designated by giving to the other parties fifteen (15)
days' notice of his or its intention to make such change and
of the substituted address at which any notice or demand may
be directed.
13. SUBORDINATION Tenant agrees to subordinate and does
hereby subordinate this Lease to the lien of any mortgage or
mortgages (the only one of which, as of the date hereof, is
granted to the Connecticut Development Authority) now on the
leased premises or hereafter placed on the leased premises
provided that Tenant shall enjoy all of its rights under the
Lease regardless of any inconsistent provision in such
mortgage and provided further that the holder of such
mortgage shall enter into a written agreement, in recordable
form, with Tenant to the effect that as long as Tenant is
not in default in the payment of rental or any other
material convenants or conditions of this Lease, the rights
of Tenant under this Lease shall not be terminated and the
possession of Tenant shall not be disturbed by the holder of
any such mortgage or by any proceedings on the debt which
any such mortgage secures, or by any person, firm or
corporation whose rights were acquired as a result of such
proceedings or by virtue of a right or power contained in
any such mortgage or the bond or note secured thereby.
14. ESTOPPEL CERTIFICATE Tenant agrees to execute at such
times as Landlord may request, estoppel statements
certifying, among other things and if such be the case, that
Tenant is in possession of the leased premises, that all
rental payments and other charges required hereunder to be
paid by Tenant have been paid, that this Lease has not been
amended or modified, that Landlord is not in default
hereunder and that Tenant has no defense or set-offs against
Landlord hereunder.
15. ATTORNEYS' FEES In the event either party to this Lease
shall default in any of the terms and conditions hereof and
the other party shall be required to obtain the services of
an attorney to enforce the provision hereof, whether or not
such enforcement shall result in a court proceeding, then
the defaulting party agrees to pay to the non-defaulting
party all reasonable costs of such enforcement, including
attorneys' fees and attorneys' fees on appeal or for
services rendered in any bankruptcy proceeding.
16. CONSTRUCTION It is distinctly understood, covenanted
and agreed that the terms "Landlord" and "Tenant" herein
employed shall be construed to include all individuals,
corporations and any and all other person or entities, and
the respective heirs, executors, administrators, legal
representatives, successors in assigns of the parties
hereto, and all those holding under either of them, whenever
and wherever the context so admits or requires; and the
pronouns used herein shall include, when appropriate, either
gender and both singular and plural.
17. COVENANTS TO BIND RESPECTIVE PARTIES This Lease and all
of the agreements, covenants, and conditions contained
herein shall be binding upon Landlord and Tenant and upon
their respective heirs, personal representatives, successors
and assigns.
18. LIMITATION OF LIABILITY Except as specifically provided
to the contrary in Paragraph 20(C) hereof, Tenant agrees
that it shall look solely to the estate and property of the
Landlord in the land and buildings comprising the leased
premises and subject to the prior rights of any mortgagee of
the Premises for the collection of any judgment (or other
judicial process) requiring the payment of money by Landlord
in the event of any default or breach by Landlord with
respect to any of the terms, covenants, and conditions of
this Lease to be observed and/or performed by Landlord, and
no other assets of the Landlord shall be subject to levy,
execution or other procedures for the satisfaction of
Tenant's remedies and no action shall be brought by Tenant
respecting this Lease against Landlord.
19. PREJUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM, AND JURY
TRIAL The Tenant, for itself and for all persons claiming
through or under it, hereby acknowledges that this Lease
constitutes a commercial transaction as such term is used
and defined in Chapter 903a of the Connecticut General
Statutes (the 'Act") and hereby expressly waives any and all
rights which are or may be conferred upon the Tenant by the
Act to any notice or hearing prior to a prejudgment remedy.
Tenant further waives any and all rights which are or may be
conferred by any present or future law to redeem the said
leased premises, or to any new trial in any action of
ejectment under any provision of law, after re-entry
thereupon, or upon any part thereof, by the Landlord, or
after any warrant to dispossess or final judgment in
ejectment. If the Landlord shall acquire possession of the
said leased premises by summary proceedings, or in any other
lawful manner without judicial proceedings, it shall be
deemed a re-entry within the meaning of that word as used in
this Lease.
In the event that Landlord commences any summary proceedings
or action for non-payment of rent or other charges provided
for in this Lease, the Tenant shall not interpose any
counterclaim of any nature or description in any proceeding
or action. The Tenant and the Landlord both waive a trial by
jury of any or all issues arising in any action or
proceeding between the parties hereto. or their successors,
under or connected with this Lease, or any of its
provisions.
20. TENANT'S OPTION TO PURCHASE
(A) Tenant shall have an option to purchase the leased
premises at the applicable option price set forth
below, which option shall be exercisable by written
notice given to Landlord in the manner provided in
paragraph 12 at any time on or prior to December 31,
1992. Such notice shall be given not later than six (6)
months prior to the proposed date of purchase of the
leased premises. The option price shall be: M
$2,800,000 if Tenant exercises said option on or before
December 31, 1990; Hi) $3,000,000 if Tenant exercises
said
option between January 1, 1991 and December 31, 1991,
and Hii) $3,200,000 if Tenant exercises said option
between January 1, 1992 and December 31, 1992; payable
in each case all in current funds at the closing of
such purchase (the "Closing").
(B) Prior to the execution of this Lease, Landlord has
provided Tenant with a Commitment for Title Insurance
(the "Commitment'), issued by Connecticut Attorneys
Title Insurance Company (the "Title Insurance Company")
respecting the leased premises, which Tenant
acknowledges to be in all respects satisfactory to
Tenant. If Landlord conveys the leased premises to
Tenant at the Closing by Connecticut form of warranty
deed showing the leased premises to be subject only to
the encumbrances described in the Schedule A annexed
hereto as 'Permitted Encumbrances" and provides Tenant,
at Tenant's cost, with a Policy of Title Insurance
(issued by the Title Insurance Company) insuring title
to the leased premises in compliance with said
Commitment (subject only to the Permitted
Encumbrances), then Landlord shall have fulfilled all
of Landlord's obligations hereunder with respect to
such conveyance. If Landlord shall H) not be able to
convey the leased premises to Tenant at the Closing by
such deed showing the leased premises to be subject
only to the Permitted Encumbrances or Hi) not be able
to provide Tenant, at Tenant's cost, with such Policy
of Title Insurance, Tenant may waive the foregoing
non-compliance and all related warranties and
representations and consummate the Closing hereunder
notwithstanding such non-compliance. If Landlord shall
fail to consummate the Closing when obligated to do so
hereunder, then, notwithstanding the provision of
Paragraph 18 above, Tenant shall be entitled to
specific performance of conveyance hereunder, but not
to any action for personal liability against Landlord.
Landlord shall pay for the cost of Landlord's title
search and the cost, if any, of said Commitment and
Tenant shall pay for said Policy of Title Insurance.
(C) On or before six months (but not before six months,
unless Tenant shall so consent) after receipt of Tenant's
notice that it has elected to purchase the leased premises,
Landlord shall convey the leased premises to Tenant by
Connecticut form of warranty deed bearing sufficient
federal, state or local documentary stamps and with payment
by Landlord of any other tax or imposition charged by any
jurisdictional authority upon the transfer of real property
and as provided in Paragraph 20(B). During the term of this
Lease, Landlord covenants and agrees that no mortgage will
be placed upon the leased premises unless (a) same is with a
bank or insurance company, (b)such mortgage provides that
same is prepayable at any time, (c)the holder of such
mortgage executes a non-disturbance agreement in
substantially the form provided for in Paragraph 13 of this
Lease, and W the aggregate principal indebtedness under any
such mortgage or mortgages, taken together with all other
mortgages, liens and encumbrances upon the leased premises,
will not exceed the minimum option price set forth in
Paragraph 20(A) above. The foregoing covenant and agreement
in this Paragraph 20(C) and the agreement of Landlord not to
encumber the leased premises in any other way that will
frustrate Tenant's consummation of the Closing following
Tenant's exercise of its option to purchase, shall be a
personal liability and obligation of Landlord
notwithstanding the limitation upon such liability set forth
above in Paragraph 18. Landlord agrees that, at the Closing,
Tenant may apply its payment of the option price to the
discharge of the indebtedness secured by such mortgages,
liens and other encumbrances.
(D) Tenant shall have sixty (60) days, after receipt
by Landlord of Tenant's notice that it has elected to
purchase the leased premises, to engage Goldman
Environmental Consultants, Inc. ("Goldman") or another
reputable environmental consultant reasonably
satisfactory to Landlord (such consultant so engaged
being hereinafter referred as the 'Tenant's Engineer")
to perform certain environmental studies of the leased
premises of such scope and degree as are satisfactory
to Tenant and to report the results thereof to Tenant
(the "Environmental Report").Tenant shall deliver a
copy of the Environmental Report to Landlord within ten
(10) days of Tenant's receipt thereof.If Tenant is not
satisfied, in its sole discretion, with the condition
of the leased premises as shown in the Environmental
Report, Tenant may, by sending Notice to Landlord,
received by Landlord within thirty (30) days after the
Environmental Report is received by both parties,
rescind the option to purchase. In addition, if Tenant
has not elected to rescind such option to purchase,
Landlord shall have the right, by sending notice to
Tenant within 30 days after the Environmental Report
is. received by both parties, to cancel Tenant's
exercise of such purchase option if the Environmental
Report shall indicate the presence of environmental
contamination, the cost of investigation and
remediation of which may reasonably exceed $250,000 in
additional costs not theretofore spent by Landlord,
provided, however, that Landlord shall not have such
right if Tenant shall agree to pay the excess of such
costs above $250,000.
If Tenant shall not rescind this option to purchase as
aforesaid, it shall be irrefutably presumed that Tenant and
Park Electrochemical Corp. are satisfied with the condition
of the leased premises from an environmental standpoint and
therefore, except as to those liabilities and obligations
allocated to Etherington Industries, Inc. ("EI") pursuant to
Paragraphs 25(A) and 25(B) hereof, Tenant and Park
Electrochemical Corp. shall, upon the Closing and without
any further action by either of them: M assume, jointly and
severally, effective as of the Closing, all liability and
obligations relating to the following (the 'Environmental
Conditions"): Any Spill, Release, Hazardous Waste (as
defined in Conn. Gen. Stat. Sec 22a-115), Hazardous
Substance (as defined in 42 U.S. Code Sec. 9601 et seq.)
and/or environmental contamination of any sort at or
emanating from the leased premises; and the presence of any
underground storage tanks (or the contents thereof) on the
leased premises; and (ii) agree, effective as of the
Closing, to indemnify, jointly and severally, Landlord
against and hold Landlord harmless of and from all loss,
costs, claims, damages, charges, fines, liens, liability and
expense (including, but not limited to, consultant's fees
and attorneys' fees) arising from or in connection with any
of the Environmental Conditions.
21. CASUALTY
(A) In case of casualty to the leased premises
resulting in damage or destruction, Tenant shall
promptly give written notice thereof to Landlord.
Tenant shall, to the extent of the insurance proceeds
received by it from Landlord, restore, repair, rebuild
or alter the same as nearly as possible to the value,
condition and character of the same as it was
immediately prior to such damage or destruction. Such
restorations, repairs, replacements, rebuilding or
alternations shall be commenced promptly and prosecuted
with reasonable diligence, unavoidable delays excepted.
(B) All insurance money paid to Landlord on account of
such damage or destruction, less the actual cost, fees
and expenses, if any, incurred in connection with
adjustment of the loss, shall be applied by Landlord
(or reimbursed to Tenant if Tenant has advanced moneys
pursuant to Paragraph 21(A) hereof) to the payment of
the cost of the aforesaid demolition, restoration,
repairs, replacement, rebuilding or alterations,
including the cost to Landlord of those repairs for
which, under the terms of Paragraph 4, Landlord may be
liable ("Structural Repairs"), the cost of temporary
repairs or for the protection of property pending the
completion of permanent restoration, repairs,
replacements rebuilding or alterations (all of which
Structural Repairs, temporary repairs, protection of
property and permanent restoration, repairs,
replacement, rebuilding or alterations are hereinafter
collectively referred to as the "Restoration"), and
shall be paid out from time to time as such Restoration
progresses pursuant to the terms of the Mortgage, if
applicable.
22. ADDITIONAL RENT In addition to the foregoing minimum
rent, all other payments to be made by Tenant pursuant to
the terms of this Lease shall be deemed to be and shall
become additional rent hereunder whether or not the same be
designated as such; and shall be due and payable on demand
or together with the next succeeding installment of rent;
whichever shall first occur together with interest thereon
at the then prevailing legal rate; and Landlord shall have
the same remedies for failure to pay the same as for a
nonpayment of rent. Landlord, at its election, shall have
the right to pay or do any act which requires the
expenditure of any sums of money by reason of the failure or
neglect of Tenant to perform any of the provisions of this
Lease, and in the event Landlord shall at its election pay
such sums or do such acts requiring the expenditures of
moneys, Tenant agrees to pay Landlord, upon demand, all such
sums, and the sum so paid by Landlord, together with
interest thereon, shall be deemed additional rent and be
payable as such.
23. LIENS Should any mechanic's or other lien be filed
against the leased premises or any part thereof for any
reason whatsoever by reason of Tenant's acts or omissions or
because of a claim against Tenant, Tenant shall cause the
same to be cancelled and discharged of record by bond or
otherwise within thirty (30) days after notice by Landlord.
24. LIABILITY In addition to any other indemnity by Tenant
of Landlord herein, Tenant shall indemnify Landlord and save
it harmless from suits, actions, damages, liability and
expense in connection with the loss of life, bodily or
personal injury or property damage arising from or out of
the use or occupancy of the leased premises or any part
thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees,
servants, invitees, licensees, or concessionaires.
25. INVESTIGATION AND REMEDIATION OF PRIOR ENVIRONMENTAL
CONDITIONS
(A) EI, without cost or expense to Tenant, shall
present, either prior to or within sixty (60) days
after the date of execution of this Lease by Landlord
and Tenant, to the Attorney General of the State of
Connecticut (the "Attorney General"), with copies to
Tenant and the Connecticut Department of Environmental
Protection Hazardous Waste Management Unit (the "DEP"),
a study (the "EI Study') regarding the environmental
condition of the leased premises prepared by HRP
Associates, Inc. ("HRP"), or other reputable
environmental engineer (the "Other Engineer').The
February 1988 report on such premises prepared by
Goldman(the "Goldman Report'), which has been furnished
by EI to HRP or the Other Engineer, shall be furnished
by EI to the Attorney General and the DEP as an
appendix to the EI Study. EI shall furnish Tenant with
copies of the receipts issued by the Attorney General
and the DEP acknowledging the furnishing of the EI
Study, including the Goldman Report, to them, which
copies shall be furnished promptly following the
receipt of the EI Study by the Attorney General and the
DEP. EI shall, without cost or expense to or obligation
of Tenant (except as provided in Paragraph 25(C)
hereof), perform such further investigation and/or
remedial actions (including without limitation, the
remediation of environmental contamination of any
sort-) as may be ordered or directed judicially or
administratively (after right to appeal shall have
lapsed) or agreed to by EI with the DEP and any other
governmental authority concerning environmental
contamination of the leased premises present thereon at
the time of execution of this Lease; provided that the
degree, extent and composition of such environmental
contamination shall have been reported in writing to EI
by HRP, the Other Engineer, the Goldman Report, or is
reported by Tenant's Engineer in the Environmental
Report. A compliance letter from the DEP or other
governmental authority shall be compliance hereunder.
(B) EI further agrees that, upon the execution of this
Lease by Landlord, without any further action on the
part of EI, and except as provided in Paragraph 25(C)
hereof, EI shall indemnify Tenant against and hold
Tenant harmless from all loss, costs, claims, damages,
charges, fines, liens, liability and expense
(including, but not limited to, consultant's fees and
attorneys' fees) that may arise from (i) any of the
environmental conditions as to which EI is obligated to
investigate or remediate pursuant to Paragraph 25(A)
hereof and (ii) any breach by EI of its obligations
under Paragraph 25(A) hereof.
(C) Tenant acknowledges that investigation and/or
remediation of environmental contamination may require
physical- disturbance of the leased premises.
Consequently, and notwithstanding anything to the
contrary in this Lease or elsewhere, Tenant agrees to
release and discharge Landlord, EI and their employees,
agents, contractors, consultants, officers, heirs,
successors and assigns from any and all claims and
liabilities (other than arising from their negligence
or willful misconduct) resulting from temporary
disruption to Tenant's normal use of the leased
premises or from physical disturbance of the leased
premises arising from or in connection with
investigation and/or remediation of environmental
contamination of the leased premises; provided,
however, that Landlord and EI shall use their best
efforts to cause the leased premises to be restored, as
expeditiously as practicable, to a condition which will
permit the resumption of Tenant's normal use of the
leased premises and provided, further, that if
investigation and/or remediation of environmental
contamination shall require a suspension of all of
Tenant's operations at the leased premises, the rent
under this Lease shall be abated and forgiven for the
period of such suspension.
26. ACCESS TO PREMISES
(A) Landlord and its authorized representatives shall
be entitled to enter the leased premises for
inspection, repair, compliance with laws and with
Tenant's obligations hereunder, and (to the extent
otherwise permitted by this Lease) improvement of the
leased premises, and for the exhibition of said leased
premises to prospective mortgagees and to existing or
prospective tenants or purchasers. Any inspection by or
on behalf of prospective tenants and prospective
purchasers, and to existing and prospective tenants or
prospective purchasers, as the case may be, shall occur
only during the six (6) months preceding the expiration
of this Lease or the expiration of Tenant's option to
purchase the leased premises, as the case may be.
(B) Tenant shall permit inspection of the leased
premises by any federal, state, county or municipal
officer or representative of Landlord to determine if
the leased premises shall comply with any relevant law
or are in need of repair, correction, addition, or
improvement.
27. LANDLORD SIGNS Landlord shall be permitted to affix to
any outer wall or walls of the leased premises one or more
"For Rent' or "For Sale" signs (or be fastened to a door or
window), but only during the six (6) months preceding the
expiration of this Lease or the expiration of Tenant's
option to purchase the leased premises. Tenant agrees that
such signs shall remain unmolested.
28. RIGHT TO REPAIR OR REMEDIATE AND TO STORE EQUIPMENT
(A) Landlord shall be entitled to make any repairs or
perform any work or construction mentioned in Paragraph
26 or 27, whether such repairs or performance are
required of Landlord or Tenant by law or this Lease;
provided, however, that Landlord shall not unreasonably
interfere with Tenant's use of the leased premises.
Landlord and EI shall also have the right to enter the
leased premises to perform investigation and/or
remedial actions with respect to any environmental
contamination related to the leased premises, including
but not limited to that investigation and/or remedial
actions, if any, required of Tenant or Park
Electrochemical Corp. pursuant to Paragraph 29, (if
Tenant or Park Electrochemical Corp. shall have failed
to perform its obligations thereunder). Such repairs or
other performance, if made by Landlord or EI, shall not
constitute a waiver by Landlord or EI of M Tenant's
default in failing to perform the same or (ii)
Landlord's or EI's right to payment therefor, as such
event of default or right of payment may be set forth
elsewhere in this Lease.
(B) During the course of any repair, investigation,
remediation, work or construction which the Landlord or
EI is other-wise entitled to perform in the leased
premises, Landlord or EI may store therein all
necessary materials, tools, supplies and equipment. No
inconvenience, annoyance, disturbance, loss of
business, or other damage suffered by Tenant or any
subtenant by reason of such repairs, remediation, work,
or construction, or storage of materials, shall, unless
constituting negligence or willful misconduct,
constitute an element of an actual or constructive
eviction of Tenant, or result in any liability of
Landlord or EI, and the obligations of the Tenant under
this Lease shall not be affected thereby.
(C) Any right given Landlord or EI by this paragraph
to enter the leased premises shall be exercised, to the
extent practicable and permitted by law, only during
ordinary business hours, and subject to reasonable
advance notification and the Tenant's reasonable
security precautions; except that if there is
reasonable ground to believe an emergency exists or is
threatened, Landlord or EI shall be entitled to take
such actions and to proceed at such times that Landlord
or EI shall deem appropriate.
(D) Except as otherwise provided herein, the rights of
Landlord or EI given or mentioned in this paragraph do not
impose, nor does Landlord or EI assume by reason thereof,
any responsibility for the care, maintenance or supervision
of the leased premises, or any part thereof.
29. MAINTENANCE OF LEASED PREMISES IN ENVIRONMENTALLY CLEAN
CONDITION
(A) Subject to the provisions of Paragraph 29(C),
below: (i) Tenant and Park Electrochemical Corp. will,
at their cost and expense, promptly comply with any and
all state, federal or local laws, regulations, rules,
standards, guidelines, ordinances, orders, agreements,
or any such authority, (all, the "Regulations'), which
regulate or protect or in any way pertain to the
environment or to human health or to human safety, or,
without limiting the foregoing, to underground storage
tanks, hazardous wastes, or hazardous substances (all,
the "Environmental matters"), and which relate to or
affect the leased premises after the date of execution
of this Lease. Without limiting the foregoing, Tenant
agrees to (and Park Electrochemical Corp. agrees to
cause Tenant to) comply with any and all applicable
Regulations which in any way pertain to Tenant's
generation, recycling, reclaiming, reusing, storage,
handling, treatment, transportation, or disposal of
"Hazardous Substances" (as defined in 42 U.S.C. Sec.
9602 et seg.), "Hazardous Wastes' (as defined in Conn.
Gen. Stat. (Sec. 22a-115), or oil or petroleum products
after the date of execution of this Lease; (ii) Tenant
agrees to (and Park Electrochemical Corp. agrees to
cause Tenant to) timely deliver to the appropriate
persons and authorities, at Tenant's sole cost and
expense, such declaration, certification, and/or other
representation as may be required pursuant to
Connecticut General Statutes Section 22a-134 et seg.,
as may be hereafter amended, in connection with any
transfer of ownership of the Tenant's operations or of
the leased premises during the Term of this Lease as
the same may be extended, as well as at the end of said
Term or at any other time that the Tenant vacates the
leased premises for any reason; (iii)Tenant agrees to
(and Park Electrochemical Corp. agrees to cause Tenant
to) install, (subject to the Landlord's approval, which
shall not be unreasonably withheld), any and all under-
ground storage tanks and/or underground storage tank
systems (both 'USTs') on the leased premises in
accordance and compliance with any and all applicable
Regulations, and to use, maintain and remove any and
all USTs on the leased premises in accordance and
compliance with any and all applicable
Regulations; (iv) Tenant agrees to (and Park
Electrochemical Corp. agrees to cause Tenant to) take
any and all steps necessary whenever required to do so
pursuant to the foregoing (or at the Landlord's written
request) to promptly respond, remove, remedy, mitigate,
or otherwise abate the existence or threatened
existence of any Hazardous Waste, Hazardous Substance,
or oil or petroleum Spill or Release, or any other
environmental contamination (all, 'Contamination") of
or from the leased premises after the date of execution
of this Lease; and (v) Tenant agrees to (and Park
Electrochemical Corp. agrees to cause Tenant to) send
to Landlord copies of any and all materials received
and/or sent by Tenant to or from any governmental
authority which pertain in any way to any environmental
matter or any Hazardous Substance, Hazardous Waste,
Spill, or Release affecting the leased premises.
(B) Subject to the provisions of Paragraph 29(C),
below, Tenant and Park Electrochemical Corp., jointly
and severally, agree to indemnify against and hold
harmless the Landlord from any and all obligations,
losses, costs, claims, damages, charges, fines liens,
liabilities and expenses (including environmental
consultant's fees and/or attorneys' fees) under the
Federal Resource Conservation and Recovery Act, 42 U.S.
Code Section 6901 et seg., the Federal Comprehensive
Environmental Response, Compensation and Liability Act,
42 U.S. Code Section 9601 et seq., Chapter 446K of the
Connecticut General Statutes, or other applicable
federal, state or local laws, regulations, ordinances,
orders or regulations either related to waste disposal,
and/or related to environmental protection with respect
to hazardous, toxic, or other wastes generated or
produced at- and/or transported from the leased
premises during the term of this Lease, and/or related
to environmental protection with respect to conditions
created, events occurring or discharges made during the
term of this Lease.
(C) Notwithstanding anything contained in Paragraphs
29(A) or (B), above, the Tenant shall not be liable or
otherwise responsible for the liabilities and
obligations allocated to EI pursuant to Paragraphs
25(A) and/or 25(B) of this Lease.
30. APPROVAL OF LANDLORD FOR STOCKPILING OF CERTAIN
MATERIALS
The Tenant further agrees that Tenant will not (and
Park Electrochemical Corp. will cause Tenant not to)
generate, handle, transport, use recycle or store materials
that constitute or contain Hazardous Substances or Hazardous
Wastes, oil or petroleum products, or other chemical
liquids, solids or gases except in accordance with all
applicable management and other regulations,
laws,.standards, ordinances, orders and agreements,
including but not limited to Chapters 445 and 446K of the
Conn. Gen. Statutes or other performance standards for
management of Hazardous Waste on or after the effective date
of this Lease that may be required pursuant to Leslie
Carothers, Commissioner v. U.S, Prolam, Cv 88-03400946.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease on the day and year above written.
Signed, Sealed and Delivered
in the presence of
__________________________
Geoffrey Etherington, II
_____________________________
USP COMPOSITES, INC.
By:/s/Andrew M. Esposito
President
The undersigned does hereby accept
and confirm the obligation of
the undersigned as provided in
Paragraphs 25(A), @5(B), 25(C)
and 28 of this Lease:
ETHERINGTON INDUSTRIES, INC.
By:/s/-----------------------
President
The undersigned does hereby
accept and confirm the ob-
ligation of the undersigned
as provided in Paragraphs
20(D), 28(A), 29 and 30:
PARK ELECTROCHEMICAL CORP.
By:/s/Harry Linzer
Vice President & Secretary
SCHEDULE A
PERMITTED ENCUMBRANCES
Permitted Encumbrances are those matters described in pages
2-3 of Schedule A of the attached Commitment for Title
Insurance No. CN15505 issued by First American Title
Insurance Company, with an effective date of April 7, 1988,
(the "Commitment"), and the following matters listed on
Schedule B of the Commitment: Items 1, 2, (but only as to an
accurate survey made as of April 15, 1988), 7, 12, 13, 14,
17, 18, 19, 20, 21, 22, 23, and 24; and
Taxes due to the City of Waterbury; and
Water and sewer use charges; and
Fire service charges.
Form 548 (9/73) Commitment Policy CN-15505
COMMITMENT FOR TITLE INSURANCE
ISSUED BY
First American Title Insurance Company
FIRST AMERICAN TITLE INSURANCE COMPANY, herein called
the Company, for valuable consideration, hereby commits to
issue its Policy or policies of title insurance. as
identified in Schedule A, in favor of the proposed Insured
named in Schedule A, as owner or mortgagee of the ovate or
interest covered hereby In the land described or referred to
in Schedule A. upon payment of the premiums and charges
therefor; all subject to the provisions of Schedules A and B
and to the Conditions and Stipulations hereof.
This Commitment shall be off active only when the
identity of the proposed Insured and the amount of the
policy or policies committed for haw been inserted in
Schedule A hereof by the Company, either at the time of the
issuance of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such
policy or policies of title insurance and all liability and
obligations hereunder shall cease and terminate six (6)
months after the effective date hereof or when the policy or
policies committed for shall issue, whichever first occurs,
provided that the failure to issue such policy or policies
is not the fault of the Company. This Commitment shall not
be valid or binding until countersigned by an authorized
officer or agent.
IN WITNESS WHEREOF, the Company has caused this Commitment
to be signed and sealed, to become valid when countersigned
by an authorized officer or agent of the Company. all in
accordance with its By-Laws. This Commitment Is effective as
of the date shown in Schedule A as "Effective Date."
First American Title Insurance Company
By_________________________ President
By_________________________ Secretary
By_________________________ Countersigned
SCHEDULE A
Commitment No. CN-15505
1. Effective Date: April 7, 1988 at 9;00 A.M.
2. Policy or Policies to be issued:
ALTA Owner's Policy
Proposed Insured:USP Composites, Inc.
Amount: $3,200,000.00
ALTA Loan Policy
Proposed Insured:
Amount:$
Proposed Insured:
Amount:$
3. The estate or interest in the land described or referred
to in this Commitment and covered herein is fee simple and
title thereto is at the effective date hereof vested in:
Geoffrey Etherington, II
4. The land referred to in this Commitment is located at:
Address:
City/Town: Waterbury
County: Now Haven
State of Connecticut
and is further described in SCHEDULE A attached.
NOTE: UNLESS A SPECIFIC AMOUNT OF INSURANCE IS STATED ON
THIS SCHEDULE A, OR SET FORTH IN AN ENDORSEMENT TO THIS
COMMITMENT THE LIABILITY OF THE COMPANY SHALL NOT EXCEED
$1..000.
THIS COMMITMENT IS ISSUED SOLELY FOR THE PURPOSE OF
FACILITATING THE ISSUANCE OF A POLICY OR POLICIES OF TITLE
INSURANCE BY FIRST AMERICAN TITLE INSURANCE COMPANY#J AND
THE COMPANY'S LIABILITY SHALL BE LIMITED TO THE TERMS OF ITS
POLICY OR POLICIES.
SCHEDULE A
A certain place or parcel of land situated on the
northwesterly aide of East Aurora Street and the easterly
side of land now or formerly of the Penn Central Co.
(Watertown Branch), in the City of Waterbury, County of New
Haven and State of Connecticut, bounded and described as
follows:
Beginning at a point in the northwesterly line of Cast
Aurora Street and the easterly line of land now or formerly
of the Penn Central Co., being the southwesterly corner of
the within described land, thence running northeasterly in
the northwesterly line of East Aurora Street 481.59 felt
thence. running-northerly at right angles to the last
described line 12.46 feet to a point of curve, thence
running northerly in a line curving to the right having a
radius of 375.00 feet and a central angle of 350 001 a
distance of 229.07 feet to the point of tangency, thence,
running northerly and tangent to the curve 92.47 feet,
thence making an interior angle of 894 541 with the last
described line and running westerly 321.00 foot to land now
or formerly of the Penn Central Cor,; thence making an
interior angle of 899 57' 30' with the I&at described line
and running southerly in the easterly line of land now or
formerly of the Penn Central Co., 593.44 feet to East Aurora
Street and the point of beginning the last described line
making an interior angle, of 55' 08' 30' with the first
described line. Bounded;
Northerly by land now or formerly of The Bristol Flowed
Casket Company;
EASTERLY by land now or formerly of Harold Stein, Trustee;
SOUTHEASTERLY by East Aurora Street: and
WESTERLY by land now or formerly of the Penn Central Co.
(Watertown Branch).
Said promises are more particularly shown on a map entitled:
'Map of Land of Geoffrey Etheringtons XI Waterbury, Conn.
The A.J. Patton Co. Surveyor, Waterbury, Conn, Nov. 51 1980
scaler 11&201 Rev. May 12, 1961' which map was filed on
June 22, 1981 with the, Town Clerk of Waterbury, Drawer XI,
Page 53.
Together with and subject to rights and agreements with
respect to a 20 foot right of way running north from East
Aurora Street an net forth in deeds from Peter Marcuse
Trustee to Cellular Industries Incorporated dated June 1,
1967 recorded in Volume 911, Page 605 of the Waterbury Land
Records; Harold Stein Trustee dated June 1, 1967 recorded In
Volume 911, Page 629 of the Waterbury Land Records, and The
Bristol Flowed Gasket Company dated June l, 1967 recorded in
Volume 911, Page 629 of the Waterbury Land Records.
Together also with the rights, if any, In and to the
agreements set forth in the aforementioned deeds recorded in
Volume 911, pages 605, 621 and 629 of the Waterbury Land
Records, and in deeds recorded in Volume 911, Pages 608 and
627 of the Waterbury land Records.
Being the same premises described in a warranty deed from
The Fairmont Corporation of Connecticut to Geoffrey
Etherington II dated July 24, 1980 recorded in Volume 1456,
page 284 of the Waterbury Land Records.4
SCHEDULE B
EXCEPTIONS
Commitment No. CN-15505
PROVIDED THE PROPER INSTRUMENT(S) CREATING THE ESTATE(S)
OR INTEREST($) TO BE INSURED MUST BE EXECUTED AND DULY FILED
FOR RECORD;
The policy or policies to be issued will contain exception
to the following unless the same are disposed of to the
satisfaction of the Company:
1. Rights of tenants and parties in possession.
2. Any state of facts which an accurate survey or personal
inspection of the premises would disclose.
3. Any lien, or. right to lien, for services, labor or
materials theretofore or hereafter furnished, imposed by law
and not shown by the public record.
4. Defects, liens, encumbrances, adverse claims or other
matters, if any, created, first appearing in the public
record or attaching subsequent to the effective date hereof
but prior to the date the proposed insured acquires of
record, for value, the estate or interest or mortgage
thereon covered by this commitment.
5. Taxes on the List of October 1, 1987, not yet due and
payable, and taxes for prior list years as may be due the
City of Waterbury.
6. Water and sewer use charges, now or hereafter due and
payable.
7. Such Assessments as may be due the City of Waterbury.
8. Open End Mortgage, $5,000,000.00, Geoffrey Etherington,
II to Connecticut Development Authority dated April 30,
1985, recorded in Volume 1766,Page 131. Assigned to Colonial
Bank by instrument dated April 29,1985 and recorded in
Volume 1767,Page 1 of the Waterbury Land Records.
9. Open End Mortgage, $5,277,397.00, Geoffrey Etherington,
II to the First National Bank of Boston dated April 30,
1985, recorded in Volume 1767, Page 2 of the Waterbury Land
Records.
10. UCC-1 Financing Statement, U.S. Prolam, Inc. to
Connecticut Development Authority recorded April 30, 1985 in
Volume 1767, Page 92. Assigned by UCC-2 to Colonial Bank on
April 30, 1985 in Volume 1767 at Page 95 of the Waterbury
Land Records.
11. UCC-1 Financing Statement, U.S. Prolam, Inc. to The
First National Bank of Boston recorded April 30, 1985 in
Volume 1767, Page 98 of the Waterbury Land Records.
12. UCC-1 Financing Statement and Assignment, U.S.Prolan,
Inc. to Air Compressor Engineering Co., Inc., assigned to
Ingersoll-Rand Financial Corp. recorded July 22, 1987 in
Volume 2124, Page 121 of the Waterbury Land Records.
13. Notice of Air Compliance Order, U.S. Prolam, Inc. to
Connecticut Department of Environmental Protection dated
August 25, 1987, recorded in Volume 2150, Page 315 of the
Waterbury Land Records.
14. Notice of Air Compliance Order, U.S. Prolam, Inc. to
Connecticut Department of Environmental Protection dated
August 25, 1987, recorded in Volume 2150, Page 316 of the
Waterbury Land Records.
15. Attachment, $6,500.00, U.S.Prolam, Inc., et al to
Carmine and Theresa Capozzi d/b/a The Floor Store dated and
recorded September 25, 1987 in Volume 2161, Page 316 of the
Waterbury Land Records.
16. The lien for current fire service charges, not yet due
and payable.
17. Building lines: 5 foot setback from street established.
Volume 1, Page 460 of the Waterbury Building Lines and
Assessments.
18. Slope rights established - benefits and damage equal
Volume 2 Page 268 of the Waterbury Land Records.
19. A pole license from the Waterbury Tool Company to The
Connecticut Light and Power Company dated May 31, 1940
recorded in Volume 504 Page 263 of the Waterbury Land
Records.
20. An easement from Cellular Industries, Incorporated to
The Connecticut Light and Power Company dated August 29,
1967 and recorded in Volume 917 Page 211 of the Waterbury
Land Records.
21. A right of way over a ten foot strip of the subject
premises along the easterly boundary, being part of a twenty
foot right of way, as granted in deeds from Peter Marcuse
Trustee to Harold Stein, Trustee dated June 1, 1967 recorded
in Volume 911 at Page 621 of said Land Records and to The
Bristol Flowed Gasket Company dated June 1,1967 recorded in
Volume 911 Page 629 of said Land Records, which right of way
is to be kept open and unobstructed. Said Right of way is
reserved in a deed from Peter Marcuse, Trustee to Cellular
Industries, incorporated dated June 1, 1967 and recorded in
Volume 911 at Page 605 of the said Land Records.
22. The obligation of a joint maintenance of a twenty foot
right of way as described in deeds from Peter Marcuse,
Trustee to Harold Stein,, Trustee (dated June 1,1967
recorded in Volume 911.
Page 621 of said Land Records), from Peter Marcuse Trustee
to The Bristol Flowed Gasket Company dated June 1, 1967
recorded in Volume 911 Page 629 of the said Land Records,
and from Peter Marcuse, Trustee to Cellular Industries
Incorporated (the instant premises) dated June 1,1967
recorded in Volume 911 at Page 605 of the said Land Records
in the ratio of 4:4:3 as to the owners of plants 1, 2 and 3
respectively.
23. A possible encroachment of a building of plant no. 2 on
the twenty foot right of way described above.
24. Agreements contained in deeds above described recorded
in Volume 911 Pages 605, 608, 621, 627 and 629 of the said
Land Records.
25. Mortgage from Geoffrey Etherington IT to Connecticut
Development Authority in the principal amount of $850,000.00
dated June 19, 1981 recorded in Volume 1509 Page 199 of the
said Land Records.
26. Collateral Assignment of Leases and Rentals from
Geoffrey Etherington. II to Connecticut Development
Authority ' dated June 19, 1981 recorded in Volume 1509 at
Page 219 of the said Land Records.
27. Financing statement from U.S. Prolam. to Colonial Bank
recorded n April 26, 1985, Doc. No. 680572.
NOTE: A mortgage from Geoffrey Etherington 11 to The First
National Bank of Boston in the principal amount of
$5,277,397 dated April 30, 1985 was recorded in said Land
Records. Under the terms of Section l(b) of said mortgage
(exception #9), and Section l(B) of the mortgage in
Exception #8, both mortgages are deemed to have equal
priority of lien with the other, and shall be in pari passu.
COMMITMENT
Conditions and Stipulations
1. The term "mortgage." when used herein, shall include
deed of trust, trust deed, or other security instrument.
2. If the proposed Insured has or acquires actual knowledge
of any defect, lien, encumbrance, adverse claim or other
matter affecting the estate or interest or mortgage thereon
covered by this Commitment other than those shown in
Schedule 8 hereof, and shall fail to disclose such knowledge
to the Company in writing, the Company shall be relieved
from liability for any less or damage resulting from any act
of reliance hereunto the extent the Company Is prejudiced by
failure to so disclose such knowledge, If the proposed
Insured shall disclose such knowledge to the Company, or if
the Company otherwise acquires actual knowledge of any such
defect, lien, encumbrance, adverse claim or other matter,
the Company at its option may amend Schedule 8 of this
Commitment accordingly, but such amendment shall not relieve
the Company from liability previously incurred pursuant to
paragraph 3 of than Conditions and Stipulations.
3. Liability of the Company under this Commitment "II be
only to the named proposed Insured and such parties included
under the definition of Insured in the form of policy or
policies committed for and only for actual loss incurred In
reliance hereon in undertaking in good faith (a) to comply
with the requirements hereof, or (b) to eliminate exceptions
shown in Schedule 8, or (c) to acquire or create the estate
of interest or mortgage thereon covered by this
Commitment. In no event shall such liability exceed the
amount stated in Schedule A for the policy or policies
committed for and such liability is subject to the Insuring
provisions, exclusion from coverage, and the Conditions and
Stipulations of the form of policy or policies committed
for in favor of the proposed Insured which are hereby
incorporated by reference and are made a part of this
Commitment except as expressly modified herein.
4. Any claim of loss or damage, whether or not based on
negligence, and which arises out of the status of the title
to the estate or interest or the lien of the insured
mortgage covered hereby or any action asserting such claim,
shall be restricted to the provisions and conditions and
stipulations of this Commitment.
[Exhibits-02-10.07]bd