DOCKET NO. CV 90 0385318 S SUPERIOR COURT

THE LEMBO-FEINERMAN CHESHIRE TRUST AND CHESHIRE ASSOCIATES J.D. OF HARTFORD

VS. AT HARTFORD

CHARLES E. HEILIG NOVEMBER J^, 1993

AMENDED COMPLAINT

SDMS DocID 284559

FIRST COUNT: (Declaratory Judgment)

1. The Lembo-Feinerman Cheshire Trust was created by a Trust Agreement dated

June 15, 1984.

2. Plaintiff Lembo-Feinerman Cheshire Trust brings the present action through

Michael J. Lembo and Samuel Feinerman as Trustees under the Trust Agreement identified

in Paragraph 1 above.

3. Cheshire Associates is a general partnership formed under the laws of the State

of New York.

4. Plaintiff Cheshire Associates, brings the present action through Michael J.

Lembo as a General Partner of Cheshire Associates and by Samuel Feinerman as General

Partner of KAF Building Company, a New York general partnership, which is also a General

Partner of Cheshire Associates.

5. On October 6, 1966, Michael J. Lembo took title to a certain parcel of land on

West Johnson Avenue in Cheshire, Connecticut described more fully in Appendix A hereto

(hereafter the "Leased Premises"). _ n in\) ,,1

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6. At the time Michael Lembo acquired title to the Leased Premises, said parcel of

land was undeveloped land.

7. The Leased Premises was developed by the construction of a building thereon,

by the construction of parking lots thereon and by such other improvements as were

necessary to use the Leased Premises for manufacturing purposes.

8. Michael J. Lembo by Agreement dated August 11, 1966 (hereinafter the "1966

Lease") leased the Leased Premises to the Valley National Corporation, a Connecticut

corporation which corporation had its principal offices in Southington, Connecticut at the

time said Lease was executed.

9. On or about February 24, 1967, Michael J. Lembo assigned all interest and

rights under the 1966 Lease to Cheshire Associates by an Assignment Agreement of that

date.

10. On or about December 8, 1966, Michael J. Lembo conveyed title to the Leased

Premises to Cheshire Associates by means of a deed of that date.

11. The Lease between Cheshire Associates and the Valley National Corporation

was amended on or about April 10, 1967 (the Lease, as amended, is hereinafter also referred

to as the "1966 Lease").

12. The 1966 Lease was further modified or otherwise affected by an agreement

between Dry Dock Savings Bank and the Valley National Corporation on or about September

6, 1967 (the 1966 Lease as modified by said agreement is hereinafter also referred to as the

"1966 Lease").

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13. Sometime prior to July 1, 1977, the Valley National Corporation was merged

with and into S. Curtis & Son, Inc.

14. On or about July 1, 1977, S. Curtis & Son, Inc. changed its name to

Curtiscorp, Inc.

15. By an agreement dated May 24, 1979, Curtiscorp, Inc. assigned all of its rights,

title, interest, obligations of whatever nature however arising under the 1966 Lease to

Cheshire Molding Company, a Connecticut Corporation (hereinafter referred to as the

"Curtiscorp Assignment").

16. Cheshire Molding Company by and through Charles E. Heilig, its President,

accepted the assignment as set out in the Curtiscorp Assignment and expressly agreed in said

document that Cheshire Molding shall be bound unto Cheshire Associates, as though a party

to the Lease, for full and complete performance and satisfaction of all terms, covenants and

conditions of Curtiscorp, Inc. to Cheshire Associates.

17. Cheshire Associates expressly consented to the assignment of the 1966 Lease

from Curtiscorp to Cheshire Molding Company in the Curtiscorp Assignment.

18. At the time of his execution of the Curtiscorp Assignment on behalf of Cheshire

Molding and at all relevant times thereafter, Charles E. Heilig was and has remained the

President of Cheshire Molding.

19. By Agreement dated November 19, 1981, the Cheshire Molding Company, by

and through Charles E. Heilig, its President, assigned all of its rights, title and interest and

all of its obligations and responsibilities of whatever nature and however arising pursuant to

the 1966 Lease to North American Philips Corporation (hereinafter referred to as the

"Cheshire Molding Assignment").

20. The North American Philips Corporation accepted the assignment as set out in

the Cheshire Molding Assignment and agreed to be bound to Cheshire Associates as though a

party to the 1966 Lease including the full and complete performance and satisfaction of all

terms, covenants and conditions of Cheshire Molding Company to Cheshire Associates

pursuant to the 1966 Lease.

21. Cheshire Associates expressly consented to the assignment of the 1966 Lease

from Cheshire Molding Company to the North American Philips Corporation in the Cheshire

Molding Company Assignment.

22. On or about June 15, 1984, title to the Leased Premises and the 1966 Lease

were conveyed by Cheshire Associates to Michael J. Lembo and Samuel Feinerman in their

capacities as trustees for the Lembo-Feinerman Cheshire Trust by a document known as the

Special Warranty Deed to Trustee under Land Trust Agreement.

23. By an agreement dated June 15, 1984, Cheshire Associates assigned all its right,

title and interest in and to the 1966 Lease and any and all documents executed in connection

therewith.

24. By the agreement dated June 15, 1984, described in Paragraph 23 above,

Cheshire Associates also assigned all its right, title and interest in a certain guaranty of

Charles E. Heilig dated May 24, 1979, which was attached to Exhibit B to said agreement.

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25. By the agreement dated June 15, 1984 described in Paragraph 23 above,

Michael Lembo and Samuel Feinerman as trustees under the Lembo-Feinerman Trust

accepted the 1986 Lease and the aforesaid May 24, 1979 Heilig Guaranty.

26. The Leased Premises have never been occupied or otherwise directly used by

Michael J. Lembo, Samuel Feinerman, Cheshire Associates, the Lcmbo-Fcincrman Trust or

any of their employees or agents.

27. The Valley National Corporation; S. Curtis & Son, Inc.; Curtiscorp, Inc.;

Cheshire Molding and North American Philips have occupied the premises as tenants under

the 1966 Lease (hereinafter collectively referred to as the "Lessees").

28. The Lessees identified in Paragraph 27 immediately above have conducted

manufacturing operations on the Leased Premises at divers times during the period of their

respective occupancies including, without limitation, plastic injection molding which was

performed by Curtiscorp, Inc. and the Cheshire Molding Co.

29. The 1966 Lease provides:

a. In Paragraph (8)(a) thereof, that the Leased Premises shall be used and

occupied by the Lessee for the purpose of the development, manufacture, sale, packaging and

storage of various products and all activities connected therewith or relating thereto.

b. In Paragraph (8)(b) thereof, that, at all times during the term of the

lease, the Lessee shall, at its own cost and expense, comply with all ordinances, rules, laws,

requirements, regulations, orders and notices of all governmental authorities having

jurisdiction over the Leased Premises and further that the Lessee will keep and save Lessor

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harmless from any penalties, damages, or charges imposed or incurred for any violation of

all said ordinances, rules, laws, requirements, regulations, orders and notices.

c. In Paragraph (8)(d) thereof, that it shall be Lessee's sole obligation to

obtain all licenses, permits and franchises required for its use of the Leased Premises.

d. In Paragraph (8)(e) thereof, that anything ordered or required to be done

or omitted upon or about the Leased Premises and/or the buildings and improvements

thereon, regardless of the governmental source issuing such order, shall be performed and

fulfilled at the sole expense and responsibility of the Lessee and without any expense,

liability or obligation whatsoever to or on the Lessor.

e. In Paragraph (10)(a) thereof, that Lessee agrees to indemnify and save

harmless Lessor against and form any and all claims by or on behalf of any person or

persons, firm or firms, corporation or corporations arising from the conduct or management

of or from any work or thing whatsoever, done in or about the Leased Premises.

f. In Paragraph (10)(a) thereof, that Lessee further indemnifies and saves

Lessor harmless against and from any and all claims arising during the term of the 1966

Lease from the Premises or any vaults, passageways or spaces therein or appurtenant thereto.

g. In Paragraph (10)(a) thereof, that Lessee further indemnifies and saves

Lessor harmless from any claims arising from the performance of any covenant or agreement

on the part of Lessee in the performance of any covenant or agreement on the part of Lessee

to be performed pursuant to the terms of the 1966 Lease.

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h. In Paragraph (10)(a) thereof, that Lessee further indemnifies and saves

Lessor harmless from any claims arising from any act or negligence of Lessee, or any of

Lessees' agents, contractors, servants, employees or licensees.

i. In Paragraph (10)(a) thereof, that Lessee further indemnifies and saves

Lessor harmless from and against all costs, counsel fees, expenses and liabilities incurred in

or about any of the claims described in said Paragraph (10)(a) or from any action or

proceeding brought upon such claims.

j. In Paragraph (10)(a) thereof, that Lessee, upon notice from Lessor,

covenants to resist and defend any action or proceeding brought against Lessor by reason of

any claim described in said Paragraph (10)(a).

k. In Paragraph (6)(a)(iii) thereof, that Lessee will insure the Leased

Premises for the benefit of Lessor and Lessee in an amount equal to 100% of the full

replacement cost of the buildings, equipment and fixtures thereon against loss or damage by

fire, lightening, windstorm, hail, explosion, riot and civil commotion, damage from aircraft

and vehicles, and smoke damage and such other risks as Lessor and/or any mortgagee may

reasonably request.

1. In Paragraph 6(a)(iv) thereof, that Lessee is obligated to surrender the

Leased Premises in the same condition as when received except for ordinary wear and tear

from use of the Leased Premises.

m. In Paragraph (11) thereof, that Lessee covenants that in case of damage

to or destruction of the building on the Premises, or of the fixtures and equipment thereof,

by fire or otherwise during the Lease term, Lessee shall promptly, at its sole cost and

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expense, repair, restore and rebuild the same as nearly as possible to the condition said

building was in immediately prior to such damage or destruction. i

n. In Paragraph (14) thereof, that, in the event of any assignment, letting or

subletting, Lessee shall remain liable to Lessor for the performance of all obligations

imposed on Lessee under the 1966 Lease, and each such assignee or sub-lessee shall be

jointly and severally bound with Lessee to abide by the terms of the 1966 Lease and shall

assume all such obligations in writing.

30. The 1966 Lease has continuously been in effect from its date of execution on or

about August 11, 1966 to the present.

31. In consideration for the consent of Cheshire Associates to the assignment of the

1966 Lease from Curtiscorp, Inc. to Cheshire Molding, Defendant Charles E. Heilig, Jr.

duly executed a letter dated May 24, 1979 and delivered said letter to Cheshire Associates

(said letter being hereinafter referred to as the "1979 Heilig Guaranty").

32. By and through the aforementioned 1979 Heilig Guaranty, Charles Heilig, Jr.:

a. Unconditionally guaranteed to Cheshire Associates the full and complete

performance and observance of each and all terms, covenants, conditions and agreements

required by the 1966 Lease to be performed by the "Lessee".

b. Further provided that whenever reference is made to the liability of the i

"Lessee" in the 1966 Lease or in said 1979 Heilig Guaranty, such reference shall be deemed

to refer to any party obligated to Cheshire Associates with respect to the 1966 Lease

including, without limitation, Cheshire Molding Company and Charles E. Heilig, Jr. as

guarantor.

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c. Agreed that the validity of the 1979 Heilig Guaranty and his obligations

thereunder shall in no wise be terminated, affected, or impaired by reason of the granting by

Cheshire Associates of any indulgence to a Lessee or by reason of the assertion by Cheshire

Associates against a Lessee of any of the rights or remedies reserved to Cheshire Associates

pursuant to the 1966 Lease or by the release of a Lessee or Curtiscorp, Inc. of any of its

obligations under the 1966 Lease by operation of law or otherwise (including, without

limitation, the rejection of the 1966 Lease in connection with proceedings under the

bankruptcy laws then or thereafter enacted).

d. Further covenanted and agreed that the 1979 Heilig Guaranty shall

remain and continue in full force and effect as to any amendment, renewal, modification or

extension of the 1966 Lease, whether or not said Charles Heilig shall have received any

notice of or consented to such amendment, renewal, modification or extension.

e. Further provided that the liability of Charles E. Heilig, Jr. under the

abovementioned 1979 Heilig Guaranty shall be primary, and in the event any right of action

shall accrue to Cheshire Associates under the 1966 Lease, it may, at its option, proceed

against said Charles Heilig and/or any other party obligated to Cheshire Associates under the

1966 Lease, jointly and/or severally, and Cheshire Associates shall have no obligation to

proceed against or commence an action against or obtain judgment against any other party.

i f. Further provided that the failure of Cheshire Associates to insist in any

one or more instances upon a strict performance or observance of any of the terms,

provisions, or covenants of the 1966 Lease or to exercise any right therein contained shall

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not constitute a waiver or relinquishment as to the future of such term, provision, covenant,

or right, but the same shall continue and remain in full force and effect.

g. Further provided that the receipt by Cheshire Associates of rent with

knowledge of the breach of any provision of the 1966 Lease shall not be deemed a waiver of

such breach.

h. Further provided that no subletting, assignment, or other transfer of the

1966 Lease, or any interest therein, shall operate to extinguish or diminish said Charles

Heilig's liability under the abovementioned 1979 Heilig Guaranty.

i. Further agreed that he shall pay to Cheshire Associates all costs and

expenses, of whatever nature, including specifically, without limitation, reasonable attorneys'

fees, incurred by Cheshire Associates in enforcing the 1966 Lease or the 1979 Heilig

Guaranty.

j. Further agreed that all of the terms and provisions of the aforesaid 1979

Heilig Guaranty shall inure to the benefit of the respective heirs, executors, administrators,

successors and assigns of the parties thereto.

33. By and through a duly executed letter dated November 18, 1981 to Cheshire

Associates, Charles E. Heilig, Jr.:

a. Acknowledged that there may be petroleum groundwater contamination

beneath the Leased Premises.

b. Confirmed and further agreed by said November 18, 1981 letter that if

any governmental action is taken against Cheshire Associates, regulatory or otherwise, said

Charles Heilig would not assent as a defense in any action brought by Cheshire Associates

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against him as Guarantor under the abovementioned 1979 Heilig Guaranty that Cheshire

Associates waived its right to assert the existence of a default under the 1966 Lease as a

result of Cheshire Associates' failure to object to the assignment of the 1966 Lease from

Cheshire Molding to North American Philips.

c. Further agreed that he would not raise as a defense in any action which

Cheshire Associates may bring against him as Guarantor relating to the aforesaid petroleum

groundwater contamination that said Charles Heilig was released from the 1979 Heilig

Guaranty by the then pending amendment of the 1966 Lease by Cheshire Associates and

North American Philips.

34. An April, 1980 Connecticut Department of Environmental Protection aerial

photograph of the Leased Premises shows surface soil staining to the immediate north and to

the immediate east of the northeast corner of the manufacturing building used by Valley

National Corporation, S. Curtis and Son, Inc., Curtiscorp, Inc. and the Cheshire Molding

Co. on the Leased Premises.

35. During the fall of 1980, the groundwater beneath the Leased Premises was

analyzed and found to contain petroleum and volatile organic compound contamination.

36. During the fall of 1980, 1,1,1-trichloroethane was detected in the groundwater

in a well on the Leased Premises to the northwest of the manufacturing building used by

Valley National Corporation, S. Curtis & Son, Inc., Curtiscorp, Inc. and the Cheshire

Molding Co. on the Leased Premises.

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37. During October 1983, soil contaminated with volatile organic compounds was

removed from locations to the immediate north and to the immediate east sides of the

northeast corner of the manufacturing building used by Valley National Corporation,

S. Curtis & Son, Inc., Curtiscorp, Inc., and the Cheshire Molding Co. on the Leased

Premises.

38. During the fall of 1983, 1,1,1-trichloroethane was detected in the soil removed

from the immediate vicinity of the northeast corner of the manufacturing building used by

Valley National Corporation, S. Curtis & Son, Inc., Curtiscorp, Inc., and the Cheshire

Molding Co. on the Leased Premises.

39. During the fall of 1983, the Connecticut Department of Environmental

Protection required Cheshire Associates to remove contaminated soil from the immediate

vicinity of the north wall and the east wall at the northeast corner of the manufacturing

building used by Valley National Corporation, S. Curtis & Son, Inc., Curtiscorp, Inc. and

the Cheshire Molding Co. on the Leased Premises.

40. The Connecticut Department of Environmental Protection entered into an

Administrative Consent Agreement with Cheshire Associates in or about June 7, 1984 which i

expressly identified the areas of contaminated soil which the Connecticut Department of

Environmental Protection had required to be removed during the fall of 1983, as described

more fully in Paragraph 39 immediately above.

41. There was one or more releases of at least one hazardous substance to the soils

of the Leased Premises during the period that said Premises was occupied by Valley National

Corporation; S. Curtis & Son, Inc.; Curtiscorp, Inc. and/or The Cheshire Molding Co.

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42. Prior to and during April 1987, the Leased Premises was evaluated for inclusion

on the federal Superfund "National Priority List" (hereinafter being referred to as "NPL") by

an agent of the United States Environmental Protection Agency (which agency is hereinafter

referred to as the "USEPA").

43. On or about June 28, 1988, the USEPA proposed listing the Leased Premises on

the NPL as the "Cheshire Associates Property" Superfund Site due, in part, to volatile

organic compound contamination in the groundwater beneath the Leased Premises.

44. On or about August 22, 1988, Plaintiff Cheshire Associates opposed the listing

of the Leased Premises on the NPL by submitting a comment to the USEPA as authorized by

the federal Administrative Procedures Act.

45. Plaintiff Cheshire Associates incurred attorney and environmental consultant

costs in preparing and submitting the comment described in Paragraph 44 immediately above.

46. On or about August 30, 1990, the USEPA listed the groundwater contamination

beneath the Leased Premises on the NPL as the "Cheshire Groundwater Contamination"

Superfund Site.

47. Plaintiff Cheshire Associates incurred attorney fees in evaluating whether to

appeal the listing of the groundwater contamination beneath the Leased Premises on the NPL

as authorized by the federal Administrative Procedures Act.

48. The USEPA may demand payment of the investigatory and/or remediation costs

incurred and to be incurred in response to the groundwater contamination beneath the Leased

Premises from Plaintiff Cheshire Associates, Plaintiff Lembo-Feinerman Cheshire Trust

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and/or the Plaintiff Trustees as authorized by the Comprehensive Environmental Response,

Compensation and Liability Act (hereinafter referred to as "CERCLA").

49. The USEPA may order Cheshire Associates, the Lembo-Feinerman Cheshire

Trust and/or the Plaintiff Trustees to investigate and/or to remediate the groundwater

contamination beneath the Leased Premises as authorized by CERCLA.

50. The USEPA may institute a civil action to recover investigatory and/or

remediation costs incurred and to be incurred from Plaintiff Cheshire Associates, Plaintiff

Lembo-Feinerman Cheshire Trust and/or the Plaintiff Trustees as authorized by CERCLA.

51. Nongovernmental Third Parties may seek to recover the costs they incur to

investigate and/or to remediate the groundwater contamination beneath the Leased Premises

from Cheshire Associates, the Lembo-Feinerman Cheshire Trust and/or the Plaintiff Trustees

as provided for by CERCLA.

52. Plaintiff Cheshire Associates, Plaintiff Lembo-Feinerman Cheshire Trust, and/or

the Plaintiff Trustees may be required to incur significant costs to defend against the

demands, orders and/or civil actions of the USEPA and/or of Third Parties as identified in

Paragraphs 48 to 51 above.

53. The Defendant was put on notice of the Plaintiff Trust's demand that it be

indemnified under the 1966 Lease and under the 1979 Heilig Guaranty for all costs which

had been and which may be imposed upon the Plaintiffs as a result of the NPL listing

described in Paragraph 46 above by means of the Plaintiff's Complaint dated October 11,

1990.

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54. The Defendant denied the Plaintiff Trust's demands contained in their October

11, 1990 Complaint and described in Paragraph 53 immediately above by his Answer thereto

dated July 11, 1991.

55. The Leased Premises is a "facility" as that term is defined at 42 U.S.C.

§9601(9).

56. Valley National Corporation, S. Curtis & Sons, Inc., Curtiscorp and Cheshire

Molding Co. were "operators" of the Leased Premises as that term is defined at 42 U.S.C.

§9601(20).

57. There were one or more "releases" of a "hazardous substance" at the Leased

Premises during the period of time that said Premises were occupied by Valley National

Corporation, S. Curtis & Son, Inc., Curtiscorp and Cheshire Molding Co. as those terms are

defined at 42 U.S.C. §9601(22) and 42 U.S.C. §9601(14) respectively.

58. The Plaintiffs have incurred and will ;be required to incur costs to respond to the i

release(s) described in Paragraph 57 immediately above.

59. There is an actual, bona fide and substantiated question in dispute between the

parties and a substantial uncertainty as to their legal rights and responsibilities growing out of

the facts hereinbefore stated.

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SECOND COUNT: (Breach of Lease and Breach of Guaranty)

1. - 54. Paragraphs 1 - 54 of the First Count are hereby made Paragraphs 1 - 54

of the Second Count.

55. On or about April 6, 1983, Plaintiff Cheshire Associates, through counsel, i

notified the Defendant that if groundwater contamination, then recently detected beneath the

Leased Premises, was found to have been caused by a Lessee in violation of the 1966 Lease,

Cheshire Associates would look to the Defendant for reimbursement of all costs and expenses

arising from or traceable to the failure of a Lessee to comply with the terms of the 1966

Lease.

56. On or about August 29, 1983, Plaintiff Cheshire Associates, through counsel,

notified the Defendant that:

a. The Connecticut Department of Environmental Protection (CTDEP) had

completed its investigation as to possible location of hazardous substances on or under the

Leased Premises.

b. The CTDEP was requiring the removal of contaminated soil from the

north wall of and to the east of the northeast corner of the manufacturing building on the

Leased Premises and the testing of two residential wells off-site.

c. The CTDEP would issue an order if Plaintiff Cheshire Associates did not i

enter into a consent agreement with regard to the aforesaid soil removal and the aforesaid

residential well testing.

d. Unless the Defendant made arrangements to provide for the removal of

the contaminated soil and to test the off-site wells, Plaintiff Cheshire Associates would

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complete those actions and then look to the Defendant for reimbursement of all costs and

expenses it incurred arising out of or traceable to its satisfaction of the aforementioned

CTDEP requirements.

57. The Defendant did not at any time prior to or after August 29, 1983 remove the

contaminated soil or test the off-site wells described in Paragraph 56.b. above or reimburse

the Plaintiffs which were incurred for those purposes by Cheshire Associates.

58. Plaintiff Cheshire Associates incurred costs to remove the contaminated soil and

to test the two off-site residential wells described in Paragraph 56.b. above.

59. The soil contamination on the Leased Premises and the groundwater

contamination in the two residential wells off-site described in Paragraph 56.b. above was

caused by one or more Lessees of the Leased Premises.

60. On or about July 11, 1988, Cheshire Associates, through counsel, notified the

Defendant that:

a. The USEPA had published notice in the Federal Register on June 24,

1988 that the USEPA proposed placing the Leased Premises on the NPL.

b. If a release of a hazardous substance occurred on the Leased Premises as

a result of actions of a Lessee, Plaintiff Cheshire Associates would look to the Defendant for

reimbursement of all costs and expenses arising out of or traceable to the failure of a Lessee

to comply with the terms of the 1966 Lease.

c. Cheshire Associates may seek reimbursement under the 1979 Heilig

Guaranty.

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d. Plaintiff Cheshire Associates was preparing a comment in opposition to

the listing of the Leased Premises on the NPL and further that the Defendant was encouraged

to supplement or join in Plaintiffs' comments.

61. On or about August 1, 1988, Cheshire Associates, through counsel, again

notified the Defendant that Cheshire Associates may seek reimbursement pursuant to the

1979 Heilig Guaranty.

62. The Defendant did not at any time thereafter join in or supplement the aforesaid

Plaintiff Cheshire Associates comment or submit any other comment to the USEPA in

opposition to the proposed listing of the Leased Premises on the NPL.

63. The Complaint of Plaintiff Lembo-Feinerman Cheshire Trust dated October 11,

1990 constituted a demand under the 1966 Lease and the 1979 Heilig Guaranty that the

Defendant reimburse that Plaintiff for the costs incurred by its predecessor in interest,

Plaintiff Cheshire Associates, for all past and present costs, including attorney fees, incurred

in the investigation and remediation of the groundwater contamination beneath the Leased

Premises including the costs incurred by Plaintiff Cheshire Associates in responding to all

proceedings related to the listing of the Leased Premises on the NPL.

64. The Complaint of Plaintiff Lembo-Feinerman Cheshire Trust dated October 11,

1990 constituted a demand under the 1966 Lease and the 1979 Heilig Guaranty that the

Defendant reimburse that Plaintiff for all future costs, including attorney fees, incurred in the

investigation and remediation of the groundwater contamination beneath the Leased Premises.

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65. The soil contamination identified in Paragraph 56.b. above was a source of

contamination to the groundwater beneath the Leased Premises and remediation of said soil

contamination contributed to remediation of that groundwater.

66. The Defendants' July 17, 1991 Answer to Plaintiff's October 11, 1990

complaint constitutes a denial of Plaintiff Lembo-Feinerman Cheshire Trust's demand under

the 1966 Lease and the 1979 Heilig Guaranty.

67. The Plaintiffs have incurred and will continue to incur attorneys' fees to enforce

the 1966 Lease and the 1979 Heilig Guaranty.

68. The Plaintiffs have incurred and will continue to incur other legal costs,

including without limitation, expert witness fees to enforce the 1966 Lease and the 1979

Heilig Guaranty.

69. The Plaintiffs claim that the Defendant is liable, pursuant to the 1966 Lease and

the 1979 Heilig Guaranty for the past remediation and investigation costs described above;

for past, present and future attorney fees incurred to enforce the 1966 Lease and the 1979

Heilig Guaranty and for other past, present and future legal costs incurred to enforce the

1966 Lease and the 1979 Heilig Guaranty.

THIRD COUNT: (Statutory Cost Recovery Pursuant to C.G.S. §22a-542) ^

1-69. Paragraphs 1-69 of the Second Count are hereby made Paragraphs 1-69

of this, the Third Count.

70. Pursuant to Connecticut General Statutes §22a-452, the Plaintiffs are entitled to

reimbursement from Defendant Heilig for the reasonable costs expended for the containment,

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removal or mitigation of the effects of the pollution or contamination of the soil at and the

groundwater beneath the Leased Premises resulting from the negligence of one or more of

the Lessees including the Valley National Corporation, S. Curtis & Son, Inc., Curtiscorp i

and/or the Cheshire Molding Company.

FOURTH COUNT: (Exoneration)

1-69. Paragraphs 1-69 of the Second Count are hereby made Paragraphs 1-69

of this, the Fourth Count.

70. The Plaintiffs had no industrial operations of any kind operating on the Leased

Premises prior to the 1966 Lease.

71. The Plaintiffs never discharged, deposited, or otherwise generated hazardous

wastes on the Leased Premises.

72. Any hazardous substances which have in any way contributed to the

groundwater contamination beneath the Leased Premises were released to said Premises by

Cheshire Molding Co., or its predecessor Lessees for which Defendant Heilig is responsible.

73. The Plaintiffs have been compelled to incur expenses as a result of the

contamination of the Leased Premises and the listing of said Premises on the NPL.

74. Pursuant to the equitable principles of indemnity and exoneration, Defendant

Heilig should be required to pay in full, all expenses arising from the actions of the Lessees,

Valley National Corporation, S. Curtis & Sons, Inc., Curtiscorp and/or Cheshire Molding

Co. in creating the groundwater contamination problem beneath the Leased Premises.

WHEREFORE, the plaintiffs:

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1) Requests that the Court determine whether:

a) the Plaintiffs are entitled under the 1979 Heilig Guaranty and/or the 1966

Lease to recover costs, in whole or in part, incurred in response to any

governmental (including, without limitation, the United States

Environmental Protection Agency) demands that the Plaintiffs pay for the

investigatory costs and/or other costs which have been incurred by the

government during the National Priorities List listing process.

b) the Plaintiffs are entitled under the 1979 Heilig Guaranty and/or the 1966

I^ease to recover costs, in whole or in part, incurred or to be incurred in

response to any governmental (including, without limitation, the United

States Environmental Protection Agency) demand, order or other

requirement that the Plaintiff perform investigatory and/or remedial

actions at the Leased Premises due to the presence of soil and/or

groundwater contamination at, on and/or beneath the Leased Premises.

c) the Plaintiffs are entitled under the 1979 Heilig Guaranty and/or the 1966

Lease to recover costs incurred during 1990 to determine whether any

soil and/or groundwater contamination on the Leased Premises

represented a health threat to the current tenant's employees working in

the building on the Leased Premises. I

2) Request that, if the Court finds the Defendant liable for future costs, an

injunction restraining Heilig from transferring his assets in liquid funds and in

real estate be issued pending the completion of the remedial

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investigation/feasibility study phase of the Superfund response at the Leased

Premises.

3) Claim compensatory damages in excess of $15,000.00.

4) Reasonable attorney's fees as provided in the 1966 Lease, the 1979 Heilig

Guaranty and as provided by law.

5) Such other relief as may be available in law or in equity as the Court deems

proper.

THE PLAINTIFFS, THE LEMBO-FEINERMAN CHESHIRE TRUST CHESHIRE ASSOCIATES

BY: L/JamesK. Robertson, Jr.

R: CARMODY & TORRANCE Their Attorneys

CERTIFICATION

This is to certify that a copy of the foregoing was mailed, postage prepaid, this

day of November, 1993, to all counsel and pro se parties of record.

. K-. Robjerisoh, Jr. '

211266.1 - 22

http:15,000.00

Q O

APPENDIX A

That certain piece or parcel of land situated In the

Town of Cheshire, County of New Haven, «nd State of Connecticut,

with all the buildings and improvements to be constructed thereon,

bounded and described as follows:

Commencing at a point narking the Southeasterly corner of the within described premises, which point also narks the Southwesterly corner of property of Ernest C. DeLucla and Jean DeLucla; thence running In a Northwesterly direction along the Northerly line of West Johnson Avenue the following three bearings and distances, 285° 39' 53" 209.802 feet to a point, 288° 22' 145" 560.201 feet to a point and 286° 01' 06" 1143.91* feet to a point marking the Southwesterly corner of the within described premises; thence running In a Northeasterly direction 18° 07' Ok" 61

u APPENDIX A CONT'D

Said premises are more particularly shown as an area consisting of 15 acres, more or less, on a map entitled "MAP OP PROPERTY OP ERNEST C. & JEAN DELUCIA WEST JOHNSON AVENUE CHESHIRE CONN. SCALE 1" = 100' AUGUST 1966 KRATZERT & JONES CIVIL ENGINEERS it LAND SURVEYORS 176 N. MAIN ST. SOUTHINGTON CONN" which map Is or will be filed In the Office of the Cheshire Town Clerk.

Being a portion of the premises conveyed to Michael J. Lembo by Ernest C. DeLucia and Jean DeLucla by Warranty Deed dated

, 1966, and recorded , 1966, In Volume , Page of the Cheshire Land Records.

Together with the right (a) to discharge water from the pond or portion thereof located on the aforesaid premises over, across and upon other land of Michael J. Lembo lying westerly of the above described premises in the aame manner as water is now being discharged from said pond or as said discharge may hereafter be changed by said Michael J. Lembo; and (b) to draw water from said pond located partially to the east and partially to the west of the westerly boundary line of said premises in so far as mid pond is located on other land of Michael J. Lembo and Is not filled or otherwise changed by said Lembo to the extent that It Is so located on said Lembo's other land.

Said premises are subject to:

1. Pole Line Easement, Ira A. Doollttle to Postal Telegraph Cable Co., dated February 29, 1901|, recorded March 1, 190l| In Volume 37, Page 178 of the Cheshire Land Records.

2. Building lines, If established, and all provisions of any building zone ordinance enacted by the Town of Cheshire and any and all provisions of any ordinance, municipal regulation, or public or private law.

THIS LEASE, made this llth day of August , 1966,

between MICHAEL J. LEMBO of Flushing, New York (hereinafter called

"Lessor") and THE VALLEY NATIONAL CORPORATION, a Connecticut

corporation having Its principal office In Southlngton, Connecticut

(hereinafter called "Lessee"),

W I T N E S S E T H : • -*'*

.s

(1) Lessor, for and In consideration of the rents to be

paid and the covenants and agreements hereinafter mentioned to be

pe»y.'?ormed by Lessee, does hereby lease and demise to Lessee the

premises situated In the Town of Cheshire, County of New Haven,

State of Connecticut, with all the buildings and Improvements to be,

constructed thereon, bounded and described as set forth In Schedule A

attached hereto and made a part hereof (hereinafter referred to as

thij "Premises"), to have and to hold the Premises together with

the buildings and Improvements to be situated thereon, and the rights,

privileges, and appurtenances thereunto belonging or appertaining

which Lessor represents to comply with zoning, building and use

regulations and restrictions for Lessee's purpose all upon the terms

and conditions hereinafter set/ forth.

Lessor and Lessee each hereby covenant and agree as follows t

*-o the extent that such covenants pertain to them:

(2) CONSTRUCTION

Lessor shall at his own cost cause to be constructed

Exhibit i.

V

I

upon the Premises a building containing approximately 65,780 square

feet, In accordance with building plans and specifications as more

particularly shown on Schedule B attached hereto and made a part

hereof and approved by Leaf.or and Lessee, it being understood and

agreed that:

(a) Any paving which may be required shall be

done when weather permits and paving materials become available;

(b) No change In the plans and specifications

approved by Lessor and Lessee as aforesaid shall be made without

a written change order approved by Lessor and Lessee. If such

change results In an Increase or decrease In the cost of construction,

the rent which Lessor shall pay to Lessee shall be increased or

decreased as provided in Paragraph lj(a) hereof.

(3) OCCUPANCY

Lessee shall take possession of the Premises when

the Improvements thereon are substantially completed. At any

time prior to the substantial completion of said Improvements,

Lessee may, with the written consent of Lessor, occupy any part of

the Premises upon agreeing to pay the rent hereinafter specified,

prorated on the basis of the number of square feet of the building

occupied. Upon taking possession of the entire Premises, Lessee

shall deliver to Lessor its written acceptance of the Premises, as

improved, provided that said premises comply with the plans and

specifications attached hereto as Exhibit B, as changed from time

to time pursuant to Paragraph 2(b) hereof, and William Austin, the

architect, has so certified.

(1|) TERM AND RENT

The term of this Lease shall be a period of twenty

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(20) years (hereinafter referred to as the "Primary. Term")

Germane ing on the day the aforesaid building is substantially

completed so that it is suitable for use and occupancy by Lessee

as herein provided. In the event Lessee occupies a part of the

Premises prior to the commencement of the term of this Lease,

all of the applicable terms and conditions of this Lease, except

for the commencement of the twenty (20) year term hereof as

aforesaid, shall thereupon become operative.

(a) Commencing on the first .day of the Primary

Term Lessee shall pay an annual rent for the Premises of $63,l4?0.00

plus 10.6$ of the direct and indirect costs of constructing the

items set forth in Exhibit C attached hereto and made a part

hereof payable in equal monthly installments in advance on or before \

the first day of each calendar month; provided that (i) if the direct

and indirect costs to Lessor for plumbing, heating, ventilation, i

air conditioning and electric apparatus and all work affiliated

with the construction thereof as required by said plans and

specifications exceeds $103,000^00 and/or Lessor, at the request

of Lessee, erects or places mechanical apparatus, falling within

said categories, in said building not required by said plans and

specifications, the annual rent shall be increased by an amount

equal to 10.6̂ of any such direct and "indirect costs in excess

of $103,000.00 plus the direct and indirect costs, if any, to

Lessor to erect or place such mechanical apparatus not required by

such plans and specifications in said building (such increase, if

any, in said annual rent being herein-after referred to as "rent

for mechanical apparatus"); and/or (ii) if Lessee makes changes

in the plans and specifications as set forth in Paragraph 2(b)

hereof which'result in increasing or decreasing the direct and

-3

http:103,000.00http:63,l4?0.00

1 • V

indirect cost of construction of the building to be erected on

the Premises the annual rent to be paid by Lessee to Lessor in

accordance with this sub-paragraph (a) shall be Increased or de

creased, as the case may be, by an amount equal to 10.6$ of said

increase or decrease in said cost.- It is understood and agreed

by the parties hereto that the Lessee shall have the right to pay

for all or any part of (x) the direct or indirect costs of such

mechanical apparatus which will result in an increase In s&id

rent as set forth in (i) above, or (y) the direct or indirect costs

arising out of any changes In the plans and specifications as set

forth in (ii) above or (z) the -direct or indirect costs of the

iterss set forth In Schedule C provided that it gives notice to

Lessor, within two weeks after receipt from Lessor of notice of

such direct or indirect costs, in which event said rent shall not

be Increased with respect to the iter^s for which Lessee pays. It

is further understood and agreed by the parties hereto tha- Lessor

is engaging Michael Contracting Co., Inc. to construct the items

which nay increase the rent of $63,14.70. and Lessee agrees that it

shall be entitled to the customary 10fo contractor's profit which

profit shall be considered a part of the direct and indirect costs

upon which any such increase shall be based. Said annual rent of

$63,l;70.00 as the same may be so increased or decreased in accord

ance with this subparagraph (a) is hereinafter referred to as "net

basic annual rent." In the event that the net basic annual rent

Is so increased or decreased as hereinabove provided the monthly ,̂ _̂

- f

have been approved in writing by Lessee. If Lessee fails to so

approve or disapprove such bid or bids within two weeks after the

same have been received by it, such bid or bids shall be deemed

to have been approved;

(b) If Lessee's obligation to pay rent commences

on other than the first day of a calendar month, rent for the

portion of the month during which such obligation commences shall

be payable on a prorated per diem basis on the first day of the

calendar month immediately succeeding the day such obligation

commences and rent for the calendar month during which the lease

term ends shall be similarly prorated, if for a portion of i.

month, on the first day of the calendar month during which such

term ends;

(c) Rent shall be paid to MICHAEL J. LEKBO, 135-20

39th Avenue, Flushing Sk> ̂ ew York, ot to such assignee or other

nominee as Lessor may direct by written notice to Lessee.

(5) EASEMENTS

Lessor reserves the right to grant such easements

and to cause such improvements to be' placed upon the Premises as

Lessor may deem necessary or desirable in connection with the

installation of utilities to serve both the Premises and other

premises of Lessor, whether now owned or hereafter acquired by

him, including but not restricted to power, gas, telephone, water,

storm and sanitary sewers and the like, provided, however, that no

easements shall be granted which will unreasonably interfere with

the construction of the building to be erected by Lessor as afore

said or the use by Lessee of the Premises. In connection with the

installation of said utilities or in connection with the erection

-14 A

of any additions to the building to be erected on the Premises

pursuant to Paragraph/ 22 «•*•£$- hereof, Lessor, his agent or any

independent contractors hired by him, may keep and store upon the

Premises all necessary materials, tools and equipment. Lessor

shall not in any event be liable for inconvenience, annoyance,

disturbance, loss of business or other damage to Lessee by reason

of making such improvements, and the obligations of Lessee under

this Lease shall not thereby be affected in any manner whatsoever.

Lessor agrees, however, in connection with the doing of such

work to cause as little inconvenience, annoyance, disturbance,

loss of business or other damage to Lessee as may be reasonably

possible in the circumstances. I

(6) TAXES, ASSESSMENTS, UTILITIES, INSURANCE AND REPAIRS

(a) During the term of this Lease, Lessee shall

pay as additional rent all charges, taxes, assessments, special or

otherwise, cost of maintenance, and other expenses of every kind

and nature levied upon or incurred in connection with the Premises

(hereinafter called "imposition"), except for the payment of

principal and interest on any loan secured by the Premises or an

assignment of this Lease, it being understood and agreed that the

only expense that Lessor shall pay in connection with the Premises

shall be any such principal and interest and that the Lessee shall

pay all other expenses in connection with the Premises including

without limiting the foregoing:

(i) All real estate taxes, assessments, sewer

rents or charges, water rates and charges of every kind and nature

before any fine, penalty, interest or cost is added thereto or any

lien is placed upon the Premises for the non-payment thereof,

-5

laid, assessed, levied, or imposed upon or which become due and

payable or a lien upon the Premises or any part thereof, all of

which taxes, assessments, water rates or charges, levies and other

charges are hereinafter referred to as the "taxes", provided,

however, that if by law, any of the taxes are payable or may at the

option of the taxpayer be paid in installments whether or not

interest shall accrue on the unpaid balance of such taxes, Lessee

may pay the same together with any accrued interest on the unpaid

balance of such taxes in installments as each such installment becomes

due and before any fine, penalty or cost may be added thereto for

the non-payment of any such installment and interest. Any of the

taxes for the fiscal period in which the Lessee takes possession

under the terms hereof, and for the fiscal year in which this Lease

terminates, shall be apportioned between Lessor and Lessee as of the

date Lessee takes possession of the Premises or the date of the ter

mination of this Lease, as the case may be. Lessee shall deliver

to Lessor receipted bills for all such taxes not later than sixty

(60) days after such taxes shall become due;

(ii) All charges for utilities of every kind and

description, including without limiting the .foregoing, gas, water,

sewer rents or charges, electricity, light, heat or power, telephone

or other communication service used, rendered or supplied upon or

in connection with the Premises throughout the term of this Lease,

and Lessee agrees to indemnify Lessor and save him harmless against

any liability or damages in connection therewith. From and after

final completion of the building, Lessee shall, at its sole cost

and expense, procure any and all necessary permits, licenses or other

authorizations required for the lawful and proper installation and

-6

maintenance upon the Premises of wires, pipes, conduits, tubes and

other equipment and appliances for use in supplying any such

utility to and upon the Premises, which may be required subsequent

to completion of the building;

(iii) The cost and expense of (x) keeping all

buildings erected upon the Premises, equipment and fixtures

therein, the direct or. indirect cost of which are included in the

basis for determining the amount of the net basic annual rent,

insured for the benefit of Lessor and Lessee in an amount equal

to 100$ of the full replacement cost of such buildings, equipment

and fixtures against loss or damage by fire, lightning, windstorm,

hail, explosion, riot and civil commotion, damage from aircraft

and vehicles and smoke damage and such other risks, as Lessor and/or

any mortgagee may reasonably request,: or as Lessee may desire, as

are or shall be customarily covered with respect to buildings

similar in construction, general location, use and occupancy to

the building on the Premises, all of which policies of insurance shall

contain mortgagee's loss payable endorsements as requested; (y) main

taining rent insurance in favor of Lessor; and (z) maintaining, for

the mutual benefit of Lessor and Lessee, general public liability

insurance against claims for personal injury, death or property

damage occurring upon, in or about the Premises, or any elevators

or escalators therein, and on, in or about the adjoining streets

and passageways, such insurance to afford protection to the limit

of not less than $300,000.00 in respect to injury or death to a

single person, and to the limit of not less than $1,000,000.00

in respect to any one accident, and to the limit of not less than

$100,000.00 in respect of property damage and steam boiler insurance

on all steam boilers, pressure boilers or other such apparatus as

-7

http:100,000.00http:1,000,000.00http:300,000.00

Lessor may deem necessary to be covered by such insurance and

in such amount or amounts as Lessor may from time to time reasonably

require. All of such policies of insurance (x) shall provide that

the proceeds thereof shall be payable to Lessee and Lessor as

their respective interest may appear and, to the extent obtainable,

that any loss shall be payable notwithstanding any act or negligence

of Lessee which might otherwise result in the forfeiture of said

insurance, and that the insurance company issuing the same shall have

no right of subrogation against Lessee or Lessor; and (y) may be

written in companies presently underwriting blanket policies on

properties owned or leased by Lessee or the guarantor of this

Lease or any other companies, satisfactory to Lessor, which may

be writing insurance with respect to such properties in the future,

it being understood that any such companies must be authorized to i

do business in the State of Connecticut, and certificates evidencing

coverage of all such insurance policies shall be delivered to

Lessor not less than ten (10) days prior to the expiration of any

then current policy, together with evidence satisfactory to

Lessor that the premiums thereon have been paid;

(iv) All costs and expenses, (x) to take good

care of the Premises, including the buildings and improvements

now existing or at any time hereafter erected thereon, the equipment,

fixtures, motors and machinery thereof, the parking areas, sidewalks,

fences and vaults, if any, and the sanitary septic system and the

water system for domestic use; (yj to keep the same in good order

and condition; and (z) to promptly make all necessary repairs,

interior and exterior, structural and non-structural, ordinary as

well as extraordinary, foreseen as well as unforeseen, except that

-8

the Lessor at Lessor's expense shall, during the first two years

of the Primary Term, make all structural repairs and all repairs

resulting from defective material or workmanship which appear

during said two year period. The term "repairs" shall include

replacements or renewals when necessary, and all such repairs made

by Lessee shall be equal in quality and class to the original work.

At the termination of this Lease, Lessee shall surrender the

Premises in the same condition as when received except for ordinary

wear and tear from use of the Premises for the purposes provided

herein; provided, however, that alterations, changes or improvements

in the Premises by Lessee hereunder may be left in the condition in

which they existed at the time of the installation of the same, and

such alterations, changes or improvements shall become the property

of Lessor unless removed by Lessee as herein provided. i

(b) All work done in connection with any repairs

or alterations shall be done in a good and workmanlike manner and

in compliance with building and zoning ordinances, and with all

other applicable laws, orders, ordinances, rules, regulations and

requirements of all Federal, State and Municipal Governments or

appropriate departments, commissions, boards and officers thereof,

and in accordance with the rules, orders and regulations of the Fire

Underwriters. In making any such repairs Lessee covenants and agrees

that it will not permit any mechanic's lien or liens to be placed

upon the Premises or any building or improvements thereon, and in

case of the filing of any such lien Lessee shall promptly discharge

the same, unless Lessee in good faith contests the claims pursuant

to which any such lien is filed, provided that Lessee ahall furnish

security satisfactory to Lessor for the payment of such claims

-9

while legal proceedings contesting the same are pending;

(c) Lessor shall have the right at all reasonable

times by his duly authorized agents, to go upon and Inspect the

demised premises during regular business hours and after notice,

In writing, to Lessee specifying the time and date when auch

Inspection Is desired, the purposes thereof and the persons who

will be making the same, and Lessor may make demand In writing

upon Lessee to make any necessary repairs to the Premises. In

the event that Lessee shall fall to make any such repairs promptly

after notice by Lessor, Lessor may enter upon the Premises and

cause such repairs to be made, and charge the cost thereof to

Lessee as additional rent with all the rights and remedies herein

after provided for the collection of rents. Nothing herein shall

Imply any duty upon the part of the Lessor to do any such work

which, under any provision of this Lease, Lessee may be required

to perform and the performance thereof by Lessor shall not

constitute a waiver of Lessee's default In falling to perform the

same. Lessor may, during the progress of any work on the Premises,

keep and store upon the Premises all necessary materials, tools

and equipment. Lessor shall not In any event be liable for

Inconvenience, annoyance, disturbance, losa of business or other

damages to Lessee by reason of making repairs or the performance

of any work In the Premises during the course thereof, and the

obligation of Lessee under this Lease shall not thereby be affected

In any manner whatsoever. Lessor agrees, however, In connection

with the doing of any such work^ to cause as little Inconvenience,

annoyance, disturbance, loss of business or Other damage to Lessee

as may reasonably be possible under the circumstances;

(d) If Lessee shall at any time fall to pay any

-10

taxes or Imposition which It Is obligated to pay under the terms

hereof, or to maintain or deliver any of the Insurance policies

herelnabove provided for, or to make any other payment or to perform

any other act on Its part to be made or performed as In the Lease

provided, then Lessor may, but shall not be obligated so to do, and

without waiving or releasing Lessee from any such obligations, pay

any such taxes or Imposition, effect any such Insurance coverage

and pay the premiums therefor and make any other payment or perform

any other act on the part of Lessee to be made, done or performed,

as required herein and In exercising such rights or any of them,

pay necessary and Incidental costs and expense, Including reasonable

attorneys1 fees and all such sums so paid by Lessor, together with

all necessary and Incidental costs and expenses In connection

therewith, shall be deemed additional rent hereunder and shall

be payable to Lessor on demand or, at the option of Lessor, may

be added to any basic net rent then due or to become due, and the

same may be collected by Lessor with all the rights and remedies

provided in the case of default or non-payment of the basic rent;

(e) All other provisions of this Lease to the

contrary notwithstanding, Lessee shall not be required and the

Lessor shall have no right to pay, discharge or remove any taxes

or Imposition upon or against the Premises, or any part thereof

or the Improvements at any time situated thereon so long as

Lessee shall In good faith and with due diligence contest the

same or the validity thereof by appropriate legal proceedings

which shall have the effect of preventing the collection of any

such taxes or Imposition BO contested or the sale or forfeiture of

the Premises or any part thereof, Interest therein, or the

-11

Improvements at any time situated thereon, provided that pending

any such legal proceedings Lessee shall furnish security satisfactory

to the Lessor for the payment of any such taxes or Imposition,

pending the diligent prosecution of any such legal proceedings;

(f) In the event that Lessee at any time elects to

contest payment, by Institution of suit or otherwise, of any such

taxes or Imposition, Lessee shall have the right to do so, at Its

sole expense,-In Lessor's name, In which event Lessee covenants and

agrees to Indemnify Lessor and save him harmless from and against

all costs, charges or liabilities In connection with any such suit.

All funds recovered as a result of any such suit shall belong to

Lessee.

• (7) ALTERATIONS

Lessee shall have the right to make such non-structural

alterations, Improvements or additions to the demised premises, such

as erecting partitions, cages, shelves or benches or the changing

or Installation of electrical, compressed air, steam or other lines

or outlets, "needed. In connection with the use of the Premises,

described herein, without the consent of Lessor, but subject to the

consent of mortgagee If required, provided Lessor Is given prior

written notice of such alterations and provided further that no

alterations, Improvements or additions to the Premises exceeding

$10,000 In cost shall be made by Lessee without the prior written

consent of Lessor, which consent will not be unreasonably withheld.

All alterations, improvements additions or fixtures installed by

Lessee upon the Premises shall remain upon the Premises at the

; i

expiration or sooner termination of this Lease and become the

property of Lessor, unless Lessor by written notice requires Lessee

-12

to remove the same, except such fixtures or Improvements, other

than those in replacement of fixtures or improvements originally

installed by Lessor, that can be removed without (i) structural

damage to the Premises which Is so extensive that the restoration

work required below cannot be completed within a reasonable time,

and (ii) reduction in the value of the Premises, excluding, however,

from such value the value of any alterations, Improvements or addi

tions thus removed by Lessee hereunder. In the event that Lessee

may and does or is required by Lessor to remove any such fixtures

or improvements, Lessee shall place the Premises in the same condi

tion as they were In prior to the installation or placemen-; thereof

except for changes In such condition due to ordinary wear and tear

resulting from the use of the premises for the purposes provided

herein. Lessor may require, as a condition for his consent to the

. making of any alterations, additions or improvements, to the

Premises (i) proof of the procurement of all municipal and other

governmental permits for such alterations, additions or improvements;

(ii) approval of Lessor of detailed plans and specifications for any

alterations, additions or improvements involving structural changes,

which approval shall not be unreasonably withheld; (ill) satisfactory

guarantee against mechanics' liens; and (iv) In connection with the

caking of such alterations, additions or improvements, proof of

workmen's compensation, public liability and property damage insurance

in amounts and in companies satisfactory to Lessor. In making any such

alterations, additions or improvements, Lessee shall not permit any me

chanic's lien or liens to be placed upon the Premises or any building or

improvements thereon, and in case of the filing of any such lien Lessee

shall promptly discharge the seme unless Lessee In good faith contests

the claims pursuant to which any such lien is filed and provided

that Lessee shall furnish security satisfactory to Lessor for

-13

the payment of such claims while legal proceedings contesting the

same a're pending.

(8) TTSE

(a) The Premises shall be used and occupied by

Lessee only for the purpose of the development, manufacture, sale,

packaging and storage of various products and all activities

connected therewith or relating thereto;

(b) At all times during the term of this Lease

Lessee shall, at its own cost and expense, comply with all

ordinances, rules, laws, requirements, regulations, orders and

notices of all governmental authorities having Jurisdiction over

the Premises including but not limited to licenses, sanitary and

health requirements, police regulations, fire prevention, nuisances,

and the rules, regulations and orders of the National Board of

Fire Underwriters or other similar body exercising similar functions

affecting the Premises and will make all changes, structural or

otherwise, necessary to effect conformity to such ordinances, rules,

laws, requirements, regulations, orders and notices, and will keep

and save Lessor harmless from any penalties, damages or charges

imposed or incurred for any violation of all said ordinances, rules,

laws, requirements, regulations, orders and notices;

(c) Lessee will not use or occupy the Premises or any

part thereof in such manner that the building or improvements

erected thereon will not be insurable by a responsible insurance

company or companies against loss or damage as required by

Paragraph 6(a)(iii) hereof;

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(d) It shall be Lessee's sole obligation to obtain

all licenses, permits and franchises required for its use of the

Premises and no failure to obtain such, nor any revocation by

any governmental authority or otherwise of any such license,

permit or franchise heretofore granted by any such governmental

authority for the benefit of the Premises shall in any manner

affect this Lease or diminish the amount of rent or any charge

payable by Lessee hereunder;

(e) Anything ordered or required to be done or

omitted to be done upon or about the Premises and/or the buildings

and improvements thereon, regardless of the governmental source

Issuing such order, shall be performed and fulfilled at the sole

expense and responsibility of the Lessee and without any expense,

liability or obligation whatsoever to or on the Lessor.

(9) DISPLAY OF SIGNS

Lessor is hereby given the right, during usual

business hours, to enter the Premises and to exhibit the same

to prospective purchasers subject to Lessor giving Lessee prior

written notice as required in Paragraph 6(c) above before !

exhibiting said Premises to prospective purchasers or tenants.

Lessee shall have the exclusive right to affix any sign or notice

of reasonable size and form to any part of the outside or inside

of said Premises necessary or Incidental to its use and occupancy

thereof, the conduct of operations thereon, or advertising its

name or products, provided such signs or notices shall comply

with all regulations and restrictions applicable thereto.

-15

(10) RESPONSIBILITY OF LESSEE

(a) Lessee agrees to Indemnify and save harmless

Lessor against and from any and all claims by or on behalf of any

person or persons, firm or firms, corporation or corporations,

arising from the conduct or management of or from any work or

thing whatsoever, done In or.about the Premises, and to further

Indemnify and save Lessor harmless against and from any and all

claims arising during the term of this Lease from the Premises,

or any vaults, passageways or spaces therein or appurtenant

thereto, or arising from any breach or default on the part of

Lessee In the performance of any covenant or agreement on the part

of Lessee to be performed pursuant to the terms of this Lease, or

arising from any act or negligence of Lessee, or any of Its

agents, contractors, servants, employees or licensees, or arising

from any accident, Injury or damage whatsoever caused to any

person, firm or corporation occurring during the term of this

Lease In or'about the Premises, or upon or under the sidewalk

and the land adjacent thereto, and from and against all costs,

counsel fees, expenses and liabilities Incurred In or about any

such claim or action or proceeding brought thereon, and In case

any action or proceeding be brought against Lessor by reason of

any such claim, Lessee, upon notice from Lessor, covenants to

resist or defend such action or proceeding;

(b) Lessor agrees, as an exception to the foregoing,

-16

during the first'two years of the Primary Term, to indemnify and

save harmless Lessee to the same extent as is above provided in

this Paragraph, against and from any and all claims resulting

from structural defects or defective materials or workmanship

which appear during said two year period and from and against all

costs, counsel fees, expenses and liabilities incurred in or about

any such claim or action or proceeding brought thereon, and in case

any action or proceeding be brought against Lessee by reason of

any such claim, Lessor, upon notice from Lessee, covenants to resist

or defend such action or proceeding;

(c) Neither Lessor nor his agents shall be liable

for damages to Lessee nor to any person claiming through Lessee

(nor shall rent be abated) for injury to person or damage to or

loss of property, unless such claim arises from such act or

omission constituting negligence by Lessor, his agents or

employees.

(11) FIRE AND OTHER CASUALTY

Lessee covenants and agrees to give prompt notice

to Lessor of damage to or destruction of the building upon the

-17

Premises by fire or other casualty. Lessee covenants that in

case of damage to or destruction of the building on the Premises,

or of the fixtures and equipment thereof, by fire or otherwise

during the Lease term, Lessee shall promptly at its sole cost

and expense, repair, restore and rebuild the same as nearly as

possible to the condition said building was in immediately prior

to such damage or destruction. .

(a) All insurance money recovered by Lessor on

account of such damage or destruction other than money recovered

on account of the rent insurance required under Paragraph 6(a)

(iii)(y) hereof, less the cost, if any, .to Lessor of such

recovery, shall be paid out upon architect's certificates for the

expense of repairing or rebuilding the building or improvements

which have been damaged or destroyed, and upon completion of

said repairs or rebuilding free from all liens of mechanics and

materialmen and others, any surplus of insurance moneys shall

be paid to the Lessee;

(b) Lessee's obligation to make payment of the

net basic annual rent, and all other charges on the part of Lessee i

to be paid, and to perform all other covenants and agreements by

Lessee to be performed, shall not be affected by any such damages

to or destruction of the building on the Premises by fire or

otherwise, except that said rent shall abate until said building

has been repaired or rebuilt as aforesaid, by the amount received

by Lessor on account of the rent insurance required by Paragraph

6(a)(iii)(y) hereof. Lessee otherwise waiving any provisions of the

law now or hereafter in effect to the contrary.

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(12) EMINENT DOMAIN

(a) If during the term hereof all of said

Premises or a substantial part thereof shall be taken under power

of eminent domain or otherwise by any person, authority or corporation,

public, private or otherwise and/or title is acquired to the whole

or any part of the Premises, so that Lessee is unable to thereafter

continue its operations on the Premises as they were being conducted

at the time of such taking, or acquisition, then the Lessor and

the Lessee shall each have the option to terminate this Lease,

by giving written notice.thereof to the other, whereupon this

Lease shall immediately cease and terminate at the time when the

party condemning or acquiring the Premises or such part thereof,

shall have the right to possession of the same, and the rent provided

for hereunder shall be apportioned and adjusted as of the time of

such termination. If a dispute shall arise between Lessor and

Lessee as to whether or not a taking of a part of the Premises

results in the Lessee being unable to thereafter continue its

operations on the Premises as they were being conducted at the

time of such taking, such dispute shall be submitted to arbitration

in accordance with the then existing rules of the American Arbitration

Association; '

(b) If this Lease is terminated as a result of any

such taking as provided in sub-paragraph (a) of this Paragraph 12,

Lessee shall have the right subject to the following provisions

of this sub-paragraph (b), to that part of any damages assessed

for the taking of the Premises or any -part thereof equal to the

sum of (i) the value of its leasehold, plus (ii) the value of any

improvements, alterations or changes made by Lessee (including

add it ions)in or to the Premises to the extent that such improvements,

alterations or changes increase the value of the Premises at the

time of such condemnation and do not form'a part of the basis

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for determining the rent being paid at the time of such taking,

plus (iii) the cost of removing, moving and reinstalling Lessee's

machinery, equipment, inventory,supplies and other property and

any other cost of moving its operations or any part thereof to

another location within twenty (20) miles of the Premises (said)

values and coats being hereinafter collectively referred to as

"Lessee^ Damages"), all as agreed to by Lessee and Lessor or in

default of auch agreement as determined by the Court or Courts

hearing the matter, notwithstanding the foregoing, Lessee shall

not be entitled to Lessee's Damages unless (i) it presents evidence

relating to such values and costs in the course of the hearing

or hearings to establish damages resulting from such taking or

in settlement negotiations relating to such damages; (ii) Lessee's

Damages are taken into account in the determination of such

damages; (iii) the Court or Courts hearing the matter specifically

(x) holds that the damages finally awarded to Lessor are in

excess of the damages which otherwise would have been awarded to

Lessor except for the rights and interest hereinabove granted to

Lessee; and (y) determines the amount of such excess; (iv) in the

case of a total taking, Lessor receives damages at least equal

to the option price set forth in Paragrah 21̂ . hereof as said option

price would have been determined if Lessee's option were executed

on the date of such condemnation; and (v) in the case of such a

partial taking entitling the Lessor or Lessee to terminate this

Lease as provided in sub-paragraph (a) above the Lessor receives

damages as a result of such taking in'an amount equal to said option

price less the value, if any, of any remaining land or buildings

not so taken. Except for sum which Lessee is entitled to as

aforesaid for Lessee's Damages, all sums recovered or awarded for

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such taking of all or a portion of the Premises or for damages for

such taking shall belong to Lessor, and Lessee shall have no

interest in or claim to any such award or any part thereof except

as aforesaid whether such award shall be for the taking of all or

a portion of the Premises or for damages or otherwise. Without

prejudice to the rights and interests of the Lessee granted in this

Paragraph 12 during the pendency of any hearing to determine said

damages, Lessor shall have the sole right, subject to the interest

of any mortgagee but to the exclusion of Lessee, to withdraw any

monies deposited by the condemning authority in the Court or Courts

hearing such matter;

(c) Lessor shall notify Lessee in writing of any

such proceedings, pertaining to or in any way involving the

Premises, and Lessee shall have the right to participate fully

in all phases of said condemnation proceedings and negotiations

relative to the same to protect its rights and Interests hereunder

and to secure the highest possible assessment of damages resulting

from the taking and all sums recovered or awarded on the basis of

such rights and interests of the Lessee determined as aforesaid

shall belong to and be payable to Lessee. Lessor shall cooperate i

with Lessee in every way reasonably possible, without Jeopardizing

his own rights, in the attainment of such objectives and in the

exercise and realization of such rights and interests;

(d) In the event only a portion of the Premises,

including a portion of the buildings thereon, shall be taken In

any such condemnation or other proceedings, and the remaining

portion of the improvements are suitable for the Lessee to thereafter

continue its operations -on the Premises as they were being conducted

at the time of such taking or acquisition, Lessor shall, with all

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reasonable dispatch, repair the remaining portion of the building

so affected and restore -such remaining portion as a building, complete

in itself, as a complete architectural unit so as to put such building

in condition to be used by Lessee as herein provided, provided that

Lessor's obligation to so repair and restore such building shall

be limited to the amount of any damages received by him in said

condemnation or other proceeding, and the rent payable hereunder

shall be reduced proportionately according to the reduction in the

space and area of the Premises leased hereunder which results from

said partial taking or acquisition. In the event Lessor shall not

commence such work within ten (10) days after such physical taking,

and shall not complete such work within sixty (60) working days

after the commencement of such work, then this Lease, at the

option of Lessee, shall cease and terminate, but Lessor shall not

be responsible for any delay which may result from labor strikes,

governmental regulations, inability to obtain labor or materials,

or any other cause beyond Lessor's control, and in such event the

date .of completion shall be extended by the period of interruption.

Union labor shall be used where required to avoid strike. During

any such repair work Lessee shall be required to pay rental in the

proportion that the portion of the Premises remaining in tenantable

condition bears to the entire Premises.

(13) INTERRUPTION OF USE

Lessor shall not be liable for any damage, compensa

tion or claim by reason.of inconvenience, annoyance, or interruption

in the use of the Premises arising from the necessity of repairing

any portion of the building thereon, whether caused by fire or

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http:reason.of

any other cause, or from the termination of this Lease pursuant to

any of the provisions hereof.

(Ill) ASSIGNMENT AND SUBLETTING

Lessee nhall have no right, except with the prior

written approval of Lessor, which shall not be -unreasonably withheld,

to assign this Lease, except in connection with a statutory merger

or consolidation or in connection with a sale of all or substantially

all of the assets of Lessee in a transaction which qualifies as a

reorganization within the meaning of the Internal Revenue Code

provided that the net worth of any such assignee in such case

shall be not less than the net worth of the Lessee immediately

prior to such merger, consolidation or reorganization, but Lessee

may sublet the Premises in whole or in part without approval of

Lessor. In the event of any assignment, letting or subletting,

Lessee shall remain liable to Lessor for the performance of all

obligations imposed on Lessee hereunder, and each such assignee

or sub-lessee shall be jointly and severally bound with Lessee to

abide by the terms of this Lease and shall assume all such

obligations in writing.

(a) Lessor shall have the right to sell, assign, i

transfer, set. over and convey all •£ his right, title and interest F̂

in and to this Lease, including the rent to accrue hereunder.

(15) RE-ENTRY UPON DEFAULT

(a) Lessee covenants and agrees to and with Lessor

that any one or more of the following events shall be considered

events of default as said term is used herein, it being further

understood and agreed that as used in sub-paragraphs (i) through

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(iv) of this Paragraph l5(a) the term "Lessee" shall mean and

'shall include both the Lessee and the Guarantor of this Lease,

that is to say if:

(i) Lessee shall be adjudged a bankrupt or

a decree or order approving as properly filed a petition or answer

asking reorganization of the Lessee under the Federal Bankruptcy

Laws, as now or hereafter amended, or under the laws of any state,

shall be entered, and any such decree or judgment or order shall

not have been vacated or stayed or set aside within sixty (60)

days from the date of the entry or granting thereof; or

(ii) Lessee shall file, or admit the Juris

-23 A

diction of the court and the material allegations contained in,

any petition in bankruptcy or any petition pursuant, or purporting

to be pursuant to the Federal Bankruptcy Lavs, as how or hereafter

amended, or Lessee shall institute any proceedings or shall give

its consent to the institution of any proceedings for any relief

of Lessee under any bankruptcy or insolvency laws, or any laws

relating to the relief of debtors, readjustment of indebtedness,

reorganization, arrangements, composition or extension; or

(iii) Lessee shall make any assignment for the

benefit of creditors or shall apply for or consent to the appoint

. ment of a receiver for Lessee or any of the property of Lessee; or

(iv) A decree or order appointing a receiver of

the property of Lessee shall be made and such decree or order shall

not have been vacated, stayed or set aside within sixty (60) days

from the date of the entry or granting thereof; or

(v) Lessee shall vacate the Premises or

abandon the same during the term thereof; or

(vi) Lessee shall make default in any monthly

payments of the net basic annual rent required to be made by the

Lessee hereunder when due as herein provided and such default shall I

continue for fifteen (15) days after written notice of such default

has been given to Lessee by Lessor, or any assignee of Lessor; or

(vii) Lessee shall make default in any of the

other covenants or agreements herein contained to be kept, observed

and performed by Lessee, and such default shall continue thirty

(30) days after written notice thereof,specifying in detail

the claims of default, has been given to Lessee by Lessor or any

assignee of Lessor or if such default or defaults cannot be cured

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In thirty (30) days, If Lessee has not commenced the curing of the

same and is not proceeding diligently to do all work required to

cure the default or defaults as hereinafter provided.

(b) Upon the occurrence of any of the events of

default set forth in sub-paragraph (a) of this Paragraph (l£) and

the continuance of any such default for the period, if any, specified

therein with respect thereto, Lessor shall have the right to file

a claim for and collect the rent for the entire unexpired balance

of the then current term of this Lease as well as for all other

charges, payments, costs and expenses herein agreed to be paid

. by Lessee;

(c) Upon the occurrence of any one or more of the

events of default set forth in sub-paragraph (a) of this Paragraph

(15), and the continuance of any such default for the period, if

any, specified therein, it shall be lawful for Lessor, at his

election, to declare the said term ended, and to re-enter the

Premises and the buildings and improvements then situated thereon

or any part thereof, either with or without process of law, and

to expel, remove and put out Lessee and all persons occupying

all or any part of the Premises under Lessee, using such force I

as may be necessary in so doing, and again to repossess and

enjoy as in his first and former estate the Premises and the

buildings and improvements then situated thereon without such

declaration of the ending of the term, or such re-entry and

repossession working a forfeiture of the rents to be paid and the

covenants to be performed by the Lessee during the full Lease term.

If default shall be made In any covenant, agreement, condition or

undertaking herein contained to be kept, observed and performed by

.-25

Lessee, ether than the payment of rent as herein provided, which

cannot with due diligence be cured within a period of thirty (30)

days, and if notice thereof in writing shall have been given to

Lessee, and if Lessee prior to the expiration of thirty (30) days

from and after the giving of such notice commences to eliminate the

cause of such default and proceed diligently and with reasonable

dispatch to take and do all work required to cure such default and

does so cure such default, then Lessor shall not have the right

to declare the said term ended by reason of such default; provided,

however, that the curing of any default in such manner shall, not

be construed to limit or restrict the right of Lessor to decla