U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 10-QSB
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended November 30, 1997
Commission file number 0-27664
UNIDIGITAL INC.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware 13-3856672
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
545 West 45th Street, New York, New York 10036
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(Address of Principal Executive Offices)
(212) 397-0800
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(Issuer's Telephone Number,
Including Area Code)
Check whether the Issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12
months (or for such shorter period that the Issuer was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days.
Yes: X No:
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State the number of shares outstanding of each of the Issuer's classes of
common equity, as of January 9, 1998:
Class Number of Shares
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Common Stock, $.01 par value 3,249,294
Transitional Small Business Disclosure Format (check one):
Yes: No: X
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UNIDIGITAL INC. AND SUBSIDIARIES
TABLE OF CONTENTS
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Page
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements............................................1
CONSOLIDATED BALANCE SHEETS
as at November 30, 1997 (unaudited) and
August 31, 1997 (audited)..........................................2
CONSOLIDATED INCOME STATEMENTS
For the Three Months Ended November 30, 1997 and
November 30, 1996 (unaudited)......................................3
CONSOLIDATED STATEMENT OF CASH FLOWS
For the Three Months Ended November 30, 1997 and
November 30, 1996 (unaudited)......................................4
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (unaudited).............................................5
Item 2. Management's Discussion and Analysis
or Plan of Operation............................................9
Results of Operations..............................................9
Liquidity, Capital Resources and Other Matters.....................11
PART II OTHER INFORMATION
Item 5. Other Information...............................................14
Item 6. Exhibits and Reports on Form 8-K................................14
SIGNATURES...................................................................15
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements
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<TABLE>
UNIDIGITAL INC. AND SUBSIDIARIES
--------------------------------
CONSOLIDATED BALANCE SHEETS
---------------------------
<CAPTION>
November 30, August 31,
1997 1997
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(unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents ............................................ $ 2,193,854 $ 3,202,766
Accounts receivable (less allowance for doubtful
accounts of $278,236 and $266,000 at
November 30, 1997 and August 31, 1997, respectively) ............... 11,664,455 9,752,807
Deferred financing costs, net ........................................ 325,862 463,931
Prepaid expenses ..................................................... 2,018,481 1,529,664
Other current assets ................................................. 1,901,368 765,760
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Total current assets ............................................. $ 18,104,020 $ 15,714,928
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Property and equipment, net ............................................. 12,029,212 11,899,475
Intangible assets, net .................................................. 5,372,288 5,330,923
Other assets ............................................................ 69,952 87,964
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Total assets ..................................................... $ 35,575,472 $ 33,033,290
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LIABILITIES
Current liabilities:
Accounts payable and accrued expenses ................................ $ 5,913,738 $ 5,181,684
Current portion of capital lease obligations ......................... 2,113,032 1,998,443
Current portion of long-term debt .................................... 10,912,745 10,018,332
Income taxes payable ................................................. 876,933 551,235
Loans and notes payable to stockholders .............................. 164,510 154,591
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Total current liabilities ........................................ 19,980,958 17,904,285
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Capital lease obligations, net of current portion ....................... 2,670,705 2,875,577
Long-term debt, net of current portion .................................. 2,124,899 2,127,796
Deferred income taxes ................................................... 412,186 445,000
Loans and notes payable to stockholders, net of current portion ......... 207,496 207,496
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Total liabilities ................................................ 25,396,244 23,560,154
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STOCKHOLDERS' EQUITY
Preferred stock -- authorized 5,000,000 shares,
$.01 par value each; none issued or outstanding ...................... -- --
Common stock -- authorized 10,000,000 shares,
$.01 par value each; 3,243,243 shares
issued and outstanding at November 30, 1997 and
August 31, 1997, respectively ........................................ 32,432 32,432
Additional paid-in capital .............................................. 6,291,613 6,291,613
Retained earnings ....................................................... 3,745,857 3,237,984
Cumulative foreign translation adjustment ............................... 109,326 (88,893)
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Total stockholders' equity ....................................... 10,179,228 9,473,136
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Total liabilities and stockholders' equity ....................... $ 35,575,472 $ 33,033,290
============ ============
The Notes to Consolidated Financial Statements are made a part hereof
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UNIDIGITAL INC. AND SUBSIDIARIES
--------------------------------
CONSOLIDATED INCOME STATEMENTS
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(unaudited)
<CAPTION>
Three Months Ended
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November 30, August 31,
1997 1997
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(unaudited)
<S> <C> <C>
Revenues
Net sales.......................................................... $ 9,726,178 $ 5,227,719
Expenses
Cost of sales...................................................... 5,041,243 2,650,103
Selling, general and administrative expenses ...................... 3,419,649 1,809,738
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Total operating expenses........................................... 8,460,892 4,459,841
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Income from operations............................................. 1,265,286 767,878
Interest expense................................................... (423,488) (134,277)
Interest expense - deferred financing costs........................ (138,069) --
Interest and other income.......................................... 79,651 40,694
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Income before income taxes......................................... 783,380 674,295
Provision for income taxes......................................... 275,507 212,475
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Net income ........................................................ $ 507,873 $ 461,820
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Net income per common share........................................ $ 0.14 $ 0.14
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Weighted average common shares outstanding......................... 3,549,544 3,189,216
============ ===========
The Notes to Consolidated Financial Statements are made a part hereof
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UNIDIGITAL INC. AND SUBSIDIARIES
--------------------------------
CONSOLIDATED STATEMENT OF CASH FLOWS
------------------------------------
(unaudited)
<CAPTION>
Three Months Ended
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November 30, August 31,
1997 1997
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(unaudited)
<S> <C> <C>
Operating activities
Net income......................................................... $ 507,873 $ 461,820
Adjustments to reconcile net income to
net cash provided by (used in) operating activities:
Depreciation and amortization............................... 807,659 424,466
Provision for deferred income taxes......................... (37,227) (39,903)
Provision for bad debts..................................... 22,748 10,112
Changes in assets and liabilities:
Accounts receivable............................................. (1,775,438) (1,819,354)
Prepaid expenses and other current assets....................... (1,316,999) (321,343)
Other assets.................................................... (461,033) (4,829)
Accounts payable and accrued expenses........................... 831,961 3,081
Income taxes payable............................................ 244,259 147,454
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Net cash used in operating activities.............................. (1,176,197) (1,138,496)
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Investing activities
Additions to property and equipment................................ (357,643) (116,532)
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Net cash used in investing activities.............................. (357,643) (116,532)
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Financing activities
Payments of capital lease obligations.............................. (444,540) (549,510)
Payments for cancellation of options .............................. -- (162,490)
Proceeds from long-term debt....................................... 792,652 783,047
Payments of long-term debt......................................... (13,522) (29,584)
Stockholder repayments............................................. -- (5,859)
IPO issuance costs................................................. -- (2,312)
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Net cash provided by financing activities.......................... 334,590 33,292
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Effect of foreign exchange rates on cash........................... 190,338 30,136
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Net decrease in cash and cash equivalents.......................... 1,008,912 1,191,600
Cash and cash equivalents at beginning of period................... 3,202,766 4,145,514
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Cash and cash equivalents at end of period......................... $ 2,193,854 $ 2,953,914
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Supplemental disclosures
Interest paid...................................................... $ 461,302 $ 122,494
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Income taxes paid.................................................. $ 82,242 $ --
============ ===========
Noncash transactions
Equipment acquired under capital lease obligations................. $ 260,565 $ 878,116
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The Notes to Consolidated Financial Statements are made a part hereof
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UNIDIGITAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(unaudited)
Note A - Basis of Presentation:
The information presented for November 30, 1997, and for the three-month
periods ended November 30, 1997 and November 30, 1996, is unaudited, but, in the
opinion of the Company's management, the accompanying unaudited consolidated
financial statements contain all adjustments (consisting only of normal
recurring accruals) which the Company considers necessary for the fair
presentation of the Company's financial position as of November 30, 1997 and the
results of its operations and its cash flows for the three-month periods ended
November 30, 1997 and November 30, 1996.
The consolidated financial statements included herein have been prepared by
the Company in accordance with generally accepted accounting principles for
interim financial information and the instructions to Form 10-QSB and Rule 10-01
of Regulation S-X. Accordingly, certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted. These
consolidated financial statements should be read in conjunction with the
Company's audited consolidated financial statements for the year ended August
31, 1997, which were included as part of the Company's Annual Report on Form
10-KSB.
The consolidated financial statements include the accounts of Unidigital
Inc. and its direct and indirect subsidiaries. All significant intercompany
balances have been eliminated.
Interim results are not necessarily indicative of results that may be
expected for the full fiscal year.
Note B - Summary of Significant Accounting Policies:
Organization and Business:
Unidigital Inc., a Delaware corporation, is the parent holding company of
five wholly-owned operating subsidiaries, Unidigital Elements (NY), Inc.,
formerly known as LinoGraphics Corporation ("Elements (NY)"), Elements (UK)
Limited ("Elements (UK)"), Unidigital Elements (SF), Inc., formerly known as
LinoGraphics (Delaware) Corporation ("Elements (SF)"), Unidigital/Cardinal
Corporation ("Unison (NY)"), and Unidigital/Boris Corporation ("Unison (MA)").
Elements (NY) engages in the on-demand print and digital prepress business in
New York City. Elements (UK) engages in the on-demand print and digital prepress
business and, through its wholly-owned subsidiary, Regent Communications (UK)
Limited ("Regent"), operates a financial digital print business in London.
Elements (UK) also provides printing services to the London financial community
through its wholly-owned subsidiary Libra City Corporate Printing Limited
("Libra"). Elements (SF) owns and operates the San Francisco on-
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UNIDIGITAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(unaudited)
demand prepress business and retouching studio. Unison (NY) engages in the
digital prepress and digital printing business services to advertising agencies
and corporations in the New York City area. Unison (MA) engages in the business
of digital imaging and photographic processing in the Boston area.
Foreign Currency Translation:
The portion of the Company's financial statements relating to the Company's
United Kingdom operations are translated into United States Dollars using period
exchange rates ((pound)1.00 = $1.62 at August 31, 1997 and $1.72 at November 30,
1997, respectively for balance sheet accounts), and average exchange rates
((pound)1.00 = $1.70 and $1.62 for the three months ended November 30, 1997 and
November 30, 1996, respectively for income statement accounts). The translation
difference is reflected as a separate component of stockholders' equity.
Earnings Per Share:
In February 1997, the FASB issued SFAS No. 128, "Earnings per Share," which
is required to be adopted for years ending after December 15, 1997. Under the
new requirements for calculating primary earnings per share, the dilutive effect
of stock options and warrants will be excluded. SFAS No. 128 is not expected to
have a material impact on the Company's net income and pro forma net income per
share.
Note C - Stockholders' Equity:
Common Stock:
As at January 9, 1998, 3,249,294 shares of Common Stock were issued and
outstanding.
Preferred Stock:
As at January 9, 1998, there were no shares of Preferred Stock issued or
approved for issuance.
Note D - Stock Option Plans:
Subsequent to the end of the quarter, on December 1, 1997, the Company
granted options to purchase an aggregate of 173,600 shares of its Common Stock,
at an exercise price of $7.00 per share, under the 1997 Equity Incentive Plan
(the "1997 Plan"). In addition, on December 19, 1997, the Company granted
options to purchase 10,000 shares of its Common Stock, at an
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UNIDIGITAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(unaudited)
exercise price of $5.875 per share, under the 1997 Plan. On January 2, 1998, the
Company granted options to purchase 2,500 shares of its Common Stock to each of
David Wachsman and Harvey Silverman, at an exercise price of $5.53 per share,
under the 1997 Non-Employee Director Stock Option Plan.
Note E - Bank Credit Facilities:
At November 30, 1997, the Company's debt consisted of the following:
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<CAPTION>
Facility Amount Outstanding
Amount --------------------------
November 30, November 30, August 31,
1997 1997 1997
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<S> <C> <C> <C>
Credit facilities in the United Kingdom; interest at the
bank's overdraft rate plus 3%; facility amount is
approximately(pound)1,145,000 ($1,969,400) ............ $ 1,969,400 $ 2,089,189 $ 1,784,150
Revolving line of credit; matures April 30, 2000,
interest at Alternate Base Rate or Adjusted LIBO Rate,
as defined, plus 1/4% in the United States plus 2.25%
in the United Kingdom ................................. 4,500,000 1,725,000 1,725,000
Lines of credit; interest at Alternate Base Rate or
Adjusted LIBO Rate, as defined, plus 1/4% in the
United States plus 2.25% in the United Kingdom ........ 5,250,000 4,710,110 4,110,110
SBA loan, matures December 1, 2014; monthly payments of
$3,665; interest at prime rate plus 2.74% ............. 350,000 331,470 334,368
Installment note due seller of Elements (SF); payable in
eight (8) quarterly installments of $11,600 including
interest at 6% ........................................ 85,000 31,875 42,500
Loans from private investors, beginning May 1997,
maturing between May 2002 and August 2002; interest at
10% for first six months, 11% for second six months
and 12% thereafter .................................... 4,000,000 4,000,000 4,000,000
Installment note due seller of Unison (MA), matures
January 15, 1999, payable in two equal installments of
$75,000 plus interest at 8% ........................... 150,000 150,000 150,000
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13,037,644 12,146,128
Less current portion ..................................... 10,912,745 10,018,332
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$ 2,124,899 $ 2,127,796
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UNIDIGITAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(unaudited)
The credit facilities contain covenants which require the Company to
maintain certain tangible net worth and debt service coverage ratios based on
the combined assets of the Company and its subsidiaries, limit borrowings up to
specified amounts of accounts receivable, as defined and limit the payment of
dividends. Amounts outstanding are collateralized by substantially all of the
Company's assets. The lines of credit are renewable annually each December.
Unidigital is a guarantor on all bank debts of the Company's United States
operating subsidiaries. As of November 30, 1997, the Company was not in
compliance with certain debt covenants and received a waiver from the bank for
such noncompliance.
Subsequent to the end of the quarter, on December 4, 1997, the Company
terminated its credit facilities with its prior United Kingdom bank and entered
into a new credit facility with another United Kingdom bank. The Company's new
credit facility provides for combined lines of credit of (pound)1,400,000
(approximately $2,408,000) for working capital for its United Kingdom
operations. These lines of credit renew annually and bear interest at 2.0% over
the Bank's Base Rate, as defined. In addition, the Company is required to pay a
service charge equal to 0.2% of invoice value. These lines of credit contain
covenants which require the Company's United Kingdom subsidiaries to maintain a
minimum net worth of (pound)500,000, limit borrowings up to specified amounts of
accounts receivable aged 90 days or less and are guaranteed by Unidigital for
the principal amount of up to (pound)500,000. Amounts outstanding are
collateralized by substantially all of the Company's United Kingdom assets.
Note F - Other Loans:
During 1997, the Company borrowed an aggregate principal amount of
$4,000,000 pursuant to unsecured five-year loans. Such loans are payable on
demand, one year after the date of issuance. In connection with such loans, the
Company granted five-year warrants to the lenders to purchase up to an aggregate
amount of 400,000 shares of the Company's Common Stock at an exercise price of
$4.00 per share. In addition, the Company granted "piggyback" registration
rights, subject to certain limitations. Included among the lenders were
directors of the Company. Such directors loaned an aggregate of $300,000 of the
above amount to the Company and received warrants to purchase an aggregate of
30,000 shares of the Company's Common Stock.
The warrants, which were deemed to have a value of $602,000, were recorded
as deferred financing costs, which are being amortized on a straight-line basis
over one year.
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Item 2. Management's Discussion and Analysis or Plan of Operation.
General
The Company provides a full range of digital prepress, four color digital
offset printing, wide format and financial printing products and services to the
New York City, San Francisco, London and Boston markets. Using advanced computer
technology, the Company provides the imaging and reproduction services required
by graphic artists and marketing professionals in connection with the creation
of printed and photographic materials for their clients. The Company's clients
include advertising agencies, publishers, corporations, government agencies,
retailers, marketing communications firms and financial institutions. The
Company's services are designed to afford graphic artists and marketing
professionals the ability to make numerous changes and enhancements in the
design and content of printed materials throughout the design and approval
process, with shorter turnaround times and at reduced costs as compared to
traditional industry methods.
The statements contained in this Quarterly Report on Form 10-QSB that are
not historical facts are forward-looking statements (as such term is defined in
the Private Securities Litigation Reform Act of 1995) that involve risks and
uncertainties. Such forward-looking statements may be identified by, among other
things, the use of forward-looking terminology such as "believes," "expects,"
"may," "will," "should" or "anticipates" or the negative thereof or other
variations thereon or comparable terminology, or by discussions of strategy that
involve risks and uncertainties. From time to time, the Company or its
representatives have made or may make forward-looking statements, orally or in
writing. Such forward-looking statements may be included in various filings made
by the Company with the Securities and Exchange Commission, or press releases or
oral statements made by or with the approval of an authorized executive officer
of the Company. These forward-looking statements, such as statements regarding
anticipated future revenues, capital expenditures, and other statements
regarding matters that are not historical facts, involve predictions. The
Company's actual results, performance or achievements could differ materially
from the results expressed in, or implied by, these forward-looking statements.
Potential risks and uncertainties that could affect the Company's future
operating results include, but are not limited to: (i) economic conditions,
including economic conditions related to the digital print industry; (ii) the
availability of equipment from the Company's vendors at current prices and
levels; (iii) the intense competition in the markets for the Company's products
and services; (iv) the Company's ability to integrate acquired companies and
businesses in a cost-effective manner; (v) the Company's ability to effectively
implement its branding strategy; and (vi) the Company's ability to develop,
market, provide, and achieve market acceptance of new service offerings to new
and existing clients.
Results of Operations
The consolidated financial information includes both the Company's United
States operations and its United Kingdom operations. On April 4, 1997, the
Company, through a wholly-owned subsidiary, consummated the Boris Acquisition
and, as a result, engages in the business of digital imaging and photographic
processing. On May 22, 1997, the Company,
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through a wholly-owned subsidiary, consummated the Libra Acquisition and, as a
result, provides financial printing services to the London financial community.
Such acquisitions have been accounted for under the purchase method of
accounting and, therefore, results of operations from such acquisitions are
included in the Company's consolidated financial statements from the date of the
respective acquisition.
Three Months Ended November 30, 1997 and November 30, 1996
----------------------------------------------------------
Net Sales. Net sales for the three months ended November 30, 1997 ("First
Quarter of Fiscal 1998") increased by 86%, or $4,498,459, to $9,726,178 from
$5,227,719 for the three months ended November 30, 1996 ("First Quarter of
Fiscal 1997"). Net sales for the Company's United States operations increased by
73%, or $2,206,408, from $3,027,175 in the First Quarter of Fiscal 1997 to
$5,233,583 in the First Quarter of Fiscal 1998. This increase was attributable
primarily to an increase in net sales resulting from the Boris Acquisition and,
to a lesser extent, an increase in net sales in each of the Company's three
other United States subsidiaries. Net sales for the Company's United Kingdom
operations increased by 104%, or $2,292,051, from $2,200,544 in the First
Quarter of Fiscal 1997 to $4,492,595 in the First Quarter of Fiscal 1998. This
increase was attributable primarily to the inclusion of net sales resulting from
the Libra Acquisition and, to a lesser extent, increases in the Company's
prepress operations.
Cost of Sales. Cost of sales for the First Quarter of Fiscal 1998 increased
by 90%, or $2,391,140, to $5,041,243 from $2,650,103 for the First Quarter of
Fiscal 1997. As a percentage of net sales, cost of sales increased slightly from
51% for the First Quarter of Fiscal 1997 to 52% for the First Quarter of Fiscal
1998. Cost of sales for the Company's United States operations remained constant
as a percentage of net sales at 49% for each of the First Quarter of Fiscal 1997
and the First Quarter of Fiscal 1998. Cost of sales for the Company's United
Kingdom operations increased as a percentage of net sales from 53% for the First
Quarter of Fiscal 1997 to 55% for the First Quarter of Fiscal 1998. Such
increase was attributable primarily to the change in product mix in the
Company's United Kingdom operations to include more digital print and financial
print services. Digital print and financial print services have higher costs
compared to digital prepress services.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses ("SG&A") increased 89%, or $1,609,911, from $1,809,738
for the First Quarter of Fiscal 1997 to $3,419,649 for the First Quarter of
Fiscal 1998. Such increase was attributable primarily to the increased level of
operations which resulted from the Boris Acquisition and the Libra Acquisition,
the hiring of additional management and administrative personnel and costs
associated with the Company's acquisitions. As a percentage of net sales, SG&A
remained constant at 35% for each of the First Quarter of Fiscal 1997 and the
First Quarter of Fiscal 1998.
Income from Operations. Income from operations for the First Quarter of
Fiscal 1998 increased 65%, or $497,408, to $1,265,286 from $767,878 for the
First Quarter of Fiscal 1997. Of this amount, $481,819 was contributed by the
Company's United States operations and $783,467 by the Company's United Kingdom
operations. This increase resulted from higher net
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sales offset by higher production costs associated with the changing product mix
of the Company's operations to include more digital print and financial print
services.
Net Interest Expense. Net interest expense for the First Quarter of Fiscal
1998 increased by $388,323, to $481,906 from $93,583 for the First Quarter of
Fiscal 1997. This increase resulted from increased borrowings under the
Company's credit facilities and capital leases assumed by the Company as part of
the Boris Acquisition and the Libra Acquisition. In addition, the Company
incurred deferred financing costs of $138,069 in connection with the issuance of
warrants relating to the unsecured loans. Such deferred financing costs are
non-cash, non-recurring expenses.
Income Taxes. Income taxes for the First Quarter of Fiscal 1998 increased
by 30%, or $63,032, to $275,507 from $212,475 for the First Quarter of Fiscal
1997.
Net Income. As a result of the factors described above, net income for the
First Quarter of Fiscal 1998 increased by 10%, or $46,053, to $507,873 as
compared to net income of $461,820 for the First Quarter of Fiscal 1997.
Liquidity, Capital Resources and Other Matters
Cash Flow. Net cash used in operating activities was $1,176,197 for the
First Quarter of Fiscal 1998 and $1,138,496 for the First Quarter of Fiscal
1997. Net cash used in investing activities for the acquisition of property and
equipment was $357,643 for the First Quarter of Fiscal 1998 and $116,532 for the
First Quarter of Fiscal 1997. For the First Quarter of Fiscal 1998 and the First
Quarter of Fiscal 1997, the Company acquired equipment under capital leases of
$260,565 and $878,116, respectively, and made payments under capital leases of
$444,540 and $549,510, respectively. Net bank borrowings provided funds of
$779,130 for the First Quarter of Fiscal 1998 and $753,463 for the First Quarter
of Fiscal 1997.
Bank Credit Facilities. The Company has borrowing arrangements with
commercial banks in both New York and London. The Company has combined credit
facilities with its New York bank for its United States operations in the
aggregate amount of $9,750,000, which consist of a: (i) $4,500,000 revolving
credit facility which is available for corporate acquisition purposes; (ii)
$3,850,000 line of credit facility which is available for working capital
purposes; and (iii) a $1,400,000 term loan which was rolled over into the
Company's line of credit facility. Such credit facilities are available to be
used by each of the Company's four United States subsidiaries. Interest under
such credit facilities is at the Company's option at the Alternate Base Rate or
at the Adjusted LIBO Rate, as defined, plus 0.25% in the United States and 2.25%
in the United Kingdom. As of November 30, 1997, the Company had an outstanding
balance of $1,725,000 under the revolving credit facility and $4,710,110 under
the line of credit.
The credit facilities contain covenants which require the Company to
maintain certain tangible net worth and debt service coverage ratios based on
the combined assets of the Company and its subsidiaries and limiting borrowings
up to specified amounts of accounts receivable aged 90 days or less. The credit
facilities are secured by a first priority lien on all of
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the assets of the borrowers. The lines of credit are renewable annually each
December. Unidigital is a guarantor on all bank debts of the Company's United
States operating subsidiaries.
During the First Quarter of Fiscal 1998, the Company had combined lines of
credit of (pound)1,145,000 (approximately $1,969,400) for working capital for
its United Kingdom operations. Subsequent to the end of the quarter, on December
4, 1997, the Company terminated its credit facilities with its prior United
Kingdom bank and entered into a new credit facility with another United Kingdom
bank. The Company's new credit facility provides for combined lines of credit of
(pound)1,400,000 (approximately $2,408,000) for working capital for its United
Kingdom operations. These lines of credit renew annually and bear interest at
2.0% over the Bank's Base Rate, as defined. In addition, the Company is required
to pay a service charge equal to 0.2% of invoice value. These lines of credit
contain covenants which require the Company's United Kingdom subsidiaries to
maintain a minimum net worth of (pound)500,000, limit borrowings up to specified
amounts of accounts receivable aged 90 days or less and are guaranteed by
Unidigital for the principal amount of up to (pound)500,000. Amounts outstanding
are collateralized by substantially all of the Company's United Kingdom assets.
As of November 30, 1997, the Company was not in compliance with all
covenants under its credit facilities with its New York bank, but received a
waiver from such bank for such noncompliance.
Other loans. During 1997, the Company borrowed an aggregate principal
amount of $4,000,000 pursuant to unsecured five-year loans. Such loans are
payable on demand, one year after the date of issuance. In connection with such
loans, the Company granted five-year warrants to the lenders to purchase up to
an aggregate amount of 400,000 shares of the Company's Common Stock at an
exercise price of $4.00 per share. In addition, the Company granted "piggyback"
registration rights, subject to certain limitations. Included among the lenders
were directors of the Company. Such directors loaned an aggregate of $300,000 of
the above amount to the Company and received warrants to purchase an aggregate
of 30,000 shares of the Company's Common Stock.
The Company expects that cash flow from operations will be sufficient to
fund its capital lease obligations, debt service payments, potential earn-outs,
capital expenditures and operations for at least 12 months. The Company may
require additional financing to consummate future acquisitions or to repay the
Unsecured Loans. There can be no assurance that the Company will be able to
secure such additional financing on terms favorable to the Company.
Working Capital. The Company's working capital deficit decreased by
$312,419 from a working capital deficit of $2,189,357 at August 31, 1997 to
$1,876,938 at November 30, 1997.
Inflation, Foreign Currency Fluctuations and Interest Rate Changes.
Although the Company cannot accurately determine the precise effect thereof on
its operations, it does not believe inflation, currency fluctuations or interest
rate changes have historically had a material effect on revenues, sales or
results of operations. Inflation, currency fluctuations and changes in interest
rates have, however, at various times, had significant effects on the economies
of the
- 12 -
<PAGE>
United States and the United Kingdom and could adversely impact the Company's
revenues, sales and results of operations in the future. If there is a material
adverse change in the relationship between the Pound Sterling and the United
States Dollar, such change would adversely affect the results of the Company's
United Kingdom operations as reflected in the Company's financial statements.
The Company has not hedged its exposure with respect to this currency risk, and
does not expect to do so in the future, since it does not believe that it is
practicable for it to do so at a reasonable cost.
- 13 -
<PAGE>
PART II. OTHER INFORMATION
Item 5. Other Information.
Subsequent to the end of the quarter, on December 4, 1997, the Company
terminated its credit facilities with its prior United Kingdom bank and entered
into a new credit facility with another United Kingdom bank. The Company's new
credit facility provides for combined lines of credit of (pound)1,400,000
(approximately $2,408,000) for working capital for its United Kingdom
operations. These lines of credit renew annually and bear interest at 2.0% over
the Bank's Base Rate, as defined. In addition, the Company is required to pay a
service charge equal to 0.2% of invoice value. These lines of credit contain
covenants which require the Company's United Kingdom subsidiaries to maintain a
minimum net worth of (pound)500,000, limit borrowings up to specified amounts of
accounts receivable aged 90 days or less and are guaranteed by Unidigital for
the principal amount of up to (pound)500,000. Amounts outstanding are
collateralized by substantially all of the Company's United Kingdom assets.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
Exhibit No. Description of Exhibit
------------ ------------------------
10.1 Third Waiver and Amendment Agreement dated as of
December 12, 1997, among Unidigital Elements (NY),
Inc., Unison (NY), Inc. (formerly known as
Unidigital/Cardinal Corporation), Unidigital
Elements (SF), Inc., Unison (MA), Inc. (the
successor by merger to Unidigital/Boris
Corporation), Unidigital Inc. and The Chase
Manhattan Bank.
10.2 Lease dated July 14, 1992 between D Street Real
Estate Trust for the benefit of D Street Limited
Partnership and Master Motion Picture Co., Inc.
(including all addenda and amendments thereto).
27 Financial Data Schedule.
(b) Reports on Form 8-K.
None.
- 14 -
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of
1934, the Issuer caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
UNIDIGITAL INC.
DATE: January 14, 1998 By: /s/ William E. Dye
------------------
William E. Dye, President
and Chief Executive Officer
(Principal Executive, Financial
and Accounting Officer)
- 15-
THIRD WAIVER AND AMENDMENT AGREEMENT (this "Waiver "Agreement") dated as of
December 12, 1997 by and among Unidigital Elements (NY), Inc., Unison (NY),
Inc., Unidigital Elements (SF), Inc. and Unison (MA), Inc., (collectively, the
"Borrowers"), Unidigital Inc. (the "Company"), and The Chase Manhatttan Bank
(the "Lender"). Terms used herein as defined terms and not otherwise defined
herein shall have the meanings given thereto in that certain Credit Agreement
dated as of April 3, 1997 by and between the Borrowers and the Lender, as
amended by that Waiver and Amendment Agreement dated as of July 1, 1997 by and
between such parties, and as further amended by that Second Waiver and Amendment
Agreement dated as of October 1, 1997 by and between such parties.
WHEREAS, the Borrowers and the Company have for the fiscal year and/or
fiscal quarter ended August 31, 1997 suffered to exist violations of Credit
Agreement: (i) Section 6.06(a) (in that the Capital Expenditures for the fiscal
year ended August 31, 1997 of $3,077,000 reported to Lender by Borrowers and the
Company exceed the limit in such covenant of $2,500,000); (ii) 6.06(b)(i) (in
that the ratio of 0.95 to 1.00 of Consolidated Current Assets to Consolidated
Current Liabilities for the fiscal quarter ended August 31, 1997 reported to the
Lender by the Borrowers and the Company was less than the ratio of 1.10 to 1.00
required under such covenant for such period); and (iii) Section 6.06(b)(iii)
(in that the Consolidated Debt Service Coverage Ratio of 0.56 to 1.00 for the
fiscal year ended August 31, 1997 reported to the Lender by the Borrowers and
the Company was less than the ratio of 1.25 to 1.00 for such period as required
by such covenant); and
WHEREAS, the Lender is willing to waiver such violation or violations
subject to the terms and conditions hereof;
NOW, THEREFORE, WITNESSETH, that for good and valuable consideration, the
receipt of which the parties hereby acknowledge, the parties hereto agree as
follows:
1. The Lender hereby waives the aforesaid violations of the aforesaid
covenants of the Credit Agreement by the Borrowers and the Company (but such
waiver shall extend solely to the violation of such covenants for the periods
hereinabove described and not to any subsequent fiscal year or fiscal quarter as
appropriate).
2. The Company and the Borrowers agree, jointly and severally, to pay to
the Lender within 30 days from the date hereof, a waiver fee of $10,000, which
amount shall not be a credit against any other amounts now or hereafter owing by
any of them to Lender. Each of the Borrowers and the Company hereby consents to
debits or charges by the Lender of such amount in the aggregate from any of
their accounts with Lender which Lender may select in its sole discretion (but
Lender's failure to make any such charges or debits shall not constitute a
defense to, or otherwise excuse the liability of Borrowers and the Company to
pay such fee within such 30 day period).
3. This Waiver Agreement may be executed in counterparts, each of which
when so executed and delivered (including by facsimile transmission of a signed
counterpart), shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
4. The Credit Agreement as heretofore amended shall remain in full force
and effect, and the Credit Agreement as so amended is hereby ratified an
confirmed by the Borrowers and the Company.
5. This Waiver Agreement shall constitute an additional Loan Document.
<PAGE>
6. Each Borrower and the Company hereby represents and warrants to the
Lender that, after given effect to this Waiver, no Default or Event of Default
has occurred and is continuing as of the date hereof under the Credit Agreement.
7. Each of the Borrowers and the Company hereby warrants and represents to
the Lender that this Waiver Agreement has been authorized by all necessary
corporate and shareholder action and will not conflict with, violate or
constitute a default under their any of charters, by-laws or any agreements,
instruments or other documents to which they or any one of them is a party or by
which any of their assets are bound and that the same does not and will not
violate any applicable laws or regulations.
8. Without limiting or being limited by Section 8.03(b) of the Credit
Agreement, the Borrowers, jointly and severally, indemnify the Lender and each
Related Party of the Lender (each such person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of counsel for any Indemnitee, arising out of, in connection with,
or as a result of (i) the execution or delivery of this Wavier Agreement or any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, or the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder, or the consummation of the transactions
contemplated hereby or thereby, or (ii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided, that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by any final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to
be executed and delivered in the City of New York as of the date fist
hereinabove written.
THE CHASE MANHATTAN BANK
By:/s/ Eugene Ward
-----------------------------------
Name: Eugene Ward
Title: Vice President
UNIDIGITAL ELEMENTS (NY), INC.
By:/s/ William E. Dye
-----------------------------------
Name: William E. Dye
Title: Chairman
- 2 -
<PAGE>
UNISON (NY), INC.
By:/s/ William E. Dye
-----------------------------------
Name: William E. Dye
Title: Chairman
UNIDIGITAL ELEMENTS (SF), INC.
By:/s/ William E. Dye
-----------------------------------
Name: William E. Dye
Title: Chairman
UNISON (MA), INC.
By:/s/ William E. Dye
-----------------------------------
Name: William E. Dye
Title: Chairman
UNIDIGITAL INC.
By:/s/ William E. Dye
-----------------------------------
Name: William E. Dye
Title: Chairman
- 3 -
STANDARD FORM COMMERCIAL LEASE
1 & 2. PARTIES AND PREMISES. Sally A. Starr and Lisa A. Brown as Trustees
of D Street 451 Real Estate Trust for the Benefit of D Street 451 Limited
Partnership under declaration of trust dated November 1, 1983 and recorded with
the Suffolk County Registry of Deeds, Book 10616, page 100 as amended, with a
principal place of business at 39 Brighton Avenue, Allston, Massachusetts 02134,
as such trust is the owner of the within-described Building, hereinafter called
the LESSOR, which expression shall include its successors and assigns where the
context so admits, does hereby lease to Master Motion Picture Co., Inc., a
Massachusetts corporation with a principal place of business at 451 D Street,
Boston, Massachusetts 02210, hereinafter called the LESSEE, which expression
shall include its successors and assigns where the context so admits, and the
LESSEE hereby leases the following-described premises (the "Premises"):
Approximately 37,569 square feet of rentable space having an address of 451
D Street, Boston, Massachusetts 02210 located on the seventh (7th) floor of the
building (the "Building") comprised of approximately 24,842 square feet in the
front portion of the Building on the D street side and 12,727 square feet in the
rear portion of the Building on the E street side, situated at and numbered 451
D Street, Boston, Massachusetts 02210 together with the right to use in common,
with others entitled thereto, the hallways, stairways and elevators, necessary
for access to said Premises, and lavatories nearest thereto, all as set forth in
schematic identifying the boundaries of the Premises attached hereto and labeled
Exhibit A.
As appurtenant to the Premises and subject to all of the terms and
conditions governing the letting of the Premises, the LESSEE shall have the
right to use approximately 100 square feet on the sixth (6th) floor as
designated on Exhibit B solely for the purpose of locating LESSEE'S silver
recovery tank, which tank is utilized for LESSEE'S business.
3A. TERM. The term of this lease shall be for seven (7) years and two (2)
months commencing on November 1, 1991 ("Commencement Date") and ending on
December 31, 1998 ("Expiration Date") ("Original Term"). LESSOR shall deliver to
LESSEE and LESSEE shall accept the Premises in its as-is condition. If LESSOR
fails to deliver possession of the Premise at the Commencement Date, the LESSOR
shall not be liable for any damages caused thereby, nor shall this lease be void
or voidable, but the Commencement Date shall be extended and no rent shall be
due until LESSOR delivers possession. Provided, however, that notwithstanding
the fact that the Commencement Date has been so extended, the Expiration Date
shall remain the same and all the other terms and conditions of this lease,
including, without limitation, all dates and time periods contained herein,
shall also remain as stated herein. If this lease is extended or renewed, all
references to "term" herein shall refer to the extension or renewal term unless
specifically designated otherwise.
Not later than two weeks from the execution of the lease by LESSEE, LESSEE
shall deliver that portion of the Building occupied by LESSEE on the first floor
consisting of
- 2 -
<PAGE>
approximately 2,100 square feet located on the D Street and Inman Street Sides
of the Building free of all property of LESSEE and in a broom clean condition.
3B. OPTION TO EXTEND. In accordance with the provisions of Addendum #3,
LESSEE shall have the option to extend the lease for an additional five years at
the expiration of the Original Term.
4. RENT. The LESSEE shall pay to the LESSOR a base rent ("Base Rent") at
the annual rate as set forth below payable monthly in advance. Rent shall be
payable to 451 D Street Realty and forwarded to LESSOR at the address above.
A. Base Rental Rate: Original Term Rate: Front Space = 24,842 s.f.
LEASE YEAR YEARLY MONTHLY
- ---------- ------ -------
Year One $6.00 p.s.f. $149,052.00 $12,421.00
Year Two $6.50 p.s.f. $161,473.00 $13,456.08
Year Three $7.00 p.s.f. $173,894.00 $14,491.17
Year Four $7.50 p.s.f. $186,315.00 $15,526.25
Year Five $7.50 p.s.f. $186,315.00 $15,526.25
Year Six $7.75 p.s.f. $192,525.50 $16,043.79
Year Seven $8.00 p.s.f. $198,736.00 $16,561.33
Year Eight $8.00 p.s.f. $198,736.00 $16,561.33
B. Base Rental Rate: Original Term Rate: Rear Space = 12,727 s.f.
LEASE YEAR YEARLY MONTHLY
- ---------- ------ -------
Year One $3.00 p.s.f. $38,181.00 $3,181.75
Year Two $3.25 p.s.f. $41,362.75 $3,446.90
Year Three $3.50 p.s.f. $44,544.50 $3,712.04
Year Four $3.75 p.s.f. $47,726.25 $3,977.19
Year Five $4.00 p.s.f. $50,908.00 $4,242.33
Year Six $4.25 p.s.f $54,089.75 $4,507.48
Year Seven $4.50 p.s.f. $57,271.50 $4,772.63
Year Eight $4.50 p.s.f. $57,271.50 $4,772.63
LEASE YEAR TOTAL YEARLY RENT
- ---------- -----------------
Year One $187,233.00
Year Two $202,835.75
Year Three $218,438.50
Year Four $234,041.25
- 2 -
<PAGE>
Year Five $237,223.00
Year Six $246,615.25
Year Seven $256,007.50
Year Eight $256,007.50
Any payment of rent or any other monetary sum due hereunder from LESSEE to
LESSOR which is more than five (5) days late shall bear interest at the rate of
one and one-half percent (1-1/2%) per month.
Lease Year shall be referred to as the twelve-month period commencing
November 1, and ending October 31, and each anniversary thereof, except that in
Lease Year Eight, Lease Year shall be deemed to include the period from November
1, 1997 through December 31, 1998 and LESSEE shall pay the monthly rate
specified therein for each of the fourteen months.
Notwithstanding the foregoing to the contrary, LESSEE shall be entitled to
a rent-free period for Base Rent only for the rear space only for the months of
November and December, 1991 and provided that the LESSEE has not been in default
prior thereto, LESSEE shall be entitled to a rent-free period for Base Rent only
for the front space only for the month of July 1992.
5. SECURITY DEPOSIT. Upon the execution of this lease as further security
for LESSEE'S obligations under this lease, LESSEE shall deliver to the LESSOR
Fifteen Thousand Six Hundred Two Dollars ($15,602.00) ("Deposit"). This Deposit
shall be held by LESSOR as security for payment of all rent and other sums of
money payable for the term and for the faithful performance by LESSEE of all
other covenants and agreements; provided, however, that the LESSEE shall have no
right to require LESSOR to indemnify itself from this Deposit for any particular
violation or default of LESSEE, the use of this Deposit to indemnify LESSOR
being within LESSOR'S sole discretion. If all or any part of the Deposit is
applied to an obligation of LESSEE hereunder, LESSEE shall immediately upon
request by LESSOR restore said Deposit to its original amount. No interest shall
be payable to LESSEE on account of this Deposit and LESSOR may commingle the
funds from this Deposit with other of its funds. Provided that LESSOR gives
LESSEE notice of the name of such grantee or transferee upon any conveyance by
LESSOR of its interest under this lease, the Deposit may be delivered by LESSOR
to LESSOR'S grantee or transferee. Upon any such delivery, LESSEE hereby
releases LESSOR of any and all liability with respect to the Deposit, its
application and return, and LESSEE agrees to look solely to such grantee or
transferee.
LESSOR may draw upon the full or any partial amount of the Deposit in the
event LESSEE is in default (beyond any applicable notice and cure period) of its
obligations during the period prior or subsequent to the Commencement Date; or
is otherwise in default (after any applicable notice and cure periods) under the
lease.
Provided that LESSEE is not in monetary default after notice and any
applicable cure period, and is not otherwise in default (after applicable notice
and cure periods) under the lease,
- 3 -
<PAGE>
and further provided LESSEE has paid its rent monthly in a timely manner during
such period such that LESSOR has not sent out in the immediately preceding
twelve (12) month period more than one notice of non payment of rent pursuant to
this lease, LESSOR at the end of the period represented by fourteen full months
from the execution of the lease by LESSOR and LESSEE shall return said Deposit
to LESSEE. In the event LESSEE so defaults and after applicable notice and cure
periods LESSOR draws upon the Deposit and receives the proceeds thereof, in any
subsequent legal action related to said default by LESSOR against LESSEE for
LESSOR'S damages allowable hereunder, LESSEE shall be entitled to and shall
receive a credit in the amount paid under the Deposit in assessing or
adjudicating the full amount of damages due from LESSEE to LESSOR.
This Deposit, or any part thereof, not previously applied or returned by LESSOR,
shall be returned to LESSEE only after the Expiration Date or the date on which
any renewal or extension term expires, and only after LESSEE has fully vacated
the Premises, notwithstanding that this lease has been terminated by LESSOR; it
being the intention of the parties that this deposit shall secure LESSOR not
only as to default by LESSEE before such termination, but also to secure LESSOR
thereafter from any deficiency of rent or other charges payable to LESSOR by
LESSEE.
6. RENT ADJUSTMENT.
A. TAX ESCALATION. If in any tax year commencing with the fiscal year 1993,
the real estate taxes on the land and buildings, of which the Premises are a
part, are in excess of the amount of the real estate taxes thereon for the
fiscal year 1992 (hereinafter call the "Base Year"), LESSEE will pay to LESSOR
as additional rent hereunder, within seven (7) days of notice in writing by
LESSOR, 8.5306% percent "LESSEE'S Share") of such excess that 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. If the LESSOR obtains an
abatement of any such excess real estate, tax, a proportionate share of such
abatement, less the reasonable fees and costs incurred in obtaining the same, if
any, shall be refunded to the LESSEE.
B. ADDITIONAL RENT ON ACCOUNT OF CONSUMER PRICE INDEX ADJUSTMENT. For
purposes of this Article, "Adjustment Date" means November; "CPI" means the
Consumer Price Index of the United States Bureau of Labor Statistics (Urban Wage
Earners and Clerical Workers, U.S. City Average, all items) (on the 1982-84
equals 100 Standard); "Base-Month CPI" means the CPI published in September,
1991.
Beginning November, 1992 and on each Adjustment Date thereafter for the
remainder of the term, the "Base Rent" for the forthcoming lease year shall be
increased by fifty percent (50%) of the percentage that the CPI published for
the September prior to the respective November has increased from the CPI
published for September 1, 1991 and LESSEE shall pay to LESSOR the increase as
additional rent in the same manner in which Base Rent is payable. Provided,
however, that in no event shall the rent for any year be less than the rent for
the preceding year.
- 4 -
<PAGE>
If the publication of the CPI is transferred to any other governmental
department or is discontinued, the LESSOR and LESSEE shall by agreement fix an
alternative index or method to compute such rent adjustment, but if they cannot
agree the matter shall be settled by arbitration in accordance with the rules of
the American Arbitration Association.
C. ADDITIONAL RENT ON ACCOUNT OF TRASH REMOVAL. LESSOR shall remove for
LESSEE trash commonly associated with typical office usage which shall include
nonhazardous photographic paper as produced in LESSEE'S normal course of
business and LESSEE shall deposit the same in the manner prescribed by LESSOR.
LESSEE shall pay to lessor monthly, as billed by LESSOR, LESSEE'S share (as
defined in Article 6A) of the cost and expenditure for removal of trash incurred
by LESSOR which amount payable by LESSEE shall not exceed $235.00 per month;
provided, however, failure to bill LESSEE in accordance with the provisions
hereof shall not be deemed a waiver of LESSOR'S right to recover monies due
hereunder. LESSEE shall dispose of only refuse and rubbish commonly associated
with a typical office use and shall not dispose of nor shall LESSEE deposit any
trash or refuse which shall be hazardous in nature, the disposal of which shall
be the responsibility of LESSEE. In addition, LESSEE shall be responsible for
removal from the Premises of bulky materials including pallets, frames and
cartons used in the course of LESSEE'S business.
D. LESSEE shall pay to LESSOR as additional rent as further consideration
hereof the sum of $80,000.00 payable in accordance with the following schedule
in the same manner in which Base Rent is payable:
1) Upon execution of lease by LESSEE: $20,000.00;
2) Commencing sixty days from said execution date, LESSEE shall pay the
sum of $5,000.00 and thereafter in each succeeding month, LESSEE shall
pay to LESSOR $5,000.00 each month until the balance of $60,000.00 is
payable to lessor by LESSEE.
7. ACCESS/UTILITIES. LESSEE shall be entitled to access the building of
which the premises are a part, twenty-four (24) hours per day, seven (7) days a
week. LESSOR shall provide to LESSEE reasonable heat and shall provide to LESSEE
the water source elements necessary to furnish air-conditioning during the
appropriate seasons (except to the extent that the same are separately metered).
"Heating season" shall mean October first through May thirty-first, inclusive;
"Air-conditioning season" shall mean June first through September thirtieth,
inclusive. LESSEE shall be provided heat during business hours, 7 AM to 7 PM at
temperatures typical of those in office buildings throughout the greater Boston
area.
LESSEE shall pay for its use of all utilities that are furnished to the
Premises and are separately metered, as they become due and payable. In the
event water and sewerage are not separately metered, LESSEE shall pay on a
quarterly basis for its use of water and sewer usage as submetered within thirty
(30) days of receipt of a statement from LESSOR. If LESSOR, in its reasonable
discretion chooses to install a separate water and sewer meter on the Premises
at LESSOR'S expense, LESSEE shall be required to pay the cost of the use of the
utilities measured
- 5 -
<PAGE>
by such a meter directly. The LESSOR agrees to provide reasonably hot and cold
water to the bathroom(s) and cold water to the drinking fountain(s), if any,
only, and not to any other location(s).
The LESSOR also agrees to furnish reasonable heat (except to the extent
that the same are furnished through separately metered utilities or separate
fuel tanks as set forth above) to lavatories during the heating season of each
year, to furnish elevator service and to light passageways and stairways, 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.
Notwithstanding any contrary provision of this lease, so long as Les Brewer
shall retain majority ownership of LESSEE, in the event (i) LESSOR fails to
perform any act or provide any service required hereunder and such failure
materially interferes with LESSEE'S use of the Premises or LESSOR undertakes
activities which interfere with LESSEE'S normal activities and such failure or
interference occurs for reasons other than events that are beyond LESSOR'S
reasonable control, and (ii) such interference continues after notice from
LESSEE to LESSOR more than twenty (20) days, rent and additional rent payable
under Section 4 and 6A and 6B hereof shall be equitably abated for the period
from the day of the commencement of such interference to the date on which such
interference no longer exists. In the event Les Brewer shall fail to retain the
percentage of ownership required herein, this proviso shall have no effect, and
LESSOR shall not be bound to the provisions hereof.
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. 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 subject to the written consent of the
LESSOR.
8. USE OF LEASED PREMISES. The LESSEE shall use the Premises only for the
purpose of conducting a commercial photographic design and production operation
and office use incidental to the primary purpose but for no other purpose.
LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE PREMISES ARE FIT FOR
A PARTICULAR USE OR PURPOSE, INCLUDING WITHOUT LIMITATION THE USE AS SPECIFIED
HEREIN, EXCEPT AS OTHERWISE REQUIRED BY LAW.
LESSEE shall be responsible for obtaining and maintaining any and all
governmental permits and licenses for the use and operation of LESSEE'S business
at the Premises. LESSEE acknowledges that LESSEE shall be solely responsible for
compliance with all laws, orders, statutes, codes, rules and regulations of any
governing federal, state, county and local authority, including, but not limited
to, all state and local codes and fire marshall regulations, related to the
specific use of the Premises by LESSEE ("Authorizations"). The presence,
handling, storage and
- 6 -
<PAGE>
usage of any flammable and/or hazardous materials shall be subject to compliance
with said Authorizations, and compliance therewith shall be LESSEE'S sole
responsibility. Further, LESSEE shall comply with any and all requirements
reasonably issued by any insurer of LESSOR with respect to the methods of
storage and the usage of said materials on the Premises.
9. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the 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 city or town in which the Premises are
situated, or which tend to degrade the economic status of the building.
10. FIRE INSURANCE. The LESSEE shall not permit any use of the Premises
which will make voidable any insurance on the property of which the 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 premises in good
condition, damage by fire and other casualty only excepted, to replace plate
glass and other glass therein, acknowledging that the Premises are now in good
order and the glass whole. The LESSEE shall not permit the 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 Premises.
LESSEE shall be responsible for the maintenance, repair and replacement of all
electrical, plumbing, heating, air conditioning, ventilation and other
mechanical installations serving only the Premises which shall include
diffusers, ductwork, steam valves and related equipment servicing the Premises.
LESSEE shall dispose of all trash, rubbish and refuse from the Premises in
a timely manner and shall not allow for an unreasonable accumulation of said
trash, rubbish or refuse inside the Premises. LESSEE shall dispose of said
trash, rubbish or refuse in a manner and at the location designated from time to
time by LESSOR.
B. LESSOR'S OBLIGATIONS. The LESSOR agrees to maintain the structure of the
building of which the Premises are a part in the same condition as it is on the
Commencement Date or as it may be put in during the term of this lease,
reasonable wear and tear, damage by fire and other casualty only excepted,
unless such maintenance is required because of the conduct of LESSEE or those
for whose conduct the LESSEE is legally responsible. LESSOR shall be responsible
only for maintaining the Building's mechanical and electrical systems which
serve more than one leased premises.
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12. ALTERATIONS - ADDITIONS.
A. The LESSEE shall not make structural alterations or additions to the
Premises, but may make nonstructural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld or delayed.
All such allowed alterations shall be at LESSEE'S expense and shall be in
quality at least equal to the present 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; except for the front counter
installed at the D Street side of the Building in the front foyer adjacent to
the elevator, which counter may be removed by LESSEE.
B. Installation of Equipment and Floor Capacity -- LESSEE shall not place
any load upon any floor of the Premises which exceeds the floor load capacity
(calculated on a square foot basis) and which is allowed by law. LESSEE will not
move any safe, heavy machinery, heavy equipment, freight, bulky matter or
fixtures into or out of the Building without LESSOR'S prior written consent,
which consent shall not be unreasonably withheld or delayed. The moving and
installation of such machines and equipment shall be at the sole risk and hazard
of the LESSEE.
C. Trade Fixtures and Equipment -- Any trade fixtures or equipment
installed in or attached to the Premises and all other property of LESSEE which
was personal property prior to its installation shall remain the property of
LESSEE, and LESSEE shall, except as otherwise provided herein or by agreement of
the parties, have the right to remove its trade fixtures, equipment and property
which it may have installed in or attached to the Premises, during the term, or
within five days thereafter or within a reasonable time after any accelerated
termination thereof; LESSEE must promptly repair in a workmanlike manner any
damage resulting from such removal, must plug or close in an approved manner any
connection to sources of gas, air, water, electricity or heat or to cooling
ducts and will take all reasonable precautions necessary relative to the subject
repair to leave the Premises undefaced.
13. ASSIGNMENT - SUBLEASING. LESSEE shall not assign, sublet, underlet,
mortgage, pledge or encumber (collectively referred to as "Transfer") this lease
without LESSOR'S prior written consent, which consent shall not be unreasonably
withheld or delayed. LESSOR'S refusal to consent to a Transfer for any use or
purpose other than as specifically stated in Paragraph 8 herein shall not be
deemed to be an unreasonable withholding of consent.
In the event the LESSEE desires to Transfer this lease to a proposed new
lessee to whom LESSOR is required to give its reasonable consent pursuant to the
foregoing paragraph, LESSOR shall have the option of either:
(1) allowing LESSEE to transfer this lease, in which case LESSEE shall
remain primarily liable upon all the terms, conditions and covenants hereof,
shall deliver to LESSOR an
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instrument executed by Transferee binding the same to the terms and provisions
of this lease and shall pay to LESSOR the amount by which the sum of rent,
additional rent due to taxes, and all other money or consideration it received
from a Transferee exceeds the sum of all monetary obligations which LESSEE owes
to LESSOR for the period of such Transfer; or
(2) terminating this lease and relieving LESSEE of all its future
obligations hereunder. In the event that LESSOR decides to terminate this lease,
it shall be free to enter into a new lease with the proposed new tenant or
anyone else on whatever terms and conditions it chooses.
Consent by LESSOR, whether express or implied, to any Transfer shall not
constitute a waiver of LESSOR'S right to prohibit any subsequent Transfer; nor
shall such consent be deemed a waiver of LESSOR'S right to terminate this lease
upon any subsequent Transfer.
As used herein, the term "assign" or "assignment" shall be deemed to
include, without limitation: (a) any transfer of the LESSEE'S interest in the
lease by operation of law, the merger or consolidation of the LESSEE with or
into any other firm or corporation; or (b) the transfer or sale of a controlling
interest in the LESSEE whether by sale of its capital stock or otherwise;
provided, however, LESSEE shall be permitted to transfer the lease in the event
of a transfer of a controlling ownership interest in LESSEE to another entity
subject to the following: (1) LESSEE shall provide notice to LESSOR of the
proposed transfer and include the name and address of Transferee at least thirty
(30) days prior to the effective date thereof and shall include documentation
which shall evidence the creditworthiness of Transferee, including audited
financials where available and evidence of the ability of Transferee to perform
the obligations of LESSEE; (2) the LESSEE herein named shall not be relieved or
released of its obligations hereunder as a result of any Transfer and the LESSEE
herein named shall remain obligated hereunder notwithstanding any such Transfer;
(3) in the event of any assignment, the assignee shall assume all of the
obligations of the LESSEE accruing on or after the date of such assignment by
instrument directed to the LESSOR; (4) any Transferee shall continue to abide by
all the terms and conditions of this lease to the extent applicable, and any
sublease or other Transfer of less than all rights and interests of the LESSOR'S
under this LESSOR'S shall be consistent with subject to and upon the terms and
conditions of this LESSOR'S, where applicable; (5) any Transfer shall be subject
to the approval of LESSOR'S institutional mortgage holders. LESSOR shall utilize
LESSOR'S best efforts to obtain said approvals as may be necessary pursuant to
this subparagraph (5).
14. SUBORDINATION. 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 at any time hereafter, constituting a lien or liens on the property of
which the 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. LESSOR shall use its best efforts to
cause LESSOR'S mortgagee to execute a nondisturbance agreement for the benefit
of LESSEE.
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15. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may at reasonable
times with prior notice to LESSEE (except in the event of an emergency and
except to the extent that LESSOR or LESSOR'S agent shall be required to read the
water meter located on the Premises), enter to view the Premises and may remove
placards and signs not approved and affixed as herein provided, and make repairs
and alterations as LESSOR should elect to do and may show the Premises to
others, and at any time within three (3) months before the expiration of the
term, may affix to any suitable part of the Premises a notice for letting or
selling the Premises or property of which the Premises are a part and keep the
same so affixed without hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY. The LESSEE will save LESSOR harmless,
defend and will exonerate and indemnify LESSOR from and against any and all
claims, liabilities or penalties:
(i) on account of or based upon any injury to person, or loss of or damage
to property sustained or occurring or emanating from the Premises on
account of or based upon the act, omission, fault, negligence or
misconduct of any person except LESSOR, its employees, agents and
independent contractors;
(ii) on account of or based upon any injury to person, or loss of or damage
to property, sustained on or occurring elsewhere in or about the
Building arising out of the use or occupancy of the Building or
Premises by the LESSEE or by any person claiming by, through or under
LESSEE, except where caused by the negligence, fault or misconduct of
LESSOR, its employees, agents and independent contractors.
and in addition to and not in limitation of either of the foregoing
subdivisions (i) and (ii);
(iii) on account of or based upon any work or thing whatsoever done on the
Premises; except where caused by the negligence, fault or misconduct
of LESSOR, its employees, agents or independent contractors.
and, in respect of any of the foregoing, from and against all costs,
expenses (including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, or any action or
proceedings; and in case any action or proceeding is brought against
LESSOR by reason of any such claim, LESSEE upon notice from LESSOR
shall at LESSEE'S expense resist or defend such action or proceeding
and employ counsel reasonably satisfactory to LESSOR.
17A. LESSEE'S LIABILITY INSURANCE.
1. Personal Property. All merchandise, furniture, fixtures, inventory and
personal property and the loss of use of personal property,
merchandise, furniture, fixtures
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and inventory of the LESSEE shall be at the sole risk and
responsibility of the LESSEE. LESSEE shall purchase and maintain
insurance in an amount adequate to repair or replace its personal
property and the tenant improvements and interior finish and build-out
to the Premises.
LESSEE is responsible for the replacement of any broken plate glass that is
part of the Building covered by this lease.
2. Comprehensive General Liability Insurance. LESSEE agrees to maintain,
throughout the term of the lease, Comprehensive General Liability
Insurance written on an occurrence basis. Such insurance shall include
coverage for products/completed operations, personal injury, broad
form property damage, host liquor, extended bodily injury and broad
form contractual liability. The minimum limit of liability carried on
such insurance shall be $1,000,000 combined single limit for each
occurrence with any aggregate limit applying only to each of the
following: products/completed operations, personal injury and
contractual liability. However, if the policy contains a general
policy aggregate or an aggregate which applies to coverages other than
the aforementioned coverages, the LESSEE shall purchase minimum limits
of $1,000,000 per occurrence/ $2,000,000 aggregate per location.
3. Automobile Liability. LESSEE agrees to maintain automobile liability
insurance for owned, nonowned and hired vehicles. The minimum limit of
liability carried on such insurance shall be ($1,000,000.00) each
accident, combined single limit for bodily injury and property damage.
4. Workers' Compensation. LESSEE agrees to maintain workers' compensation
insurance providing statutory limits including employer's liability
insurance with current limits of $100,000.00 for each additional
injury and, with respect to bodily injury by disease, $100,000.00 each
employee and $500,000.00 per policy year.
5. Umbrella Liability. LESSEE agrees to maintain umbrella liability
coverage with limits of $2,000,000.00 per occurrence. Umbrella
coverage is to apply excess of the comprehensive general
liability/automobile liability and employers liability coverages
mentioned in sections 2, 3 and 4 above.
All insurance policies required in paragraphs 2, 3 and 5 above shall
designate the LESSOR as an additional insured. LESSEE agrees that the insurance
coverages required under sections number 1 through number 5 above shall be
written by a company or companies authorized to do business in the Commonwealth
of Massachusetts with an A.M. Best's rating of "A," VIII or better.
LESSEE agrees to furnish the LESSOR with Certificates of Insurance prior to
the beginning of the term of the lease. Renewal Certificates of Insurance shall
be delivered to the LESSOR at least fifteen (15) days in advance of each renewal
date. Such certificates shall state
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that in the event of cancellation or material change written notification shall
be given to the LESSOR at least thirty (30) days in advance of such cancellation
or material change. However, if LESSEE, having used all reasonable efforts is
unable to have such certificate so state, then at least such certificate shall
state that in the event of such cancellation or material change in coverage, the
insurer shall endeavor to mail written notice thereof to the LESSOR at least ten
(10) days prior to such cancellation or material change, and in such event
LESSEE shall promptly notify LESSOR of any such cancellation or change upon
receipt by LESSEE of written notice from the insurer thereof.
17B. LESSOR'S COVERAGE - LESSOR shall maintain the same or similar hazard
and liability insurance coverages as in effect at the execution of the lease,
subject to reasonable market adjustments.
18. EMINENT DOMAIN AND DEMOLITION - If the Premises or any part thereof or
the whole or any part of the Building are taken for any street or other public
use, by action of the City or other authorities, or if the LESSOR or the LESSEE
are entitled to or receive any direct or consequential damages by reason of
anything lawfully done in pursuance of any public authority, or if LESSOR
voluntarily elects to demolish the Building or any part of the Building, except
as a consequence of fire or other casualty damage, then this lease and the term
shall terminate at the election of the LESSOR. LESSOR may elect so to terminate
this lease even if the entire interest of the LESSOR is divested by such a
taking. If, as a result of a taking or damage to or destruction of the Premises,
the Premises or any part thereof are rendered unfit for use and occupation, the
rent shall be abated proportionately according to the nature and extent of the
injury sustained by the Premises until the Premises or, in the case of a taking,
what may remain thereof, shall have been put in proper condition.
Except for the LESSOR'S election voluntarily to demolish the Premises or
Building, any election to terminate shall be made by LESSOR not later than
thirty (30) days after LESSOR receives notice of such taking or action or the
occurrence of such damage. The LESSOR reserves and excepts from this lease all
rights to damages resulting from the taking for public use of the Premises or
any portion thereof, or right appurtenant thereto, or privilege or easement in,
through, or over the same, and by way of confirmation of the foregoing, the
LESSEE hereby grants all rights to such damages previously accrued or accruing
during the term to the LESSOR, to have and to hold for the LESSOR forever.
Solely, in the case of LESSOR'S election voluntarily to demolish the Premises or
Building as stated above in this Article, LESSOR must give LESSEE at least one
(1) year prior termination notice, after which this lease shall terminate and be
of no further recourse to either party except as to rights and obligations
incurred prior to the termination date.
19. FIRE AND OTHER DAMAGE; SUBROGATION.
A. Fire and Other Damage - If the Building or any part thereof is partially
damaged by fire or other casualty, the damage thereto (except for damage to the
Premises' interior finish and build-out and to LESSEE'S fixtures, property and
equipment, for which LESSEE shall be
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responsible) shall be restored by and at the expense of LESSOR, and until such
restoration shall be made, if the Premises are rendered substantially unfit for
its use and purpose, the rent and other charges shall be subject to an abatement
to the extent fair and equitable, except if such casualty was a result of the
willful fault or negligence of LESSEE, in which event there shall be no
abatement of rent. Such restoration shall be made promptly by LESSOR subject to
delay which may arise by reason of adjustment of insurance, and for reasonable
delay on account of "labor troubles" or any other cause beyond LESSOR'S control.
LESSOR shall not be liable for any inconvenience or annoyance to LESSEE or for
injury to the business of LESSEE.
If the Building or the Premises is substantially damaged or rendered
substantially untenantable by fire or other casualty, the rent and other charges
shall be subject to an abatement to the extent fair and equitable as of the date
of the fire or casualty, and continuing until LESSOR completes its restoration
obligations hereunder or until the term expires hereunder, except if such
casualty was a result of the willful fault or negligence of LESSEE, in which
event there shall be no abatement of rent, and the LESSOR shall promptly restore
the same (excluding LESSEE'S interior finish and build-out and LESSEE'S
fixtures, property, and equipment), unless LESSOR decides not to restore, in
which event the LESSOR may, within sixty (60) days, after such fire or other
cause, give LESSEE a notice in writing of such decision and thereupon the term
shall expire upon the thirtieth (30th) day after such notice is given, and the
LESSEE shall vacate the Premises and surrender the same to the LESSOR. If the
Building (excluding Tenant Improvements and LESSEE'S fixtures, property and
equipment) is not in fact restored by LESSOR within eight months after the fire
or other casualty, the LESSEE may terminate this lease by written notice to
LESSOR within thirty (30) days after the end of the said eight month-period.
The provisions of this Article 19 shall govern in the case of damage or
destruction of the Building or any part thereof and restoration thereof due to a
fire or casualty notwithstanding any inconsistent provisions of this lease.
Notwithstanding anything to the contrary contained in this Article, the
provisions hereof shall be subject and subordinate to the rights of institutions
holding mortgages on the Building, including the rights contained in any of
LESSOR'S mortgage financing documents affecting the Building.
B. Waiver of Subrogation - LESSOR and LESSEE hereby release each other from
any and all liability or responsibility to the other or anyone claiming through
or under them by way of subrogation or otherwise for any loss or damage to
property caused by fire or any of the extended coverage or supplementary
contract casualties, even if such fire or other casualty shall have been caused
by the fault or negligence of the other party, or anyone for whom such party may
be responsible, provided, however, that this release shall be applicable and in
force and effect only to the extent permitted by law and only with respect to
loss or damage occurring during such time as such release does not adversely
affect releasor's insurance policies or prejudice the right of the releasor to
recover thereunder. LESSOR and LESSEE each agree that it will request its
insurance carriers to include in its policies, whether or not such policies are
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required hereunder, a clause or endorsement to the effect that any such release
shall not adversely affect said policies or prejudice the right of releasor to
recover thereunder. If extra cost shall be charged, each party will bear the
amount of its extra cost. In any of LESSEE'S insurance policy with respect to
the Premises which do not contain or which do not allow a waiver of subrogation
rights, LESSEE shall have LESSOR designated as one of the insured, and LESSEE
hereby agrees to defend, indemnify and hold LESSOR harmless from any liability,
loss, damage or causes of action to which LESSOR is subject due to or resulting
from LESSEE'S failure to either maintain insurance with waiver of subrogation
rights or alternatively designate LESSOR as one of the insured.
20. 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 ten
(10) days after written notice thereof; or
(b) The LESSEE shall default in the observance or performance of any other
of the LESSEE'S covenants, agreements, or obligations hereunder and
such default shall not be corrected within thirty (30) days after
written notice thereof or, if such default shall reasonably require
longer than thirty (30) days to cure, shall not within said period
commence and diligently proceed to cure such default; or
(c) The LESSEE shall be declared bankrupt 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 declare the term of this lease ended,
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. 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, 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 attorneys' fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations
incurred with interest at the rate of 18% per annum and costs, shall
be paid to the LESSOR by the LESSEE as additional rent.
21. NOTICE. Any notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof shall be deemed duly served if left at the
Premises addressed to the LESSEE, or if mailed to the Premises, registered or
certified mail, return receipt requested, postage prepaid, addressed to the
LESSEE. Any notice from the LESSEE to the LESSOR
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relating to the Premises or to the occupancy thereof shall be deemed duly
served, if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid, addressed to the LESSOR at such address as the
LESSOR may from time to time advise in writing. All rent shall be paid and
notices shall be sent to the LESSOR at 39 Brighton Avenue, Boston, Massachusetts
02134.
22. SURRENDER. The LESSEE shall at the expiration or other termination of
this lease remove all LESSEE'S goods and effects from the Premises (including,
without hereby limiting the generality of the foregoing, all trash and all signs
and lettering affixed or painted by the LESSEE, either inside or outside the
Premises). LESSEE shall deliver to the LESSOR the Premises and all keys, locks
thereto, and other fixtures connected therewith and all alterations and
additions made to or upon the Premises, in good condition, reasonable wear and
tear excepted and damage by fire or other casualty excepted. If the lease
terminates by acceleration or expiration of time and LESSEE does not surrender
the Premises and remove his effects from the Premises, and LESSOR obtains an
order of eviction from a court, then LESSOR may enter the Premises for the
purpose of removing LESSEE'S goods and effects, without prejudice to any other
remedies, and LESSOR may remove and store such goods and effects at LESSEE'S
expense, LESSEE hereby granting LESSOR an irrevocable power of attorney to
accomplish the same.
23. BROKERAGE. LESSOR and LESSEE each warrant and represent that it has not
negotiated with any broker in connection with this lease and each party agrees
to indemnify and hold the other party harmless if such warranty or
representation shall be deemed untrue.
24. HOLDOVER. If the LESSEE remains on the Premises beyond the expiration
date, and, if applicable, any option period, such holding over shall not be
deemed to create any tenancy at will, but the LESSEE shall be a tenant at
sufferance only, at a daily rate equal to two (2) times the rent and other
charges for the last year under this lease. However, all other conditions of
this lease to be performed by LESSEE shall continue in force.
25. LIABILITY. LESSEE hereby agrees that any judgment, decree or award
obtaining against the LESSOR which is related to this lease, the Premises or the
LESSEE'S use or occupancy of the Premises or the building, whether at law or in
equity, shall be satisfied out of the LESSOR'S equity in the land and building,
and further agrees to look only to such assets and to no other assets of the
LESSOR for satisfaction. LESSOR'S liability for maintenance and repair shall
always be limited to the cost of making such repair or accomplishing such
maintenance or repair. In no event shall LESSOR be liable for consequential or
any indirect damages.
26. NONWAIVER PROVISION. No acceptance by LESSOR of a lesser sum than the
rent, additional rent or any other charge then due shall be deemed to be other
than on account of the earliest installment of such rent or charge due, nor
shall any endorsement or statement on any check or any charge be deemed an
accord and satisfaction, and LESSOR may accept such check
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or payment without prejudice to LESSOR'S right to recover the balance of such
installment or pursue any other remedy provided in this lease.
27. LESSOR'S RULES AND REGULATIONS. LESSEE shall abide by any reasonable
rules and regulations as the LESSOR may make from time to time, applicable to
all lessees of the Building and uniformly enforced. The LESSOR, however, may
change said rules or waive any or all of said rules in the case of any one or
more lessees. Nor shall the LESSOR be responsible to the LESSEE, or to the
LESSEE'S agents, employees, servants, licensees, invitees, or visitors, for
failure to enforce any of the rules and regulations or for the nonobservance or
violation of any of said rules and regulations by any other LESSEE or by any
other person, or the nonobservance or violation of or failure to enforce or to
perform the provisions of any other lease of any part of the Building.
Notwithstanding the foregoing, however, LESSOR shall use its best efforts to
apply the rules and regulations to all lessees with reasonable uniformity in
conformity with their tenancies.
28. NO OFFER TO LEASE. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises. This document shall become effective and binding only
upon the execution and delivery hereof by LESSOR and by LESSEE, and until such
execution and delivery, LESSOR shall not in any way be bound to enter into a
lease with LESSEE for the Premises.
29. PARTIAL INVALIDITY. The invalidity of one or more phrases, sentences,
clauses or articles shall not affect the remaining portions of this lease, and
if any part of this lease should be declared invalid by the final order, decree
or judgment of a court of competent jurisdiction, this lease shall be construed
as if such invalid phrases, sentences, clauses or articles had not been
inserted.
30. This lease sets forth the entire agreement between the parties and
cannot be modified or amended except in writing duly executed by the respective
parties.
31. NO RECORDING. This lease shall not be recorded.
32. HOLIDAYS. The building of which the premises are a part will be closed
on all holidays as determined by the Federal Government. LESSEE can access the
building on holidays; however, LESSEE is not guaranteed building services on
these days.
33. AUTHORITY TO EXECUTE. The parties hereto each agree and represent to
the other that the signatories hereof have the authority to execute and bind
each of the named LESSOR and LESSEE respectively to the terms and covenants of
the lease.
34. QUIET ENJOYMENT. Upon LESSEE'S observing and performing all of the
terms, covenants and conditions in this lease, LESSEE shall peaceably and
quietly have and hold the Premises, without hindrance or molestation by any
person or persons lawfully claiming by, through or under LESSOR, subject to the
terms of this lease.
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35. ADDENDA. The addenda attached hereto numbered 1 through 5 and Exhibit A
are incorporated herein by reference.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals
this 14th day of July, 1992.
LESSOR: SALLY A. STARR AND LISA A. BROWN AS TRUSTEES OF D STREET 451 REAL
ESTATE TRUST FOR THE BENEFIT OF D STREET LIMITED PARTNERSHIP
BY:/s/ Sally A. Starr
----------------------------------------------
Sally A. Starr as Trustee and Not Individually
BY:/s/ Lisa A. Brown
----------------------------------------------
Lisa A. Brown as Trustee and Not Individually
ADDRESS: 39 Brighton Avenue
Boston, MA 02134
LESSEE: MASTER MOTION PICTURE CO., INC.
BY:/s/ Les W. Brewer
----------------------------------------------
Les W. Brewer II, President
ADDRESS: 451 D Street
Boston, MA 02110
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ADDENDUM #1: RULES AND REGULATIONS
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1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any lessee or used for any purpose other than for
ingress to and egress from the Premises and for delivery of
merchandise and equipment in a prompt and efficient manner using
elevators and passageways designated for such delivery by LESSOR.
There shall not be used in any space, or in the public hall of the
building, either by a lessee or by jobbers or others in the delivery
or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and sideguards. If the Premises are situate on the ground
floor of the Building, lessee thereof shall further, at lessee's
expense, keep the sidewalks and curb in front of said premises clean
and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or
constructed, and no sweepings, rubbish, rags, acids or other
substances shall be deposited therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the lessee who, or whose clerks, agents, employees
or visitors, shall have caused it.
3. No lessee shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or
halls, elevators, or out of the doors or windows or stairways of the
Building, and lessee shall not use, keep or permit to be used or kept
any foul or noxious gas or substance in the Premises or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to LESSOR or other occupants of the Building by reason
of noise, odors and/or vibrations, or interfere in any way with other
lessees or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted
cigars or cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of LESSOR.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any lessee on any part of the outside
of the Premises or the Building or on the inside of the Premises if
the same is visible from the outside of the Premises without the prior
written consent of LESSOR, except that the name of lessee may appear
on the entrance door of the Premises. In the event of the violation of
the foregoing by any lease, LESSOR may remove same without any
liability, and may charge the expense incurred by such removal to
lessee or lessees violating this rule. Interior signs on doors and
directory tablet shall be
<PAGE>
inscribed, painted or affixed for each lessee by LESSOR at the expense
of such lessee, and shall be of a size and color and style acceptable
to LESSOR.
6. Except with prior written consent of LESSOR, which consent shall not
be unreasonably withheld or delayed, and as LESSOR may direct, no
lessee shall mark, paint, drill into, or in any way deface any part of
the Premises or the Building of which they form a part or cut or
string wires, lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the Premises,
and, if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water;
the use of cement or other similar adhesive material being expressly
prohibited.
7. Except with the prior written consent of LESSOR, which consent shall
not be unreasonably withheld or delayed, no additional locks or bolts
of any kind shall be placed upon any of the doors or windows by any
lessee, nor shall any changes be made in existing locks or mechanism
thereof. If requested, LESSEE shall provide lessor with a copy of a
key for all new locks or bolts. Each lessee shall, upon the
termination of his tenancy, restore to LESSOR all keys either
furnished to or otherwise procured by, such LESSEE. In the event of
the loss of any keys furnished to LESSEE, LESSEE shall pay to LESSOR
the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises
only on the freight elevators and through the service entrances and
corridors or in an alternative way approved by LESSOR and only during
hours and in a manner approved by LESSOR.
9. Canvassing, soliciting and peddling in the Building is prohibited and
each lessee shall cooperate to prevent the same.
10. LESSOR shall have the right to prohibit any advertising by any lessee
which, in LESSOR'S opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon
written notice from LESSOR, lessee shall refrain from or discontinue
such advertising.
11. Except as provided below in this rules/regulations number eleven (11)
and except for those items necessary for the cleaning and maintenance
of LESSEE'S business, including office supplies, which shall be
properly stored to minimize the risk of fire and explosion, LESSEE
shall not bring or permit to be brought or kept in or on the Premises,
any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other process,
or any unusual or other objectionable odors to permeate in or emanate
from the Premises.
- 2 -
<PAGE>
A. The LESSOR agrees that the LESSEE may use and store within the
Premises certain chemical substances for developing film, provided,
however that the LESSEE faithfully and strictly complies with each and
every one of the following conditions:
1. The LESSEE shall promptly provide to the LESSOR a complete and
comprehensive written listing of all such chemical substances which
the LESSEE shall use and store in the Premises;
2. The LESSEE shall not use, nor store, nor permit the use or
storage of any such chemical substance in or about the Building,
except in the Premises;
3. The LESSEE shall promptly provide the LESSOR with written notice
of any and all additions and/or changes in said complete and
comprehensive listing of such chemical substances throughout the term
of this lease and any and all extensions thereof;
4. The LESSEE represents and warrants to the LESSOR that each such
chemical substance so used and/or stored will not be inflammable,
combustible, and/or explosive;
5. The LESSEE shall at all times comply with all federal, state,
local and manufacturer's fire, safety, storage, disclosure, disposal
and use regulations, statutes and instructions for any and all such
chemical substances;
6. The LESSEE shall indemnify and save the LESSOR harmless from any
and all losses and damage occasioned by the use and/or storage of any
and all such chemical substances;
7. In disposing of all such chemical substances, the LESSEE shall
cause each such chemical substance to be drained through a limestone
filtration system, or similar state-of-the-art system consistent with
LESSEE'S use, which system will be chosen by the LESSOR, but
purchased, installed and maintained solely at the LESSEE'S expense;
8. The LESSEE'S maintenance of said limestone filtration system
shall include, without limitation, the monthly replacement of
limestone;
9. The LESSEE shall, at all times, carry appropriate liability
insurance, at the LESSEE'S sole expense, covering the Premises and the
Building against all claims, losses and damage occasioned by the use
and/or storage of such chemical substances;
10. If the LESSOR determines that the LESSEE is not complying with
one or more of the above set forth conditions, the LESSOR shall cause
the LESSEE to
- 3 -
<PAGE>
receive written notice thereof (delivery of the same to the Premises
shall be deemed receipt by the LESSEE), and the failure by the LESSEE
to completely correct such noncompliance within fifteen (15) calendar
days shall be deemed a default by the LESSEE which shall entitle the
LESSOR to proceed to recover possession of the Premises without the
necessity of serving further notice to the LESSEE.
B. The LESSOR agrees that the LESSEE may use and/or store within the
Premises limited quantities of certain chemical substances for the
removal of paint, provided, however, that the LESSEE shall comply with
each of the conditions set forth in part A above, and provided
further, that the LESSEE shall at all times cause said chemical
substances for the removal of paint to be stored in one or more
fireproof containers, which containers must have been approved in
writing by the LESSOR.
- 4 -
<PAGE>
ADDENDUM #2: PARKING
- ---------------------
LESSEE shall have the right during the term of this lease to park thirty-seven
(37) insured passenger motor vehicles only in the parking area adjacent to 68
Fargo Street as specified by LESSOR, at all times day and night at no cost to
LESSEE. Five (5) of the thirty-seven (37) spaces shall be assigned to LESSEE for
LESSEE'S use and shall be designated as such on Exhibit C attached hereto.
LESSOR reserves the right to relocate such spaces to comparable location. LESSEE
shall be solely responsible for the removal of unauthorized vehicles from said
spaces; provided, however, LESSEE shall notify LESSOR prior to removal of any
vehicle displaying the appropriate designation which then currently permits the
right to park in the lot. Parking shall be completely at LESSEE'S sole risk, and
LESSOR shall not be responsible for any injury or property damage related to
such parking or the vehicles. Moreover, LESSEE shall remove said vehicles
temporarily at LESSOR'S request for snow plowing purposes and other maintenance
purposes and if the vehicles are present during snow plowing activities,
irrespective of whether LESSOR has notified LESSEE of the same, LESSOR shall
have the right to plow near the vehicles, and LESSOR shall not be required to
remove the plowed snow at or around the vehicles. LESSEE and LESSEE'S designated
employees, agents or servants shall at all times material display any
appropriate designation as shall be required by LESSOR permitting LESSEE to
utilize said parking facility. LESSEE shall execute any additional reasonable
documents consistent with the purpose hereof to accomplish LESSEE'S rights
hereunder, and such documentation shall by reference be incorporated into the
lease.
The LESSEE acknowledges that the parking privilege herein shall be adjusted
based upon the ratio of one space per 1,000 square feet occupied in the event
the Premises square footage shall be adjusted during the term. In the event
LESSEE shall seek to add additional parking, any additional spaces shall be at
the market rent then in effect at the time of leasing; provided, however,
nothing contained herein shall extend to LESSEE the right to additional spaces.
- 5 -
<PAGE>
ADDENDUM #3: OPTION TO EXTEND AT MARKET WITH APPRAISALS
- --------------------------------------------------------
LESSEE, having at all times faithfully performed all of the terms and conditions
of this lease and, not being in default, shall have the option to renew this
lease under the same terms and conditions of this lease except for rent,
adjustments to rent, tax clause and, except for this option for one, five (5)
year term, provided LESSEE complies with the provisions stated below:
A. Upon LESSOR'S receipt of written notice on or before six (6) months
prior to the Expiration Date from LESSEE that LESSEE is exercising its
extension option, LESSOR will within thirty (30) days notify LESSEE of the
proposed Base Rent, Adjusted Rent and Additional rent due to Taxes and
Trash for the extension term.
B. Within thirty (30) days after receipt of LESSOR'S proposed terms,
LESSEE will notify LESSOR either of its acceptance of the proposed terms,
or of its rejection of the proposed terms. LESSOR'S failure to receive
LESSEE'S written notice within the prescribed period shall be deemed a
rejection of LESSOR'S proposed terms.
C. If LESSEE rejects LESSOR'S proposed Base Rent for the extension term,
LESSOR and LESSEE shall attempt to fix a new Base Rent by agreement. In the
event that LESSOR and LESSEE do not agree within the period ending thirty
(30) days after LESSOR'S receipt of LESSEE'S rejection of LESSOR'S proposed
terms, the Base Rent shall be fixed according to the following procedure:
LESSEE and LESSOR shall each select an independent appraiser and the
appraisers selected by LESSEE and LESSOR shall mutually agree upon a third
appraiser.
The three appraisers shall independently estimate the fair market rental
value of the Premises without interior partitioning and other interior
improvements and submit their three estimates to LESSOR and LESSEE. In case
of disagreement among the three appraiser's estimates, the three (3)
estimates shall be averaged, and the resulting average shall be the Base
Rent for the renewal term.
Fees and costs incurred in connection with these appraisals shall be split
equally between LESSOR and LESSEE.
- 6 -
<PAGE>
ADDENDUM #4: HAZARDOUS SUBSTANCES
- ----------------------------------
As used herein, the following definitions shall apply:
1. "Hazardous Substance" means any substance, waste or material which is
deemed hazardous, toxic, a pollutant or contaminant under any federal, state or
local statute, law, ordinance, rule, regulation, or judicial or administrative
order or decision, now or hereafter in effect.
2. "Hazardous Substance on the Premises" means any hazardous substance present
in, on, near or emanating from the Premises or at the surface or below the
surface thereof. As used in this Addendum, the term "Premises" includes, in
addition to the leased Premises, the building(s) and grounds of which it is a
part.
3. "Applicable Law" shall mean all federal, state and local statutes, laws,
ordinances, rules and regulations and judicial and administrative orders,
rulings and decisions that are applicable now or in future to the Premises or
any portion thereof or to any activity which shall take place thereon.
LESSEE shall not generate, store, release, dispose of or otherwise handle any
Hazardous Substance on the Premises; moreover, LESSEE shall not take any action,
conduct any activity or fail to take any action which causes, contributes, or is
likely to cause or contribute to, a threat of release of any Hazardous Substance
on the Premises.
LESSEE furthermore shall not install or cause to be installed any chemical, oil
or gasoline storage tank(s) on, under or around the Premises, and it shall not
install or cause to be installed on, around or under the Premises any
transformers or other equipment which contain PCBs or other Hazardous
Substances. LESSOR warrants that LESSOR has not knowingly installed or caused to
be installed any Hazardous Substances on the Premises from and after the date
LESSOR took title to the Premises.
LESSEE shall defend, indemnify and hold harmless LESSOR and any mortgagee of the
Demised Premises from and against any and all liability, loss, suits, claims,
actions, causes of action, proceedings, demands, costs, penalties, fines and
expenses, including without limitation attorneys' fees, consultants' fees, and
cleanup costs, resulting from the presence of, release of, or threat of release
of, any Hazardous Substance on the Premises, arising from the action or inaction
of LESSEE, its employees, invitees, contractors and agents, or arising out of
the generation, storage, treatment, handling, transportation, disposal or
release (or threat of release) by LESSEE, its employees, invitees, contractors
and agents of any Hazardous Substance at or near the Premises, or arising out of
any violation(s) by the same of the Applicable Law regarding Hazardous
Substances.
LESSEE shall remove, clean up and remedy any Hazardous Substance on the
Premises, or any threat or release of Hazardous Substance on the Premises to the
extent required by Applicable Law, provided that the presence or threat of
release of such Hazardous Substance resulted from
- 7 -
<PAGE>
the action or inaction of LESSEE, its employees, contractors or agents, and
LESSEE shall be obligated to continue to pay Base Rental, Additional Rents and
other sums due under the lease until such removal, clean up or remedy is
completed in accordance with Applicable Laws, whether or not the term of this
lease shall terminate or expire. LESSEE hereby grants LESSOR the right to
inspect the Premises throughout the term of this lease, to determine that LESSEE
is in compliance with Applicable Laws and LESSEE agrees to provide LESSOR with
all information necessary to ascertain that LESSEE is in compliance with
Applicable Laws.
LESSEE shall comply with all provisions of Massachusetts General Laws Chapter
21E, the Massachusetts Oil and Hazardous Material Release Prevention Act (the
"Act"), and in that regard shall comply with all "operator" obligations therein,
including the reporting and requirements of Section 7 thereof.
Any release or threat of release of any Hazardous Substance on the Premises
arising from the action or inaction of LESSEE, its employees, invitees,
contractors, or agents, any breach by LESSEE of its obligations under this
Addendum, or any violation by LESSEE of the provisions of the Act shall
constitute a default by LESSEE under the lease. In the event of such a default,
notwithstanding the provisions of Paragraph 20, LESSOR shall have the additional
right, but not the obligation, to take any action or perform any act required by
this Addendum of the LESSEE to such extent and in such manner as LESSOR deems
appropriate, including paying necessary costs, fees and attorneys' fees. The
making of any such payment or the performing of any such act by the LESSOR shall
not waive or release the LESSEE from it obligations and agreements hereunder.
All amount so paid by LESSOR shall be immediately due and payable by LESSEE to
LESSOR on demand, as additional, rent with interest thereon at three percent
over the prime rate of interest announced from time to time by the First
National Bank of Boston.
LESSOR, in addition and not in limitation of its rights in the preceding
paragraph, shall have the right to enforce LESSEE'S obligations under this
Addendum by taking legal action seeking among other things, injunctive relief.
- 8 -
<PAGE>
ADDENDUM #5: RIGHTS AND OBLIGATIONS OF LESSOR AND LESSEE
- --------------------------------------------------------
REGARDING SEVENTH FLOOR REAR SPACE AS DEFINED HEREIN
- ----------------------------------------------------
LESSOR and LESSEE acknowledge and agree that a portion of the seventh (7th)
floor as delineated on Exhibit A as Space A is currently utilized by LESSEE and
that such Space A shall be surrendered to LESSOR. LESSEE shall surrender Space A
to LESSOR within two (2) weeks of execution of this lease, and LESSEE shall
thereafter have no right to utilized the Space A for any purpose. LESSOR and
LESSEE shall physically delineate Space A in the Building in a manner mutually
agreed to by the parties.
Upon request of lessor and within ninety (90) days thereof, LESSEE shall
construct at LESSEE'S expense a demising wall delineating the front portion of
the Premises, and such demising wall shall be constructed to Column line 23 as
defined on Exhibit A. In constructing such demising wall, LESSEE shall be
obligated to construct the same utilizing construction materials and finish work
which is consistent with the demising wall currently existing in such area.
Prior to the commencement of any work, LESSEE shall deliver to LESSOR any and
all plans for LESSOR'S approval, which approval shall not be unreasonably
withheld or delayed. Any and all plans shall be designed such that the bathrooms
currently identified on Exhibit A as number 3 and number 4 shall be delineated
as Common Area and the egress identified therein shall be preserved as Common
Area, and no walls shall be constructed so as to impede or otherwise block
access to such egress. LESSOR and LESSEE acknowledge that there shall be no
adjustment to the Premises square footage or to the rent payable to LESSOR
relating to the within constructions.
Prior to the construction of the demising wall, LESSEE shall permit access
through the Premises to Space A by LESSOR at reasonable times as required by
LESSOR, and LESSEE shall not unreasonably deny access thereto. In the event
LESSEE shall fail to construct the demising wall required herein, LESSOR shall
undertake to accomplish the same, and LESSEE shall reimburse to LESSOR the cost
thereof as additional rent.
- 9 -
<PAGE>
AMENDMENT TO LEASE
------------------
WHEREAS, Sally A. Starr and Lisa A. Brown, as Trustees of D Street 451 Real
Estate Trust for the benefit of D Street 451 Limited Partnership, is the lessor
(the "LESSOR") and Master Motion Picture Co., Inc., is the lessee (the "LESSEE")
under a lease agreement (the "Lease") dated July 14, 1992, whereby Lessee has
leased approximately 37,569 square feet of rentable seventh (7th) floor space
comprised of approximately (i) 24,842 square feet of space on the D Street side,
and (ii) 12,727 rentable square feet on the E Street side, of the building at
451 D Street, Boston, Massachusetts (the "Premises"); and
WHEREAS, LESSEE desires to continue to operate its business at the
Premises; and
WHEREAS, as of the date hereof LESSEE owes to LESSOR the following
arrearages under the lease: (i) arrearages for water and sewer usage (the "Water
and Sewer Arrearages") due pursuant to Section 7 of this lease in the total
amount of $16,446.44; (ii) arrearages for additional rent due pursuant to
Section 6D of the lease, in the total amount of $35,000.00 (the "Additional Rent
Arrearages"), and (iii) arrearages for Base Rent due under the lease in the
total amount of $6,184.04 (the "Base Rent Arrearages"); and
WHEREAS, the parties have agreed to a plan, as stated herein, for the
payment by LESSEE of LESSEE'S Water and Sewer Arrearages, Additional Rent
Arrearages and Base Rent Arrearages; and
WHEREAS, the parties hereto have agreed that LESSOR shall from and after
May 1, 1993, bill LESSEE on a monthly basis for its water and sewer usage at the
Premises.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is mutually acknowledged by the LESSOR and the LESSEE, the parties hereby
AGREE, effective May 1, 1993, as follows:
1. Section 5 of the lease, entitled "Security Deposit" is deleted in its
entirety. Notwithstanding anything in the lease to the contrary,
LESSOR shall draw upon LESSEE'S entire security deposit in the amount
of $15,602.00, which amount shall be applied toward LESSEE'S Water and
Sewer Arrearages of $16,446.44. The remainder of the Water and Sewer
Arrearages, namely $588.44, shall be paid to LESSOR by LESSEE upon
execution of this Amendment by LESSEE as additional rent under the
lease.
2. Section 6D of the lease is deleted in its entirety and in place
thereof is substituted the following new Section 6D:
D. LESSEE shall pay to LESSOR as additional rent as further
consideration hereof, the Additional Rent arrearages, in the
total amount of $35,000.00. Commencing on May 1, 1993 and on the
first day of each of the succeeding twenty-three (23) months,
through and including April 1,
<PAGE>
1995, LESSEE shall pay to LESSOR the sum of $1,458.33, all in the
same manner in which Base Rent is payable hereunder.
3. Section 7 of the lease is hereby amended by deleting from the second
sentence of the second paragraph of Section 7, (i) the word
"quarterly," and (ii) the phrase, "thirty (30) days," and substituting
in place thereof the word "monthly" and the phrase, "ten (10) days,"
respectively, with the effect that LESSOR shall pay on a monthly
basis, within ten (10) days or receipt of a statement from LESSOR for
its water and sewer usage at the Premises.
4. The parties hereto agree that, as of April 30, 1992, LESSEE owes to
LESSOR the Base Rent Arrearages in the total amount of $6,184.04.
LESSEE agrees that LESSEE shall pay such Base Rent Arrearages to
LESSOR in two equal payments of $3,092.02, due on May 1, 1993 and June
1, 1993, as additional rent due under the lease.
5. In all other respects, the lease shall remain the same.
Executed under seal this 28th day of April, 1993.
LESSOR: SALLY A. STARR AND LISA A. BROWN, AS TRUSTEES OF D STREET 451 REAL
ESTATE TRUST
BY:/s/ Sally A. Starr
-----------------------------------
SALLY A. STARR, AS TRUSTEE
BY:/s/ Lisa A. Brown
-----------------------------------
LISA A. BROWN, AS TRUSTEE
LESSEE: MASTER MOTION PICTURE CO., INC.
BY:/s/ Les W. Brewer
-----------------------------------
PRESIDENT
- 2 -
<PAGE>
SECOND AMENDMENT TO LEASE
-------------------------
Reference is made to a Lease dated July 14, 1992 and an Amendment to Lease (the
"First Amendment") dated April 28, 1993 (collectively, the "Lease") between
Sally A. Starr and Lisa A. Brown, as Trustees of D Street 451 Real Estate Trust
for the benefit of D Street 451 Limited Partnership, as lessor (hereinafter the
"LESSOR"), and Boris Image Group, Inc. f/k/a Master Motion Picture Company,
Inc., as lessee (hereinafter the "LESSEE") whereby LESSEE has leased the
premises (the "Premises") consisting of approximately 37,569 square feet of
rentable seventh (7th) floor space at the building (the Building") located at
451 D Street in Boston, Massachusetts, which Premises are comprised of
approximately (i) 24,842 rentable square feet of space on the D Street side of
the Building, and (ii) 12,727 rentable square feet of space on the E Street side
of the Building.
WHEREAS, the LESSEE desires to continue to conduct business at the
Premises; and
WHEREAS, by letter dated March 17, 1995, the LESSOR notified LESSEE that
LESSEE owed to LESSOR arrearages totaling $90,578.09 under the Lease; and
WHEREAS, the parties hereto have negotiated a settlement regarding the
Arrearages.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is mutually acknowledged by the LESSOR and LESSEE, the parties hereby
AGREE as follows:
1. By letter dated March 17, 1995, the LESSOR notified LESSEE that LESSEE
owed to LESSOR, as of March 1, 1995, arrearages (the "Arrearages")
totaling $90,578.09 for water and sewer usage pursuant to Section 7 of
the Lease, additional rent pursuant to Section 6D of the Lease, Base
Rent pursuant to Section 4, Taxes pursuant to Section 6A of the Lease
and Parking pursuant to Addendum #2 of the Lease. The LESSEE believes
that its Arrearages under the Lease total $56,625.90, and not
$90,578.09, and in furtherance thereof, have paid to LESSOR the sum of
$20,352.26 on March 10, 1995 and $36,273.64 on March 21, 1995. In
order to resolve this dispute, LESSOR has agreed to accept such
payments totaling $56,624 as full settlement of LESSEE'S Arrearages.
2. Section 6D of the Lease is hereby deleted in its entirety.
3. In all other respects, the Lease shall remain the same.
<PAGE>
LESSOR: D STREET 451 REAL ESTATE TRUST
BY:/s/ Sally A. Starr BY:/s/ Lisa A. Brown
-------------------------------------- -------------------------------
Sally A. Starr, as Trustee and not Lisa A. Brown, as Trustee and
individually not individually
LESSEE: BORIS IMAGE GROUP, INC. (formerly known as
Master Motion Picture Co., Inc.)
BY:/s/ Les W. Brewer
-----------------------------------
Its President
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
unaudited consolidated financial statements at November 30, 1997 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> AUG-31-1998
<PERIOD-START> SEP-01-1997
<PERIOD-END> NOV-30-1997
<CASH> 2,193,854
<SECURITIES> 0
<RECEIVABLES> 11,942,691
<ALLOWANCES> (278,236)
<INVENTORY> 0
<CURRENT-ASSETS> 18,104,020
<PP&E> 17,057,443
<DEPRECIATION> (5,028,231)
<TOTAL-ASSETS> 35,575,472
<CURRENT-LIABILITIES> 19,980,958
<BONDS> 0
0
0
<COMMON> 32,432
<OTHER-SE> 10,146,805
<TOTAL-LIABILITY-AND-EQUITY> 35,575,472
<SALES> 9,726,178
<TOTAL-REVENUES> 9,726,178
<CGS> 5,041,243
<TOTAL-COSTS> 5,041,243
<OTHER-EXPENSES> 3,419,649
<LOSS-PROVISION> 22,404
<INTEREST-EXPENSE> 561,557
<INCOME-PRETAX> 783,380
<INCOME-TAX> 275,507
<INCOME-CONTINUING> 507,873
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 570,873
<EPS-PRIMARY> 0.14
<EPS-DILUTED> 0.14
</TABLE>
