EXHIBIT 10.95
LEASE AGREEMENT
YOUNG ELECTRIC SIGN COMPANY
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LANDLORD
BIOMUNE SYSTEMS, INC.
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TENANT
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
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PREMISES
STANDARD COMMERCIAL LEASE
THIS LEASE, (the "lease") is made and entered into this 8th day of July,
1996, by and between Young Electric Sign Company, a Utah corporation,
hereinafter called "Landlord," and Biomune Systems, Inc., a Nevada corporation,
hereinafter called "Tenant."
W I T N E S S E T H:
In consideration of the covenants and promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed by the parties hereto as follows:
I. DEMISED PREMISES:
1. Landlord hereby leases to Tenant that real property (the "Premises")
more fully described on Exhibit "A" attached hereto and incorporated herein by
reference for the term and upon the rental herein set forth. The Premises
consists of approximately 5,000 square feet of that certain building containing
approximately 23,500 square feet, located at 0000 Xxxxxxxx Xxxxx in Salt Lake
City, State of Utah. (See attached Exhibit "A".)
2. Tenant shall have the right to reasonable use of the common and parking
areas in conjunction with other tenants of the building.
II. TERM:
1. Length of Term. By this Lease, Landlord leases the Premises unto Tenant
for a term of three (3) years beginning on the 1st day of October, 1996, and
ending on the 30th day of September, 1999 (the "Lease Term").
2. Delivery of the Premises. If Landlord fails to deliver possession of the
Premises ready for occupancy, at the commencement of the Lease Term, for any
reason beyond Landlord's control, Landlord shall not be liable for any damage
caused thereby, nor shall this Lease become void or voidable, nor shall the
Lease Term be extended. In such event no rental shall be payable by Tenant to
Landlord for that portion of the Lease Term prior to the time Landlord can
deliver possession of the Premises to Tenant ready for occupancy by Tenant.
However, in the event the Premises are not completed and ready for occupancy by
October 1, 1996, Tenant, at its option, may cancel this Lease by written notice
to Landlord, and no damages shall accrue or be claimed by either party as a
result of such cancellation or the reasons therefore.
III. TERMS AND CONDITIONS OF LEASE:
This Lease is made on the following terms and conditions, which are
expressly agreed to by Landlord and Tenant:
1. RENT: Tenant agrees to pay as rental to Landlord, at the address
specified in item 27 below, or at such other place as Landlord may from time to
time designate in writing, the sum of (see below in this paragraph) to be lawful
money of the United States, due and payable on the first day of each month, in
advance, and according to these additional terms:
$7,500 per month, beginning October 1, 1996 and ending September 30,
1997;
$7,875 per month, beginning October 1,1997 and ending September 30,
1998; and
$8,268.75 per month, beginning October 1, 1998 and ending September
30, 1999.
A. LATE CHARGES: In the event Tenant fails to make any payments of rent to
Landlord under this Lease on the due date or within ten (l0) days thereafter, a
late charge of two percent (2%) per month of the delinquent rent shall be added
to said rent and paid to Landlord together therewith.
B. DEPOSIT: Tenant shall pay a $10,000, fully refundable security depositas
a condition of this Lease Agreement.
2. AUTHORIZED USE: Tenant shall use the Premises for the following purpose,
and for no other purpose whatsoever, without the express written consent of
Landlord, which consent shall not unreasonably be withheld: Typical office and
lab use.
A. WASTE: Tenant shall not commit or permit any waste of the Premises or
use the same for any unlawful purpose. Tenant will comply with all material
laws, ordinances, regulations and rules pertinent to the use of and disposal of
hazardous wastes and all other applicable federal, state and local laws,
ordinances and regulations relating to the Premises and its use and operation.
3. CONDITION OF THE PREMISES: Tenant accepts the Premises in the condition
existing at the time Tenant takes possession. Tenant agrees that if, during the
Lease Term, Tenant changes the usual method of conducting its business on the
Premises, or installs thereon or therein any new facilities, Tenant will, at the
sole cost and expense of Tenant, make whatever alterations or improvements in or
to the Premises as may be required by reason of any federal or state law, or by
any municipal ordinance or applicable regulation.
4. INSURANCE:
A. Fire Insurance on Tenant's Fixtures. At all times during the Lease Term,
Tenant shall keep in force at its sole cost and expense, fire insurance and
extended coverage with companies reasonably acceptable to Landlord, equal to the
replacement cost of Tenant's improvements, trade fixtures, furnishings,
equipment, and contents upon the Premises, and naming Landlord as an additional
insured. The insurance company must be approved by Landlord in writing, which
approval shall not unreasonably be denied, and a copy of the policy or a
certificate of insurance shall be delivered to Landlord.
B. Liability Insurance. Tenant, at its sole expense, shall, during the
Lease Term, keep in full force and affect a policy of public liability and
property damage insurance with respect to the Premises, the business operated by
Tenant, on the Premises, and any subtenants, concessionaires, or licensees of
Tenant at or operating on the Premises, with coverage of not less than $500,000
per person and $l,000,000 per occurrence and with limits of property damage
liability coverage of not less than $l00,000 per accident or occurrence. The
insurance policy shall name Landlord, any person, firms, or corporations
designated by Landlord, and Tenant as insured. The insurance policy shall be
with an insurance company approved by Landlord, in writing, which approval shall
not unreasonably be denied, and a copy of the policy or a certificate of
insurance shall be delivered to Landlord.
5. REPAIR AND CARE OF THE PREMISES AND IMPROVEMENTS:
A. Tenant agrees to keep the interior of the Premises and the improvements
on the Premises in good condition, ordinary wear, tear, and damage by the
elements excluded.
6. REPAIR OF BUILDING BY LANDLORD: Landlord agrees for the term of this
Lease Term, to maintain in good condition and repair the exterior walls, floor
joists, roof, and foundations of the Premises, and to commence repairs to the
plumbing, electrical, heating and air conditioning systems as well as any
repairs necessitated by any damage that might result from acts of Landlord or
Landlord's representatives. Landlord shall not, however, be obligated to repair
any such damage until written notice of the need of repair has been given to
Landlord by Tenant and, after such notice is so given, Landlord shall have a
reasonable time (not to exceed ten (10) days) in which to make such repairs.
Additionally, Landlord will employ at its sole cost a nightly (five times a
week) janitorial firm to clean and maintain the premises. Landlord will also be
responsible for the care and condition of all common areas inside and outside of
the building in
which the Premises is a part.
7. ALTERATIONS OF BUILDING AND INSTALLATION OF FIXTURES AND OTHER
APPURTENANCES: Tenant may, with written consent of Landlord, which consent shall
not be unreasonably withheld or delayed, but at Tenant's sole cost and expense,
in a good and workmanlike manner make such alterations and repairs to the
Premises as Tenant may require for the conduct of its business without, however,
materially altering the basic character of the building or improvements on the
Premises. Tenant shall be allowed to reconfigure all tenant owned furniture and
items of personal property. Tenant shall have the right, with the written
permission of Landlord, to erect, at Tenant's sole cost and expense, such
temporary partitions, including office partitions, as may be necessary to
facilitate the handling of Tenant's business, and to install telephone and
telephone equipment and wiring and other trade appliances. Any permanent
alterations or improvements to the Premises, shall, at the option of Landlord,
become the property of Landlord, at the expiration or sooner termination of this
Lease. Should Landlord request Tenant to remove all or any part of the above
mentioned items, Tenant shall do so prior to the expiration of this Lease and
repair the Premises as described below. Temporary shelves, bins, and machinery
installed by Tenant shall remain the property of Tenant and may be removed by
Tenant at any time. At the expiration or sooner termination of this Lease, or
any extension hereof, Tenant shall remove said shelves, bins and machinery and
repair, in a good and workmanlike manner, any damage occasioned by such removal.
8. ERECTION AND REMOVAL OF SIGNS: Tenant may, if building policy permits,
place suitable signs on the Premises for the purpose of indicating the nature of
the business carried on by Tenant in the Premises; provided, however, that such
signs shall be in keeping with other signs in the district where the Premises
are located; and provided, further, that such signs and their proposed locations
shall be approved by Landlord prior to their erection, which approval shall not
unreasonably be denied. Signs shall be removed prior to the expiration of the
Lease Term and any damage to the Premises caused by installation or removal of
signs shall be repaired at the expense of Tenant. All work shall be competed in
a good and workmanlike manner.
9. GLASS: Tenant agrees to promptly replace all glass in the Premises if
broken or damaged during the Lease Term, with glass of the same quality as that
broken or damaged; provided, however, that Tenant shall not be responsible for
replacing any glass in the Premises that is broken or damaged by Landlord or its
agents, representatives, customers or clients.
10. RIGHT OF ENTRY BY LANDLORD: Tenant shall permit inspection of the
Premises during reasonable business hours by Landlord or Landlord's agents or
representatives for the purpose of ascertaining the condition of the Premises
and in order that Landlord may make such repairs as may be required to be made
by Landlord under the terms of this Lease. Landlord may post suitable notice on
the Premises that the same are "For Rent" and may show the Premises to
prospective tenants at reasonable times. Landlord may not however, thereby
unnecessarily interfere with the use of the Premises by Tenant.
11. ASSIGNMENT AND SUBLETTING: Neither this Lease nor any interest herein
may be assigned by Tenant voluntarily, involuntarily or by operations of law.
Neither all nor any portion of the Premises shall be sublet by Tenant without
the written consent of Landlord; however, Landlord agrees not to withhold its
consent unreasonably for Tenant to sublet the Premises or any portion of the
Premises. In the event the Premises should be sublet, as herein provided, at an
increased rental, fifty percent (50%) of said increase shall be paid to Landlord
by Tenant as additional rental, after Tenant's costs of said subletting have
been recouped from such additional rents.
12. DAMAGE OR DESTRUCTION: If the Premises or any part thereof shall be
damaged or destroyed by fire or other casualty, Landlord shall promptly repair
all such damage and restore the Premises without expense to Tenant, subject to
reasonable delays due to adjustment of insurance claims, strikes and other
causes beyond Landlord's reasonable control. If such damage or destruction shall
render the Premises untenantable in whole or in part, the rent shall be abated
wholly or proportionately as a percentage of the total square footage of the
Premises, as the case may be until the damage shall be repaired and the Premises
restored. If the damage or destruction shall be so extensive as to require the
substantial rebuilding (i.e., expenditure of fifty percent (50%) or more of
replacement cost of the building in which the Premises Landlord or Tenant may
elect to terminate this Lease by written notice to the other given within thirty
(30) days after the occurrence of such damage or destruction. Landlord and
Tenant hereby release each other from responsibility for loss or damage
occurring on or to the Premises or any improvements thereon, caused by fire or
other hazards covered by fire or extended coverage insurance policies and each
waives all rights of recovery against the other for such loss or damage. Willful
misconduct contributing to the casualty shall not be excused under the foregoing
release and waiver.
13. INDEMNIFICATION: Tenant agrees to indemnify and hold harmless, Landlord
and Landlord agrees to indemnify and hold harmless Tenant from any and all
claims of any kind or nature arising from Tenant's or from Landlord's respective
use of the Premises during the Lease Term, and Tenant hereby waives all claims
against Landlord for damage to goods, wares, merchandise or for injury to
persons in and upon the Premises from any cause whatsoever, except such as might
result from the negligence of Landlord or Landlord's agents, representatives,
customers or clients or from the failure of Landlord to perform its obligations
hereunder within a reasonable time after notice in writing by Tenant requiring
such performance by Landlord.
14. SURRENDER OF PREMISES: Tenant agrees to surrender the Premises at the
expiration of the Lease Term, any extension thereof, or sooner termination, in
the same condition as when the Premises were delivered to Tenant, or as altered
pursuant to the provisions of this Lease, ordinary wear, tear and damage by the
elements excepted. Tenant shall remove all of its personal property from the
Premises.
15. HOLDOVER: Should Landlord permit Tenant to holdover the Premises or any
part thereof after the Lease Term, then and unless otherwise agreed in writing,
such holding over shall constitute a tenancy from month-to-month only, and shall
in no event be construed as a renewal of this Lease, and all provisions of this
Lease not inconsistent with a tenancy from month-to-month shall remain in full
force and effect. The reasonable rental for the month-to-month tenancy shall be
set by the Landlord within l0 days after Landlord receives notice from Tenant of
its intention to continue to occupy the Premises.
16. QUIET ENJOYMENT: If and so long as Tenant pays the rents required by
this Lease and performs and observes all the covenants and provisions hereof,
Tenant shall quietly enjoy the Premises, subject, however, to the terms of this
Lease, and Landlord will warrant and defend Tenant in the enjoyment and peaceful
possession of the Premises throughout the Lease Term and any extensions thereof.
17. WAIVER OF COVENANTS: The failure of either party to enforce the
provisions of this Lease shall not constitute a waiver unless specifically
stated in writing, signed by the party whose rights are deemed waived,
regardless of the party's knowledge of a breach hereunder.
18. DEFAULT: If Tenant shall default in any of the covenants and conditions
hereof (except in payment of rent), Landlord may, at its option, after thirty
(30) days prior written notice to Tenant, make performance for Tenant and for
that purpose advance such amounts as may be reasonably necessary. Any amounts so
advanced, or any such expense incurred, or sum of money paid by Landlord by
reason of the failure of Tenant to comply with any covenant, obligation or
provision of this Lease, or in defending any action to which Landlord may be
subjected by reason of any such failure, shall be deemed to be additional rent
for the Premises and shall be immediately due and payable to Landlord.
The acceptance by Landlord of any installment of fixed rent, or of any
additional rent due under this Lease, shall not be a waiver of any other rent
then due or of the right to demand the performance of any other obligation of
Tenant under this Lease. Interest shall be paid to Landlord on all sums advanced
by Landlord at an interest rate of eighteen per cent (l8%) per annum.
If Tenant shall default in any of the covenants or conditions of this lease
(other than the covenants for the payment of rent or other amounts) and any such
default shall continue for a period of thirty (30) days after written notice,
Landlord may, at its option, terminate this Lease by giving Tenant written
notice of such termination and, thereupon, this Lease shall expire as if it were
the completion of the Lease Term. Tenant shall immediately quit the Premises.
19. EVENTS OF DEFAULT; REMEDIES:
1. DEFAULT BY TENANT: Upon the occurrence of any of the following events,
Landlord shall have the remedies set forth in Section 19.2 of this Lease:
(a) Tenant fails to pay any rental due hereunder within ten (10) days
after the same shall be due.
(b) Tenant fails to perform any other term, condition, or covenant to
be performed by it pursuant to this Lease within thirty (30) days after
written notice of such default shall have been given to Tenant by Landlord.
(c) Tenant or any guarantor of this Lease shall become bankrupt or
insolvent or file any debtor proceedings or have taken against such party
in any court pursuant to state or federal statute, a petition in bankruptcy
or insolvency, reorganization, or appointment of a receiver or trustee; or
Tenant petitions for or enters into an arrangement; or suffers this Lease
to be taken under a writ of execution.
2. REMEDIES: Upon the occurrence of any event set forth in Section 19.1,
Landlord shall have the option to take any or all of the following actions,
without further notice or demand of any kind to Tenant or any other person:
(a) Collect by suit or otherwise each installment of rent or other sum
as it becomes due hereunder, or enforce, by suit or otherwise, any other
term or provision hereof on the part of Tenant required to be kept or
performed.
(b) Terminate this Lease by written notice to Tenant. In the event of
such termination, Tenant agrees to immediately surrender possession of the
Premises. Should Landlord terminate this Lease, Tenant shall have no
further interest in the Premises, and Landlord may recover from Tenant all
damages it may incur by reason of Tenant's default, including (i) the cost
of recovering the Premises, (ii) reasonable attorneys' fees, and (iii) all
rentals due for the period prior to the breach, plus the whole of the
remaining unpaid rentals to become due in the future, which shall, without
notice, accelerate and, subject to reasonable mitigation of damages, be
immediately due and payable.
(c) Should Landlord reenter, as provided above, or should it take
possession pursuant to legal proceedings or pursuant to any notice provided
for by law, and whether or not it terminates this Lease, Landlord may relet
the Premises to any party for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and
upon such other terms and conditions as Landlord may in good faith
reasonably deem advisable. Upon each such reletting all lease payments
received by Landlord from such reletting shall be applied, at Landlord's
election, first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including reasonable brokerage fees and
reasonable attorneys' fees and costs of any reasonable alterations and
repairs; third, to the payment of rent due and unpaid hereunder, and the
residue, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable. If such rentals received from
reletting during any month are less than that to be paid to Landlord by
Tenant pursuant to this Lease during such month, Tenant shall pay the
deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such reentry and reletting of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant pursuant to subsection
(b) above, or unless the termination of this Lease is decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous default.
(d) If Landlord defaults in any of its responsibilities, outlined in
this Lease Agreement, and after a reasonable number of days have passed
without Landlord curing default, Tenant may, at its option, cure the
default and seek the cost of curing with Landlord.
The remedies given to Landlord in this Section 19.2 shall be in addition
and supplemental to all other rights or remedies Landlord may have in law or at
equity.
20. ATTORNEYS' FEES: In the event either party shall enforce the terms of
this Lease by suit or otherwise, the party at fault shall pay the costs and
expenses of the other party incident thereto, including a reasonable attorney's
fee.
21. FAILURE TO PERFORM COVENANT: Any failure on the part of either party to
this Lease to perform any obligation hereunder, other than Tenant's obligation
to pay rent, and any delay in doing any act required hereby shall be excused if
such failure or delay is caused by any strike, lockout, governmental restriction
or any similar cause beyond the reasonable control of the party so failing to
perform, to the extent and for the period that such continues.
22. RIGHTS OF SUCCESSORS AND ASSIGNS: The covenants and agreements
contained in this Lease will apply to, inure to the benefit of, and be binding
upon the parties hereto, their heirs, executors, administrators, legal
representatives, assigns, and upon their respective successors in interest
except as expressly otherwise hereinabove provided.
23. TIME: Time is of the essence of this Lease.
24. LIENS: Tenant agrees not to permit any lien for monies owing by Tenant
to remain against the Premises for a period of more than thirty (30) days
following discovery of the same by Tenant unless Tenant is formally and
aggressively contesting the payment of the same in good faith. Except as
provided in the immediately preceding sentence, should any such lien be filed
and not released or discharged within thirty (30) days after discovery of the
same by Tenant, Landlord may at Landlord's option (but without any obligation so
to do) pay and discharge such lien and likewise pay and discharge any taxes,
assessments or other charges against the Premises that Tenant is obligated
hereunder to pay and that may or might become a lien on the Premises. Tenant
agrees to repay any sum so paid by Landlord upon written demand therefor.
25. CONSTRUCTION OF LEASE: Words of any gender used in this Lease shall be
held to include any other gender, and words in the singular number shall be held
to include the plural when applicable, and vice versa.
26. PARAGRAPH HEADINGS: The paragraph headings as to the contents of a
particular paragraph herein, are inserted only for convenience and are in no way
to be construed as part of such paragraph or as a limitation on the scope of the
particular paragraph to which they refer.
27. NOTICES: It is agreed that all notices required or permitted to be
given hereunder shall be deemed sufficient if given by a communication in
writing by United States mail, postage prepaid and certified and addressed as
follows:
If to Landlord, at the following address:
Young Electric Sign Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Vice President
If to Tenant, at the following address:
Biomune Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx, President
28. GOVERNING LAW: The terms of this Lease shall be governed by and
construed in accordance with Utah law, and the parties intend that no third
party obtain Third Party Beneficiary status pursuant to this Lease.
29. DOCUMENTATION: The parties hereto agree to execute such additional
documentation as may be necessary or desirable to carry out the intent of this
Lease.
30. CONTINGENCY REGARDING USE: This Lease is contingent upon there being no
restrictions, covenants, agreements, laws, ordinances, rules or regulations,
that would prohibit Tenant from using the Premises for the purposes described
herein.
31. EMINENT DOMAIN: If at any time during the Lease Term the Premises or
any part thereof shall be taken as a result of the exercise of the power of
eminent domain or by an agreement in lieu thereof, this Lease shall terminate as
to the part of the Premises so taken as of the date possession is taken by the
condemning authority. If all or a substantial portion of the Premises shall be
taken, Landlord or Tenant may terminate this Lease at its option, by giving the
other party written notice of such termination within thirty (30) days of such
taking. If all or a portion of the Premises taken are substantially impaired,
Tenant may terminate this Lease pursuant to this section. If this lease is not
terminated hereunder, this Lease shall remain in full force and effect, except
that the rent payable by Tenant hereunder shall be reduced in the same
proportion that the area taken compares to the Premises in whole. Landlord shall
be entitled to and Tenant hereby assigns to Landlord the entire amount of any
award in connection with such taking. Nothing in this Section shall give
Landlord any interest in or preclude Tenant from seeking, on its own account,
any award attributable to the taking of personal property or trade fixtures
belonging to Tenant, or of the interruption of Tenant's business.
32. REPRESENTATION REGARDING AUTHORITY: The persons who have executed this
Lease represent and warrant that they are duly authorized to execute this Lease
in their or representative capacities as indicated.
33. ENTIRE AGREEMENT: This Lease and Exhibit "A" and Lease Addendum 1
attached hereto constitute the entire agreement and understanding between the
parties hereto and supersedes all prior discussions, understandings and
agreements, both written and oral. This Lease may not be altered or amended
except by a subsequent written agreement executed by Landlord and Tenant.
34. REVIEW OF DOCUMENTS: The parties hereto represent that they have read
and understand the terms of this Lease, and that they have sought legal counsel
to the extent deemed necessary in order to protect their respective interests.
35. KEY & LOCKS: Tenant shall not change locks or install other locks on
doors without the written consent of Landlord, which consent shall not be
unreasonably withheld. Tenant upon termination of the tenancy, shall deliver to
Landlord all the keys that have been furnished to Tenant and to all locks that
Tenant may have had installed.
36. AUCTION, FIRE OR BANKRUPTCY SALE: Tenant shall not conduct any auction
or permit any fire or bankruptcy sale to be held on the Premises without the
prior written consent of Landlord, which consent shall be withheld..
ADDITIONAL PROVISIONS:
See attached Lease Addendum 1
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as
of the day and year first above written.
"TENANT" "LANDLORD"
BIOMUNE SYSTEMS, INC., a YOUNG ELECTRIC SIGN COMPANY, a
Nevada Corporation Utah Corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
-------------------------- ----------------------------
Xxxxxx X. Xxxxx Xxxx X. Xxxxx
Its: President Its: President
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LEASE ADDENDUM
BETWEEN
YOUNG ELECTRIC SIGN COMPANY, AS LANDLORD,
AND
BIOMUNE SYSTEMS, INC., AS TENANT
ADDITIONAL LEASE PROVISIONS
38(a) This Lease is intended to be a Full Service Lease, with the rent
provisions contained in Paragraph one, to represent all the rent that Tenant is
required to pay.
38(b) Landlord at its sole cost and expense, shall construct and finish the
leased space as shown in exhibit "A." Finish materials shall be in like color,
style, and quality as presently exist in other areas of the Premises. Any
additional modifications requested by Tenant not expressly shown or represented
in Exhibit "A" may result in a recalculation of the Ten ant's rent as stipulated
in Paragraph one.
38(c) As a part of this Lease, Tenant shall enjoy the reasonable use of the
YESCO conference room in the building in which the building is located, on a
reservation basis.
38(d) Tenant shall be entitled to use the common areas shown on the
attached Exhibit "A" which include breakroom, restrooms, and up to twelve (12)
lockers.
Exhibit "A" (which consists of two pages) shows the floor plan of the Premises.