Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended December 31, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to
Commission File Number : 0-26336
_________________________New Paradigm Software Corp.___________________
(Exact name of Registrant as specified in its charter)
_______New York__________ ________________13-3725764
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
733 Third Avenue
______________________New York, New York 10017__________________________
(Address of principal executive offices)
(212) 557-0933
(Registrant's telephone number)
(Former name, former address and former fiscal year, if changed since
last report)
Check whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15 (d) of the Exchange Act during the past 12
months (or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes _X_ No ___
State the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
________Class_______ _Outstanding as of November 11, 1996
Common Stock, par value $.01 per share 2,451,822
Transitional Small Business Format (Check one): Yes___ No __X
PART I
FINANCIAL INFORMATION
Item 1. Financial Statements
Financial statements are included herein following Part II, Item 6.
These statements are unaudited, but reflect all adjustments that, in
the opinion of management, are necessary to provide a fair statement
of the results for the periods covered. All such adjustments are of a
normal recurring nature except where stated.
Item 2. Management's Discussion and Analysis of Financial
Condition and
Results of Operations.
General
New Paradigm Software Corp. (the "Company") is engaged in the
development, marketing, licensing and support of its COPERNICUS
software for large-scale computer users. Most large organizations have
many different computer systems. The need to pass information among
those often incompatible systems is growing rapidly. Passing
information among disparate computer systems is called "systems
integration." COPERNICUS automates systems integration by converting
data entered into or generated by one program or system into the form
needed by another program or system. The Company believes that its
customers can achieve systems integration using COPERNICUS in a more
timely and cost effective way than the traditional approach of writing
custom software on a case-by-case basis. An application for a United
States patent on COPERNICUS is pending.
The Company has established two subsidiaries, New Paradigm Commerce,
Inc. ("NPC") (formerly New Paradigm Golden Link), which provides
electronic data interchange ("EDI") services (the conveying of
business documents electronically), and New Paradigm Inter-Link, Inc.
("NPIL"), which was created to provide Internet services to
corporations.
The Company's revenues consist of license fees for the Company's
COPERNICUS software, maintenance fees and COPERNICUS pilot project
fees. The Company recently signed a distribution agreement with
International Business Machines ("IBM"). IBM intends to distribute
COPERNICUS in the United States and Canada through its sales force
responsible for sales of IBM's middleware product MQ Series. The
Company will receive 35% of the license revenues from such sales
during 1997 and 40% thereafter. Management believes this agreement
will produce a significant portion of the COPERNICUS revenues during
the next four years. This agreement was recently executed and no
material revenues have yet been realized. The Company's NPC subsidiary
charges fees primarily on a regular monthly or per transaction basis.
NPIL charges both initial fees on a project basis and continuing
monthly maintenance fees.
The Company's revenues and profitability may vary significantly both
in the case of consecutive quarters and in the case of a quarter
compared to the corresponding quarter of the preceding year. Such
variations may result from, among other factors, lengthy pilot testing
for COPERNICUS and any other New Paradigm application that the Company
might develop, timing of new product and service introductions by the
Company and its competitors, changes in levels of the Company's
operating expenditures, including the Company's expenditures on
research and development, the size and timing of customer orders, the
amount and timing of royalty payments and license fees by licensees,
as well as consulting, training and maintenance fees, increased
competition, reduced prices, the effect of currency exchange rate
fluctuations, delays in the development of new products, the costs
associated with the introduction of new products and the general state
of national and global economies. The Company expects to derive
substantially all of its revenues from royalties and license fees, and
consulting, training and maintenance fees. Accordingly, the Company's
revenues will vary with the demand for its products and services. In
addition, the Company expects that it typically will require
significant advance payments from customers upon establishing a new
licensing arrangement. The New Paradigm Commerce subsidiary's current
customers are principally involved in selling goods to the retail
industry. All changes that could affect the retail industry would
strongly affect this subsidiary's revenues. Accordingly, the timing of
receipt of payments and the recognition of revenues in a given period
could result in significant periodic fluctuations in liquidity and
financial results. As a result of such factors, the Company's revenues
and profitability for any particular quarter are not necessarily
indicative of any future results. Fluctuations in quarterly results
may also result in volatility in the price of the Company's
securities.
On December 31, 1996 the Company announced a restructuring of the
Company in line with its new strategy of focusing on third party
distributors rather than on direct sales. As part of this
restructuring the Company reduced its staff from 28 employees to 19.
While the Company does not believe the reduction in staff will greatly
affect its ability to support its customers, the Company's ability to
make direct sales of COPERNICUS has been severely limited. Should the
sales through third party distributors not meet the Company's
expectations, revenue from the COPERNICUS product would be
significantly effected.
If the Company does not obtain additional funds for working capital in
the immediate future, it will be unable to continue it operations.
Such financing may be raised through exercise of Redeemable Warrants,
additional equity offerings, joint ventures or other collaborative
relationships, borrowings and other sources. There can be no assurance
that additional financing will be available or, if it is available,
that it will be available on acceptable terms. If additional funds are
raised through the issuance of equity securities, the percentage
ownership of the then current shareholders of the Company will be
reduced and such equity securities may have rights, preferences or
privileges senior to those of the holders of the Common Stock. If
adequate funds are not available to satisfy either short or long-term
capital requirements, the Company may be required to limit its
operations significantly and may be unable to carry out its plan of
operations. This would involve further staff reductions, which could
severely limit the Company's ability to support its existing customers
and produce new versions of COPERNICUS and other products under the
New Paradigm Architecture.
Comparison of fiscal quarters
1. Changes in Financial Condition
As of July 1, 1995 the Company recognized the technological
feasibility of its COPERNICUS product. According to FASB# 86 the
Company is therefore required to capitalize its COPERNICUS development
costs incurred since that date.
2. Results of Operations
The Company's revenue increased 50% from $141,306 for the quarter
ended December 31, 1995 to $211,756 for the quarter ended December
31, 1996 and 96% from $295,644 for the nine months ending December
31, 1995 to $579,707 for the nine months ending December 31, 1996 due
to increased maintenance fees for COPERNICUS and the increase in
customers and activity of both NPC and NPIL.
The Company's operating expenses fell 27% from $1,047,846 to $760,027
for the quarter ended December 31, 1996 compared to the quarter ended
December 31, 1995. This was primarily due to the decrease in direct
marketing efforts of COPERNICUS and the implementation of cost cutting
measures by the Company. Operating expenses rose 12% from $2,547,422
for the nine months ending December 31, 1995 to $2,841,774 for the
nine months ending December 31, 1996. The increase was primarily due
to the increase in the average number of employees over the nine month
period.
The components of the operating expenses are as follows:
General and administrative costs decreased 14% from $538,333 for the
quarter ending December 31, 1995 to $464,313 for the quarter ending
December 31, 1996. This was due to cost cutting measures implemented
by the Company. General and administrative costs increased 31% from
$1,221,090 for the nine months ending December 31, 1995 to $1,597,417
for the nine months ending December 31, 1996. This was primarily due
to an increase in the average number of staff over the nine month
period.
Professional fees decreased 63% from $156,927 for the quarter ending
December 31, 1995 to $57,348 for the quarter ending December 31, 1996.
The higher professional fees for the quarter ended December 31, 1995
were due to legal fees incurred in preparation of documents required
to be filed by a publicly traded company and the preparation of
standard license agreements. The Company's Professional fees decreased
37% from $451,115 for the nine months ending December 31, 1995 to
$283,465 for the six months ending December 31, 1996. The higher
professional fees for the nine months ended December 31, 1995 were due
to legal fees incurred in preparation for its IPO, preparation of
documents required to be filed by a publicly traded company and the
preparation of standard license agreements.
Marketing costs fell 51% from $256,623 for the quarter ended December
31, 1995 to $124,938 for the quarter ended December 31, 1996. The
Company has reduced its sales staff from 7 employees on July 1, 1996
to 2 employees by December 31, 1996. Marketing costs increased 19%
from $554,255 for the nine months ending December 31, 1995 to $661,350
for the nine months ending December 31, 1996. This was primarily due
to the increase in personnel in the sales and marketing area, costs
relating to an advertising campaign in trade magazines and an increase
in the amount of marketing materials being produced and distributed.
Research and development costs in respect of COPERNICUS are
capitalized and no longer expensed by the Company. According to FASB#
86, "Accounting for Costs of Computer Software to be Sold, Leased, or
Otherwise Marketed", the Company believes it is now required to
capitalize its COPERNICUS research and development expenses.
Capitalized software expenses consist principally of salaries and
certain other expenses related to development and modifications of
COPERNICUS. Amortization of capitalized software costs is provided at
the greater of the ratio of current product revenue to the total of
current and anticipated product revenue or on a straight-line basis
over the estimated economic life of the software, which is not more
than five years. $62,617 was capitalized during the quarter ended
December 31, 1995 and $75,913 was capitalized during the quarter ended
December 31, 1996.
Occupancy costs fell 19% from $58,520 for the quarter ending December
31, 1995 to $47,223 for the quarter ending December 31, 1996. The
occupancy costs have decreased 15% from $150,109 to $127,236 for the
nine months ending December 31, 1996 over the same period in 1995.
This was due to the Company securing a lease with more favorable terms
for its New York offices.
The Company currently requires its overseas customers to pay in US
dollars and the vast majority of its expenses are in US dollars. The
Company does not presently engage in any hedging activities with
respect to foreign currency exchange rate risks.
This 10-QSB contains statements relating to future results of the
Company (including certain projections and business trends) that are
"forward-looking statements" as defined in the Private Securities
Litigation Reform Act of 1995. Actual results may differ materially
from those projected as a result of certain risks and uncertainties,
including but not limited to those described in the Company's Post-
Effective Amendment No. 2 on form S-3 to the Registration Statement on
Form SB-2 (registration no. 33-92988NY). Readers are cautioned not to
place undue reliance on these forward-looking statements, which speak
only as of the date hereof. The Company does not undertake any
obligation to release publicly any revisions to these forward-looking
statements to reflect events or circumstances after the date hereof or
to reflect the occurrence of unanticipated events.
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K.
(a) The following exhibits are filed with this quarterly report on
Form 10-QSB:
Exhibit 10.18. Lease for 733 Third Avenue
Exhibit 11. Statement re: computation of per share earnings
(losses).
(b) The following reports have been filed on Form 8-K since November
14, 1996:
1) December 19, 1996, IBM to Distribute New Paradigm's Copernicus
2) January 1, 1997, New Paradigm relocates New York headquarters,
Resignation of Jeff Kahn as a director, New Paradigm Restructures
Company
3) January 16, 1997, NASDAQ notifies New Paradigm of possible intent
to de-list. New Paradigm receives a six month loan of $150,000 from
Robert Trump
<TABLE>
<CAPTION>
NEW PARADIGM SOFTWARE CORP. and subsidiaries
Consolidated Balance Sheets
<S> <C> <C>
March 31 December 31
1996 1996
(unaudited)
Assets
Current:
Cash and cash equivalents $ 2,017,472 $ 27,660
Accounts receivable 108,063 180,587
Receivable from related party 50,000 50,000
Other receivables and prepayments 108,560 119,958
Total current assets 2,284,095 379,205
Property and equipment, less
accumulated depreciation and
amortization 352,964 300,059
Investment in restricted common stock
at market value (Note 2) 185,543 46,386
Other assets, less accumulated
amortization 291,266 515,383
$ 3,113,868 $ 1,241,033
Liabilities and Shareholders' Equity
Current:
Accounts payable and accrued expenses $ 220,341 $ 672,072
Deferred revenue 17,500 68,625
Total current liabilities 237,841 740,697
Total liabilities 237,841 740,697
Shareholders' equity:
Common stock, $.01 par value - shares
authorized 50,000,000;
issued and outstanding 2,451,729
and 2,446,729 24,467 24,517
Additional paid-in capital 9,150,209 9,150,209
Unrealized loss on investment in
restricted common stock (Note 2) (164,457) (303,614)
Deficit accumulated during the
development stage (6,134,192) (8,370,776)
Total shareholders' equity 2,876,027 500,336
$ 3,113,868 $ 1,241,033
</TABLE>
See accompanying notes to consolidated financial statements
<TABLE>
<CAPTION>
NEW PARADIGM SOFTWARE CORP. and subsidiaries
Consolidated Statements of Operations
<S> <C> <C> <C> <C>
Three months Three months Nine months Nine months
ended December ended December ended December ended December
31, 1995 31, 1996 31, 1995 31, 1996
(unaudited) (unaudited) (unaudited) (unaudited)
Revenues:
Software licensing fees $ 90,000 $ 18,000 $ 203,872 $ 198,000
Consulting, maintenance
and other fees 51,306 193,756 91,772 381,707
141,306 211,756 295,644 579,707
Expenses:
General and administrative 538,333 464,313 1,221,090 1,597,417
Professional fees 156,927 57,348 451,115 283,465
Marketing 256,623 124,938 554,255 661,350
Research and development - - 94,600 -
Occupancy 58,520 47,223 150,109 127,236
Depreciation and amortization 37,443 66,205 76,253 172,306
1,047,846 760,027 2,547,422 2,841,774
Loss from operations (906,540) (548,271) (2,251,778) (2,262,067)
Other income (expense):
Interest income 48,423 789 79,557 25,482
Interest expense - - (63,724) -
Loss from sale of
Netphone (95,500) - (95,500) -
Amortization of debt
discount and deferred
financing costs - - (375,545) -
(47,077) 789 (455,212) 25,482
Net loss $ (953,617) $ (547,482) $ (2,706,990) $ (2,236,585)
Net loss per share $ (.54) $ (.22) $ (1.53) $ (.91)
Weighted average common
shares outstanding 1,774,405 2,451,729 1,774,405 2,451,729
</TABLE>
See accompanying notes to consolidated financial statements
<TABLE>
<CAPTION>
NEW PARADIGM SOFTWARE CORP. and subsidiaries
Consolidated Statements of Cash Flows
<S> <C> <C> <C> <C>
Three months Three months Nine months Nine months
ended December ended December ended December ended December
31, 1995 31, 1996 31, 1995 31, 1996
(unaudited) (unaudited) (unaudited) (unaudited)
Cash flows from operating
activities:
Net Loss $ (953,617) $ (547,482) $ (2,706,990) $ (2,236,586)
Adjustments to reconcile
net loss to net cash
used in operating
activities:
Depreciation and
amortization 37,443 66,205 76,253 172,306
Amortization of debt
discount and
deferred financing
costs - - 375,545 -
Issuance of common stock
for services 150,000 - 150,000 50
Noncash interest expense - - 61,182 -
Changes in assets and
liabilities:
Increase in:
Accounts
receivable (303,980) (59,247) (432,802) (72,524)
Other receivables
and prepayments (150,996) (41,743) (167,550) (11,398)
Increase (decrease) in:
Accounts payable
and accrued
expenses (190,592) 327,744 7,822 451,731
Deferred revenue 60,000 11,875 124,942 51,125
Total adjustments (398,125) 304,834 195,392 591,290
Net cash (used in)
operating activities (1,351,742) (242,648) (2,511,598) (1,645,296)
Cash flows from investing
activities:
Purchases of property
and equipment (60,325) (8,706) (205,547) (51,304)
COPERNICUS development
costs (62,617) (75,913) (114,118) (238,413)
Camelot Stock (125,000) - (125,000) -
Netphone Value (100,000) - (100,000) -
Patents, trademarks and
organization costs (2,314) - (5,585) (54,799)
Net cash
used in investing
activities: (350,256) (84,619) (550,249) (344,516)
Cash flows from financing
activities:
Proceeds from issuance of
securities - - 8,072,013 -
Repayment of debt - - (1,713,531) -
Proceeds from private
placements - - 89,000 -
Borrowings from shareholder - - (67,951) -
Bank Loan - - - -
Issuance of Securities for
Ephone 240,500 - 240,500 -
Registration and financing
costs (103,394) - (896,908) -
Net cash used
in financing activities 137,106 - 5,723,124 -
Net increase (decrease) in
cash and cash
equivalents (1,564,892) (327,267) 2,661,276 (1,989,812)
Cash and cash equivalents,
beginning of period 4,620,461 354,927 394,293 2,017,472
Cash and cash equivalents,
end of period $ 3,055,569 $ 27,660 $ 3,055,569 $ 27,660
</TABLE>
See accompanying notes to consolidated financial statements
Note 1 -
The accompanying financial statements should be read in conjunction
with the Company's financial statements for the fiscal year ended
March 31, 1996, together with the accompanying notes included in the
Company's 10-KSB for the fiscal year ended March 31, 1996, the
Company's June 30, 1996 10-QSB and the Company's September 30, 1996
10-QSB. In the opinion of management, the interim statements reflect
all adjustments which are necessary for a fair statement of the
results of the interim periods presented. The interim results are not
necessarily indicative of the results for the full year.
Note 2 -
The Company owns 67,470 shares of Camelot Corporation's ("Camelot")
restricted common stock acquired in connection with its sale of the
Netphone software package, which were originally valued at $350,000.
On December 31, 1996, the market value of Camelot stock had decreased
to $46,386 resulting in an unrealized loss of $303,614 which has been
reflected in shareholders' equity. The unrealized loss for the Quarter
ended December 31, 1996 was $59,036.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
NEW PARADIGM SOFTWARE CORP.
(Registrant)
Date: February 14, 1997 /s/ Mark Blundell_____________________
Mark Blundell
President & Chief Financial Officer
Date: February 14, 1997 /s/ John Brann________________________
John Brann
Vice President of Technology
SUBLEASE
SUBLEASE, dated as of the _____ day of October, 1996, between
GO AMERICA TOURS, INC., a Delaware corporation, having its
principal office at 16375 NE 18th Avenue, North Miami Beach,
Florida 33162 ("Sublessor") and NEW PARADIGM SOFTWARE
CORP., a New York corporation, having its office at 335
Madison Avenue, New York, New York ("Sublessee").
W I T N E S S E T H:
WHEREAS, by Indenture of Lease dated as of December 27, 1983,
by and between the Durst Building Corporation, as landlord
(the "Landlord"), and Integrated Resources, Inc.
("Integrated"), as tenant (such lease, being hereinafter
referred to as the "Main Lease"), Landlord leased to
Integrated, a portion of the seventh floor (the "Original
Premises") in the building (the "Building") located at 733
Third Avenue, New York, New York; and
WHEREAS, by Agreement of Sublease (the "Sublease"), dated as
of November 1989 (date incomplete) by and between Integrated,
as Sublandlord and Sublessor, as Subtenant, Integrated leased
to Sublessor, the Original Premises on the terms and
provisions set forth in the Sublease;
WHEREAS, Integrated defaulted under the Main Lease and a
final judgment of possession was entered in Civil Court New
York County in favor of Landlord on December 22, 1989;
WHEREAS, by agreements dated November 19, 1989 and January
22, 1990, Landlord and Sublessor agreed to be bound by the
provisions of the Sublease;
WHEREAS, by agreement dated November 16, 1990 by and between
Van Dorn Realty Corporation as Agent for Landlord and
Sublessor the Sublease was modified to amongst other things,
demise additional premises (the "Additional Premises") to
Sublessor (the Original Premises and the Additional Premises,
hereinafter referred to as the "Premises") (the Sublease, as
amended and modified and as it incorporates the Main Lease is
hereinafter referred to as the "Second Lease").
WHEREAS, Sublessee desires to sublease from Sublessor the
Premises consisting of approximately 12,438 rentable square
feet as more particularly shown by hatching on the floor plan
annexed hereto as Exhibit A upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of ten dollars
($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Sublessor and Sublessee hereby agree as follows:
Defined Terms.
1. Unless the context clearly indicates a contrary intent,
or unless otherwise specifically provided herein, all
capitalized terms used in this Sublease which are defined in
the Main Lease shell be deemed to have the respective
meanings set forth in the Main Lease.
Term, Premises, Use.
2. A. Sublessor hereby subleases to Sublessee, and
Sublessee hereby takes and hires from Sublessor, for a term
(the "Term") (i) commencing on the date (the "Commencement
Date") which shall be the later to occur of (a) December 1,
1996 or the date upon which both of the following shall have
occurred (x) Sublessor and Sublessee shall have
unconditionally executed and delivered a counterpart of this
Sublease to each other, and (y) Landlord shall have consented
in writing to the execution and delivery of this Sublease as
described in Paragraph 33 hereof (ii) expiring at 12:00 p.n.
on August 29, 1999 (the "Expiration Date") unless sooner
terminated as provided in this Sublease, the Premises,
together with all rights and appurtenances thereunto
belonging , at the rentals and upon and subject to the
covenants, conditions and agreements set forth in this
Sublease.
B. After the Commencements Date has occurred, Sublessor
and Sublessee shall, upon request of either of them execute a
statement prepared by Sublessor setting forth such date. Any
failure of Sublessee to execute such statement shall not
affect the determination of the Commencement Date.
C. The Premises will be occupied and used by Sublessee
only for general and executive offices and for other uses
incidental thereto and for no other purpose. Sublessor shall,
however, consent to any change in use which is consented to
by Landlord, provided such use complies with law.
Fixed Rent; Additional Rent.
3. A. Sublessee shall pay to Sublessor fixed rent ("Fixed
Rent") in advance during the Term commencing upon the
Commencement Date through and including the Expiration Date
and thereafter on the first day of each and every month of
the Term (except that the first monthly installment of Fixed
Rent shall be payable upon execution hereof), as follows:
(i) for the period commencing on the Commencement Date
through and including the date which is one day prior to
the first anniversary of the Commencement Date, at the
rate of $270,526.50 per annum, payable in equal monthly
installments of $22,543.88, per month;
(ii) for the period commencing on the first anniversary
of the Commencement Date through and including the date
which is one (1) day prior to the second anniversary of
the Commencement date, at the rate of $282,964.50 per
annum payable in equal monthly installments of
$23,580.38 per month; and
(iii) for the period commencing on the second
anniversary of the Commencement date through and
including the Expiration Date, at the rate of
$307,840.50 per annum payable in equal monthly
installments of $225,653.36 per month.
B. Provided that Sublessee shall not then be in default
of any of its obligations under this Sublease beyond any
applicable notice and cure period, Sublessee shall be
entitled to a complete abatement of any monthly installments
of Fixed Rent and any and all Additional Rent payable
pursuant to Paragraph 3C hereof for the period commencing on
the Commencement Date (the "Abatement Period").
C. Sublessee shall pay to Sublessor additional rent
("Additional Rent"), as follows, which Additional Rent shall
be payable to Sublessor within ten (10) business days after
billing therefor:
(i) 100% of the amounts payable by Sublessor to Landlord
pursuant to Section 4.2(b) of the Second Lease; provided
however, that for purposes of this calculation Base
Tax shall mean the average of taxes payable for the
twenty-four (24) month period commencing July 1, 1996
and ending June 30, 1998;
(ii) 100% of the amounts payable by Sublessor to
Landlord pursuant to Sections 3.3 and 3.4 of the Second
Lease; provided; however, that for purposes of this
calculation the Base Wage Rate as used in the Second
Lease shall be deemed to mean the Wage Rate for the
calendar year 1997 and the Operating Year shall be
deemed to mean the which occurs any portion of the
Sublease; and
(iii) 100% of any and all other cost, expense, charge
payment or adjustment payable by Sublessor under the
Second Lease with respect to the Premises; provided,
however, that Sublessee shall only be obligated
hereunder to pay to Sublessor such portion of any cost,
expense, charge, payment or adjustment allocable to the
period commencing on the Commencement Date; and
(iv) all other sums of money as shall become due and
payable to or for the benefit of Sublessor pursuant to
the provisions of this Sublease.
D. "Rent" shall mean Fixed Rent and Additional Rent
payable hereunder collectively. Sublessor shall have the same
remedies for default in payment of Additional Rent as for a
default in payment of Additional Rent as for a default in
payment of Fixed Rent.
E. If the Commencement Date shall take place on a day
other then the first day of a calendar month or if the
Expiration Date shall be other than the last day of a
calendar month, the Fixed Rent and Additional Rent for such
month shall be apportioned to (and shall include) such date.
F. In the event that any sums payable by Sublessor under
the Second Lease are subject to adjustment by Landlord at the
end of a year or other period, then either (i) Sublessee
shall pay to Sublessor within ten (10) business days after
billing therefor, Sublessee's allocable portion of any
deficiencies payable to Landlord by reason of such
adjustment, which obligation of Sublessee shall survive the
termination of this Sublease, or (ii) Sublessor shall credit
against the next payment of Additional Rent coming due
hereunder Sublessee's allocable portion of any refund or
credit received by Sublessor from Landlord by reason of such
adjustment, except that if no further payments of Additional
Rent shall be e hereunder, then Sublessor shall refund such
amount to Sublessee within fifteen ) days after receipt of
the same from the Landlord.
G. Fixed Rent and except as otherwise specifically
provided in this Sublease, Additional Rent shall be paid by
Sublessee to Sublessor, without notice or demand therefor, in
lawful moneys United States of America, by check drawn on a
member of the New York Clearinghouse Association, at the
address of Sublessor set forth herein or at such other
address as may be designated by Sublessor from time to time
in writing. There shall be no abatement of, deduction from,
or counterclaim or setoff against Fixed Rent or Additional
Rent except as otherwise provided for herein and except that
Sublessee shall be entitled to an abatement of rent reserved
under the Second Lease with respect to the Premises (and if
such abatement day within the Abatement Period, Sublessee
shall be entitled to a day-for-day extension of such
Abatement Period). If any amount payable by Sublessee or
repayable to Sublessee as provided for herein shall be
determined after the termination of this ease, such amount
shall nevertheless be payable by Sublessee or repayable to
Sublessee, as the case may be, in the same manner as if this
Sublease had been terminated.
H. If Sublessee fails to make any payment or shall
default beyond applicable grace and notification periods in
the performance of any term, covenant, condition or provision
of this Sublease which involves an expenditure of money by
Sublessee, Sublessor, at Sublessors sole option, may after
ten (10) days prior written notice (except in the event of
an emergency) make such payment or expend such sums as may be
necessary to perform and fulfill such term, covenant,
condition or provision. In such event, Additional Rent shall
include, also, on written demand, the entire amount of
Sublessor's expenditure or payment and any and all reasonable
costs of any kind (including, without limitation, reasonable
legal fees) as may be necessary to perform and fulfill such
term, covenant, condition or provision, together with
interest on the entire amount thereof from the date of
Sublessor's payment until paid at an annual rate equal to two
(2%) percent per annum above the prime interest rate on
unsecured loans charged by Chemical Bank at its main office
in New York, New York on short-term unsecured loans in effect
from time to time during any period for which computation of
interest is made hereunder ("Prime Rate") which shall accrue
from the date of payment thereof by Sublessor.
I. The Fixed Rent includes the charge for the services
of redistributing and furnishing electrical energy on a "rent
including basis" the value for which is currently estimated
to be Thirty-Four Thousand Two Hundred Four and 50/100
Dollars (34,204.50) per annum subject to increase in
accordance with Article 7 of the Main Lease, based upon any
survey made by Landlord with respect to the Premises. In no
event will sublessee be charged or responsible for any
increase in electrical use caused by increased use by other
areas, other than the Premises, covered by the Main Lease or
the Second Lease. Sublessor represents and warrants as
follows:
(a) The copy of the Main Lease and the Second Lease
attached as exhibit B hereto is a true and complete
copy of the Main Lease and the Second Lease and
except as indicated in Exhibit B, the Main Lease
and the Second Lease have not been amended,
modified or supplemented in any manner.
(b) The Main Lease and the Second Lease are
presently in full force and effect and no person,
firm or entity has any claim or right in or to the
use, occupancy or enjoyment of the Premises
(including, without limitation, Integrated), other
then Sublessee.
(c) Sublessor shall not modify the terms of the
Main Lease or the Second Lease in any manner which
will increase the obligations or decrease the right
of Sublessee hereunder.
Condition of the Premises.
4. Sublessee has inspected the Premises, knows the
condition thereof and agrees to accept the same "AS IS" on
the Commencement Date in the condition in which it exists as
of the date hereof. Sublessee acknowledges that Sublessor has
made no representations or warranties whatsoever with respect
to the Premises other than those contained herein, and
Sublessee agrees that Sublessor has no obligation to alter or
repair the Premises or to prepare the same in any way for
Sublessee's occupancy or use.
Incorporated Articles of the Main Lease and the Second
Lease.
5. A. The Parties agree that except as otherwise provided
either in this Paragraph 5 or elsewhere in this Sublease, and
to the extent not inconsistent with either the agreements and
understandings expressed or implied in this Sublease or
applicable solely to the original parties to the Main Lease
or Second Lease, this Sublease shall specifically incorporate
all of the terms, covenants, conditions and provisions of the
Main Lease and the Second Lease with the exception of the
Excluded Articles (as hereinafter defined) (the incorporated
terms, covenants, conditions and provisions hereinafter
collectively referred to as the "Incorporated Articles") and
Sublessor shall have all the rights but none of the
obligations, of Landlord under the Incorporated Articles.
Sublessee shall be entitled, during the term of this
Sublease, (i) to receive all services, utilities, repairs and
facilities to be provided by Landlord to Sublessor pursuant
to the Main Lease and the Second Lease, subject to the
provisions of the Main Lease and the Second Lease relating to
the furnishing if such services, utilities, repairs and
facilities, and (ii) to have all rights and benefits afforded
to Sublessor by the Main Lease and the Second Lease, except
as set forth above and as otherwise provided in this
Sublease.
B. Subject to the provisions of paragraph 6, Sublessee
shall have all rights and obligations of a tenant under the
Incorporated Articles, provided, however, that specific
inclusion of any article of the Main Lease or the Second
Lease shall not require Sublessee to make double payments of
any charges or escalations thereunder. If there shall be any
inconsistency between the Incorporated Articles and the
express provisions of this Sublease, such provisions of this
Sublease shall govern. Notwithstanding the foregoing, any
reference to the Main Lease or the Second Lease without
reference to the Incorporated Articles or to any specific
provisions of the Main Lease shall mean all terms covenants,
conditions and provisions of the Main Lease or the Second
Lease as the case may be.
C. Except as otherwise expressly provided in, or
otherwise inconsistent with, this Sublease, or to the extent
not applicable to the Premises, the terms, provisions,
covenants, stipulations, conditions, rights, obligations,
remedies, and agreements contained in the Main Lease are
incorporated in this Sublease by reference, and are made a
part hereof as if herein set forth at length, Sublessor being
substituted for the "Tenant" under the Main Lease, and
Premises being substituted for Demised Premises under the
Main Lease, except that the following provisions of the Main
Lease shall be deemed deleted therefrom and shall have no
force and effect as between Sublessor and Sublessee (the
"Excluded Articles"):
Article 1; Article 2; Article 3 (other then Section 3.02
and 3.03); Section 4.01A(3) and Section 4.01A(4)(a); Section
5.01; Article 8; Article 10; Section 12.02; Article 13;
(Other Section 15.02l 15.03); Sections 16.02, and Section
16.05; Article 23; Article 24; Article 27; Sections 28.10 and
28.11; Article 30 and Article 31. All of the provisions of
the Second Lease shall also be deemed Excluded Articles
hereunder. Furthermore (a) with respect to the right to
survey in Section 7.02 of the Main Lease, Sublessee shall
only be responsible for increases in Fixed Rent due to a
survey performed by Landlord under the Main Lease and charged
to Sublessor pursuant to the Main Lease and the Second Lease
and (b) Section 12.01 of the Main Lease shall be modified so
that all references to "Landlord" shall be "Landlord" under
the Main Lease; and the phrase "existing on the Commencement
Date" is inserted after the phrase "original work".
Subordination
6. This Sublease and all rights of Sublessee hereunder
are and shall be subject and subordinate to the Main Lease
and the Second Lease and to all mortgages, ground leases,
leasehold mortgages, encumbrances, covenants, restrictions
and other rights, if any, to which the Main Lease, the Second
Lease and the Sublessor's interest therein are subject and
subordinate and Sublessor may exercise all of the rights,
privileges, claims, powers and remedies with respect to the
Premises reserves to the forth herein at length, including,
without limitation, all rights (a) arising out of any default
in the payment of money or otherwise, (b) to give or receive
any consent, notice, or willful approval and (c) to exercise
any election or option (including, without limitation
election of remedies). The Sublessee is also subject to any
amendments to the Main Lease, the Second Lease or any
supplemental agreements hereafter made between Landlord and
Sublessor, provided that such amendments and/or supplemental
agreements do not adversely affect Sublessee or its use of
the Premises.
7. A. Sublessee agrees not to do or permit to be done
any act or thing or neglect to take any action which act or
thing or neglect will constitute or cause a breach or
violation of any of the terms, covenants, conditions or
provisions of the Main Lease or the Second Lease or which
will make Sublessor liable for any damages, claims, fines,
costs or penalties under the Main Lease or the Second Lease.
Sublessee agrees to indemnify Sublessor and hold Sublessor
harmless from and against all loss, liability, obligation,
damage, penalty, cost, charge and expense of any kind
whatsoever (including, but not limited to, reasonable
attorneys' fees), which Sublessor may incur or pay out, or
which may be asserted against Sublessor (a) by reason of any
failure of or by Sublessee to perform or comply with any and
all of the terms, covenants, conditions and provisions of
this Sublease, (b) by reason of any breach or violation by
(or caused by) Sublessee of the terms, covenants, conditions,
and provisions of the Main Lease, (c) by reason of any work
or thing of whatsoever kind done in, on or about the Premises
or the Building by Sublessee's employees, contractors,
agents, licensees or invitees (including, but not limited to,
construction alterations, repairs or similar acts of any kind
whatsoever, and whether or not authorized by this Sublease),
(d) by reason of any negligence or willful act or omission of
Sublessee or Sublessee's employees, contractors, agents,
licensees or invitees or (e) by reason of any injuries to
persons or property occurring in, on or about the Premises or
the Building, provided, however, that this Paragraph A shall
not apply to injuries to persons or property caused by the
acts, omissions or negligence of Sublessor or Landlord or
Sublessor's or Landlord's employees, contractors, agents or
licensees. If any action or proceeding shall be bought
against Sublessor or Landlord by such claim, Sublessee, upon
notice from Sublessor, agrees to resist or defend such action
or proceeding and to employ counsel therefor reasonably
satisfactory to Sublessor; it being understood that counsel
for Sublessee's insurance company shall be deemed to be
satisfactory to Sublessor. Sublessee shall pay to Sublessor
on demand all sums which may be owing to Sublessor by reason
of the provisions of the provisions of this Paragraph 7.
Sublessee's obligations under this Paragraph 7 shall survive
the termination of this Sublease.
B. Sublessor agrees to indemnify Sublessee and hold
Sublessee harmless from and against all loss, liability,
obligation, damage, penalty, cost, charge, and expense of any
kind whatsoever (including but not limited to, reasonable
attorneys' fees), whatsoever asserted or occurring, which
Sublessee may incur or pay out, or which may be asserted
against Sublessee (a) by reason of any failure of or by
Sublessor to perform or comply with and all of the terms,
covenants, conditions and provisions of this Sublease, (b) by
reason of any work or thing of whatsoever kind done in, on or
about the Premises or the Building by Sublessor's employees,
contractors, agents, licensees or invitees (including, but
not limited to construction alterations, repairs or similar
acts of any kind whatsoever, and whether or not authorized by
this Sublease), (c) by reason of any negligence or willful
act or omission of Sublessee or Sublessee's employees,
contractors, agents, licensees or invitees or (d) by reason
of any injuries to persons or property occurring in, on or
about the portions of the Building (other then the Premises)
leased by Sublessor pursuant to the Main Lease; provided,
however, that this Paragraph B shall not apply to injuries to
persons or property caused by the acts, omissions or
negligence of Sublessee or Sublessee's employees,
contractors, agents or licensees. If any action or proceeding
shall be bought against Sublessee by such claim, Sublessor,
upon notice from Sublessee, agrees to resist or defend such
action or proceeding and to employ counsel therefor
reasonably satisfactory to Sublessee; it being understood
that counsel for Sublessor's insurance company shall be
deemed to be satisfactory to Sublessee. Sublessor shall pay
to Sublessee on demand all sums which may be owing to
Sublessee by reason of the provisions of the provisions of
this Paragraph 7. Sublessor's obligations under this
Paragraph 7 shall survive the termination of this Sublease.
Insurance.
8. Sublessee shall obtain and maintain in full force and
effect during the term of this Sublease, at its own cost and
expense, to protect Sublessor, Landlord, any superior lessor,
any superior mortgagee, Sublessee and any of their respective
agents, as insurers, a policy of comprehensive commercial
general public liability insurance pursuant to the Main Lease
for Sublessor's property, all business machines, fixtures,
furniture, furnishings, and other articles of personal
property owned by Sublessee, located in the Premises and not
so affixed to the realty, in each instance in accordance with
the terms of and in the amounts specified in the Main Lease.
Damage and Destruction.
9. Nothing contained in this Sublease shall relieve
Sublessee from liability that may exist as a result of damage
from fire or other casualty in the Premises, but each party
shall look first to any insurance in its favor before making
any claim against the other party for recovery for loss or
damage resulting from fire or other casualty. To the extent
that such insurance is in force and collectable and to the
extent permitted by law, Sublessor and Sublessee each hereby
releases and waives recovery against each other or anyone
claiming through or under the other by way of subrogation or
otherwise. The forgoing release and waiver shall be in force
only if the insurance policies of Sublessor and Sublessee
provide that such release or waiver does not invalidate the
insurance. Each party agrees to use its best efforts to
include in its applicable insurance policies such provision.
If the inclusion of said provision would involve an
additional expense, either party, at such party's expense,
may require such provision to be inserted in the other's
policy.
Time Limits for Notices
10. The time limits set forth in the Main Lease for the
giving of notices, making demands, performance of any act,
condition or covenant, or the exercise of any right, remedy
or option, are changed for the purpose of this Sublease, by
lengthening or shortening the same in each instance, as
appropriate, so that notices may be given, demands made, or
any act, condition or covenant performed, or any right,
remedy or option hereunder exercised, by Sublessor or
Sublessee, as the case may be (and each party covenants that
it will do so) within two (2) days prior to the expiration of
the time limit, taking into account the maximum grace period,
if any, relating thereto contained in the Main Lease. Each
party shall promptly deliver to the other party copies of all
notices, requests or demands which relate to the Premises or
the use or occupancy thereof after receipt of same from
Landlord. Notwithstanding the foregoing, in the event such
notice would require an action by Sublessee, then the period
for such action or performance shall be five (5) days, except
in the event of an emergency in which event Sublessee shall
be given notice reasonable under such circumstances. Anything
contained in Article 20 of the Main Lease to the contrary
notwithstanding, Tenant shall not be deemed to be in default
of the payment of Fixed Rent or Additional Rent until the
expiration of three (3) days after written notice of such
default is given to Sublessee. Sublessee shall not be deemed
to be in default of fulfilling any of the other covenants of
this Main Lease, other than the covenants for the payment of
Fixed Rent or Additional Rent, until the expiration of ten
(10 ) days after written notice of such notice is given to
Sublessee, or if said default or omission shall be of such
nature that the same cannot be completely cured or remedied
in said ten day period, Sublessee shall not be deemed to be
in default unless Sublessee shall not have diligently
commenced to cure such default within such ten day period and
shall not thereafter with reasonable diligence and in good
faith proceed to remedy or cure such default.
Electricity and Services and Repairs.
11. A. (i) Electrical energy shall be furnished to the
Premises through presently installed electrical facilities
for Sublessee's use of normal office equipment and for such
lighting and electrical appliances and other machines and
equipment as Sublessor may reasonable permit to be installed
in the Premises.
B. Notwithstanding anything to the contrary contained in
this Sublease, in the Main Lease or the Second Lease,
Sublessor shall have no responsibility to provide any of the
services that Landlord is required to provide pursuant to the
Main Lease or the Second Lease (or required by law), or
furnish electricity to the Premises that Landlord is required
to furnish pursuant to the Main Lease or the Second Lease (or
required by law), or comply with any laws or requirements of
any governmental authorities, or take any other action that
Landlord is required to provide, furnish, make, comply with,
or take, or cause to be provided, furnished, made, complied
with or taken under the Main Lease or the Second Lease but
Sublessor agrees to use all reasonable efforts, at
Sublessee's sole cost and expense, to obtain the same from
Landlord. If Landlord shall default in any of its obligations
to Sublessor with respect to the Premises, Sublessee shall be
entitled to participate with Sublessor in the enforcement of
Sublessor's rights against the Landlord (and in any recovery
or relief obtained), may, but Sublessor shall have no
obligation to bring any action or proceeding or to take any
steps to enforce Sublessor's rights against Landlord. Any
action or proceeding so instituted by Sublessor shall be at
the sole expense of Sublessee, provided, however, that
Sublessee has consented in writing to any such action or
proceeding. In the event that Sublessee shall not consent,
Sublessor may institute such action and proceeding at
Sublessor's sole cost and expense. If, after written request
from Sublessee, Sublessor shall fail or refuse to take
appropriate action for the enforcement of Sublessor's rights
against Landlord, Sublessee shall have the right, at
Sublessee's sole cost and expense to take such action in its
own name and, for that purpose and only to such extent, all
of the rights of Sublessor to enforce the obligations of
Landlord under the Main Lease are hereby conferred upon and
are conditionally assigned to Sublessee and Sublessee hereby
is subjugated to such rights (including, without limitation,
the benefit of any recovery or relief); provided, however,
that (i) Sublessee shall only have such rights if Sublessee
shall not be in default under this Sublease and (ii)
Sublessor shall have the right to require Sublessee to
discontinue such action if in the reasonable opinion of
Sublessor such action may cause a cancellation, forfeiture or
termination of the Main Lease or Sublessor's estate and
rights thereunder with respect to the Premises. Sublessee
shall indemnify and hold Sublessor harmless from and against
any and all losses, costs, liability, claims, damages,
expenses (including, without limitation, attorney's fees),
penalties and fines to which Sublessor may incur in
connection with or arising out of the taking of any such
action by Sublessee. Sublessee shall not make any claim
against Sublessor for any damage which may arise, nor shall
Sublessee's obligations hereunder be diminished, by reason of
(i) the failure of Landlord to keep, observe or perform any
of its obligations to the Main Lease, unless such failure is
due to Sublessor's negligence or misconduct, or (ii) the acts
or omissions of Landlord, its agents, contractors, servants,
employees, invitees or licensees. The provisions of this
Article 11 shall survive the expiration or earlier
termination of the term hereof.
Consents and Approvals of Sublessor.
12. A. Sublessor agrees that whenever its consent or
approval is required hereunder, or where something must be
done to Sublessor's satisfaction, it shall not unreasonably
withhold or delay such consent or approval; provided,
however, notwithstanding that Sublessor may consent to a
request by Sublessee, Sublessee shall not take any action
unless and until the consent of Landlord, the lesser under a
superior lease, or the mortgagee under a mortgage, as the
case may be, is also granted (if, required under the Main
Lease or the Second Lease). If Landlord shall withhold its
consent or approval in connection with the Sublease or the
Premises in any instance where, under the Main Lease or the
Second Lease, the consent or approval of the Main Lease or
Second Lease, the consent or approval of Landlord may not be
unreasonably withhold, Sublessee shall be entitled to
participate with the Sublessor in the enforcement of
Sublessor's rights against Landlord (and in any recovery or
relief obtained), Sublessor may, but shall have no obligation
to bring any action or proceeding or to take any steps to
enforce Sublessor's rights against Landlord. Any action or
proceeding so instituted by Sublessor shall be at the sole
expense of Sublessee, provided, however, that Sublessee has
consented in writing to any such action or proceeding. In the
event that Sublessee shall not consent, Sublessor shall fail
or refuse to take appropriate action for the enforcement of
Sublessor's rights against Landlord, Sublessee shall have the
right, at Sublessee's sole cost and expense, to take such
action in its own name and, for that purpose and only to such
extent, all of the rights of Sublessor to enforce the
obligations of Landlord under the Main Lease are hereby
conferred upon and are conditionally assigned to Sublessee
and Sublessee hereby is subjugated to such rights (including,
without limitation, the benefit of any recovery or relief);
provided, however, that (i) Sublessee shall only have such
rights if Sublessee shall not be in default under this
Sublease and (ii) Sublessor shall have the right to require
Sublessee to discontinue such action if in the reasonable
opinion of Sublessor such action may cause a cancellation,
forfeiture or termination of the Main Lease or Sublessor's
estate and rights thereunder with respect to the Premises.
Sublessee shall indemnify and hold Sublessor harmless from
and against any and all losses, costs, liability, claims,
damages, expenses (including, without limitation, attorney's
fees), penalties and fines to which Sublessor may be exposed
and which Sublessor may incur in connection with or arising
out of the taking of any such action by Sublessee.
B. If Sublessee shall request Sublessor's consent and
Sublessor has agreed, under the terms of this Sublease, that
neither its consent nor its approval shall be unreasonably
withheld, and Sublessor shall fail or refuse to give such
consent or approval, and Sublessee shall dispute the
reasonableness of Sublessor's refusal to give its consent or
approval, such dispute shall be finally determined by a court
of competent jurisdiction.
Sublease, Not Assignment
13. Notwithstanding anything contained herein, this
Sublease shall be deemed to be a sublease of the Premises and
not an assignment, in whole or in part, of Sublessor's
interest in the Main Lease or the Second Lease.
Damage, Destruction, Fire and other Casualty;
Condemnation
14. Notwithstanding any contrary provision of this
Sublease or the provisions of the Main Lease or the Second
Lease herein incorporated by reference, Sublessee shall have
the right to terminate this Sublease in the event of
substantial damage, destruction, fire or other casualty, or
at its option be entitled to a pro-rata abatement of Rent,
based upon the area of the Premises which is unusable by
reason of a or condemnation affecting the Premises for the
duration that such area is unusable (except Sublessee shall
be entitled to a complete abatement in the event Sublessee is
unable to operate its business from the Premises for the
duration that the Premises is unusable) notwithstanding
whether Sublessor is entitled to terminate the Main Lease or
the Second Lease or is entitled to a corresponding abatement
with respect to its corresponding obligation under the Main
Lease or the Second Lease. If Sublessor is entitled to
terminate the Main Lease or the Second Lease for all or any
portion of the Premises by reason of casualty or
condemnation, Sublessee may terminate this Sublease as to any
corresponding part of the Premises by written notice to
Sublessor given at least five (5) business days prior to the
date(s) Sublessor is required to give notice to Landlord of
such termination under the terms of the Main Lease.
No Waivers
15. Failure by Sublessor in any instance to insist upon
the strict performance of any one or more of the obligations
of Sublessee under this Sublease, or to exercise any election
herein contained, shall in no manner be or be deemed to be a
waiver by Sublessor of any of Sublessee's defaults or
breaches hereunder or any of Sublessor's rights and remedies
by reason of such defaults or breaches, or a waiver or
relinquishment for the future of requirement of strict
performance of any and all of Sublessee's obligations
hereunder. Further, no payment by Sublessee or receipt of
Sublessor of a lessor amount then the correct amount or
manner of payment of Rent due hereunder shall be deemed to be
other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check
or payment be deemed to affect or evidence an accord and
satisfaction, and Sublessor may accept any checks or payments
as made without prejudice to Sublessor's right to recover the
balance or pursue any other remedy in this Sublease or
otherwise provided at law or equity.
Default of Sublease
16. In the event that Sublessee shall default beyond
applicable notice and cure periods in the performance of any
part of the terms, covenants and conditions on its part to be
performed under this Sublease, or in the event that Sublessee
shall default beyond applicable notice and cure periods in
the performance of any of the terms, covenants and conditions
on the tenant's part to be performed under the Main Lease and
the same are not cured within the time periods set forth
herein, then the Sublessor shall have the same rights and
remedies with respect to such default as are given to
Landlord under the Main Lease with respect to defaults by the
Sublessor under the Main Lease with respect to defaults and
the rights and remedies of Landlord thereunder in the event
thereof were set forth at length herein. If the Sublessee
shall default in the performance of any of the Sublessee's
obligations under this Sublease or under the provisions of
the Main Lease, Sublessor, without thereby waiving such
default, may, at Sublessor's option after notice to Sublessee
(except in the case of an emergency, perform the same for the
account and at the expense of Sublessee, and Sublessee shall
pay, as Additional Rent, upon demand, the entire amount of
Sublessee's expenditure and any reasonable costs of any kind
(including, without limitation, reasonable legal fees) as may
be necessary to perform such obligation, together with
interest on the entire amount thereof, until paid, at two
(2%) percent above the Prime Rate, which interest shall
accrue form the date of such expenditure by Sublessor.
Failure to Deliver Possession.
17. If Sublessor shall be unable to give possession of
the Premises on the Commencement Date, Sublessor shall not be
subject to any liability for failure to give possession on
such date and the validity of this Sublease shall not be
impaired under such circumstances except for Sublessee's
termination rights set forth in Paragraph 33 hereof, nor
shall the same be construed in any way to extend the term of
this Sublease, provided, however, that if this Sublease is
not terminated as provided in Paragraph 33 hereof, the
Commencement Date shall be extended by the number of days
beyond the Commencement Date that the Sublessor is unable to
give possession of the Premises to Sublessee.
Notices.
18. All notices, requests, demands, elections, consents,
approvals and other communications hereunder ("Notice") must
be in writing and addressed as follows (or to any other
address which such party may designate by Notice):
If to Sublessee: New Paradigm Software Corporation
733 Third Avenue
New York, NY 10017
Attention: John Brann
with a copy to: Chadbourne & Parke, LLP
30 Rockefeller Plaza
New York, NY 10112
Attention Arthur M. Mitchell
If to Sublessor: Go America Tours, Inc.
16375 N.E. 18th Avenue
North Miami Beach, Florida 33162
Attention: Peter Dorner
with a copy to: Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
Attention Michael Verde, Esq.
Any notice required by this Sublease to be given or made
within a specified period of time, or on or before a date
certain, shall be deemed duly given or made only if sent by
hand, evidenced by written receipt or by certified mail,
return receipt requested, and postage and registry fees
prepaid. A notice sent by certified mail (as above) shall be
deemed given on the date of mailing. All other notices shall
be deemed given when received.
Overtime HVAC.
19. In the event that Sublessee shall require overtime
heating, ventilating or air conditioning, or any other
service for which Landlord may impose a separate charge,
Sublessee shall notify Landlord directly in accordance with
the provisions of the Main Lease, and Sublease shall
reimburse Sublessor for the full amount of the charges made
by Landlord for providing such services, such reimbursement
to be paid within ten (10) days after billing by Sublessor.
Waiver of Redemption and of Jury Trial.
20. To the extent permitted by law, Sublessee hereby
waives service of notice of intention to re-enter. Sublessee
(for itself and for persons claiming through or under
Sublessee) hereby expressly waives any and all rights, under
any present or future law, to redeem the Premises or to a new
trial, after reentry by Sublessor or after issuance or entry
of any warrant to dispossess in any summary proceeding or
otherwise to enforce the provisions hereof. If Sublessor
acquired possession of the Premises by summary proceeding or
in any other lawful manner, have re-entered within the
meaning of this Paragraph 20. To the full extent now or
hereafter permitted by law, Sublessee and Sublessor waive
trial by jury in any action or proceeding bought by either
against the other with respect to the Premises or to any
matter pertaining to this Sublease.
Surrender of Premises.
21. On the termination of this Sublease, Sublessee shall
quit and surrender the Premises to Sublessor broom-clean and
in good order, condition and repair, except for ordinary wear
and tear, and in accordance with the applicable provisions of
the Main Lease and this Sublease. If the Premises are not
surrendered upon termination of this Sublease, Sublessee
hereby indemnifies Sublessor from and against all loss, cost,
liability, claim, damage and expense (including, without
limitation, reasonable attorney's fees) resulting from delay
by Sublessee in so surrendering the Premises and Sublessee,
at the option of Sublessor, shall be deemed to be occupying
the Premises as a tenant from month-to-month, at a monthly
rental equal to three times rent payable during the last
month of the term of this Sublease and subject to all of the
other terms of this Sublessee insofar as the same are
applicable to a month-to-month tenancy. Sublessee's
obligations under this Paragraph 21 shall survive the
termination of this Sublease.
Quiet Enjoyment.
As long as Sublessee shall pay the Rent and shall duly
perform all of the terms, covenants and conditions of this
Sublease on its part to be performed, Sublessee shall,
subject to the terms hereof and of the Main Lease, quietly
hold and enjoy the Premises during the term of this Sublease
without hindrance, ejection, molestation or interruption,
Notwithstanding the foregoing, if the Main Lease terminates
or is terminated for any reason whatsoever prior to e date on
which this Sublessee is scheduled to expire, this Sublease
shall thereupon terminate. Sublessor shall not be liable to
Sublessee by reason of any such termination and thereafter
shall have no further obligations to Sublessee hereunder,
except for the return of the Security Deposit (hereinafter
defined) and any pre-paid Rental and as specifically set
forth in Paragraph 25 hereof.
Assignment and Subletting
23. Except as otherwise provided herein, Sublessee shall
not assign, sell, transfer (whether by operation of law or
otherwise), pledge, mortgage or otherwise encumber this
Sublease or any portion of its interest in the Premises, nor
sublet all or any portion of the Premises or permit any other
person entity to use or occupy all or any portion of the
Premises without the prior written consent of Sublessor and
Landlord provided however, that no such consent shall be
required of Sublessor with respect to any assignment or
subletting to any affiliate or subsidiary or corporation or
partnership related to Sublessee. Provided that Sublessee
shall comply with the provisions of the Main Lease and this
Sublease with respect to subletting, Sublessor agrees that it
shall not withhold or delay its consent to a subletting of
all or any portion of the Premises but any such subletting
shall be subject to the consent of Landlord pursuant to the
Main Lease. Sublessor shall respond to Sublessee's written
request within fifteen (15) days of its submission or the
request shall be deemed approved. Upon the request of
Sublessee, Sublessor, at Sublessee's sole cost and expense,
shall request the consent of Landlord and cooperate with
Sublessee in obtaining any consent.
Supplementing the provisions of Section 8.01G of the
Main Lease, the term "profits" referred to therein shall be
deemed to refer to rent and other income received by
Sublessee in connection with the subletting or assignment by
Sublessee or the assignment of the Sublease by Sublessee, in
excess of any rent and additional rent payable by Sublessee
to Sublessor. Sublessee shall pay to Sublessor all rent,
additional rent or other payments received by Sublessee in
connection with any subletting in excess of rent, additional
rent payable by Sublessee to Sublessor until such time that
Sublessor is receiving, on a current basis, Rent and
additional rent equal to the Fixed Rent and additional rent
payable by Sublessor to Landlord. Thereafter fifty (50%)
percent of any additional sums received by Sublessee shall be
paid to Landlord as provided in the Main Lease and the
balance shall be retained by Sublessee.
If this Sublease be assigned, or if the Premises of any
part thereof be sublet (whether or not Sublessor and Landlord
consented thereto), Sublessor after default by Sublessee in
its obligations hereunder and following any applicable notice
and grace periods, may collect rent from the assignee or
subtenant and apply the net amount collected to the rent
herein reserved but no such assignment or subletting shall be
deemed a waiver of the covenant set forth in this Paragraph
23, or the acceptance of the assignee or subtenant as a
tenant, or a release of Sublessee from the further
performance and observance by Sublessee of the covenants,
obligations and agreements on the part of Sublessee to be
performed or observed herein. The consent by Sublessor or
Landlord to an assignment, sale, pledge, transfer, mortgage
or subletting shall not in any way be construed to relieve
Sublessee from obtaining the express consent in writing, to
the extent required by this Sublease, the Main Lease or the
Second Lease, of Sublessor and Landlord to any further
assignment, sale, pledge, transfer, mortgage or subletting.
Occupancy Tax.
24. Sublessee agrees to file all requisite New York City
occupancy tax returns with the Department of Finance of the
City of New York on a timely basis and to pay directly to the
City of New York all occupancy and commercial rent taxes
which may be payable by Sublessee with respect to Rent and
pay directly to the appropriate taxing authority and any and
all other taxes the payment of which shall be imposed
directly on the occupant of the Premises.
Termination of Main Lease
25. A. In the event of and upon the termination of the
Main Lease or the Second Lease pursuant to the terms and
provisions thereof, this Sublease shall automatically cease
and terminate, subject however to all of the rights of the
Landlord pursuant to the Main Lease or the Second Lease.
B. Reference in this Sublease to "termination" of this
Sublease includes expiration or earlier termination of the
Term hereof or cancellation of this Sublease pursuant to any
of the provisions of this Sublease or pursuant to law. Upon
the termination of this Sublease, the term and estate granted
by this Sublease shall end at 12:00 p.m. on the date of
termination as if such time and date were the date and time
of expiration of the Term hereof, and neither party shall
have any further obligation or liability to the other after
such termination, except (i) for Sublessor's return of the
Security Deposit and any prepaid Rent, (except in the event
of a default by Sublessor) in which event Sublessor shall
retain the security deposit or portions thereof as set forth
in Paragraph 32A hereof, (ii) as shall be expressly provided
for in this Sublease, and (iii) for such obligations as by
their nature or under the circumstances can only be, or by
the provisions of this Sublease, may be, performed after such
termination and, in any event, unless otherwise expressly
provided in this Sublease, any liability for a payment which
shall have been accrued to or with respect to any period
ending at the time of such termination shall survive the
termination of this Sublease.
Broker.
26. Sublessee and Sublessor represent and warrant to
each other that there is no broker, finder or similar person
entitled to a commission, fee or other compensation in
connection with the consummation of this Sublease and no
conversations or prior negotiations were had by such party
with any broker, finder or similar person concerning the
renting of the Premises other than Newmark & Company Real
Estate, Inc. and the Galbraith Company (the "Brokers").
Sublessee and Sublessor, as the case may be, agrees to
indemnify and hold harmless the other party from and against
all loss, cost, liability, claim, damage or expense
(including, without limitation, court costs and reasonable
attorneys' fees) incurred in connection with or arising out
of any claims for brokerage commissions, finder's fees, or
other compensation resulting from or arising out of any
conversations, negotiations or actions had by such party or
anyone acting on behalf of Sublessee with any broker, finder
or similar person other than the Brokers. Notwithstanding the
foregoing, Sublessor hereby agrees to pay the brokerage
commission due to the Brokers pursuant to separate
agreements. The provisions of this Paragraph 26 shall survive
the termination of this Sublease.
Miscellaneous
27. Neither Sublessor nor any agent, representative or
employee of Sublessor has made any representations,
agreements or promises with respect to the Building or
Premises or the use thereof other than those expressly set
forth in this Sublease and no rights are to be deemed
acquired by Sublessee, by implication or otherwise, except
those expressly granted herein. This Sublease shall be
construed and enforced in accordance with and governed by the
laws of the State of New York. This Sublease contains the
entire agreement and understanding between Sublessor and
Sublessee with respect to the Premises and all prior
negotiations and agreements are merged into this Sublease.
This Sublease may not be modified or amended or any term or
provision hereof waived or discharged except in writing
signed by both parties. Any executor agreement hereafter made
between Sublessor and Sublessee shall be ineffective to
change, modify, waive release, discharge, terminate or effect
an abandonment or surrender of this Sublease, in whole or in
part, unless such agreement is in writing and signed by the
parties.
Rights Cumulative.
28. Each right and remedy of Sublessor provided in this
Sublease shall be cumulative and shall be in addition to
every other right and remedy provided for in this Sublease or
now or hereafter existing at law or in equity or by statute
or otherwise.
Binding Effect.
29. A. The terms, covenants and conditions contained in
this Sublease whether so expressed or not shall be binding
upon and inure to the benefit of and be enforceable by
Sublessor and Sublessee and their respective successors and
assigns, except that no violation of the provisions of
Paragraph 23 hereof shall operate to vest any rights in any
successor or assignee of Sublessee. It is understood and
agreed that the obligations of Sublessor under this Sublease
shall not be binding upon Sublessor with respect to any
period subsequent to the transfer of its interest in the Main
Lease, and that in the event of such transfer said
obligations shall be binding upon the transferee of
Sublessor's interest as tenant under the Main Lease, but only
with respect to the period commencing in the date of such
transfer and ending on the date of a subsequent transfer
thereof.
B. This Sublease shall not be deemed an offer and shall
not be binding on Sublessor or Sublessee unless and until
executed by both Sublessor and Sublessee and a copy thereof
has been delivered to each of Sublessor and Sublessee.
Headings.
30. The headings of this Sublease are for purposes of
references only and shall not limit or otherwise affect the
meaning thereof.
Counterparts.
31. This Sublease may be deemed executed in several
counterparts each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument,
Security Deposit.
32. A. Sublessee has simultaneously herewith deposited
with Sublessor a certified or bank check in the amount of
$67,631.64, the proceeds of which (the "Security Deposit")
shall be maintained as security for the full and punctual
performance by Sublessee of all the terms of this Sublease.
The Security Deposit shall be maintained in a non-interest
bearing account. If Sublessee defaults in the performance of
any of the terms of this Sublease beyond any applicable
notice and cure period, including the payment of Fixed Rent
or any Additional Rent, Sublessor may use, apply or retain
the whole or any part of the Security Deposit to the extent
required for the payment of any such Rent or for any sum
which Sublessor may expend or may be required to expend by
reason of Sublessee's default in respect of any of the terms
of this Sublease, including any damages or deficiency in the
re-letting of the Premises, whether accruing before or after
summary proceedings or other re-entry by Sublessor. In the
case of every such use, application or retention, Sublessee
shall, on demand, pay to Sublessor the sum so used, applied
or retained which shall be added to the Security Deposit so
that the same shall be replenished to its former account, and
any failure by Sublessee to pay such sum promptly following
such demand shall constitute a default under this Sublease.
If any bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against
Sublessee, or its successors or assigns, any Security Deposit
thereon shall be deemed to be applied first to the payment of
any Rents and/or other charges due Sublessor for all periods
prior to the institution of such proceedings and the balance,
if any, of such Security Deposit thereon may be retained by
Sublessor in partial liquidation of Sublessor's damages. The
unapplied portion of the Security, shall be returned to
Sublessee after the termination of this Sublease and delivery
of exclusive possession of the Premises to Sublessor. In the
event of a transfer of Sublessor's interest under this
Sublease pursuant to a written agreement in which transferee
agrees to be to Sublessor's Obligation under this Sublease,
Sublessor shall have the right to transfer the Security
Deposit to the transferee and Sublessor shall upon such
transfer be released by Sublessee from all liability for the
return of such Security Deposit and interest thereon; and
Sublessee agrees to look solely to the transferee Sublessor
for the return of the Security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment
made of the Security Deposit to a Sublessor. Sublessee
shall not assign or encumber or attempt to assign or encumber
the Security Deposit thereon and neither Sublessor nor its
successors or assigns shall be bound by any such assignment,
encumbrance or attempted assignment or encumbrance.
B. Sublessee shall have the right to deposit with
Sublessor as the Security Deposit (in lieu of the cash set
forth in Paragraph 32A hereof) an irrevocable transferable
letter of credit in form and substance reasonably
satisfactory to Sublessor and issued by a member bank of the
New York Clearing House reasonably acceptable to Sublessor,
payable upon the presentation by Sublessor to such bank of a
sight-draft and the letter of credit and without presentation
of any other documents, statements or authorizations other
than a certificate signed by a representative of Sublessor
stating that Sublessor is entitled to draw on such letter of
credit, in accordance with the terms of this Sublease, which
letter of credit shall provide (a) for the continuance of
such letter of credit for the period of at least one year
from the date of this Sublease, (b) for the automatic
extension of such letter of credit for additional periods of
one year from the initial and each future expiration date
thereof (the last such extension to provide for the
continuance of such letter of credit for at least three
months beyond the Expiration Date) unless such bank gives
Sublessor notice of its intention not to renew such letter of
credit not less than thirty (30) days prior to the initial or
any future expiration date of such letter of credit and (c)
that in the event such notice is given by such bank,
Sublessor shall have the right to draw on such letter of
credit. Each letter of credit to be deposited and maintained
with Sublessor (or the proceeds thereof) shall be held by
Sublessor as security for the full and punctual performance
by Sublessee of the terms of this Sublease, and in the event
that (I) any default occurs as provided in Paragraph 16 and
continues beyond the applicable grace and notice periods, if
any, or (ii) Sublessor transfers its right, title and
interest under this Sublease to a third party and the bank
issuing such letter credit does not consent (without charge
to Sublessor or its transferee) to the transfer of such
letter of credit to such third party, or (iii) notice is
given by the bank of its intention not to renew as above
provided, then, in any such event, Sublessor may draw on such
letter of credit and the proceeds of such letter of credit
shall then be held and applied as security (and be
replenished, if necessary) as provided in Paragraph 32B;
provided, however, that Sublessee, at any time thereafter,
may deliver to Sublessor a new letter of credit complying
with the provisions of this Paragraph 32, whereupon Sublessor
shall pay to Sublessee the amount drawn by Sublessor under
the prior letter of credit to the extent not theretofore
applied by Sublessor pursuant to the provisions of Paragraph
33B.
Consent of Landlord
33. Sublessor and Sublessee each hereby acknowledge
and agree that this Sublease is subject to and conditioned
upon Sublessor obtaining the written consent (the "Consent")
of Landlord to this Sublease (including but not limited to
the Permitted Alterations) as provided in the Main Lease and
the Second Lease. Within two (2) days following the
execution and delivery hereof, Sublessor shall submit this
Sublease to Landlord. Sublessee hereby agrees that it shall
cooperate in good faith with Sublessor and shall comply with
any reasonable requests made of Sublessee by Sublessor or
Landlord in the procurement of the Consent. In no event
shall Sublessor or Sublessee be obligated to make any payment
to Landlord in order to obtain the Consent or the consent to
any provision hereof. This Sublease shall terminate if the
Consent of Landlord as provided under this Paragraph 33 is
not obtained by November 15, 1996 (the "Outside Date"). In
the event of such termination the Security Deposit and any
other sums paid upon execution hereof shall be promptly
returned and neither party shall have any further obligation
to the other. Notwithstanding the foregoing, the Outside
Date may be extended upon mutual consent of the parties
hereto. Sublessor shall keep Sublessee advised of
Sublessor's progress in obtaining Landlord's consent and
shall notify Sublessee immediately upon receipt of such
Consent, and deliver an executed copy to Sublessee.
Alterations
34. A. Subject to the prior written consent of
Sublessor (which consent shall not be unreasonably withheld),
and the provisions of the Main Lease and the Second Lease,
Sublessee, at Sublessee's expense, may make alterations which
are non-structural in or to the interior of the Premises
which do not affect any of the mechanical, electrical,
sanitary or other service systems of the building.
B. Sublessor hereby consents to the alterations
to be made by Sublessee, described on Exhibit "C" attached
hereto and made a part hereof (the "Permitted Alterations").
Sublessee shall not be required to remove the Permitted
Alterations or restore the Premises to the condition existing
prior to such Permitted Alterations at the end of the term,
unless required to do so pursuant to the terms of the Main
Lease or Second Lease.
Estoppel
35. At any time, and from time to time, upon not less
than seven (7) days prior notice by the requesting party,
Sublessor or Sublessee as the case may be shall execute,
acknowledge and deliver to the requesting party, a statement
in writing addressed to the requesting party certifying that
this Sublease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full
force and effect as modified and stating the modifications),
stating the dates to which the fixed minimum rent, additional
rental and other charges have been paid, and stating whether
or not to the best knowledge of the signer of such
certificate, there exists any default in the performance of
any covenant, agreement, term, provision or condition
contained in this Sublease, and, if so, specifying each such
default of which the signer may have knowledge, it being
intended that any such statement delivered pursuant hereto
may be relied upon by Sublessor or Sublessee as the case may
be and any prospective assignee of Sublessor or Sublessee as
the case may be.
IN WITNESS WHEREOF, Sublessor and Sublessee have duly
executed this Sublease as of the day and year first above
written.
SUBLESSOR:
GO AMERICA TOURS, INC.
By:
______________________________________________
Title:
SUBLESSEE:
NEW PARADIGM SOFTWARE CORPORATION
By:
______________________________________________
Title:
EXHIBIT 11
COMPUTATION OF NET LOSS PER SHARE
Weighted Average # of shares
Description
---------------------------------------------------------------------
10/1/96 (beginning of Quarter) 2,451,729
12/31/96 (end of Quarter) 2,451,729
----------
Weighted Average 2,451,729
__________
Net Loss (547,482)
__________
Loss/share (0.22)
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-END> DEC-30-1996
<CASH> 27,660
<SECURITIES> 46,386
<RECEIVABLES> 230,587
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 379,205
<PP&E> 300,059
<DEPRECIATION> 66,205
<TOTAL-ASSETS> 1,241,033
<CURRENT-LIABILITIES> 740,697
<BONDS> 0
0
0
<COMMON> 24,517
<OTHER-SE> 500,336
<TOTAL-LIABILITY-AND-EQUITY> 1,241,033
<SALES> 0
<TOTAL-REVENUES> 211,756
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 760,027
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (547,482)
<INCOME-TAX> 0
<INCOME-CONTINUING> (547,482)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (547,482)
<EPS-PRIMARY> (0.22)
<EPS-DILUTED> (0.22)
