EXHIBIT 10.11
XXXXXXXX GROUP LLC COMMERCIAL LEASE
1. PARTIES: Xxxxxxxx Group LLC, a Massachusetts limited liability company
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located at 000 Xxxxxxxx Xxxx Xx., Xxxxxxx XX., LESSOR, which expression shall
include its successors and assigns where the context so admits, does hereby
lease to ACCESS Radiology Corporation, a Delaware corporation located at 000
Xxxxx Xx. Xxxxxx XX 00000, LESSEE, which expression shall include its
successors, and assigns where the context so admits, and the LESSEE hereby
leases the following described Premises:
2. PREMISES: Twenty-five Thousand, Four Hundred and Four (25,404) sq. ft.,
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more or less, (the "Leased Premises") in the LESSOR'S Building located at 00
Xxxxxxxx Xxx. Xxxxxxxxx XX, including exclusive use of building and grounds as
shown on Exhibit A, "Floor Plan", attached hereto. Appurtenant to the Premises
the LESSEE shall have the right to use access ways, driveways, walkways and any
other facilities necessary for access to or beneficial use of the Leased
Premises.
LESSEE shall have exclusive right to use parking spaces in the parking
areas adjacent to the Buildings on the site.
The Leased Premises shall be delivered as built out by the LESSOR to
LESSEE's requirements. See Exhibit B, "Buildout Obligations" for obligations of
each party, cost allowance to LESSEE, and contingencies.
3. TERM: The term of this lease shall be for five (5) years commencing on the
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later of December 1, 1997 or the Commencement Date (defined below) and ending on
November 30,2002.
The Commencement Date shall be the date of completion of the LESSOR's work
and fit up of the Lease Premises. ne LESSOR's work shall be deemed complete upon
issuance of a certificate of occupancy for the Premises by the Town of Lexington
MA.
4. RENT: The LESSEE shall pay to LESSOR rent at the rates per year, shown
below, which rent shall be payable in advance in the monthly installments shown
below on the first day of each month.
Years Annual Rent Mo. Rent $/SF Rate
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1-5 $549,234.00 $45,770.00 $21.62
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5. SECURITY DEPOSIT: Upon the execution of this lease, the LESSEE shall pay
to the LESSOR the amount of $137,310.00, which shall be held as a security for
the LESSEE's
performance as herein provided and promptly refunded to the LESSEE at the end of
this lease subject to the LESSEE'S satisfactory compliance with the conditions
hereof. In the alternative, the Security Deposit may consist of cash of
$45,770.00 and a line of credit assurance equal to two months rental rate, which
is due upon the occupancy. Such a line of credit may be reduced by one half at
the end of the thirty sixth month of the term and discharged upon conclusion of
the forty-eighth month of the lease term.
6. RENT ADJUSTMENT:
A. TAX ADJUSTMENT
In each tax year commencing in fiscal tax year 1998 (the fiscal year ending
June 30, 1998), the real estate taxes on the land and building which
comprise the Leased Premises, including any increase in value attributable
to the LESSEE's improvements, LESSEE shall pay all such real estate taxes
in excess of the base year ending June 30, 1997, as additional rent.
LESSEE will pay such real estate taxes to LESSOR as additional rent
hereunder, when and as designated by notice in writing by LESSOR. Such
real estate taxes shall be paid as may occur in each year of the term of
this lease or any extension or renewal thereof and proportionately for any
part of a fiscal year. LESSOR'S demand shall be accompanied by a copy of
the applicable tax xxxx or bills and a statement showing the manner of
calculation of LESSEE'S proportionate share of such taxes. If the LESSOR
obtains an abatement of any such real estate tax, such abatement, less the
reasonable fees and costs incurred in obtaining the same, if any, shall be
refunded to the LESSEE. LESSEE may itself, seek review of the assessed
valuation of the Leased Premises, or otherwise seek abatement of real
estate taxes in any year in which the LESSOR declines to seek such review
or reduction, provided it shall do so at its own cost or expense.
For purposes of this adjustment the fiscal year 1997 tax rate shall be
$1.43 per square foot, or $35,752.50 for the land and building, as-is.
LESSEE shall not be required to pay any income, profits, excise,
franchise, estate, succession, inheritance or transfer taxes of LESSOR or any
other party.
B. OPERATING COSTS:
The LESSEE shall pay to the LESSOR as additional rent hereunder within
thirty (30) days after notice in writing by LESSOR, any increases in
Operating Costs, below, in excess of Operating Costs incurred during, the
calendar year 1998. LESSOR'S demand shall be accompanied by a statement of
the applicable operating costs and a statement showing the manner of
calculation of LESSEE'S share of such costs. In the event LESSEE wishes
verification of the costs and its share, LESSOR will present substantiation
of charges, if requested, authorize its' independent C.P.A. to provide
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certification of the statement and charges to the LESSEE, and LESSEE shall
bear the expense of the C.P.A. certification. In the alternative, LESSEE
may at its own expense audit LESSOR's books and records with respect to
operating costs (but only as regards this particular property, and not of
any other property or other affiliates of LESSOR). The operating costs
increase shall be prorated should this lease be in effect with respect to
only a portion of any calendar year, or which pertain to less than a fully
occupied building. Operating Costs are defined for the purpose of this
agreement as:
Maintenance Expenses of LESSOR for building structure, building
systems and exterior grounds.
Management Expenses (allocated at Five (5%) percent of gross rent)
Premiums for Casualty and public liability Insurance
Exceptions to Operating Costs are defined in Exhibit E.
C. BUILDING ACCESS
The LESSEE shall have unlimited access to the Building without charge.
7. UTILITIES: The LESSEE shall pay, as they become due, all bills for
electricity, water and sewer use and other utilities (whether they are used for
furnishing heat, cooling or other purposes) that are furnished to the Leased
Premises and which are separately metered. The LESSOR agrees to provide utility
services to the Leased Premises, all subject to interruption due to any
accident, to the making, of repairs, alterations, or improvements, to labor
difficulties, to trouble in obtaining, fuel, electricity, service, or supplies
from the sources from which they are usually obtained for said building, or to
any cause beyond the LESSOR'S control, provided LESSOR shall make reasonable and
diligent efforts to restore service in the event of any such disruption.
LESSOR shall have no obligation to provide utilities or equipment other
than the utilities and equipment within the premises as of the Commencement Date
of this lease which include the HVAC now serving the Leased Premises. In the
event LESSEE requires additional utilities or equipment the installation and
maintenance thereof shall be the LESSEE's sole obligation, provided that such
installation shall be the subject to the written consent of the LESSOR
8. USE OF LEASED PREMISES: The LESSEE shall use the Leased Premises only for
the purposes of general office and light manufacturing, storage and any other
lawful use.
9. COMPLIANCE WITH LAW: The LESSEE acknowledges that no trade or occupation
shall be conducted in the Leased Premises or use made thereof which will be
unlawful, improper, noisy or offensive, or contrary to any law or any municipal
by-law or ordinance in force in the Town of Lexington in which the premises are
situated. LESSEE shall not be responsible to make
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alterations, installations, additions or improvements to the Leased Premises
required by applicable law except if required due to improvements installed by
or special or extraordinary uses by LESSEE.
10. FIRE INSURANCE: The LESSEE shall not permit any use of the Leased
Premises which will make voidable any insurance on the property of which the
Leased Premises are a part, or on the contents of said property or which shall
be contrary to any law or regulation from time to time established by the New
England Fire Insurance Rating Association, or any similar body succeeding to its
powers. The LESSEE shall on demand reimburse the LESSOR, and all other tenants
all extra insurance premiums caused by the LESSEE's use of the premises.
11. MAINTENANCE:
A. LESSEE's Obligations
The LESSEE agrees to maintain the Leased Premises in as good condition
as at the beginning of the term, fair wear and tear and damage by fire and
other casualty excepted. Also excepted are elements which are LESSOR's
obligation to maintain hereunder. LESSEE, whenever necessary, shall replace
plate glass and other glass therein. Upon occupancy the LESSEE acknowledges
that, except for agreed exceptions or any latent defects, the Leased
Premises are then in good condition as at Lease execution, and the glass
whole. The LESSEE shall not permit the Leased Premises to be overloaded,
damaged, stripped, or defaced, nor suffer any waste. LESSEE shall obtain
written consent of LESSOR before erecting any sign on the exterior of the
Leased Premises, which consent shall not be unreasonably withheld or
delayed. LESSEE shall be responsible for replacement of expendable items,
such as lamps and ballast, and repair of damage to doors, walls, glass and
decor within the Leased Premises, and for cleaning of and trash removal
from the Leased Premises. LESSEE's obligations under this clause are
subject to and subsequent to the LESSOR's obligations under Exhibit B,
hereto, "Build Out Obligations"
X. XXXXXX'x Obligations
The LESSOR agrees to maintain, repair and replace, if necessary,
elements of the structure, roof, foundation, and exterior of the building
of which the Leased Premises are a part, and the Building's HVAC,
mechanical, electrical, plumbing facilities and fire protection facilities,
and the parking lot, exterior lighting, exterior window frames of the
building, in the same condition as it is at the commencement of the term or
as it may be put in during the term of this lease, but in any event in
good, clean, tenantable and working order, condition and repair, reasonable
wear and tear, damage by fire and other casualty only excepted (subject to
the provisions of Section 18, below), unless such maintenance is required
because of the LESSEE or those for whose conduct the LESSEE is legally
responsible. LESSOR shall maintain access ways and common areas of the land
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in neat and orderly condition including clearance of snow and ice in the
walk ways and parking lot.
12. ALTERATIONS/ADDITIONS: Subsequent to the commencement Date LESSEE may make
no alterations and additions to the Leased Premises except as the LESSOR
consents thereto in writing. Provided, however, that LESSEE may make changes up
to $2,500.00 in value without prior approval of the LESSOR. Any such allowed
alterations shall be at LESSEE'S expense and shall be in quality at least equal
to the approved construction. LESSEE shall not permit any mechanics' liens, or
similar liens, to remain upon the Leased Premises for labor and material
furnished to LESSEE or claimed to have been furnished to LESSEE in connection
with work of any character performed or claimed to have been performed at the
direction of LESSEE and shall cause any such lien to be released of record
forthwith without cost to LESSOR. Any alterations or improvements made by the
LESSEE shall become the property of the LESSOR at the termination of occupancy
as provided herein. However, in the event LESSEE's wishes to install trade
fixtures, improvements, alterations, installations, such fixtures and equipment
which shall remain the LESSEE's property and shall be removed by LESSEE upon
termination of the Lease, with the prompt repair by LESSEE of any and all
damages occasioned by their removal. To confirm the foregoing, LESSEE will
submit its plans for any alteration or improvement to LESSOR in writing before
installation with a request for approval of removal at LESSEE'S expense upon
termination of this lease, and LESSOR'S approval of such request, shall be on
the condition that LESSEE shall restore and repair all damages caused by the
removal.
13. ASSIGNMENT SUBLEASING: The LESSEE shall not assign or sublet the whole or
any part of the Leased Premises without LESSOR'S prior written consent which
shall not be unreasonably withheld or delayed. Notwithstanding such consent,
LESSEE shall remain liable to LESSOR for the payment of all rent and for the
full performance of the covenants and conditions of this Lease. However, LESSEE
may, without obtaining such consent, make an assignment to any successor in
interest by way of merger or other reorganization, (except bankruptcy
reorganization), "going public" or "going private" transaction or acquisition of
substantially all the assets or stock of LESSEE, or an assignment of leasehold
fights as a component of security interest for a reputable financing
institution.
14. SUBORDINATION:
A. General Provision
This lease shall be subject and subordinate to any and all mortgages,
deeds of trust and other instruments in the nature of a mortgage, now or
any time hereafter, which may constitute a lien or liens on the property of
which the Leased Premises are a part and the LESSEE shall, when requested,
promptly execute and deliver such written instruments as shall be necessary
to show the subordination of this lease to said mortgages, deeds, of trust
or other such instruments in the nature of a mortgage, provided, however,
that the mortgagee executes and delivers to LESSEE a non-disturbance and
recognition
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agreement providing in substance that should the mortgagee or any party
holding by, through on under the mortgagee (including without limitation
any purchaser at foreclosure) acquire title to the property, then, as long
as LESSEE is not in default, beyond any notice or grace period, the
mortgagee or such other party shall recognize this Lease and not disturb
LESSEE's rights hereunder.
B. Special Provision
So long as an affiliate or a related party to the LESSOR holds a
mortgage on the real property at 00 Xxxxxxxx Xxx. this Lease shall have
priority over any such mortgage.
15. LESSOR'S ACCESS: The LESSOR or agents of the LESSOR may, at reasonable
times and upon appropriate notice, (normally one day's prior notice) enter to
view the Leased Premises and may remove placards and signs not approved and
affixed to the exterior of the Leased Premises as herein provided, and make
repairs and alterations as LESSOR should elect to do. The LESSOR may show the
Leased Premises to others, and at any time within six (6) months before the
expiration of the term, may affix to any suitable part of the lease premises a
notice for letting or selling the Leased Premises or property of which the
Leased Premises are a part and keep the same so affixed without hindrance or
molestation. LESSOR shall use best effort to minimize inconvenience and
interference with LESSEE and LESSEE's business operations.
16. INDEMNIFICATION & LIABILITY: The LESSEE shall save the LESSOR harmless from
all loss and damage occasioned by the use or escape of water or by the bursting
of pipes occasioned by the LESSEE's negligence or failure to adequately heat the
Lease Premises, or by any nuisance made or suffered on the Leased Premises,
unless such loss is caused by the neglect of the LESSOR. The removal of snow and
ice from the sidewalks bordering upon the Leased Premises shall be LESSOR'S
responsibility. LESSOR shall save the LESSEE harmless from loss or damage
occasioned by acts or omissions of the LESSOR, its employees or agent agents.
17. LESSEE'S LIABILITY INSURANCE: a) The LESSEE shall maintain with respect to
the Leased Premises and the property of which the Leased Premises are a part
comprehensive public liability insurance in the amount of $1 million Combined
Single Limit, and property damage insurance in the amount of the value of the
replacement of LESSEE's personal property and improvements, in responsible
companies qualified to do business in the state. The LESSEE shall deposit with
the LESSOR certificates for such insurance at or prior to the commencement of
the term, and thereafter within (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide that such policies shall
not be canceled without at least ten (10) days prior written notice to each
assured named therein, b) All fire and property casualty insurance which either
party carries with respect to the building, Leased Premises or any property
therein, whether or not required, shall include provisions which deny to the
insurer acquisition by subrogation of rights of recovery against the other party
to the extent such rights have been waived by the insured party prior to
occurrence of loss, insofar as and to the extent that such
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provisions may be effective without making it impossible to obtain insurance
coverage from responsible companies qualified to do business in the Commonwealth
of Massachusetts (even though extra premium may result therefrom). In the event
that any extra premium is payable by either party as a result of this provision,
the other party shall reimburse the party paying such premium the amount of such
extra premium. If at the request of one party, this non subrogation provision is
waived as to such party, then the obligation of reimbursement by such party
shall cease for such period of time as such waiver shall be effective. Each
party shall be entitled to have duplicates or certificates of any policies
containing such provisions.
Each party hereby waives all rights of recovery against the other for loss
or injury against which the waiving party is protected by insurance containing
said non-subrogation provisions, reserving, however, any rights with respect to
any excess of loss or injury over the amount recovered from such insurance.
18. FIRE, CASUALTY AND EMINENT DOMAIN: Should fifty (50%) percent or more of
the Leased Premises, or the property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by eminent domain, the LESSOR may
elect to terminate this lease. If the LESSOR does not elect to terminate, or if
the damage is less than fifty (50%) percent of the Leased Premises or of the
property, LESSOR shall then diligently restore the building, property and Leased
Premises to substantially their condition at the inception of the Lease, as soon
as reasonably possible. When such fire, casualty, or taking renders the Leased
Premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the LESSEE, may elect to
terminate this lease if:
(a) the LESSOR fails to give written notice within thirty (30) days of the
fire, casualty or taking of intention to restore Leased Premises, to the
condition existing at inception of the lease, and before LESSEE's improvements,
or
(b) the LESSOR fails to restore the Leased Premises to the condition
substantially the same as at inception of the Lease within on hundred and eighty
(180) days of said fire, casualty or taking, or
(c) the LESSOR's restoration cannot be completed eighteen months or more
prior to the end of the Term of the Lease
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the Leased Premises for any taking
by eminent domain, except for damage to the LESSEE's fixtures, improvements,
additions, property, or equipment.
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19. LATE PAYMENT, DEFAULT AND BANKRUPTCY:
A. LATE PAYMENT: LESSEE agrees that because actual damages for a late
payment or a dishonored check are difficult to fix or ascertain, but recognizing
that damage and injury result therefore, LESSEE agrees that if payments of rent
and other obligations are not received in hand by LESSOR five (5) business days
after the date payment is due, LESSEE agrees to pay liquidated damages of
$100.00 plus 18% per annum on the delinquent amount from the due date. LESSEE
agrees to pay a liquidated damage of $25.00 for each dishonored check. In the
event that two or more of the LESSEE's checks are dishonored in a 12 month
period, the LESSOR, in addition to other Rights, shall have the right to demand
payment by Certified Check or Money Order.
B. DEFAULT AND BANKRUPTCY: In the event that (a) the LESSEE shall default
in the payment of any installment of rent or other sum herein specified and such
default shall continue for five (5) days after written notice by LESSOR, or (b)
the LESSEE shall default in the observance or performance of any other of the
LESSEE's material covenants, agreement; or obligations hereunder and such
default shall not be corrected within thirty (30) days after written notice
thereof from LESSOR, of if such default is not susceptible to cure within thirty
days, in the event the LESSEE shall fail to commence to cure within the thirty
days or thereafter diligently to prosecute such cure to completion; or (c) the
LESSEE shall be declared bankrupt or insolvent according to law, or, if any
assignment shall be made of LESSEE's property for the benefit of creditors, then
the LESSOR shall have the right thereafter, while such default continues, to re-
enter and take complete possession of the Leased Premises, to declare the term
of this lease ended, and remove the LESSEE's effects, without prejudice to any
remedies which might be otherwise used for arrears of rent or other default. The
LESSEE shall indemnify the LESSOR against all loss of rent and other payments
which the LESSOR may incur by reason of such termination during the residue of
the term. LESSOR shall make reasonable efforts to relet the Leased Premises, and
net rents received by the LESSOR shall be credited to the LESSEE's obligations
hereunder. If the LESSEE shall default, after reasonable notice thereof, in the
observance or performance of any conditions or covenants on LESSEE's part to be
observed or performed under or by virtue of any of the provisions in any article
of this lease and shall fail to cure such default within the applicable cure
period, then the LESSOR, without being under any obligation to do so and without
thereby waiving such default, may remedy such default for the account and at the
expense of the LESSEE. If the LESSOR makes any expenditures or incurs any
obligations for the payment of money in connection therewith, including but not
limited to, reasonable attorney's fees in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations insured, with interest
at the rate of 12 per cent per annum and costs, shall be paid to the LESSOR by
the LESSEE as additional rent.
20. NOTICE: Any notice from the LESSOR to the LESSEE relating to the Leased
Premises or to the occupancy thereof, shall be deemed duly served, if delivered
in hand at the Leased Premises addressed to the LESSEE, or if mailed to the
Leased Premises, registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSEE. Any notice from the LESSEE to the LESSOR
relating to the Leased Premises or to the occupancy thereof, shall be deemed
duly served, if mailed to the LESSOR by registered or certified mail, return
receipt
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requested, postage prepaid, addresses to the LESSOR at such address as the
LESSOR may from time to time advise in writing. Until such advice all rent shall
be paid and all notices sent to the LESSOR at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxx XX
00000. All Notices under this Lease shall be in writing.
21. SURRENDER: The LESSEE shall at the expiration or other termination of this
lease remove all LESSEE'S goods and effects from the Leased Premises,
(including, without hereby limiting the generality of the foregoing all signs
and lettering affixed or painted by the LESSEE, either inside or outside the
Leased Premises). LESSEE shall deliver to the LESSOR the Leased Premises and all
keys, locks thereto, and subject to the provisions of Section 12, above, the
fixtures connected therewith and all alterations and additions made to or upon
the Leased Premises, in good condition, fair wear and tear, damage by fire or
other casualty and elements which are the LESSOR's responsibility to maintain
and repair excepted. In the event of the LESSEE's failure to remove any of
LESSEE's property from the premises, LESSOR is hereby authorized, without
liability to LESSEE for loss or damage thereto, and at the sole risk of LESSEE,
to remove and store any of the property at LESSEE's expense, or to retain same
under LESSOR's control or to sell at public or private sale, without notice, any
or all of the property not so removed and to apply the net proceeds of such sale
to the payment of any sum hereunder, or to destroy such property.
22. BROKERAGE: The Brokers named herein, Xxxxx Xxxxx of the Leggat Company and
Xxxxxx Xxxxx of Xxxxx & Xxxxx, warrant that they are duly licensed as such by
the Commonwealth of Massachusetts.
LESSOR agrees to pay the above named Broker(s) upon the term commencement
date a fee for professional services as agreed between LESSOR and Brokers under
a separate agreement.
Each party represents and warrants that it has not retained or dealt with
any other broker or brokers in connection with this Lease, and each party agrees
to indemnify, defend and save harmless the other party from any claims for fees
or commissions arising out of its dealings with any other broker with respect to
this Lease.
24. QUIET ENJOYMENT: LESSOR covenants and agrees that upon paying rent and
performing all the covenants and conditions of the Lease LESSEE shall and may
peacefully and quietly have, hold and enjoy the Lease Premises for the term
specified, subject to the terms of the Lease.
25. OTHER PROVISIONS: It is also understood and agreed that:
a. The attached Commercial Lease Addendum and the following Exhibits are
incorporated by reference:
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Exhibits: A. Layout of Leased Premises
B. Buildout Obligations
C. INTENTIONALLY OMITTED
D. INTENTIONALLY OMITTED
E. Exclusions from Operating Expenses
b. LESSEE shall have a Five Year option to extend the term of the Lease at
market rates prevailing at the time of exercise of such option(s) for Class B
office space. Such option shall be exercised by written notice to LESSOR no less
than six months prior to the expiration of the then current term. See Addendum
Part D for procedure.
x. XXXXXX reserves the right to expand the premises on the site of the
Lease Premises. Plans for any contemplated expansion shall be reviewed with
LESSEE for purpose of avoiding limitation in access or use by LESSEE. In no case
will any expansion of the building occur during the term of the Lease without
the express written assent of the LESSEE. In the event of such expansion, LESSOR
agrees to construct such additional facilities in a manner which is intended to
minimize inconvenience or interruption of LESSEE's use. In the event of such
expansion LESSEE shall have right of first refusal on the expansion space. In
the event of such expansion and the lease of such expanded facilities to a third
party, a just apportionment of real estate taxes and operating expenses shall
apply to the LESSEE's obligations under clauses 6 "Rent Adjustment", 7. "
Utilities" and 11. "Maintenance", above.
x. XXXXXX approval of LESSEE requests, under any provisions of this Lease,
shall not be unreasonably withheld or delayed. Such requests must be in writing.
LESSOR shall respond to requests for approval under any provisions of this lease
within ten business days of receipt of a written request. Failure to respond
within ten days of receipt of a written request from the LESSEE shall be deemed
approval.
e. At the request of either, the parties shall mutually execute and deliver
a notice of lease in recordable form pursuant to Massachusetts General Laws,
Chapter 183, Section 4, and either party may record such notice in the
applicable registry of deeds.
f. If at any time the level of VOC's in the building reach a level which
presents a health hazard to the occupants, LESSOR will, at its expense, take all
necessary actions to xxxxx such condition. The LESSOR shall xxxxx any asbestos
in the building, either by removal or by encapsulation.
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IN WITNESS WHEREOF, the said parties hereunto set their hand and seal as of
this 26th day of September, 1997.
ACCESS RADIOLOGY CORPORATION XXXXXXXX GROUP LLC
LESSEE LESSOR
______________________ _________________________
Xxxxxx X. Xxxxx, Xx.
Member Manager
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