SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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Annual Report Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
For the fiscal year ended December 31, 1999 Commission file number 0-13020
WESTWOOD ONE, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3980449
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
40 West 57th Street, 5th Floor
New York, NY 10019
(Address of principal executive offices)
(212) 641-2000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b)of the Act:
Name of Each Exchange on
Title of each class Which Registered
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Common Stock New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 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
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of Common Stock held by non-affiliates as of
March 23, 2000 was approximately $3,189,539,000.
As of March 23, 2000, 111,630,604 shares (excluding treasury shares) of
Common Stock were outstanding and 703,466 shares of Class B Stock were
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive proxy statement for its annual
meeting of shareholders (which will be filed with the Commission within 120 days
of the registrant's last fiscal year end) are incorporated in Part III of this
Form 10-K.
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PART I
Item 1. Business
General
Westwood One, Inc. (the "Company" or "Westwood One") supplies radio and
television stations with information services and programming. The Company is
the largest domestic outsource provider of traffic reporting services and the
nation's largest radio network, producing and distributing national news,
sports, talk, music and special event programs, in addition to local news,
sports, weather, video news and other information programming.
The Company's principal source of revenue is selling commercial airtime to
advertisers through one of its two operating divisions: Metro/Shadow, which is
comprised of Metro Networks, Inc. ("Metro") and Westwood One Broadcasting
Services, Inc. ("WBS" or "Shadow Traffic") and the Network Division. The Company
generates revenue principally by selling audience it obtains from radio and
television affiliates to local and national advertisers. The Company provides a
broad range of programming and information services which deliver audience to
advertisers and also deliver traffic, news, talk, sports, and entertainment
programs to its affiliate stations.
Metro/Shadow provides local traffic and information broadcast reports in 81
Metro Survey Area markets (referred to herein as MSA markets) in the United
States. The Network Division offers radio stations traditional news services,
CBS Radio news, CNN Radio and Fox news in addition to eight 24-hour
satellite-delivered continuous play music formats ("24/7 Formats") and weekday
and weekend news and entertainment features and programs. These programs
include: major sporting events (principally covering the National Football
League, Notre Dame football and other college football and basketball games,
National Hockey League, the Masters and the Olympics); live, personality
intensive talk shows; live concert broadcasts; countdown shows; music and
interview programs; and exclusive satellite simulcasts with HBO and other cable
networks.
Westwood One enables advertisers to purchase advertising time and have their
commercial messages broadcast on radio and television stations throughout the
United States, reaching demographically defined listening audiences. The
commercial inventory obtained by Westwood offers advertisers the opportunity to
reach a broad-based local, regional or national audience through a single
purchase from the Company.
Westwood One is managed by Infinity Broadcasting Corporation ("Infinity")
pursuant to a Management Agreement between the Company and Infinity which
expires on March 31, 2004. Pursuant to the Agreement, Infinity receives a base
fee of $2,500,000 (adjusted for inflation) and an incentive bonus based on the
Company exceeding predetermined cash flow objectives. Westwood One has also
issued to Infinity warrants to acquire 4,000,000 shares (as adjusted for the
Company's two-for-one stock split payable on March 22, 2000) of Common Stock
pursuant to the Agreement.
Industry Background
Radio Broadcasting
As of January 1, 2000, there were approximately 10,300 commercial radio stations
in the United States.
A radio station selects a style of programming ("format") to attract a target
listening audience and thereby attract commercial advertising directed at that
audience. There are many formats from which a station may select, including
news, talk, sports and various types of music and entertainment programming.
The diversity in program formats has intensified competition among stations for
local advertising revenue. A radio station has two principal ways of effectively
competing for these revenues. First, it can differentiate itself in its local
market by selecting and successfully executing a format targeted at a particular
audience thus enabling advertisers to place their commercial messages on
stations aimed at audiences with certain demographic characteristics. A station
can also broadcast special programming, syndicated shows, sporting events or
national news products, such as those supplied by Westwood One, not available
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to its competitors within its format. National programming broadcast on an
exclusive geographic basis can help differentiate a station within its market,
and thereby enable a station to increase its audience and local advertising
revenue.
Radio Advertising
Radio advertising time can be purchased on a local, regional or national basis.
Local purchases allow an advertiser to select specific radio stations in chosen
geographic markets for the broadcast of commercial messages. Local and regional
purchases are typically best suited for an advertiser whose business or ad
campaign is in a specific geographic area. Advertising purchased from a radio
network is one method by which an advertiser targets its commercial messages to
a specific demographic audience, achieving national coverage on a cost efficient
basis. In addition, an advertiser can choose to emphasize its message in a
certain market or markets by supplementing a national purchase with local and/or
regional purchases.
To verify its network audience delivery and demographic composition, specific
measurement information is available to advertisers from independent rating
services such as Arbitron and Statistical Research, Inc.'s RADAR. These rating
services provide demographic information such as the age and gender composition
of the listening audiences. Consequently, advertisers can verify that their
advertisements are being heard by their target listening audience.
Business Strategy
Westwood One provides broad-based, local, regional or national audiences and
commercial spots to advertisers through its recognized programming and other
information products. The Company, through its various radio networks, produces
and distributes quality programming to meet listener needs for information and
to radio stations seeking to increase their listening audience and improve local
and national advertising revenue by differentiating themselves from their
competitors. The Company sells advertising time within its programs to
advertisers desiring to reach large listening audiences with specific
demographic characteristics.
In 1996, the Company expanded its product offerings to include providing local
traffic, news, sports and weather programming to radio stations and other media
outlets in selected cities across the United States. This expansion gave the
Company's advertisers the ability to easily supplement their national purchases
with local and regional purchases from the Company. It also allowed the Company
to develop relationships with local and regional advertisers. In March 1996, WBS
acquired the operating assets of New York Shadow Traffic Limited Partnership,
Chicago Shadow Traffic Limited Partnership, Los Angeles Shadow Traffic Limited
Partnership, and Philadelphia Express Traffic Limited Partnership (collectively
"Shadow Traffic"). In 1998, the Company acquired the remaining Shadow Traffic
operations in Baltimore, Boston, Dallas, Detroit, Houston, Miami, Sacramento,
San Diego, San Francisco and Washington, D.C. and also opened offices in
Hartford and Minneapolis. In 1999, Westwood One significantly expanded its local
and regional reach through its merger with the country's largest traffic service
provider, Metro, which broadcasts information reports in 67 of the 75 largest
MSA markets in the United States.
Local Traffic and Information Programming
With respect to local content, the Company, through its Shadow and Metro units,
provides traffic reports and local news, weather and sports information to its
radio and television affiliates.
The Company gathers traffic and other data utilizing the Company's
information-gathering infrastructure, which includes aircraft (helicopters and
airplanes), broadcast quality remote camera systems positioned at strategically
located fixed-positions and on aircraft, mobile units and cellular systems, and
by accessing various government-based traffic tracking systems. The Company also
gathers information from various third party news and information services. The
information is then processed, written into broadcast copy and entered into the
Company's computer systems by the Company's local writers and producers. This
also permits the Company to easily resell the information to other third parties
for distribution through the internet wireless devices or personnel digital
assistants ("PDA") and various other new media systems. The Company's
professional broadcasters read the customized reports on the air.
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The Company's information reports (including the length of report, content of
report, specific geographic coverage area, time of broadcast, number of reports
aired per day, broadcaster's style, etc.) are customized to meet each individual
affiliate's requirements. The Company typically works closely with the program
directors, news directors and general managers of its affiliates to ensure that
the Company's services meet its affiliates' quality standards. The Company and
its affiliates jointly select the on-air talent to ensure that each on-air
talent's style is appropriate for the station's format. The Company's on-air
talent often become integral "personalities" on such affiliates' stations as a
result of their significant on-air presence and interaction with the station's
on-air personnel. In order to realize operating efficiencies, the Company
endeavors to utilize its professional on-air talent on multiple affiliate
stations within a particular market.
The Company generally does not require its affiliates to identify the Company as
the supplier of its information reports. This provides the Company's affiliates
with a high degree of customization and flexibility, as each affiliate has the
right to present the information reports provided by the Company as if the
affiliate had generated such reports with its own resources. For example,
multiple affiliates in a single market may imply that the Company's
infrastructure, including its airplanes, helicopters and talent, are those of
the affiliate.
As a result of its extensive network of operations and talent, the Company
regularly reports breaking and important news stories and provides its
affiliates with live coverage of these stories. The Company is able to customize
and personalize its reports of breaking stories using its individual affiliates'
call letters from the scene of news events. For example, the Company was the
first news organization to provide live airborne coverage of the plane crash
involving John F. Kennedy, Jr. in 1999. From our news helicopters, the Company
fed live video to television affiliates in Boston, New York, and around the
country. Moreover, by leveraging our infrastructure, the same reporters provided
live customized airborne reports for the Company's radio affiliates via Metro
Source. The Company believes that it is the only radio network news organization
that has local studio operations that cover in excess of 80 markets and that is
able to provide such customized reports to these markets.
Metro Source, an information service available to subscribing affiliates, is a
total information system and digital audio workstation that allows the Company's
news affiliates to receive via satellite and view, write, edit and report the
latest news, features and show preparation material. With this product, the
Company provides continuously updated and breaking news, weather, sports,
business and entertainment information to its affiliate stations which have
subscribed to the service. Information and content for Metro Source is primarily
generated from the Company's staff of news bureau chiefs, state correspondents
and professional news writers and reporters.
Local, regional and national news and information stories are fed to the
Company's national news operations center in Phoenix, Arizona where the
information is verified, edited, produced and disseminated via satellite to the
Company's internal Metro Source workstations located in each of its operations
centers and to workstations located at affiliate radio stations nationwide.
Metro Source includes proprietary software that allows for customizing reports
and editing in both audio and text formats. The benefit to stations is that
Metro Source allows them to substantially reduce time and cost from the news
gathering and editing process at the station level, while providing greater
volume and quality news and information coverage from a single source. As of
December 31, 1999, the Company had affiliated approximately 700 radio stations
for the Metro Source product.
Television Programming Services
The Company is supplying its Television Traffic Services to over 180 television
stations. Similar to its radio programming services, with its MetroTV Services
the Company supplies customized information reports which are generally
delivered on air by its reporters to its television station affiliates. In
addition, the Company supplies customized graphics and other visual programming
elements to its television station affiliates.
The Company utilizes live studio cameras in order to enable its traffic
reporters to provide its Video News Services on television from the Company's
local broadcast studios. In addition, the Company provides its Video News
Services from its aircraft and fixed-position based camera systems. The Video
News Services include: (i) live video coverage from strategically located
fixed-position camera systems; (ii) live video news feeds from the Company's
aircraft; and (iii) full-service, 24 hours per day/7 days per week video
coverage from the Company's camera crews using broadcast quality camera
equipment and news vehicles.
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The Company owns an 80% interest in Washington News Network, Inc. ("WNN"), which
provides customized video news feeds via satellite, primarily of news events
from Capitol Hill and the White House, to approximately 170 television stations,
bureaus and networks across the country. WNN currently covers national news for
local and regional consumption and provides video crew hire services in the
Washington, D.C. area for affiliate stations nationwide. The Company offers
WNN's services and products as a part of its MetroTV Services.
In addition, through Ross Sports Productions, Inc. ("Ross"), the Company
produces and distributes nationally syndicated but locally produced scholastic
sports programs. Ross' main service is a weekly half-hour TV program, "The High
School Sports Show," which is marketed to local television stations in exchange
for commercial airtime inventory. Ross sells sponsorship advertising packages to
local, regional and national advertisers within the show. The show currently
airs in 22 major markets, generally on major network affiliated stations late
Saturday afternoon or late Sunday morning. The Company offers Ross' services and
products as a part of its MetroTV Services.
Information Services
The Company's Information Services ("IS") develops non-broadcast traffic
information business. IS develops innovative techniques of gathering local
traffic and transportation information, as well as new methods of distributing
such information to the public. The Company believes that in order to remain
competitive and to continue to provide an information product of the highest
quality to its affiliates, it is necessary to invest in and participate in the
development of new technology. The Company is currently working with several
public and private entities across the United States to improve dissemination of
traffic and transportation information. The Company is a large supplier of
information to the wireless telephone industry, providing customized traffic
information, direction services, and other local information to wireless
subscribers via the Company's STAR JAM (TM) and STAR FIND (TM) services.
In conjunction with ETAK, a digital mapping and software company owned by Sony,
the Company has been working with a variety of private companies to deploy
commercial products and services involving traveler information. The
relationship allows for the provision of information on a personalized basis
through numerous delivery mechanisms, including the internet, paging, FM
subcarrier, traditional cellular and newly-developed and evolving wireless
systems. Information can be delivered to a wide array of devices including
pagers, computers, PDA's and in-vehicle navigation and information systems.
The Company is participating in a number of United States Department of
Transportation ("USDOT") funded Intelligent Transportation Systems ("ITS")
projects. These include the AZTech Model Deployment Project in Phoenix and the
Smart Trek Model Deployment Project in Seattle. In addition, the Company is the
Operations Contractor for the TravInfo project in the San Francisco Bay area.
TravInfo was among the first of a series of federally-funded Field Operational
Tests for ITS. As a leading provider of local traffic and other information, the
Company is well-positioned as a leader in the ITS field and believes it will
benefit from the evolution of future distribution systems.
The Company believes that its extensive fleet of aircraft and other
information-gathering technology and broadcast equipment have allowed the
Company to provide high quality programming, enabling it to retain and expand
its affiliate base. In the aggregate, the Company utilizes over 120 helicopters
and fixed-wing aircraft, 30 mobile units, 25 airborne camera systems, 100
fixed-position camera systems, 70 broadcast studios and 1,300 broadcasters and
producers. The Company also maintains a staff of computer programmers and
graphics experts to supply customized graphics and other visual programming
elements to television station affiliates. In addition, the Company's operations
centers and broadcast studios have sophisticated computer technology, video and
broadcast equipment and cellular and wireless technology which enable the
Company's on-air talent to deliver accurate reports to its affiliates. The
infrastructure and resources dedicated to a specific market by the Company are
determined by the size of the market, the number of affiliates the Company
serves in the market and the type of services being provided.
National Radio Programming
The Company produces and distributes 24/7 Formats, regularly scheduled and
special syndicated programs, including exclusive live concerts, music and
interview shows, national music countdowns, lifestyle short features, news
broadcasts, talk programs, sporting events, and sports features.
The Company controls most aspects of production of its programs, therefore being
able to tailor its programs to respond to current and changing listening
preferences. The Company produces regularly scheduled short-form programs
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(typically 5 minutes or less), long-form programs (typically 60 minutes or
longer) and 24/7 Formats. Typically, the short-form programs are produced at the
Company's in-house facilities located in Culver City, California, New York, New
York and Arlington, Virginia. The long-form programs include shows produced
entirely at the Company's in-house production facilities and recordings of live
concert performances and sports events made on location. The 24/7 Formats are
produced at the Company's facilities in Valencia, California.
Westwood One also produces and distributes special event syndicated programs. In
1999, the Company produced and distributed numerous special event programs,
including exclusive broadcasts of The Grammy Awards, VH1 Divas Live, Woodstock
'99, MTV Music Video Awards and Randy Travis.
Westwood One obtains most of the programming for its concert series by recording
live concert performances of prominent recording artists. The agreements with
these artists often provide the exclusive right to broadcast the concerts
worldwide over the radio (whether live or pre-recorded) for a specific period of
time. The Company may also obtain interviews with the recording artist and
retain a copy of the recording of the concert and the interview for use in its
radio programs and as additions to its extensive tape library. The agreements
provide the artist with master recordings of their concerts and nationwide
exposure on affiliated radio stations. In certain cases the artists may receive
compensation.
Westwood One's syndicated programs are produced at its in-house production
facilities. The Company determines the content and style of a program based on
the target audience it wishes to reach. The Company assigns a producer, writer,
narrator or host, interviewer and other personnel to record and produce the
programs. Because Westwood One controls the production process, it can refine
the programs' content to respond to the needs of its affiliated stations and
national advertisers. In addition, the Company can alter program content in
response to current and anticipated audience demand.
The Company produces and distributes eight 24/7 Formats providing music, news
and talk programming for Country, Hot Country, Adult Contemporary, Soft AC,
Oldies, Adult Standards, Adult Rock and Roll and the Jammin Oldies formats.
Using its production facilities in Valencia, California, the Company provides
all the programming for stations affiliated with each of these formats.
Affiliates compensate the Company for these formats by providing the Company
with a portion of their commercial air time and, in most cases, cash fees.
The Company believes that its tape library is a valuable asset for its future
programming and revenue generating capabilities. The library contains previously
broadcast programs, live concert performances, interviews, daily news programs,
sports and entertainment features, Capitol Hill hearings and other special
events. New programs can be created and developed at a low cost by excerpting
material from the library.
Affiliated Radio Stations
The Company's business strategy is to provide for the programming needs of radio
stations by supplying to radio stations, programs and services that individual
stations may not be able to produce on their own on a cost effective basis. The
Company offers radio stations traffic and news information as well as a wide
selection of regularly scheduled and special event syndicated programming and
24/7 Formats. The information, programs and formats are produced by the Company
and, therefore, the stations typically have virtually no production costs. With
respect to the Company's programs and formats, each program or format is offered
for broadcast by the Company exclusively to one station in its geographic
market, which assists the station in competing for audience share in its local
marketplace. In addition, except for news programming, Westwood One's programs
contain available commercial air time that the stations may sell to local
advertisers. Westwood One typically distributes promotional announcements to the
stations and places advertisements in trade and consumer publications to further
promote the upcoming broadcast of its programs.
Westwood One enters into affiliation agreements with radio stations which
requires the affiliate to provide the Company with a specific number of
commercial positions which it aggregates by similar day and time periods and
resells to its advertisers. Some affiliation agreements also require a station
to broadcast the Company's programs and to use a portion of the program's
commercial slots to air national advertisements and any related promotional
spots. With respect to 24/7 Formats, the Company may also receive a fee from the
affiliated stations for the right to broadcast the formats. Radio stations in
the top 200 national markets may also receive compensation for airing national
advertising spots.
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Affiliation agreements specify the number of times and the approximate daypart
each program and advertisement may be broadcast. Westwood One requires that each
station complete and promptly return to the Company an affidavit
(proof-of-performance) that verifies the time of each broadcast. Affiliation
agreements generally run for a period of at least one year, are automatically
renewable for subsequent periods and are cancellable by either the Company or
the station upon 90 days' notice.
The Company has a number of people responsible for station sales and marketing
its programs to radio stations. The Company's staff develops and maintains
close, professional relationships with radio station personnel to provide them
with quick programming assistance.
Advertising Sales and Marketing
The Company packages its radio commercial airtime inventory on a network basis,
covering all affiliates in relevant markets, either regionally or nationally.
This packaged inventory typically appeals to advertisers seeking a broad
demographic reach. Because the Company generally sells its commercial airtime
inventory on a network basis rather than station-by-station, the Company does
not compete for advertising dollars with its local radio station affiliates. The
Company believes that this corporate policy is a key factor in maintaining its
affiliate relationships. Currently, the Company packages its television
commercial airtime inventory on a regional and national network basis. The
Company has developed a separate sales force to sell its television commercial
airtime inventory and to optimize the efforts of the Company's national internal
structure of sales representatives. The Company's advertising sales force is
comprised of approximately 300 sales representatives.
In each of the Metro/Shadow markets in which it conducts operations, the Company
maintains an advertising sales office as part of its operations center. The
Company's advertising sales force is able to sell available commercial airtime
inventory in any and all of the Company's markets in addition to selling such
inventory in each local market, which the Company believes affords its sales
representatives an advantage over certain of their competitors. For example, an
airline advertiser can purchase sponsorship advertising packages in multiple
markets from the Company's local sales representative in the city in which the
airline is headquartered.
The Company's typical radio advertisement for traffic and information
programming consists of an opening announcement and a ten-second commercial
message presented immediately prior to, in the middle of, or immediately
following a regularly scheduled information report. Because the Company has
numerous radio station affiliates in each of its markets (averaging over 25
affiliates per market), the Company believes that its traffic and information
broadcasts reach more people, more often, in a higher impact manner than can be
achieved using any other advertising medium. The Company combines its commercial
airtime inventory into multiple "sponsorship" packages which it then sells as an
information sponsorship package to advertisers. These Company sponsorship
packages are run on a fair and equal rotation (i.e., each advertiser receives
its pro rata share of advertisements sold by the Company for broadcast on each
of the Company's affiliates in the relevant market or markets) throughout its
networks on a local, regional or national basis, primarily during morning and
afternoon drive periods. The Company generally does not allow an advertiser to
select individual stations from its networks on which to run its advertising
campaign.
The Company believes that the positioning of advertisements within or adjacent
to its information reports appeals to advertisers because the advertisers'
messages are broadcast along with regularly scheduled programming during peak
morning and afternoon drive times when a majority of the radio audience is
listening. Radio advertisements broadcast during these times typically generate
premium rates. Moreover, surveys commissioned by the Company demonstrate that
because the Company's customized information reports are related to topics of
significant interest to listeners, listeners often seek out the Company's
information reports. Since advertisers' messages are embedded in the Company's
information reports, such messages have a high degree of impact on listeners and
generally will not be "pre-empted" (i.e., moved by the radio station to another
time slot). Most of the Company's advertisements are read live by the Company's
on-air talent, providing the Company's advertisers with the added benefit of
an implied endorsement for their product.
Westwood One provides national advertisers with a cost-effective way to
communicate their commercial messages to large listening audiences nationwide
through purchases of commercial airtime in its national radio networks and
programs. An advertiser can obtain both frequency (number of exposures to the
target audience) and reach (size of listening audience) by purchasing
advertising time from the Company. By purchasing time in networks or programs
directed to different formats, advertisers can be assured of obtaining high
market penetration and visibility as their commercial messages will be broadcast
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on several stations in the same market at the same time. The Company supports
its national sponsors with promotional announcements and advertisements in trade
and consumer publications. This support promotes the upcoming broadcasts of
Company programs and is designed to increase the advertisers' target listening
audience.
Generally, the Company provides its MetroTV services to television stations in
exchange for thirty-second commercial airtime inventory that the Company
packages and sells on a regional and national basis. The amount and placement of
the commercial airtime inventory that the Company receives from television
stations varies by market and the type of service provided by the Company. As
the Company has provided enhanced MetroTV services, it has been able to acquire
more valuable commercial airtime inventory. The Company believes that it offers
advertisers significant benefits because, unlike traditional television
networks, the Company often delivers more than one station in major markets and
advertisers may select specific markets.
The Company has established a morning news network for its advertisers'
commercials to air during local news programming and local news breaks from 6:00
a.m. to 9:00 a.m. Because the Company has affiliated a large number of network
television stations in major markets, its morning news network delivers a
significant national household rating in an efficient and compelling local news
environment. As the Company continues to expand its service offerings for local
television affiliates, it plans to create additional news networks to leverage
its television news gathering infrastructure.
Competition
The Company's Metro/Shadow Division, in the MSA markets in which it operates,
competes for advertising revenue with local print and other forms of
communications media including; magazines, outdoor advertising, network radio
and network television advertising, transit advertising, direct response
advertising, yellow page directories, internet/new media and point-of-sale
advertising. Although the Company is significantly larger than the next largest
provider of traffic and local information services, there are several
multi-market operations providing local radio and television programming
services in various markets. In addition, the recent consolidation of the radio
industry has created opportunities for large radio groups to gather traffic
information on their own.
The Company's Network Division operates in a very competitive environment. In
marketing its programs to national advertisers, the Company directly competes
with other radio networks as well as with independent radio syndication
producers and distributors. More recently, as a result of consolidations in the
radio industry, companies owning large groups of stations have begun to create
competing networks that has resulted in additional competition for network radio
advertising expenditures. In addition, as with its Metro/Shadow Division, the
Network Division competes for advertising revenue with network television, cable
television, print and other forms of communications media. The Company believes
that the high quality of its programming and the strength of its station
relations and advertising sales forces enable it to compete effectively with
other forms of communication media. Westwood One markets its programs to radio
stations, including affiliates of other radio networks, that it believes will
have the largest and most desirable listening audience for each of its programs.
The Company often has different programs airing on a number of stations in the
same geographic market at the same time. The Company believes that in comparison
with any other independent radio syndication producer and distributor or radio
network it has a more diversified selection of programming from which national
advertisers and radio stations may choose. In addition, the Company both
produces and distributes programs, thereby enabling it to respond more
effectively to the demands of advertisers and radio stations.
The increase in the number of program formats has led to increased competition
among local radio stations for audience. As stations attempt to differentiate
themselves in an increasingly competitive environment, their demand for quality
programming available from outside programming sources increases. This demand
has been intensified by high operating and production costs at local radio
stations and increased competition for local advertising revenue.
Government Regulation
Radio broadcasting and station ownership are regulated by the FCC. Westwood One,
as a producer and distributor of radio programs and services, is generally not
subject to regulation by the FCC. Metro/Shadow utilizes FCC regulated two-way
radio frequencies pursuant to licenses issued by the FCC.
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Employees
On February 8, 2000, Westwood One had 2,522 full-time employees, including a
domestic advertising sales force of 299 people, and 979 part-time employees. In
addition, the Company maintains continuing relationships with approximately 140
independent writers, program hosts, technical personnel and producers. Certain
employees at Metro, WBS, the Mutual Broadcasting System, NBC Radio Networks and
Unistar Radio Networks ("Unistar") are covered by collective bargaining
agreements. The Company believes relations with its employees and independent
contractors are satisfactory.
Item 2. Properties
The Company owns a 7,600 square-foot building in Culver City, California in
which its Network Division syndicated program production facilities are located
and a 14,000 square-foot building and an adjacent 10,000 square-foot building in
Culver City, California which contains administrative, sales and marketing
offices, and storage space. In addition, the Company leases operation
centers/broadcast studios and marketing and administrative offices across the
United States consisting of over 275,000 square feet in the aggregate, pursuant
to the terms of various lease agreements.
The Company believes that its facilities are adequate for its current level of
operations.
Item 3. Legal Proceedings
- None -
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of the Company's shareholders during the
fourth quarter of the year ended December 31, 1999.
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PART II
Item 5. Market for Registrant's Common Stock and Related Shareholder Matters
On February 8, 2000 there were approximately 368 holders of record of the
Company's Common Stock, several of which represent "street accounts" of
securities brokers. Based upon the number of proxies requested by brokers in
conjunction with its shareholders' meeting the Company estimates that the total
number of beneficial holders of the Company's Common Stock exceeds 5,000.
Since December 15, 1998, the Company's Common Stock has been traded on the New
York Stock Exchange ("NYSE") under the symbol "WON". From the time of its
initial public offering on April 24, 1984 through December 14, 1998 the
Company's Common Stock was traded in the over-the-counter market. The following
table sets forth the range of high and low last sales prices on the NYSE or
NASDAQ/National Market System, as reported by NASDAQ, for the Common Stock for
the calendar quarters indicated. These prices have been adjusted on a
retroactive basis to reflect the effect of the Company's two-for-one stock split
which is payable on March 22, 2000.
1999 High Low
---- ---- ---
First Quarter $14 13/32 $11 19/32
Second Quarter 18 27/32 14 19/32
Third Quarter 25 13/16 17 7/32
Fourth Quarter 38 19 9/32
1998
----
First Quarter 17 15/16 14 11/16
Second Quarter 15 3/16 12 5/16
Third Quarter 13 23/32 7 7/8
Fourth Quarter 15 9/32 8
No cash dividend was paid on the Company's stock during 1999 or 1998, and the
payment of dividends is restricted by the terms of its loan agreements.
-9-
<PAGE>
Item 6. SELECTED FINANCIAL DATA
(In thousands except per share data)
The per share amounts included herein have been restated to reflect on a
retroactive basis the Company's two-for-one stock split which is payable on
March 22, 2000.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
OPERATING RESULTS FOR YEAR ENDED DECEMBER 31:
NET REVENUES $358,305 $259,310 $240,790 $171,784 $145,729
OPERATING AND CORPORATE COSTS, EXCLUDING DEPRECIATION AND
AMORTIZATION 267,294 206,996 191,854 132,247 112,661
DEPRECIATION AND AMORTIZATION 30,214 18,409 13,031 12,265 13,753
OPERATING INCOME 60,797 33,354 35,905 27,272 19,315
NET INCOME $23,887 $13,046 $25,496 $17,500 $9,685
INCOME PER BASIC SHARE $.33 $.22 $.41 $.28 $.15
INCOME PER DILUTED SHARE $.30 $.20 $.37 $.25 $.14
BALANCE SHEET DATA AT DECEMBER 31:
CURRENT ASSETS $169,259 $85,663 $77,933 $48,379 $41,885
WORKING CAPITAL 41,254 7,111 12,180 (3,647) 6,563
TOTAL ASSETS 1,334,888 345,279 317,695 273,046 245,595
LONG-TERM DEBT 158,000 170,000 115,000 130,443 107,943
TOTAL SHAREHOLDERS' EQUITY 1,019,775 77,218 124,678 86,848 94,123
OTHER FINANCIAL DATA FOR YEAR ENDED DECEMBER 31:
OPERATING CASH FLOW (EBITDA) $91,011 $52,314 $48,936 $39,537 $32,579
</TABLE>
Results for the year ended December 31, 1999 include the results of Metro from
the date of the merger on September 22, 1999.
Results for the year ended December 31, 1998 include the remaining Shadow
Traffic Operations from the time they were acquired in May 1998.
Results for the year ended December 31, 1997 include the CBS Radio Networks from
the effective date of the Representation Agreement in April 1997.
Results for the year ended December 31, 1996 include the New York, Los Angeles,
Chicago and Philadelphia Shadow Traffic Operations from the time they were
acquired in March 1996.
No cash dividend was paid on the Company's Common Stock during the periods
presented above.
Operating cash flow is defined as operating income plus depreciation and
amortization and non-recurring items less capital spending for production
costs. Operating cash flow is not determined in accordance with generally
accepted accounting principles (GAAP), is not indicative of Cash Provided
by Operating Activities and should not be considered in isolation from, or
as an alternative to, other measures determined in accordance with GAAP.
-10-
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
(In thousands except for per share amounts)
On January 27, 2000 the Board of Directors approved a two-for-one stock split of
the Company's Common Stock and Class B Stock effective March 22, 2000. All
references herein to share and per share amounts have been restated to give
effect to the stock split on a retroactive basis.
On September 22, 1999, the Company completed its merger with Metro Networks,
Inc. ("Metro"). The results of operations for Metro are included in the
consolidated financial statements of the Company from the date of the merger.
On May 1, 1998, the Company purchased the operating assets of the Shadow Traffic
operations in Baltimore, Boston, Dallas, Detroit, Houston, Miami, Sacramento,
San Diego, San Francisco and Washington, D.C. The results of operations for
these additional cities are included in the consolidated financial statements of
the Company from May 1, 1998.
Results of Operations
Westwood One derives substantially all of its revenue from the sale of
advertising time to advertisers. Net revenues increased 38% to $358,305 in 1999
from $259,310 in 1998, and increased 8% in 1998 from $240,790 in 1997. The 1999
increase was primarily attributable to the September 22, 1999 merger with Metro
and was also attributable to higher advertising rates at both the Company's
Network and Shadow Traffic operations. The Company's net revenues for 1999,
excluding the results of the Metro acquisition, rose approximately 12% from the
comparable 1998 period. The 1998 increase was primarily attributable to higher
revenues from the Company's Shadow Traffic operations including those acquired
in May 1998, partially offset by lower network revenues due to the elimination
of certain programming including Major League Baseball.
Operating costs and expenses excluding depreciation and amortization increased
29% to $261,538 in 1999 from $202,138 in 1998, and increased 8% in 1998 from
$186,918 in 1997. The 1999 increase was primarily attributable to the 1999 Metro
merger. The 1998 increase was primarily attributable to the 1998 purchase of the
additional Shadow Traffic operations, partially offset by the elimination of
costs related to the termination of programming.
Depreciation and amortization increased 64% to $30,214 in 1999 from $18,409 in
1998, and increased 41% in 1998 from $13,031 in 1997. The 1999 increase was
principally related to the amortization of goodwill resulting from the Metro
merger. The 1998 increase was principally attributable to depreciation and
amortization related to fixed assets from capitalized leases and the Shadow
Traffic operations acquired in 1998.
Corporate general and administrative expenses increased 19% to $5,756 in 1999
from $4,858 in 1998, and decreased 2% in 1998 from $4,936 in 1997. The 1999
increase was principally attributable to an incentive bonus payable pursuant to
the terms of the Management Agreement with Infinity. The decrease in 1998 was
primarily attributable to lower compensation expense.
Operating income increased 82% to $60,797 in 1999 from $33,354 in 1998, and
decreased 7% in 1998 from $35,905 in 1997. The 1999 increase was primarily
related to the Metro merger as well as the improved performance of the Company's
network division. The 1998 decrease was principally attributable to higher
depreciation and amortization associated with the Shadow Traffic operations
acquired in 1998.
Interest expense was $12,150, $10,340 and $8,513 in 1999, 1998 and 1997,
respectively. The 1999 increase was attributable to higher average debt levels
as well as higher interest rates. The 1998 increase was principally attributable
to higher debt levels as a result of the Company's purchase of the additional
Shadow Traffic operations and repurchases of the Company's Common Stock.
The income tax provisions for 1999, 1998 and 1997 are based on annual effective
tax rates of 52%, 44% and 8%, respectively. The 1999 and 1998 provisions are
substantially all deferred taxes as the Company had tax net operating loss
deductions and deductions resulting from stock option exercises to reduce cash
taxes payable. The 1997 provision benefited from both book and tax net operating
loss carryforwards.
Net income in 1999 increased 83% to $23,887 ($.33 per basic share and $.30 per
diluted share) from $13,046 ($.22 per basic share and $.20 per diluted share) in
1998 and decreased 49% in 1998 from $25,496 ($.41 per basic share and $.37 per
diluted share) in 1997.
-11-
<PAGE>
Weighted averages shares outstanding for purposes of computing basic earnings
per share were 72,168, 60,196 and 61,500 in 1999, 1998 and 1997, respectively.
The 1999 increase was attributable to the issuance of Common Stock in
conjunction with the Company's acquisition of Metro partially offset by stock
repurchases made pursuant to the Company's ongoing stock repurchase program. The
1998 decrease was attributable to the Company's stock repurchase program.
Weighted average shares outstanding for purposes of computing diluted earnings
per share were 78,930, 66,868 and 69,302 in 1999, 1998 and 1997, respectively.
The changes in weighted average shares are due principally to the Company's
stock repurchase program partially offset by the effect of stock option grants.
Liquidity and Capital Resources
At December 31, 1999, the Company's principal sources of liquidity were its cash
and cash equivalents of $10,626 and available borrowings under its loan
agreement of $21,000.
For 1999, net cash from operating activities was $54,337, an increase of $11,622
from 1998. The increase was primarily attributable to higher cash flows from
operations partially offset by working capital requirements. Cash flow from
operations was principally used to fund the Company's stock repurchase program.
At December 31, 1999, the Company had an unsecured $114,000 bank revolving
credit facility and an unsecured $75,000 term loan (collectively the "Revolving
Credit Facility"). At December 31, 1999, the Company had available borrowings of
$21,000 on its Revolving Credit Facility. The amount of the facility is
scheduled to be reduced by $3,000 at the end of each quarter during 2000. In
addition, the Company is required to repay its term loan by $2,500 per quarter
in 2000.
In 1999, the Company purchased 3,128 shares of the Company's Common Stock for a
total cost of $54,164. In 1998, the Company purchased 6,750 shares of the
Company's Common Stock for a total cost of $65,438 and in 1997, purchased 2,754
shares of the Company's Common Stock and 1,000 warrants for a total cost of
$49,434. In 2000 (through March 16, 2000), the Company repurchased an additional
260 shares of Common Stock at a cost of $8,281. The stock buybacks have been
funded principally from the Company's free cash flow.
The Company believes that its cash, other liquid assets, operating cash flows
and available bank borrowings, taken together, provide adequate resources to
fund ongoing operating requirements.
Impact of Year 2000
In prior periods, the Company discussed the nature and progress of its plans to
become Year 2000 ready. In 1999, the Company completed its remediation and
testing of systems. As a result of those planning and implementation efforts,
the Company did not experience disruptions in mission critical information
technology and non-information technology systems and believes those systems
successfully responded to the Year 2000 date change. The Company is not aware of
any material problems resulting from Year 2000 issues, either with its products,
its internal systems, or the products and services of third parties. The Company
will continue to monitor its mission critical computer applications and those of
its suppliers and vendors throughout the year 2000 to ensure that any latent
Year 2000 matters that may arise are addressed promptly.
Forward-Looking Statements
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a safe
harbor for forward-looking statements made by or on the behalf of the Company.
All statements that express expectations and projections are forward-looking
statements within the meaning of the Act. These statements are based on
management's views and assumptions at the time the statements are made, however
no assurances can be given that management's expectations will come to pass.
Item 7A. Qualitative and Quantitative Disclosures about Market Risk
The Company is exposed to market risk related to changes in interest rates. The
Company does not use derivative financial instruments.
The interest rate on the Company's outstanding borrowings is based on the prime
rate plus an applicable margin of up to .25%, or LIBOR plus an applicable margin
of up to 1.25%, as chosen by the Company. Historically, the Company has
typically chosen the LIBOR option with a three month maturity.
-12-
<PAGE>
Item 8. Financial Statements and Supplementary Data
The Consolidated Financial Statements and the related notes and schedules of the
Company are indexed on page F-1 of this Report, and attached hereto as pages F-1
through F-16 and by this reference incorporated herein.
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure
None.
-13-
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
This information is incorporated by reference to the Company's definitive
proxy statement to be filed pursuant to Regulation 14A not later than 120 days
after the end of the Company's fiscal year.
Item 11. Executive Compensation
This information is incorporated by reference to the Company's definitive
proxy statement to be filed pursuant to Regulation 14A not later than 120 days
after the end of the Company's fiscal year.
Item 12. Security Ownership of Certain Beneficial Owners and Management
This information is incorporated by reference to the Company's definitive
proxy statement to be filed pursuant to Regulation 14A not later than 120 days
after then end of the Company's fiscal year.
Item 13. Certain Relationships and Related Transactions
This information is incorporated by reference to the Company's definitive
proxy statement to be filed pursuant to Regulation 14A not later than 120 days
after the end of the Company's fiscal year.
-14-
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) Documents filed as part of this Report on Form 10-K
1. Financial statements and schedules to be filed thereunder are indexed
on page F-1 hereof.
2. Exhibits
EXHIBIT
NUMBER DESCRIPTION
- - -------- -----------
3.1 Certificate of Incorporation of Registrant. (1)
3.2 Agreement of Merger. (1)
3.3 Certificate of Amendment of Certificate of Incorporation, as filed on
October 10, 1986. (2)
3.4 Certificate of Amendment of Certificate of Incorporation, as filed on
October 9, 1986. (3)
3.5 Certificate of Amendment of Certificate of Incorporation, as filed on
March 23, 1987. (3)
3.6 Certificate of Correction of Certificate of Amendment, as filed on
March 31, 1987 at 10:00 a.m. (3)
3.7 Certificate of Correction of Certificate of Amendment, as filed on
March 31, 1987 at 10:01 a.m. (3)
3.8 Bylaws of Registrant as currently in effect. (11)
*10.1 Employment Agreement, dated April 29, 1998, between Registrant and
Norman J. Pattiz. (14)
10.2 Form of Indemnification Agreement between Registrant and its Directors
and Executive Officers. (4)
10.3 Amended and Restated Credit Agreement, dated September 30, 1996,
between Registrant and The Chase Manhattan Bank and Co-Agents. (11)
10.4 First Amendment dated September 11, 1998 to the Amended and Restated
Credit Agreement dated September 30, 1996, between Registrant and The
Chase Manhattan Bank and Co-Agents. (13)
10.5 Purchase Agreement, dated as of August 24, 1987, between Registrant
and National Broadcasting Company, Inc. (5)
10.6 Agreement and Plan of Merger among Registrant, Copter Acquisition
Corp. and Metro Networks, Inc. dated as of June 1, 1999 (15)
10.7 Amendment No. 1 to the Agreement and Plan Merger, dated as of August
20, 1999, by and among Registrant, Copter Acquisition Corp. and Metro
Networks, Inc. (16)
*10.8 Management Agreement, dated as of March 30, 1999, between
Registrant and Infinity Broadcasting Corporation. (15)
10.9 Representation Agreement, dated as of March 31, 1997, between
Registrant and CBS, Inc. (12)
10.10 Westwood One 1999 Stock Incentive Plan, as amended. (15)
10.11 Westwood One, Inc. 1989 Stock Incentive Plan. (7)
10.12 Amendments to the Westwood One, Inc. Amended 1989 Stock Incentive
Plan. (8) (10)
10.13 Leases, dated August 9, 1999, between Lefrak SBN LP and Westwood
One, Inc. and between Infinity and Westwood One, Inc. relating to New
York, New York offices.
10.14 Lease, dated December 18, 1991, between Valencia Paragon Associates,
Ltd., and Unistar Communications Group, Inc. relating to Valencia,
California offices. (9)
10.15 Digital Audio Transmission Service Agreement, dated June 5, 1990,
between Registrant and GE American Communications, Inc. (6)
22 List of Subsidiaries
24 Consent of Independent Accountants
27 Financial Data Schedule
**********************
* Indicates a management contract or compensatory plan.
-15-
<PAGE>
(1) Filed as an exhibit to Registrant's registration statement on Form S-1
(File Number 2-98695) and incorporated herein by reference.
(2) Filed as an exhibit to Registrant's registration statement on Form
S-1 (Registration Number 33-9006) and incorporated herein by reference.
(3) Filed as an exhibit to Registrant's Form 8 dated March 1, 1988 (File
Number 0-13020), and incorporated herein by reference.
(4) Filed as part of Registrant's September 25, 1986 proxy statement
(File Number 0-13020) and incorporated herein by reference.
(5) Filed an exhibit to Registrant's current report on Form 8-K dated
September 4, 1987 (File Number 0-13020) and incorporated herein
by reference.
(6) Filed as an exhibit to Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1990 (File Number 0-13020) and
incorporated herein by reference.
(7) Filed as part of Registrant's March 27, 1992 proxy statement (File
Number 0-13020) and incorporated herein by reference.
(8) Filed as an exhibit to Registrant's July 20, 1994 proxy statement
(File Number 0-13020) and incorporated herein by reference.
(9) Filed as an exhibit to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1994 (File Number 0-13020) and
incorporated herein by reference.
(10) Filed as an exhibit to Registrant's May 17, 1996 proxy statement
(File Number 0-13020) and incorporated herein by reference.
(11) Filed as an exhibit to Registrant's Quarterly report on Form 10-Q for
the quarter ended September 30, 1996 (File Number 0-13020) and
incorporated herein by reference.
(12) Filed as an exhibit to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997 (File Number 0-13020) and
incorporated herein by reference.
(13) Filed as an exhibit to Registrant's Quarterly report on Form 10-Q for
the quarter ended September 30, 1998 (File Number 0-13020) and
incorporated herein by reference.
(14) Filed as an exhibit to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1998 (File Number 0-13020) and
incorporated herein by reference.
(15) Filed as an exhibit to Registrant's August 24, 1999 proxy
statement (File Number 0-13020) and incorporated herein
by reference.
(16) Filed as an exhibit to Registrant's current report on Form 8-K
dated October 1, 1999 (File Number 0-13020) and incorporated
herein by reference.
(b) Reports on Form 8-K
On October 1, 1999 the Company filed a report on Form 8-K related to
the Company's Merger with Metro Networks, Inc.
-16-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
WESTWOOD ONE, INC.
March 29 , 2000 By /S/ FARID SULEMAN
--------------------------
Farid Suleman
Director, Secretary and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
Principal Executive Officer:
JOEL HOLLANDER Director, President and March 29, 2000
- - --------------------------------------
Joel Hollander Chief Executive Officer
Principal Financial Officer and
Chief Accounting Officer:
FARID SULEMAN Director, Secretary and March 29, 2000
- - ----------------------------------------
Farid Suleman Chief Financial Officer
Additional Directors:
NORMAN J. PATTIZ Chairman of the Board of March 29, 2000
- - ---------------------------------------
Norman J. Pattiz Directors
DAVID L. DENNIS Director March 29, 2000
- - -----------------------------------------
David L. Dennis
GERALD GREENBERG Director March 29, 2000
- - ------------------------------------
Gerald Greenberg
DENNIS HOLT Director March 29, 2000
- - ------------------------------------------
Dennis Holt
MEL A. KARMAZIN Director March 29, 2000
- - --------------------------------------
Mel A. Karmazin
STEVEN A. LERMAN Director March 29, 2000
- - --------------------------------------
Steven A. Lerman
PAUL KRASNOW Director March 29, 2000
- - --------------------------------------
Paul Krasnow
DAVID SAPERSTEIN Director March 29, 2000
- - -----------------------------------
David Saperstein
JOSEPH B. SMITH Director March 29, 2000
- - ------------------------------------------
Joseph B. Smith
</TABLE>
-17-
<PAGE>
WESTWOOD ONE, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULES
1. Consolidated Financial Statements Page
----
-Report of Independent Accountants F-2
-Consolidated Balance Sheets at December 31, 1999
and 1998 F-3
-Consolidated Statements of Operations for the years
ended December 31, 1999, 1998 and 1997 F-4
-Consolidated Statements of Shareholders' Equity
for the years ended December 31, 1999, 1998 and 1997 F-5
-Consolidated Statements of Cash Flows for the years
ended December 31, 1999, 1998 and 1997 F-6
-Notes to Consolidated Financial Statements F-7 - F-16
2. Financial Statement Schedules:
All schedules have been omitted because they are not applicable, the
required information is immaterial, or the required information is included
in the consolidated financial statements or notes thereto.
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Westwood One, Inc.
In our opinion, the consolidated financial statements listed in the accompanying
index present fairly, in all material respects, the financial position of
Westwood One, Inc. and it subsidiaries at December 31, 1999 and 1998, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1999, in conformity with generally accepted
accounting principles in the United States. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with auditing standards generally
accepted in the United States, which require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/S/ PRICEWATERHOUSECOOPERS LLP
- - ------------------------------
PricewaterhouseCoopers LLP
Century City, California
February 11, 2000, except as to Note 14, which is as of March 8, 2000.
F-2
<PAGE>
WESTWOOD ONE, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
<TABLE>
<CAPTION>
December 31,
------------
<S> <C> <C>
1999 1998
---- ----
ASSETS
------
CURRENT ASSETS:
Cash and cash equivalents $ 10,626 $ 2,549
Accounts receivable, net of allowance for doubtful accounts
of $7,714 (1999) and $3,720 (1998) 145,833 75,402
Other current assets 12,800 7,712
---------- --------
Total Current Assets 169,259 85,663
PROPERTY AND EQUIPMENT, NET 55,957 24,353
INTANGIBLE ASSETS, NET 1,078,587 224,242
OTHER ASSETS 31,085 11,021
---------- --------
TOTAL ASSETS $1,334,888 $345,279
========== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES:
Accounts payable $ 21,356 $ 19,070
Other accrued expenses and liabilities 76,819 43,706
Amounts payable to affiliates 19,830 15,776
Current maturity of long-term debt 10,000 -
-------- --------
Total Current Liabilities 128,005 78,552
LONG-TERM DEBT 158,000 170,000
OTHER LIABILITIES 29,108 19,509
-------- --------
TOTAL LIABILITIES 315,113 268,061
-------- --------
COMMITMENTS AND CONTINGENCIES - -
SHAREHOLDERS' EQUITY
Preferred stock: authorized 10,000,000 shares, none outstanding - -
Common stock, $.01 par value: authorized, 300,000,000 shares;
issued and outstanding, 127,897,500 (1999) and 69,924,460 (1998) 640 350
Class B stock, $.01 par value: authorized, 3,000,000 shares:
issued and outstanding, 703,466 (1999 and 1998) 4 4
Additional paid-in capital 1,171,370 206,688
Accumulated earnings 25,030 1,143
Accumulated other comprehensive income 7,862 -
---------- --------
1,204,906 208,185
Less treasury stock, at cost; 16,421,450 (1999) and 13,294,190 (1998) shares (185,131) (130,967)
---------- --------
TOTAL SHAREHOLDERS' EQUITY 1,019,775 77,218
---------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,334,888 $345,279
========== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F - 3
<PAGE>
WESTWOOD ONE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
<S> <C> <C> <C>
1999 1998 1997
---- ---- ----
GROSS REVENUES $414,959 $298,888 $278,978
Less Agency Commissions 56,654 39,578 38,188
-------- -------- --------
NET REVENUES 358,305 259,310 240,790
-------- -------- --------
Operating Costs and Expenses Excluding
Depreciation and Amortization 261,538 202,138 186,918
Depreciation and Amortization 30,214 18,409 13,031
Corporate General and Administrative Expenses 5,756 4,858 4,936
Nonrecurring Items, Net Expense - 551 -
-------- -------- --------
297,508 225,956 204,885
-------- -------- --------
OPERATING INCOME 60,797 33,354 35,905
Interest Expense 12,150 10,340 8,513
Other Income (610) (432) (334)
-------- -------- --------
INCOME BEFORE TAXES 49,257 23,446 27,726
INCOME TAXES 25,370 10,400 2,230
-------- -------- --------
NET INCOME $ 23,887 $ 13,046 $ 25,496
======== ======== ========
INCOME PER SHARE:
Basic $ .33 $ .22 $ .41
Diluted $ .30 $ .20 $ .37
WEIGHTED AVERAGE SHARES OUTSTANDING:
Basic 72,168 60,196 61,500
Diluted 78,930 66,868 69,302
</TABLE>
See accompanying notes to consolidated financial statements.
F - 4
<PAGE>
WESTWOOD ONE, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(In thousands)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Accumul'd Treasury
Preferred Common Stock Class B Stock Add'l Accumul'd Other Stock Total
--------- ------------ ------------- Paid-in Earnings Comp ----- Shareholders'
Shares Amount Shares Amount Shares Amount Capital (Deficit) Income Shares Amount Equity
------ ------ ------ ------ ------ ------ ------- --------- ------ ------ ------ ------
BALANCE AT DECEMBER 31, 1996 - - 31,818 $318 352 $4 $ 152,708 ($37,399) - 1,895 $28,783 $ 86,848
Net income for 1997 - - - - - - - 25,496 - - - 25,496
Issuance of common stock under
stock option plans - - 164 2 - - 1,183 - - - - 1,185
Issuance of common stock under
warrants - - 2,036 21 - - 35,093 - - - - 35,114
Conversion of 6 3/4% debentures to
common stock - - 622 6 - - 14,896 - - - - 14,902
Purchase and cancellation of warrant - - - - - - (12,688) - - - - (12,688)
Income tax benefit of option and
warrant exercises - - - - - - 10,567 - - - - 10,567
Purchase of treasury stock - - - - - - - - - 1,377 36,746 (36,746)
---- ---- ------- ---- --- -- --------- ------- ------ ------ -------- ----------
BALANCE AT DECEMBER 31, 1997 - - 34,640 347 352 4 201,759 (11,903) - 3,272 65,529 124,678
Net income for 1998 - - - - - 13,046 - - 13,046
Issuance of common stock under
stock option plans - - 322 3 - - 4,929 - - - - 4,932
Purchase of treasury stock - - - - - - - - - 3,375 65,438 (65,438)
---- ---- ------- ---- --- -- --------- ------- ------ ------ -------- ----------
BALANCE AT DECEMBER 31, 1998 - - 34,962 350 352 4 206,688 1,143 - 6,647 130,967 77,218
Components of comprehensive income:
Net income for 1999 - - - - - - - 23,887 - - - 23,887
Unrealized holding gain in equity
securities net of tax - - - - - - - - 7,862 - - 7,862
---- ---- ------- ---- --- -- --------- ------- ------ ----- -------- ----------
Total comprehensive income - - - - - - - 23,887 7,862 - - 31,749
Issuance of common stock - - 25,112 251 - - 925,304 - - - - 925,555
Issuance of common stock under
warrants - - 3,000 30 - - 8,970 - - - - 9,000
Issuance of common stock under
stock option plans - - 875 9 - - 23,648 - - - - 23,657
Issuance of warrants - - - - - - 6,760 - - - - 6,760
Purchase of treasury stock - - - - - - - - - 1,564 54,164 (54,164)
Two-for-one stock split (Note 14) - - 63,949 639 352 4 - (643) - 8,211 - 0
---- ---- ------- ------ --- -- ---------- ------- ------ ------ -------- ----------
BALANCE AT DECEMBER 31, 1999 - - 127,898 $1,279 704 $8 $1,171,370 $24,387 $7,862 16,422 $185,131 $1,019,775
==== ==== ======= ====== === == ========== ======= ====== ====== ======== ==========
</TABLE>
See accompanying notes to consolidated financial statements
F - 5
<PAGE>
WESTWOOD ONE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
<S> <C> <C> <C>
1999 1998 1997
---- ---- ----
CASH FLOW FROM OPERATING ACTIVITIES:
Net income $23,887 $13,046 $25,496
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 30,214 18,409 13,031
Deferred taxes 21,463 8,496 -
Other 314 315 320
------- ------- -------
75,878 40,266 38,847
Changes in assets and liabilities:
Increase in accounts receivable (26,271) (7,637) (26,440)
Decrease (increase) in prepaid assets (1,978) 1,104 (3,006)
Increase in accounts payable and accrued liabilities 6,708 8,982 10,530
------- ------- -------
Net Cash Provided By Operating Activities 54,337 42,715 19,931
------- ------- -------
CASH FLOW FROM INVESTING ACTIVITIES:
Acquisition of companies and other (Metro in 1999;
Shadow Traffic in 1998 and CBS Radio Networks in 1997) 6,105 (30,987) (13,839)
Capital expenditures (6,084) (1,945) (1,711)
------- ------- -------
Net Cash Provided By (Used For) Investing Activities 21 (32,932) (15,550)
------- ------- -------
CASH PROVIDED BEFORE FINANCING ACTIVITIES 54,358 9,783 4,381
------- ------- -------
CASH FLOW FROM FINANCING ACTIVITIES:
Debt repayments and payments of capital lease obligations (14,973) (2,758) -
Borrowings under bank and other long-term obligations - 55,000 8,862
Issuance of common stock 22,856 3,199 36,299
Repurchase of common stock and warrants (54,164) (65,438) (49,434)
------- ------- -------
NET CASH (USED FOR) FINANCING ACTIVITIES (46,281) (9,997) (4,273)
------- ------- -------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 8,077 (214) 108
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 2,549 2,763 2,655
------- -------- -------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $10,626 $ 2,549 $ 2,763
======= ======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
NOTE 1 - Summary of Significant Accounting Policies:
Principles of Consolidation
- - ---------------------------
The consolidated financial statements include the accounts of all majority and
wholly-owned subsidiaries.
Revenue Recognition
- - -------------------
Revenue is recognized when commercial advertisements are broadcast.
Use of Estimates
- - ----------------
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities at the date of the
financial statements and revenue and expenses during the reporting period.
Actual results may differ from those estimates.
Cash Equivalents
- - ----------------
The Company considers all highly liquid instruments purchased with a maturity of
less than three months to be cash equivalents. The carrying amount of cash
equivalents approximates fair value because of the short maturity of these
instruments.
Depreciation
- - ------------
Depreciation is computed using the straight line method over the estimated
useful lives of the assets. Property under a capitalized lease is amortized over
the term of the lease.
Intangible Assets
- - -----------------
Intangible assets are amortized over periods ranging from five to forty years.
At each balance sheet date, the Company determines whether an impairment of
Intangible Assets has occurred based upon expectations of nondiscounted
broadcast cash flow. Broadcast Cash Flow is based on the consolidated statement
of operations, calculated by subtracting from net revenue, operating costs and
expenses excluding depreciation and amortization. To date, the Company has not
experienced an impairment in any of its intangible assets. However, should such
an impairment exist, the impairment will be measured as the amount by which the
carrying amount of the asset exceeds its fair value, as defined by Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed Of".
Stock-Based Compensation
- - ------------------------
Statement of Financial Accounting Standards No. 123 ("FAS 123"), "Accounting for
Stock-Based Compensation," encourages, but does not require companies to record
compensation cost for stock-based employee compensation plans at fair value. The
Company has chosen to continue to account for stock-based compensation using the
intrinsic value method prescribed in Accounting Principles Board Opinion No. 25
("APB 25"), "Accounting for Stock Issued to Employees," and related
Interpretations.
Income Taxes
- - ------------
The Company uses the asset and liability method of financial accounting and
reporting for income taxes required by Statement of Financial Accounting
Standards No. 109 ("FAS 109"), "Accounting for Income Taxes". Under FAS 109,
deferred income taxes reflect the tax impact of temporary differences between
the amount of assets and liabilities recognized for financial reporting purposes
and the amounts recognized for tax purposes.
Earnings per Share
- - ------------------
Basic earnings per share excludes all dilution and is calculated using the
weighted average number of common shares outstanding in the period. Diluted
earnings per share amounts are based upon the weighted average number of common
and common equivalent shares outstanding during the year. Common equivalent
F-7
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
shares are related to warrants and stock options. The following number of common
equivalent shares were added to the basic weighted average shares outstanding
for each period:
1999 1998 1997
---- ---- ----
Warrants 4,578,000 5,298,000 6,364,000
Options 2,184,000 1,376,000 1,438,000
Common equivalent shares are excluded in periods in which they are
anti-dilutive. The following options were excluded from the calculation of
diluted earnings per share because the exercise price was greater than the
average market price of the Company's Common Stock for the years presented:
1999 1998 1997
---- ---- ----
Options 960,000 2,680,000 1,580,000
The per share exercise prices of the options were $22.57 in 1999, $13.00-$15.00
in 1998 and $15.00 in 1997.
Reclassification
- - ----------------
Certain amounts have been reclassified to be comparable to the 1999
presentation.
NOTE 2 - Acquisitions of Businesses:
On March 31, 1997, the Company entered into a representation and management
agreement (the "Representation Agreement") with CBS Inc. ("CBS"), whereby the
Company operates the CBS Radio Networks. In accordance with the Representation
Agreement, the Company pays CBS a representation fee and reimburses CBS for
certain programming costs, including news, that CBS provides to Westwood One.
The Company retains all revenues from sales of commercial time and is
responsible for all expenses of the CBS Radio Networks. Accordingly, the
operating results of CBS Radio Network are included with those of the Company
from the effective date of the Representation Agreement. The Agreement was
renewed for an additional five years effective March 31, 1999.
In May 1998, the Company acquired the operating assets of the Shadow Traffic
operations in Baltimore, Boston, Dallas, Detroit, Houston, Miami, Sacramento,
San Diego, San Francisco and Washington, D.C. for approximately $20,000 plus
costs and the assumption of certain obligations, including severance obligations
and obligations to provide third parties with commercial airtime. The
acquisition was accounted for as a purchase, and accordingly, the operating
results are included with those of the Company from May 1, 1998. The purchase
price has been allocated to the assets and liabilities acquired based on their
respective fair values. The intangible assets acquired as part of the purchase
are being amortized over 20 years.
On September 22, 1999, the Company acquired all the issued and outstanding
common and preferred stock of Metro Networks, Inc. ("Metro"). Under the terms of
the merger, each outstanding share of Metro was converted into 1.5 shares of the
Company's common stock and each outstanding share of Metro Series A Convertible
Preferred Stock was converted into 1.5 shares of a corresponding series of
preferred stock of the Company. Accordingly, the Company issued approximately
50,224,000 shares of its Common Stock and 3,824,625 shares of its Series A
Convertible Preferred Stock. Based on the value of the shares issued and to be
issued ($925,555) and expense of the acquisition ($27,879), which included
investment banking fees, professional fees, severance costs and costs of
eliminating duplicative facilities, the purchase price aggregated approximately
$953,434. Goodwill and intangible assets associated with the transaction
approximated $874,780. The acquisition was accounted for as a purchase, and
accordingly, the operating results are included with those of the Company from
September 22, 1999. The purchase price has been allocated to the assets and
liabilities acquired based on preliminary estimates of their respective fair
values. The intangible assets acquired are being amortized over 25 years.
F-8
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
The unaudited pro forma combined historical results, as if Metro had been
acquired at the beginning of 1999 and 1998, respectively, are estimated as
follows:
1999 1998
---- ----
(Unaudited)
Net revenues $491,762 $431,442
Net income 8,274 1,175
Income per share:
Basic $ .08 $ .01
Diluted .07 .01
The pro forma results include amortization of the intangible assets and the
issuance of additional shares. The pro forma results are not necessarily
indicative of what actually would have occurred if the acquisition had been
completed as of the beginning of each of the periods presented, nor are they
necessarily indicative of future consolidated results.
NOTE 3 - Property and Equipment:
Property and equipment is recorded at cost and is summarized as follows at:
December 31,
---------------------
1999 1998
---- ----
Land, buildings and improvements........... $11,558 $11,507
Recording and studio equipment............. 35,934 8,404
Capitalized leases......................... 11,123 11,123
Furniture and equipment and other.......... 16,824 9,115
------- -------
75,439 40,149
Less: Accumulated depreciation
and amortization.................. 19,482 15,796
------- ------
Property and equipment, net......... $55,957 $24,353
======= =======
Depreciation expense was $7,304 in 1999, $5,138 in 1998 and $2,341 in 1997.
NOTE 4 - Intangible Assets:
Intangible assets are summarized as follows at:
December 31,
---------------------
1999 1998
---- ----
Goodwill, less accumulated amortization
of $55,318 (1999)and $38,659 (1998) ...... $1,045,904 $188,512
Other identifiable intangible assets,
less accumulated amortization of
$22,025 (1999) and $18,979 (1998) ......... 32,683 35,730
---------- --------
Intangible assets, net................ $1,078,587 $224,242
========== ========
F-9
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
NOTE 5 - Debt:
Long-term debt consists of the following at:
December 31,
---------------------
1999 1998
---- ----
Revolving Credit Facility/Term Loan.......... $158,000 $170,000
======== ========
The Company's amended senior loan agreement with a syndicate of banks, led by
Chase Manhattan Bank, provides for an unsecured $114,000 revolving credit
facility and an unsecured $75,000 term loan (the "Facility"). The Facility is
available until September 30, 2004, however, the facility contains provisions
which require mandatory reductions in the amount of the facility starting in
September 1999 ($3,000 per quarter in 2000). At December 31, 1999, the Company
had available borrowings under the Facility of $21,000. Interest is payable at
the prime rate plus an applicable margin of up to .25% or LIBOR plus an
applicable margin of up to 1.25%, at the Company's option. At December 31, 1999,
the applicable margin was LIBOR plus .50%. At December 31, 1999, the Company had
borrowed $93,000 under the revolving credit facility and $75,000 under the term
loan at a weighted-average interest rate of 6.8%. The Facility contains
covenants relating to dividends, liens, indebtedness, capital expenditures and
interest coverage and leverage ratios.
The aggregate maturities of long-term debt for the next five years and
thereafter, pursuant to the Company's debt agreements as in effect at December
31, 1999, are as follows:
Year
----
2000................................ $ 10,000
2001................................ 19,000
2002................................ 39,000
2003................................ 50,000
2004................................ 50,000
--------
$168,000
========
The fair value of debt approximates its carrying value.
NOTE 6 - Shareholders' Equity:
The authorized capital stock of the Company consists of Common stock, Class B
stock and Preferred stock. Common stock is entitled to one vote per share while
Class B stock is entitled to 50 votes per share.
In conjunction with the renewal of the Company's Management Agreement with
Infinity. Infinity was granted warrants to purchase 2,000,000 shares of Common
Stock at $10.00 per share and 2,000,000 shares of Common Stock at $12.50 per
share. Vesting of the warrants was contingent upon the Company's stock price
exceeding predetermined levels for 20 out of 30 consecutive trading days.
Infinity was vested in all warrants at December 31, 1999. The warrants expire on
March 31, 2009.
F-10
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
On September 22, 1999 the Company completed its merger with Metro and issued
approximately 50,224,000 shares of its Common Stock and 3,824,625 shares of its
Series A Convertible Preferred Stock. The Westwood preferred stock was issued
subject to a stock loan and pledge agreement with the preferred shareholder. In
December 1999, the Company's Series A Convertible Preferred Stock was converted
to Common Stock and the related loan of Common Stock was repaid.
NOTE 7 - Stock Options:
The Company has stock option plans established in 1989 and 1999 which provide
for the granting of options to directors, officers and key employees to purchase
stock at its market value on the date the options are granted. Under the 1989
Plan, 12,600,000 shares were reserved for grant through March 1999. This plan
expired, but certain previous grants remain outstanding at December 31,1999. On
September 22, 1999, the stock holders ratified the Company's 1999 stock
incentive plan which authorized the grant of up to 8,000,000 shares of Common
Stock. Options granted generally become exercisable after one year in 20%
increments per year and expire within ten years from the date of grant.
The Company applies APB 25 and related interpretations in accounting for its
plans. Accordingly, no compensation expense has been recognized for its stock
option plans. Had compensation cost been determined in accordance with the
methodology prescribed by FAS 123, the Company's net income and earnings per
share would have been reduced by approximately $3,606 ($.05 per basic share and
$.05 per diluted share) in 1999, $3,052 ($.05 per basic share and $.05 per
diluted share) in 1998 and $2,835 ($.04 per basic share and $.04 per diluted
share) in 1997. The weighted average fair value of the options granted in 1999,
1998 and 1997 is estimated at $8.84, $4.97 and $6.73, respectively, on the date
of grant using the Black-Scholes option pricing model with the following
weighted average assumptions:
1999 1998 1997
---- ---- ----
Weighted Average Risk Free Interest Rate 5.3% 5.4% 6.3%
Expected Life (In Years) 5 5 5
Expected Volatility 51.3% 35.9% 53.9%
Expected Dividend Yield - - -
Expected Forfeitures per Year 1% 1% 5%
F-11
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
Information concerning options outstanding under the Plan is as follows for the
year ended:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Year Ended December 31,
---------------------------------------------------------------------------------
1999 1998 1997
------------------------ ---------------------- -----------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
------ ----- ------ ----- ------ -----
Outstanding at beginning
of period 6,820,000 $ 9.89 6,021,000 $ 8.74 3,465,000 $ 5.15
Granted during the period 2,210,000 $17.28 1,600,000 $12.15 3,320,000 $11.92
Metro options converted to
Westwood One options 6,125,458 $ 9.89 - - - -
Exercised during the period (1,748,700) $ 7.93 (491,000) $ 4.15 (333,000) $ 3.62
Forfeited during the period (164,000) $ 8.97 (310,000) $ 8.40 (431,000) $ 8.33
---------- ---------- --------
Outstanding at end of period 13,242,758 $11.39 6,820,000 $ 9.89 6,021,000 $ 8.74
========== ========= =========
Available for new stock options
at end of period 6,940,000 1,764,000 3,054,000
========= ========== =========
</TABLE>
At December 31, 1999, options to purchase 5,265,522 shares of common stock were
currently exercisable at a weighted average exercise price of $8.39.
The following table contains additional information with respect to options at
December 31, 1999:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Remaining
Weighted Weighted
Average Average
Number of Exercise Contractual
Options Price Life (In Years)
------- ----- ---------------
Options Outstanding at Exercise Price Ranges of:
$ 1.00 - $ 3.75 299,000 $ 2.05 3.0
$ 4.88 - $ 6.38 1,874,122 $ 5.14 4.8
$ 7.25 - $11.55 4,995,506 $ 9.41 7.8
$12.44 - $15.75 4,991,630 $13.96 8.4
$17.25 - $22.57 1,082,500 $22.15 9.8
----------
13,242,758 $11.38 7.7
==========
</TABLE>
F-12
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
NOTE 8 - Income Taxes:
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities on the Company's balance
sheet and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets and liabilities follow:
December 31,
------------------
1999 1998
---- ----
Deferred tax liabilities:
Affiliation agreements.......................... $ 6,149 $ 6,663
Purchase accruals and intangibles............... 10,730 9,689
Other........................................... 2,536 439
------- -------
Total deferred tax liabilities................ 19,415 16,791
------- -------
Deferred tax assets:
Net operating loss.............................. - 11,949
Accrued liabilities and reserves................ 7,735 6,501
Tax credits (AMT and ITC)....................... 1,741 2,145
------- -------
Total deferred tax assets..................... 9,476 20,595
------- -------
Net deferred tax liabilities (assets)............. $ 9,939 $(3,804)
======= ========
The components of the provision for income taxes follows:
Year Ended December 31,
-------------------------------
Current 1999 1998 1997
---- ---- ----
Federal............................ $10,345 $ 842 $ 483
State.............................. 3,574 1,062 1,747
------ ------ ------
13,919 1,904 2,230
------- ------ ------
Deferred
Federal............................ 11,854 8,562 -
State.............................. (403) (66) -
------- ------- ------
11,451 8,496 -
------- ------- ------
Income tax expense..................... $25,370 $10,400 $2,230
======= ======= ======
F-13
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
The reconciliation of the federal statutory income tax rate to the Company's
effective income tax rate follows:
Year Ended December 31,
--------------------------
1999 1998 1997
---- ---- ----
Federal statutory rate 35.0% 35.0% 35.0%
State taxes net of federal benefit 5.1 4.4 6.3
Nondeductible amortization of
intangible assets 11.1 5.4 4.5
Net operating loss deduction - - (37.8)
Other, net .3 (.4) -
---- ----- ------
Effective tax rate 51.5% 44.4% 8.0%
===== ===== ======
In 1999 and 1998, $9,800 and $1,733, respectively, of income tax benefits
attributable to employee stock transactions were allocated to shareholders'
equity.
NOTE 9 - Nonrecurring Items:
In 1998, the Company incurred a charge for nonrecurring items which included
amounts attributable to the consolidation of the Company's news operations and
one-time costs associated with evaluating various strategic alternatives to
enhance shareholder value partially offset by a settlement with a satellite
carrier whereby the Company received a refund for past services, resulting in a
gain of approximately $2,494. The costs associated with the consolidation of the
news operations aggregated $2,275 and were comprised of primarily of severance
costs and costs related to abandoned leases. Of the amounts accrued, $1,699 was
paid in 1998 and $288 was paid in 1999. The remaining balance of $288 will be
paid in 2000.
NOTE 10 - Related Party Transactions:
The Company is managed by Infinity Broadcasting Corporation ("Infinity")
pursuant to a five year Management Agreement which expires on March 31, 2004.
Pursuant to the Management Agreement, the Company paid or accrued expenses
aggregating $3,613 to Infinity in 1999 ($2,226 in 1998 and $2,713 in 1997). As
part of the Management Agreement, Infinity was given 4,000,000 warrants to
acquire shares of Common Stock after the Company's Common Stock reached certain
market prices per share. Those warrants were fully vested in 1999.
On March 31, 1997, the Company entered into a Representation Agreement with CBS.
In addition, many of Infinity's radio stations are affiliated with the Company's
radio networks and the Company purchases several programs from Infinity. During
1999 the Company incurred expenses aggregating approximately $70,241 for the
Representation Agreement and Infinity affiliations and programs ($67,612 in 1998
and $61,564 in 1997).
F-14
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
NOTE 11 - Commitments and Contingencies:
The Company has various non-cancelable, long-term operating leases for office
space and equipment. In addition, the Company is committed under various
contractual agreements to pay for talent, broadcast rights, research, the CBS
Representation Agreement and the Management Agreement with Infinity. The
approximate aggregate future minimum obligations under such operating leases and
contractual agreements for the five years after December 31, 1999, are set forth
below:
Year
----
2000.......................... $ 61,230
2001.......................... 53,982
2002.......................... 47,176
2003.......................... 38,433
2004.......................... 19,148
-------
$219,696
========
NOTE 12 - Supplemental Cash Flow Information:
Supplemental Information on cash flows, is summarized as follows:
Year Ended December 31,
----------------------------------
1999 1998 1997
---- ---- ----
Cash paid for:
Interest........................... $10,712 $10,119 $8,245
Income taxes....................... 3,634 883 1,174
The Company had certain non-cash investing and financing activities in 1999,
1998 and 1997. During 1999, the Company merged with Metro (see Notes 2 and 6)
issuing approximately 50,224,000 shares of its Common Stock and 3,824,625 shares
of Series A Convertible Preferred Stock in exchange for all the issued and
outstanding shares of common and preferred stock of Metro. In addition, the
Company entered into an agreement with Sportsline USA ("Sportsline") to provide
Sportsline with advertising time over the next 3 years in exchange for 450,000
shares of Sportsline common stock. During 1998, $11,430 of lease assets and
obligations were capitalized. In 1997, $15,293 principal amount of the Company's
6 3/4% Convertible Subordinated Debentures were converted into approximately
1,244,000 shares of the Company's Common Stock.
F-15
<PAGE>
WESTWOOD ONE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share amounts)
NOTE 13 - Quarterly Results of Operations (unaudited):
The following is a tabulation of the unaudited quarterly results of operations.
The quarterly results are presented for the years ended December 31, 1999 and
1998.
(In thousands, except per share data)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
First Second Third Fourth For the
Quarter Quarter Quarter Quarter Year
------- ------- ------- -------- --------
1999
----
Net revenues................................... $58,518 $66,353 $78,902 $154,532 $358,305
Operating income............................... 1,637 11,478 14,380 33,302 60,797
Net income (loss) ............................. (662) 4,843 5,330 14,376 23,887
Net income (loss) per share:
Basic .................................... $(0.01) $ 0.09 $ 0.08 $ 0.13 $ 0.33
Diluted .................................. (0.01) 0.07 0.08 0.12 0.30
1998
----
Net revenues................................... $53,340 $63,487 $66,669 $75,814 $259,310
Operating income............................... 1,982 9,596 9,695 12,081 33,354
Net income .................................... 49 4,078 3,876 5,043 13,046
Net income per share:
Basic .................................... $ 0.00 $ 0.06 $ 0.07 $ 0.09 $ 0.22
Diluted .................................. 0.00 0.06 0.06 0.08 0.20
</TABLE>
NOTE 14 - Subsequent Event:
On January 27, 2000 the Board of Directors approved a two-for-one split of its
Common Stock and Class B Stock subject to shareholder approval of an Amendment
to its Certificate of Incorporation to increase the authorized number of shares
of the Company's Common Stock from 117,000,000 to 300,000,000. The Amendment was
approved by Shareholders on March 8, 2000. The stock split will be payable to
Shareholders on record on March 8, 2000 in the form of a 100% stock dividend on
March 22, 2000. All references to Common Stock, Class B Stock, common shares
outstanding, weighted average shares outstanding and per share amounts in these
consolidated financial statements and notes to consolidated financial statements
have been restated to give retroactive effect to the two-for-one stock split of
the Company's Common Stock and Class B Stock.
F-16
Exhibit 10.13
Lease between Lefrak SBN LP and Westwood One, Inc. (5th floor) and
sublease between Infinity and Westwood One, Inc. (15th floor)
Tenant hereby acknowledges and agrees that Owner shall have no obligation to
furnish Tenant and/or the demised premises with any cleaning services.
Accordingly, Tenant shall promptly, after execution and delivery of this Lease,
arrange directly with and pay directly to the Owner's cleaning contractor for
the Building, for the provisions of all cleaning services required by Tenant for
the demised premises (including, all lavatories and common areas located on and
within such floor), and shall hold Owner harmless from and against payment of
all cleaning costs and expenses for the demised premises. All such cleaning
services shall be provided and/or performed in compliance with the applicable
provisions of (1) all rules, regulations and statutes promulgated by any
governmental or quasi-governmental authority having jurisdiction over the
Building, (2) all rules and regulations of Owner and the company furnishing such
cleaning service, and (3) this Lease, including, without limitation, Articles 3,
4 and 38 hereof.
Tenant further agrees that Tenant shall obtain, and keep in full force and
effect during the term of this Lease, a service contract with such cleaning
contractor to provide such cleaning services to the demised premises (the
"Cleaning Contract"). Tenant shall deliver to Owner a copy of the Cleaning
Contract (and all renewals, modifications, amendments or supplements thereto)
within ten (10) days of the Commencement Date and/or the date of any such
renewal, modification, amendment or supplement to such Cleaning Contract,
respectively, as the case may be. If Tenant shall fail to obtain or maintain the
Cleaning Contract required hereunder, Owner may obtain and maintain the same,
and the cost thereof shall be collectible by Owner and paid by Tenant as
additional rent, within five (5) days after submission by Owner to Tenant of
Owner's statement or invoice therefor.
Tenant also agrees, at Tenant's sole cost and expense and as part of its
Cleaning Contract (a) keep all portions of the demised premises in good order,
(b) cause Tenant's refuse and rubbish to be kept completely out of view (except
when the same is being taken to the location of collection) and removed daily
from the demised premises and the Building in accordance with schedule, from
time to time of the Owner's cleaning contractor, and (c) cause any portions of
the demised premises used for storage, preparation, service on consumption of
food or beverages to be exterminated against infestation by vermin, roaches or
rodents on a regular basis.
-4a-
the next page is 5
<PAGE>
TEXT OF NUMBERED INSERTS TO PRINTED PORTION OF LEASE BETWEEN
LEFRAK SBN LIMITED PARTNERSHIP, AS OWNER AND
WESTWOOD ONE, INC., AS TENANT
DATED AS OF , 1999
1- attached or built into
2- permanent
3- except as otherwise provided in Article 45
4- (a) Tenant's use or manner of use of the demised premises other
than for general office purposes, (b) any condition which has
been created by, or at the instance of Tenant (c) any condition
resulting from a breach of Tenant's obligations hereunder or (d)
any condition occasioned in whole or part by the negligence or
Tenant or any of its employees, agents, contractors, invitees or
licensees.
5- Owner hereby represents that as of the date hereof, the premises
complies with all laws, rules, orders, regulations and
requirements concerning the use of the premises for general
office purposes. At all times during the term of the Lease,
Owner shall comply with all laws, rules, orders, regulations and
requirements with which Tenant is not obligated to comply, as
set forth above, but Owner may contest, appeal and defer
compliance with the same.
6- for a period in excess of six (6) months
7- In the event that Owner shall not have elected to terminate this
Lease as provided in the foregoing provisions of this Article 9,
then Owner agrees to promptly commence "substantially complete"
(as such term is hereinafter defined in this Insert 7) the
restoration and repair work at the demised premises within nine
(9) months from the date on which Owner shall obtain the
insurance proceeds for the damage caused by such fire and/or
other casualty and a permit from the New York City Department of
Buildings or any other applicable legal governmental authority
for the commencement and performance of such restoration and
repair work (written notice of which date Owner herby agrees to
promptly furnish to Tenant), and which date of "substantial
completion" shall be subject to extension for an additional
period of time which, in no event shall exceed three (3) months,
for circumstances as set forth in Article 27 and 45 of this
Lease. If Owner fails to "substantially complete the repair or
restoration", or cause the "substantial completion of the repair
or restoration" (as such terms are hereinafter defined in this
Insert 7) of the demised premises to occur within the time
period set forth above, then Tenant shall have the right, within
thirty (30) days after the expiration of such time period, to
terminate this Lease (TIME BEING DEEMED OF THE ESSENCE) by a
written notice given to Owner, such termination to be effective
as of a date specified in such notice, which termination date
shall be no earlier than thirty (30) days nor later then forty-
five (45) days from the date of such termination notice, and
unless Owner shall have "substantially completed" or caused the
"substantial completion of the repair and/or restoration" of the
premises and/or the Building, if required, by the termination
date specified in such Tenant's notice, the term of this shall
terminate on such termination date as if such termination date
were the "Expiration Date" of this Lease (as such term is
hereinafter defined). If Tenant does not terminate this Lease as
in this Article 9 provided, Tenant shall have no further right
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to terminate this Lease pursuant to this Article 9, and Owner
shall thereafter complete (to the extent as previously provided)
such repair and restoration of the Building, if required, and/or
the premises with due diligence. For purposes of this Article 9,
the term "substantially complete" or "substantially complete the
repair and/or restoration" or words to such effect shall mean
repairs or restoration to the premises and areas of the
Building, if required, and to Building services which existed
prior to the occurrence of such fire or other casualty, which
are sufficiently complete so that Tenant can recommence the
carrying on the operation of its business in the demised
premises without material interference. In the event of a
termination of this Lease pursuant to this Article 9, whether by
Owner or by Tenant, this Lease shall terminate on the applicable
termination date in question with the same force and effect as
if said date were originally provided herein as the Expiration
Date of the term of this Lease.
8- Tenant shall have the right to make a claim for the value of
Tenant's Property (as hereinafter defined) and for the expense
of relocating Tenant's business conducted at the premises,
provided that such claims do not reduce, adversely affect or
impair the amount of the award payable to Owner.
9- provided that Owner uses reasonable efforts to minimize
interference with the conduct of Tenant's business at the
demised premises.
10- provided that (i) Owner uses reasonable efforts to minimize
interference with the conduct of Tenant's business at the
demised premises and (ii) Owner will not materially diminish the
usable space in the demised premises,
11- provided that such changes do not materially or adversely affect
Tenant's access to, or use of the demised premises.
12- provided that Owner uses reasonable efforts to minimize any
disturbance to Tenant's business.
13- or by nationally recognized overnight courier service
14- or by nationally recognized overnight courier service
15- is in full force and effect
16- Owner shall insure that Tenant's employees shall have
twenty-four (24) hour access to the premises, but after hours
elevator service shall be limited as set forth above in this
Article 29 and access to the lobby may be by means reasonably
satisfactory to Landlord and Tenant. Tenant shall not be
required to pay for the use of the freight elevator during
construction or Tenant's initial move-in at the beginning of the
Term or for other uses thereof during business hours.
17- Owner agrees not to discriminate against Tenant in its
enforcement or failure to enforce the Rules and Regulations.
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<PAGE>
072799
R I D E R T O O F F I C E L E A S E
TABLE OF CONTENTS
ARTICLE PAGE
36. Fixed Rent, Additional Rent................................. 1
37. Term........................................................ 2
38. Alterations................................................. 2
39. Attornment; Modifications; Subordination, Attornment and
Non-Disturbance Agreement.................................... 4
40. Indemnity................................................... 7
4l. Insurance................................................... 7
42. Assignment, Subletting, Mortgage, Etc....................... 10
43. Electricity................................................. 16
44. End of Term................................................. 18
45. Inability to Perform........................................ 19
46. Air Conditioning............................................ 19
47. Additional Charges.......................................... 20
48. Broker...................................................... 23
49. Consents.................................................... 23
50. Partnership Tenant.......................................... 24
5l. Parties Bound............................................... 24
52. Tenant's and Owner's Certificate............................ 24
53. Exculpation and Non-Liability............................... 25
54. Arbitration................................................. 25
55. Miscellaneous............................................... 27
56. Building's Electronic Directory............................. 27
57. Changes In Building Facilities, Name........................ 28
58. Local Law 5 Compliance...................................... 28
59. Restrictions on Use......................................... 28
60. Condition of the Demised Premises........................... 29
Exhibit A - Floor Plan for the Premises
Exhibit B - Fixed Rent Schedule
Exhibit C - Existing Mortgagee's Form of Subordination,
Attornment and Non-Disturbance Agreement
Exhibit D - Existing Mortgagee's Form of Tenant Estoppel Certificate
<PAGE>
RIDER TO THE LEASE DATED , 1999, BY AND BETWEEN
LEFRAK SBN LIMITED PARTNERSHIP, AS OWNER AND
WESTWOOD ONE INC., AS TENANT.
IN THE EVENT OF ANY CONFLICT BETWEEN THE PRINTED
PORTION OF THE LEASE AND THE PROVISIONS OF THIS RIDER,
THE PROVISIONS OF THIS RIDER SHALL CONTROL. THE
PRINTED PORTION OF THE LEASE AND THIS RIDER TO LEASE
ARE COLLECTIVELY CALLED THE "LEASE".
36. FIXED RENT; ADDITIONAL RENT. A. All sums other than Fixed Rent due and
payable by Tenant to Owner under this Lease are called "additional rent" or
"Additional Rent". Fixed Rent and Additional Rent are collectively called "rent"
or "Rent".
B. The failure of Tenant to make any payment of additional rent in
this Lease shall entitle Owner to all rights and remedies provided hereunder for
the non-payment of Fixed Rent, and the acceptance of all or any portion of such
additional rent or Fixed Rent shall not be deemed a waiver of the rights of
Owner with respect to any additional rent or Fixed Rent payable pursuant to the
terms of this Lease.
C. All payments of Fixed Rent and Additional Rent, including,
without limitation, Tenant's payment of its initial monthly installment of Fixed
Rent, shall be made to Owner promptly without notice or demand, in lawful money
of the United States of America, by good and sufficient check subject to
collection and drawn on a New York City bank or trust company which is a member
of the New York Clearinghouse Association, at the office of Owner or at such
other place as Owner may, at any time and from time to time, by notice to Tenant
designate, at the times and in the manner as set forth in this Lease.
D. There shall be no abatement of, deduction from or counterclaim
or set-off against, Fixed Rent or Additional Rent, except as otherwise
specifically provided by this Lease.
E. No payment by Tenant or receipt of acceptance by Landlord of a
lesser amount than the correct amount of Fixed Rent or Additional Rent 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
an accord and satisfaction, and Landlord may, accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
F. If at the commencement of, or at any time or times during the
term of this Lease, the Fixed Rent, additional rent or any other charge reserved
in this Lease shall not be fully collectible by reason of any legal requirement,
Tenant shall enter into such agreements and take such other steps (without
additional expense to Tenant) as Owner may request and as may be legally
permissible to permit Owner to collect the maximum rents which may from time to
time during the continuance of such legal rent restriction be legally
permissible (and not in excess of the amounts reserved therefor under this
Lease). Upon the termination of such legal rent restriction prior to the
expiration of the term hereof, (1) the Fixed Rent, additional rent and all other
charges shall become and thereafter be payable hereunder in accordance with the
amounts reserved in this Lease for the periods following such termination, and
(2) Tenant shall pay to Owner, if legally permissible, and amount equal to (a)
the Fixed Rent, additional rent and any other charges which would have been paid
pursuant to this Lease but for such legal rent restriction, less (b) the rents
paid by Tenant to Owner during the period or periods such legal rent restriction
was in effect.
G. Any payment of Fixed Rent or additional rent due from Tenant to
Owner not paid within ten (10) days of the due date specified herein shall bear
interest from such due date to the date of actual payment at the rate of twelve
(12%) per annum or the highest lawful rate of interest permitted by the laws of
the State in which the premises are located, whichever rate of interest is lower
(the "Interest Rate"). Notwithstanding the interest charge, non-payment of any
Fixed Rent, additional rent or other charges due hereunder shall constitute a
default of this Lease.
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37. TERM. A. The term of this Lease (the "term of this Lease", or the "Term
of this Lease", or the "Term") shall (a) commence on a date (the "Commencement
Date") which is one (1) business day after the occurrence of the "Effective
Date" (as such term is hereinafter defined in Section 39 E of this Lease), and
(b) end at noon of December 31, 2009, or on such earlier date upon which said
term may expire or be cancelled or terminated pursuant to any of the terms,
conditions or covenants of this Lease or pursuant to law (the "Expiration
Date").
B. For purposes of this Lease, including this Article 37, the
term "Rent Commence-ment Date" shall be deemed to be, and shall be deemed to
occur on the "Commencement Date."
C. If the Commencement Date and the Rent Commencement Date
occurs on a day other than the first day of a calendar month, the Fixed Rent for
such calendar month shall be pro rated and any balance of the first month's
Fixed Rent theretofore paid shall be credited against the next monthly
installment of Fixed Rent.
D. After the determination of the Commencement Date and the Rent
Commencement Date, Owner and Tenant, upon demand of either party, shall enter
into a written agreement setting forth the Commencement Date, the Rent
Commencement Date and the Expiration Date, respectively, as the case may be, but
the failure to execute such an agreement shall not affect the validity of the
Commencement Date, the Rent Commencement Date and the Expiration Date, as
finally determined.
38. ALTERATIONS. A. (1) Owner shall not unreasonably withhold its
consent to any non-structural "Alterations" (as such term is hereinafter
defined), provided such Alterations are performed only by contractors or
mechanics approved by Owner and (a) in the sole opinion of Owner, the
Alterations will not adversely effect the proper functioning of the Building's
mechanical, electrical, sanitary, plumbing, heating, air-conditioning,
ventilating, utility or any other service systems, (b) the Alterations will not
result in a violation of, or require a change in, any certificate of occupancy
applicable to the demised premises or the Building, (c) the character, outside
appearance, usefulness or rentability of the Building or any part thereof will
not be affected in any way, and such Alterations will not, in the sole opinion
of Owner, weaken or impair (temporarily or permanently) the structure or lessen
the value or utility of the demised premises or the Building either in the
course of the making of such Alterations or upon their completion, and (d) no
part of the Building outside of the demised premises will be physically
affected. Tenant shall perform all Alterations at Tenant's sole cost and
expense, with due diligence, and shall complete such Alterations within a
reasonable time after undertaking the performance of the same. All Alterations
shall be done at such times as Owner may from time to time reasonably designate.
(2) For the purpose of this Lease, the term "Alteration"
shall mean any alteration, installation, addition or improvement which Tenant
shall make or perform to the demised premises at any time during the Lease Term,
including all initial alterations, installations, additions or improvements
proposed to be made by Tenant to adapt the demised premises for those business
purposes permitted by this Lease (collectively, the "Tenant's Initial
Alterations").
(3) Notwithstanding the foregoing provisions of this Section
38 A, Owner hereby agrees that Tenant shall have the right, upon giving written
notice to Owner, but without Owner's prior written consent, to perform
non-structural Alteration work in the demised premises solely of a decorative
nature, such as painting or carpeting, provided the cost of such work does not
exceed (as to a particular item of work or aggregate of like items of work) the
sum of Fifty Thousand and 00/100 ($50,000.00) Dollars, and provided, further,
that such non-structural Alteration work is of first quality and is in keeping
with the character and dignity of the demised premises and the Building. In the
event that Owner deems, in its sole discretion, that such work violates any of
the foregoing conditions of this subsection 38 (A) (3), and is objectionable to
Owner, Owner shall advise Tenant of the objection(s) thereto, and Tenant shall
promptly cease such work.
B. (1) Prior to making any Alterations, including, but not
limited to, Tenant's Initial Alterations to prepare the demised premises for
occupancy, Tenant shall (a) submit to Owner detailed plans and specifications
(including drawings for layout, architectural, mechanical, structural, interior
design, fixturing and finishing work) for each proposed Alteration and shall not
commence any such Alteration without first obtaining Owner's approval of such
plans and specifi-cations, and (b) obtain worker's compensation and New York
State Temporary Disability Income insurance in statutory limits (covering all
persons employed and to be employed by Tenant, including Tenant's contractors
and subcontractors engaged in connection with any such Alteration), builder's
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<PAGE>
risk insurance covering all physical loss and other risks covered by the usual
extended coverage and "all risk" endorsements, and comprehensive public
liability (including property damage coverage), which builder's risk and
comprehensive public liability insurance policies shall be in such form, with
such companies, for such periods and such amounts as Owner may require, and
shall name, as additional insureds, Owner, its agents, any lessee under any
ground or underlying lease now or hereafter affecting the Building or the plot
of land on which the Building stands (the "Real Property") (any such lease is
called a "Superior Lease"), and any holder of any mortgage which may now or
hereafter affect any Superior Lease, the Building or the Real Property (any such
mortgage is called a "Mortgage"), including the Existing Mortgagee under the
Existing Mortgage.
(2) Tenant hereby acknowledges and agrees that Owner's
review of, and Owner's granting of its approval to, any plans and specifications
submitted to it under this Lease shall not constitute or be deemed to constitute
a judgment, acknowledgment, representation or agreement by Owner that such plans
and specifications comply with any laws and requirements of any public or
governmental authorities and/or the requirements of any insurance bodies, and/or
that such plans and specifications will be approved by the New York City
Department of Buildings or any other legal or governmental authorities. Tenant
further acknowledges and agrees that all such compliance and approval
requirements and the obtaining of any approvals and permits for such plans and
specifi-cations shall be Tenant's sole obligation, as required by the provisions
of Article 3 and this Article 38. Owner covenants to cooperate with Tenant in
connection with obtaining permits or other governmental consents required for
Alterations permitted hereunder.
C. All Alterations shall be made and performed in accordance
with the plans and specifications therefor, as approved by Owner, and also in
accordance with the rules and regulations established by Owner governing the
manner in which work may be performed in the Building and in effect at the time
such Alterations are undertaken. Owner agrees that it will not discriminate
against Tenant in enforcing or failing to enforce such rules and regulations. No
amendments or additions to the aforesaid plans and specifications shall be made
without the prior consent of Owner. All materials, equipment and fixtures to be
incorporated in the demised premises as a result of such Alterations shall be
new and first quality. No such materials, equipment or fixtures shall be subject
to any liens, encumbrances, chattel mortgages or security interests (as such
terms are defined in the Uniform Commercial Code as in effect in the State of
New York on the date hereof) or any other title retention or security agreement.
D. Tenant shall not, at any time prior to or during the term of
this Lease, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer, whether in connection with any Alteration or
otherwise, if in Owner's opinion such employment would interfere, cause any
conflict, or create any difficulty, strike or jurisdictional dispute with other
contractors, mechanics, or laborers engaged in the construction, maintenance or
operation of the Building by Owner, Tenant or others. In the event of any such
interference, conflict, difficulty, strike, or jurisdictional dispute, Tenant,
upon demand of Owner, shall cause all contractors, mechanics or laborers causing
the same to leave the Building immediately.
E. Tenant hereby indemnifies and saves harmless Owner from and
against any liability, loss, cost, damage and expense of every kind and nature
incurred by reason of, or arising out of, any and all mechanic's and other liens
filed in connection with any Alterations or repairs undertaken by Tenant
hereunder, including, without limitation, the liens of any conditional sales of,
or chattel mortgages, title retention agreements, security agreements or
financing statements upon any materials, fixtures, furniture or equipment
installed in and constituting a part of the demised premises. Tenant shall pay
promptly, in cash, the cost of all Alterations and repairs. Any mechanic's or
other lien filed against the demised premises, the Building or the Real Property
for work claimed to have been performed for, or materials claimed to have been
furnished to, Tenant, shall be discharged by Tenant by bonding, payment or
otherwise, within thirty (30) days after the filing of such lien. If Tenant
shall fail to cause any such lien to be discharged within the aforesaid period,
then in addition to any other available right or remedy, Owner may, but shall
not be obligated to, discharge same, either by paying the amount claimed to be
due, by deposit, bonding proceedings or otherwise, and in such event Owner shall
be entitled, if it elects, to compel the prosecution of an action for the
foreclosure of such lien and to pay the amount of the judgment in favor of the
lienor, with interest, costs and allowances. Any amount so paid, and all costs
and expenses so incurred by Owner in connection therewith, shall constitute
additional rent hereunder.
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F. (1) All personal property, furniture, furnishings, equipment
and moveable fixtures and movable partitions supplied by or installed by or on
behalf of Tenant, at Tenant's sole cost and expense and without any cost or
expense by, or contribution from Owner (collectively, the "Tenant's Property"),
and all Alterations in and to the premises which may be made by or on behalf of
Tenant, at Tenant's sole cost and expense, and without any cost or expense by,
or contribution from Owner (Tenant's Property and all Alterations are
collectively called "Tenant's Work"), prior to and during the Lease term, shall
remain the property of Tenant and Tenant may, upon the Expiration Date or
earlier termination of the Lease term, remove Tenant's Work from the premises to
the extent that Tenant's Work (or any portion thereof) is not affixed or
attached to, or built into the premises or any of the Building systems and can
be removed without structural damage to the Building; and provided, however,
that Tenant shall repair any damage to the Premises and the Building caused by
such removal, in a good and workmanlike manner.
(2) Any of such Tenant's Work not so removed by Tenant at or
prior to the Expiration Date or earlier termination of the Term, shall become
the property of Owner and shall remain upon and be surrendered with the premises
as part thereof at the end of the Term, provided, however, that if this Lease
should terminate prior to the Expiration Date by reason of default, Tenant shall
have a period of time not to exceed fifteen (15) days to remove Tenant's
Property from the premises.
(3) Notwithstanding the foregoing provisions, upon notice
given to Tenant no later than twenty (20) days prior to the Expiration Date or
earlier termination of the term of this Lease, Owner may require Tenant to
remove all or part of Tenant's Property. In such event, Tenant shall remove all
such Tenant's Property from the Premises prior to the Expiration Date or earlier
termination of the term of this Lease, at Tenant's expense, in compliance with
the provisions of Article 3 and subsection 38 F (1) hereof.
G. The terms and provisions of this Article 38 shall not apply
to Owner's performance of the Initial Construction Work, the terms and
provisions of which performance are more particularly described in Article 60 of
this Lease.
39. ATTORNMENT; MODIFICATIONS; SUBORDINATION,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT.
A. This Lease shall not terminate or be terminable by Tenant by
reason of any termination of any Superior Lease, by summary proceedings or
otherwise. Subject to receipt of a Non-Disturbance Agreement (as defined below),
Tenant agrees, without further instruments of attornment in case of any such
termination, to attorn to such lessor, to waive the provisions of any statute or
rule of law now or hereafter in effect which may give or purport to give Tenant
any right of election to terminate this Lease or to surrender possession of the
demised premises in the event such Superior Lease is terminated.
Tenant shall take no steps to terminate this Lease, whether or not such Superior
Lease be terminated, without giving written notice to such lessor and a
reasonable opportunity to cure (without such lessor being obligated to cure) any
default on the part of Owner under this Lease.
B. If, in connection with the procurement, continuation or
renewal of any financing for which the Real Property or the Building or the
interest of the lessee therein under a Superior Lease represents collateral in
whole or in part, an institutional lender shall request reasonable
modifi-cations of this Lease as a condition of such financing, Tenant will not
withhold its consent thereto provided that such modifications do not materially
increase the obligations of Tenant under this Lease or materially and adversely
affect any rights of Tenant under this Lease.
C. If the landlord of a Superior Lease, or its
successors-in-interest, or the holder of a Mortgage, including the Existing
Mortgagee under the Existing Mortgage and its respective successors-in-interest,
respectively, as the case may be, shall succeed to the rights of Owner under
this Lease, whether through possession or foreclosure action or delivery of a
new lease or deed, and shall have the right to enforce its respective remedies
under such Superior Lease or Mortgage, including the Existing Mortgage,
respectively, then at the request of such party so succeeding to the Owner's
rights (herein called a "Successor Landlord"), subject to Tenant's receipt of a
Non-Disturbance Agreement (as defined below), and upon Successor Landlord's
written agreement to accept Tenant's attornment, Tenant shall automatically
attorn to and recognize such Successor
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<PAGE>
Landlord as Tenant's landlord under this Lease, shall become the direct tenant
of such Successor Landlord and shall promptly execute and deliver any instrument
that such Successor Landlord may request to evidence such attornment. Upon such
attornment, this Lease shall continue unmodified and in full force and effect
as, or as if it were a direct lease between the Successor Landlord and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease
and shall be applicable after such attornment except that the Successor Landlord
shall not be:
(1) liable for any previous act or omission or any
warranties of Owner (or its predecessors-in-interest) under this Lease; or
(2) subject to any credit, claim, counterclaim, demand,
defense or offset which Tenant may have or shall have theretofore accrued to
Tenant against Owner (or its predecessors- in-interest); or
(3) bound by any previous amendment to, or modification of
this Lease, not expressly provided for in this Lease, or by any previous
prepayment of more than one (1) month's Fixed Rent, Additional Rent or other
sums or monies paid to Owner (or its predecessors-in-interest), unless such
modification or prepayment(s) shall have been expressly approved in writing by
the lessor of the Superior Lease or its successors- in-interest, or the holder
of the Mortgage, including the Existing Mortgagee under the Existing Mortgage
and its respective successors-in-interest, respectively, as the case may be,
through or by reason of which the Successor Landlord shall have succeeded to the
rights of Owner under this Lease; or
(4) obligated to perform any alteration or improvements of
the demised premises not expressly required under this Lease; or
(5) responsible for any monies owing by Owner to the credit
of Tenant, including, but not limited to, the return to Tenant of any security
deposit paid to Owner (or its predecessors- in-interest) under this Lease unless
actually paid to and received by such Successor Landlord; or
(6) bound by any obligation to make any payment to Tenant,
or grant or be subject to any credits, except for services, repairs, maintenance
and restoration provided for under this Lease to be performed after the date of
attornment and which landlords of like properties would ordinarily be expected
to perform at such landlord's expense; it being expressly agreed and under-
stood, however, that the Successor Landlord shall not be bound by either (a) any
obligation to make payment to Tenant with respect to construction work installed
and/or performed by or on behalf of Tenant at the demised premises including the
installation and/or performance of any Initial Construction Work at the Premises
by or on behalf of Tenant, and/or (b) the breach of any warranties, promises,
undertakings and/or obligations relating to the installation and/or construction
of (i) any betterments or improvements made or performed by or on behalf of
Owner (or its predecessors-in-interest) and their respective contractor(s) to
the Real Property, the Building and/or the Premises, and/or (ii) any Initial
Construction Work or other Tenant improvement work made or performed for Tenant
by or on behalf of Owner (or its predecessors-in-interest) and their respective
contractor(s) in or to the Premises; or
(7) required to remove any person occupying the demised
premises, or any part thereof.
D. Notwithstanding the aforedescribed subordination and
attornment by Tenant hereunder, Tenant hereby acknowledges and agrees that any
Successor Landlord, having succeeded to Owner's rights and interests hereunder,
shall have the right to sell the Building, the Real Property and/or the "Total
Property" (as such term is used and defined in Section 47A of this Lease), in
the manner as provided in such Successor Landlord's Superior Lease and/or
Mortgage, including the Existing Mortgage, respectively, as the case may be.
Tenant further acknowledges and agrees that such Successor Landlord shall, at
its option, have the right to sell the Building, the Real Property and/or the
Total Property, respectively, subject to this Lease.
E. (1) Owner has advised Tenant and Tenant hereby acknowledges
having been so advised by Owner that the Total Property is subject to and
encumbered by a certain Mortgage, Consolidation Agreement and Security Agreement
dated December 20, 1995 (said Mortgage, Consolidation Agreement and Security
Agreement, as the same may be modified, amended, extended, renewed, consolidated
and replaced, from time to time, together with all ancillary loan documentation
related thereto, are collectively called the "Existing Mortgage"), between Owner
and Providian Life and Health Insurance Company and Peoples Security Life
Insurance Company (collectively, the "Existing Mortgagee"). As of the date
hereof, Owner represents that except for the Existing Mortgage, there are no
Superior Leases or Mortgages affecting the property.
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(2) Owner has further advised Tenant and Tenant hereby
acknowledges having been so advised by Owner that the terms and provisions of
the Existing Mortgage require that (a) the Existing Mortgagee provide Owner with
its written consent to the terms and provisions of this Lease to the extent the
same materially deviate from the standard form of lease for the Building
previously approved by the Existing Mortgagee, after this Lease has been
executed and delivered by Owner and Tenant, and (b) Tenant, concurrently with
the execution and delivery of this Lease, execute and deliver in favor of the
Existing Mortgagee (for the Existing Mortgagee's execution), a Subordination,
Attornment and Non-Disturbance Agreement regarding this Lease in the form
annexed to this Lease as Exhibit C and made a part hereof (the "SNDA").
(3) Promptly following the execution and delivery of this
Lease by Owner and Tenant and the execution by Tenant of the SNDA, respectively,
as the case may be, Owner shall forward to the Existing Mortgagee a copy of this
Lease and all execution originals of the SNDA which have been signed by Tenant,
for the Existing Mortgagee's review, and, if required, written approval (in the
case of this Lease), and Mortgagee's countersignature (in the case of the SNDA),
respectively, as the case may be.
(4) The date on which (1) the Existing Mortgagee provides
Owner with its written consent to the terms and provisions of this Lease, if
required as hereinabove provided, and (2) the SNDA has been fully executed and
delivered by Tenant and the Existing Mortgagee, respectively, as the case may
be, shall be deemed to be the "Effective Date" for all purposes of this Lease.
(5) Owner and Tenant hereby acknowledge and agree that if
the Effective Date shall not occur within thirty (30) days from the date of this
Lease, either Owner or Tenant shall have the right and option to terminate this
Lease by giving the other written notice of such termination within thirty (30)
days after the expiration of such thirty (30) day period, such termination to be
effective as of the date specified in such termination notice, which date shall
not be earlier than thirty (30) nor later than forty-five (45) days after the
date of such termination notice. Unless the Effective Date shall have occurred
by the termination date specified in such termination notice, this Lease shall
be deemed null and void and the Term hereof shall expire and terminate as of
such termination date, as if such termination date were the Expiration Date of
this Lease.
(6) Tenant hereby acknowledges and agrees that the inability
of Owner to obtain either the Existing Mortgagee's written consent to this Lease
and/or the Existing Mortgagee's countersignature and delivery to Tenant of the
SNDA, respectively, as the case may be, shall not be deemed a default on Owner's
part of its obligations under this Lease, or impose any right or claim in favor
of Tenant against Owner by reason thereof, or affect in any way or manner the
validity or enforceability of this Lease, or give Tenant any right to cancel the
same, except as expressly provided in clause five (5) above.
(7) Tenant hereby agrees to cooperate with Owner's efforts
to obtain the written consent of the Existing Mortgagee to this Lease and/or the
Existing Mortgagee's execution and delivery to Tenant of the SNDA, respectively,
as the case may be, including the furnishing of such financial and other
information as the Existing Mortgagee may request. Owner shall request that the
Existing Mortgagee maintain the confidentiality of any such information
furnished to it by Tenant. Tenant also agrees to reimburse Owner for all
reasonable fees, costs and expenses incurred by Owner in connection with
obtaining the Existing Mortgagee's consent to this Lease and the Existing
Mortgagee's execution and delivery to Tenant of the SNDA, respectively, as the
case may be. Such reimbursement shall be paid by Tenant to Owner within five (5)
days after receipt of Owner's statement or invoice detailing in reasonable
specificity such fees, costs and expenses.
F. (1) Notwithstanding the foregoing provisions of Article 7 and
this Article 39, the subordination of this Lease to any future Mortgage or
future Superior Lease hereafter created during the term of this Lease, pursuant
to Article 7 hereof, is subject to Owner's obtaining on Tenant's behalf and for
Tenant's benefit, as hereinafter provided, from the holders and lessors of all
future Mortgages and Superior Leases hereafter created during the term of this
Lease, a non-disturbance and attornment agreement more particularly described
below, which shall be in recordable form, and shall contain the provisions as
are hereinbelow set forth (each, a "Non-Disturbance Agreement").
(2) Each Non-Disturbance Agreement shall, if required by the
holder or lessor in question, be on the form approved by such holder or lessor
and shall contain such modifications of this Lease as such holder or lessor may
reasonably request, and shall contain such holder's or lessor's agreement with
Tenant, in substance, that (i) to the extent necessary or required by such
Superior Lease or Mortgage, such lessor or holder thereof, as the case may be,
consents to this Lease, and (ii) so long as no Event of Default shall then have
occurred hereunder and be continuing beyond the
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expiration of any applicable notice and grace periods provided for the cure of
such Event of Default, and Owner would not at the time be entitled, if it so
elects, to give notice pursuant to this Lease of Owner's intention to end the
term of this Lease, (X) this Lease and the term and estate hereby granted shall
not be terminated, and Tenant's possession of the demised premises shall not be
interfered with, in any foreclosure or other action or proceeding instituted
under or in connection with such mortgage or Superior Lease or by reason of any
sale pursuant to any such action or proceeding, and (Y) further, that upon said
holder or lessor succeeding to the rights and interests of Owner hereunder, as a
superior landlord, in its capacity as Owner hereunder, such Successor Landlord
shall recognize Tenant's estate and all of Tenant's rights and privileges
hereunder, and shall be obligated to perform Owner's obligations under this
Lease, arising after the date of such succession, subject, however, to Tenant's
compliance with the terms and provisions of Section 39 C hereof and Tenant's
agreement to attorn to such Successor Landlord as provided in Section 39 C, and
further subject to the limitations set forth in Section 39 C above, as to the
obligations and liabilities to Tenant of any such Successor Landlord.
(3) In the event that Owner shall fail to obtain a
Non-Disturbance Agreement in compliance with the aforesaid terms and provisions
of subsections (1) and (2) of this section 39 F, Tenant acknowledges and agrees
that such failure shall not be deemed a default on Owner's part of its
obligations hereunder, provided that Owner has used reasonably diligent efforts
to obtain any such Non-Disturbance Agreement, nor permit Tenant to impose any
claims or assert any right in favor of Tenant against Owner by reason thereof,
nor affect or impair the validity or enforceability of this Lease, nor give
Tenant the right to cancel the same, but Owner acknowledges and agrees that this
Lease shall not be subject or subordinate to such Mortgage or Superior Lease.
40. INDEMNITY. A. Tenant shall not do or permit any act or thing to be
done upon the demised premises which may subject Owner to any liability or
responsibility for injury, damages to persons or property, or to any liability
by reason of any violation of law or of any legal requirement of any public
authority or otherwise, but shall exercise such control over the demised
premises as to fully protect Owner against any such liability. Tenant agrees to
indemnify and save harmless Owner from and against any and all claims of
whatever nature against Owner arising from (A) any act, omission or negligence
of Tenant, its contractors, licensees, agents, servants, invitees or employees,
(B) any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the term of this Lease in or about
the demised premises, and (C) any breach, violation or non-performance of any
term, covenant, condition or agreement in this Lease set forth on the part of
Tenant to be fulfilled, kept, observed or performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, loss, cost, damage and expense of any kind or nature incurred in or
in connection with any such claim or proceeding brought thereon and the defense
thereof including, without limitation, reasonable attorneys' fees and
disbursements. Owner, from time to time, may submit to Tenant copies of Owner's
legal bills in connection with the foregoing, and Tenant, upon receipt of such
bills, shall promptly pay to Owner the amount shown thereon as additional rent.
This indemnity and hold harmless agreement shall survive the expiration or
earlier termination of this Lease.
B. Owner agrees to indemnify and save harmless Tenant from and
against any and all liability, loss, cost, damage or expense, including, without
limitation, reasonable attorneys' fees and disbursements, arising from (1) any
act, omission or negligence of Owner, its agents, servants, and employees in the
operation and/or management of the Building, and (2) any breach, violation of
non-performance of any term, covenant, condition or agreement in this Lease set
forth on the part of Owner to be fulfilled, kept, observed or performed;
provided, however, in no event shall Owner be liable to Tenant for consequential
damages or lost profits under this Section 40 B or under any other provision of
this Lease. This indemnity and hold harmless agreement shall survive the
expiration or earlier termination of this Lease.
4l. INSURANCE. A. Tenant shall obtain and keep in full force and
effect during the term of this
Lease:
(1) a policy of commercial general liability and property
damage (1973 occurrence or successor form) insurance with a broad form liability
endorsement including a contractual liability endorsement and personal injury
liability coverage, against claims for personal injury, death and/or property
damage occurring in or about the premises, the Building and/or the Real Property
and under which the insurer agrees to indemnify and hold Owner harmless from and
against, among other things, all cost, expense and/or liability arising out of
or based upon any and all claims, accidents, injuries and damages, and which
policy shall also contain a provision that no act or omission of Tenant shall
affect or limit the obligation of the insurance company to pay the amount of
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any loss sustained, and minimum limits of liability under such policy including
products liability and completed operations shall be a combined single limit
with respect to each occurrence in an amount of not less than Three Million and
00/000 ($3,000,000.00) Dollars for injury (or death) and damage to property (or
in any increased amount reasonably required by Owner);
(2) insurance against loss or damage by fire and such other
risks and hazards (including, during the period of construction of any Tenant's
Work, casualty insurance in the so-called "Builder's Risk Completed Value
Non-Reporting Form", burglary, theft and breakage of glass within the premises)
as are insurable under the available standard forms of "all risk" insurance
policies, to Tenant's Property and Alterations, Tenant's Work and all of
Tenant's improvements and betterments for the full replacement cost value
thereof (including an "agreed amount" endorsement); and
(3) worker's compensation and New York Temporary Disability
Benefits insurance, in such amounts as shall be required, from time to time
during the Lease term, by statute or the requirements of any applicable legal
authority.
B. For purposes of this Lease, Tenant hereby agrees that Owner,
Owner's Building managing agent, if any, the lessor under any Superior Lease and
the holder of any Mortgage, including the Existing Mortgagee under the Existing
Mortgage, respectively, shall be designated as additional insureds and the
beneficiaries of the indemnification furnished by Tenant hereunder, and that
each policy of insurance shall contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurance company to pay the
amount of any loss sustained, and shall provide that it will be non-cancellable
with respect to the additional insureds without thirty (30) days written notice
to such insureds by certified mail, return receipt requested, which notice shall
contain the policy number and names of the insureds and certificate holders. A
certificate of each of the required policies shall be delivered to Owner on or
prior to the Commencement Date.
C. Notwithstanding the limits of insurance specified in this
Article, Tenant agrees to indemnify Owner and the parties designated above in
Section 41 B as additional insureds against all damages, loss or liability
resulting from any of the risks referred to in this Article. Such
indemnification shall operate whether or not Tenant has placed and maintained
the insurance specified in this Article and whether or not, such insurance
having been placed and maintained, proceeds from such insurance shall have been
received from any or all of the respective insurance companies; provided,
however, that Tenant shall be relieved of its obligation of indemnity herein pro
tanto of the amount actually recovered from one or more of the insurance
companies by reason of injury or damage to or loss sustained on the premises.
D. All insurance required to be carried by Tenant pursuant to
the terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent insurers licensed to do business in the
State of New York, and rated in Best's Insurance Guide or any successor thereto
(or if there be none, an equivalent organization having a national reputation)
as having a general policyholder rating of "A" and either (1) a financial rating
of at least "l3", or (2) a policy holder surplus of at least Fifty Million
($50,000,000.00) and 00/00 Dollars.
E. Tenant shall pay all premiums and charges for all of said
policies, and if Tenant shall fail to make any payment when due or carry any
such policy, Owner may but, shall not be obligated to, make such payment or
carry such policy and the amount paid by Owner, with interest thereon at the
Interest Rate, set forth in Section 36 G of this Lease shall be repaid to
Landlord by Tenant or demand, and all such amounts so repayable, together with
such interest at the Interest Rate, shall be considered as additional rent
hereunder. Payment by Owner of any such premium or the carrying by Owner of any
such policy shall not be deemed to waive or release Tenant with respect to such
default.
F. Tenant's failure to provide and keep in force the
aforementioned insurance shall be a material default hereunder, entitling Owner
to exercise any or all of the remedies provided in this Lease in the event of
Tenant's default.
G. (1) Owner and Tenant shall each use reasonable efforts to
procure an appropriate clause in, or endorsement to, each of its insurance
policies (insuring the Building and Real Property, in the, case of Owner, and
insuring Tenant's Work and Tenant's improvements and betterments, in
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the case of Tenant), pursuant to which each insurance company waives subrogation
or consent to waiver of right of recover by the insured prior to any loss. The
waiver of subrogation or permission for waiver of the right of recovery in favor
or Tenant shall also extend to all other persons or entities occupying or using
the Premises in accordance with the terms of this Lease.
(2) If the payment of any additional premium is required for
the inclusion in the insurance policy, in question, of such waiver of
subrogation provisions or consent to a waiver of right of recovery, each party
shall advise the other of the amount of any such additional premium by written
notice and the other party shall pay the same or shall be deemed to have agreed
that the party obtaining the insurance coverage in question shall be free of any
further obligations under the provisions hereof relating to the obtaining such
waiver or consent.
(3) If such waiver of subrogation shall be unattainable or
unenforceable, each party shall instead have included in each of its insurance
policies (a) an express agreement that such policy shall not be invalidated if
the assured waives the right of recovery against any party responsible for a
casualty covered by the policy before the causality, or (b) any other form of
permission or release of the party.
(4) If such waiver, agreement or permission shall, not be,
or shall cease to be, obtainable from either party's then current insurance
company, the insured party shall so notify the other party promptly after
learning thereof, and shall use its best efforts to obtain the same from another
insurance company described in this Article 41.
(5) Owner will not carry insurance of any kind on
Alterations, Tenant's Work or any of Tenant's betterments and improvements and
shall not be obligated to repair, any damage to or, replace Alterations,
Tenant's Work or Tenant's betterments and improvement; provided, however, that
if Tenant shall fail to maintain such insurance, Owner shall have the right, to
obtain insurance on such Alterations, Tenant's Work and any of Tenant's
betterments and improvements and the cost thereof, with interest thereon at the
Interest Rate, shall be payable by Tenant to Owner as additional rent on demand.
H. (1) Each party hereby releases the other (its servants,
agents, employees and invitees) with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damage or destruction with respect to this property by fire or other casualty
i.e., in the case of Owner, as to the Building and Real Property, and, in the
case of Tenant, as to Alterations, Tenant's Work and any of Tenant's other
improvements and betterments (including rental value or business interruption,
as the case may be) occurring during the term of this Lease.
(2) Tenant shall cooperate with Owner in connection with the
collection of any insurance monies that may be due in the event of loss and
Tenant shall execute and deliver to Owner such proofs of loss and other
instruments which may be required to recover any such insurance monies.
I. Owner may, at any time and from time to time during the term,
require that the amount of the insurance to be maintained by Tenant under this
Article 41 be increased, so that the amount thereof adequately protects Owner's
interest; provided, however, that the owners of properties which are comparable
to the Building have similarly increased the amount of insurance required to be
obtained by tenants under leases for such properties, but in no event greater
than the replacement cost of the Building (exclusive of footings and
foundations).
J. Notwithstanding the foregoing provisions of this Article 41,
Owner hereby agrees that Tenant shall have the right to provide the insurance
which is required hereunder as part of so-called "blanket insurance policies"
which insure other properties of Tenant, provided, however, that such "blanket
insurance" policies provide for an adequate reserve, in Owner's opinion, to
cover any casualty, damage or injury at the Building or premises for which
Tenant is required to obtain insurance coverage hereunder.
K. Owner hereby agrees to obtain and keep in full force and
effect, at all times during the Term of this Lease, all risk property insurance
coverage and commercial general liability insurance coverage as required by the
Existing Mortgage or any subsequent Mortgage encumbering the Building and/or the
Real Property.
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42. ASSIGNMENT, SUBLETTING, MORTGAGE, ETC. A. (1)(a) Tenant shall not,
without the prior written consent of Owner, transfer, assign, sublet, enter into
any license or concession agreement, or mortgage or hypothecate this Lease or
Tenant's interest in and to the Premises or any part thereof, except as is
otherwise expressly set forth below in this Article 42. In the event Owner's
written consent is given to an assignment or subletting, Tenant shall
nevertheless remain liable for the performance of all covenants and conditions
of this Lease. Any attempted transfer, assignment, subletting, license,
concession agreement or hypothecation, as aforesaid, without the prior written
consent of Owner shall constitute a default hereunder.
(b) As long as Tenant is not in default under any
of the terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner agrees not to unreasonably withhold its consent to
an assignment of this Lease or Tenant's subletting of all or substantially all,
or a portion or portions of the demised premises, provided Tenant complies with
the requirements of this Article 42. No subletting shall be for a term less than
two (2) years (unless the unexpired term of this Lease shall be less two (2)
years, in which event no subletting shall be for a term of less than such
unexpired portion of the term, less one day). Tenant may not sublet less than
five-thousand (5,000) square feet of the demised premises under any sublease,
and as the result of any subletting there may not be more than four (4) tenants
or subtenants, including Tenant, on the fifth (5th) floor.
(c) At least forty-five (45) days prior to any
proposed assignment or subletting, Tenant shall submit to Owner a statement (the
"Tenant's Assignment/Subletting Notice") containing the name and address of the
proposed assignee or subtenant and all of the principal terms and conditions of
the proposed assignment or subletting including, but not limited to, the
proposed commencement and expiration dates of the term of the sublease or the
effective date of any proposed assignment, the nature of the proposed assignee's
or subtenant's business, and such financial and other information with respect
to the proposed assignee or subtenant as Owner may request.
(2) The Tenant's Assignment/Subletting Notice shall be
deemed an offer from Tenant to Owner whereby Owner (or Owner's designee) may, at
its option (the "Owner's Option"), (a) sublease such space (the "Leaseback
Space") from Tenant upon the terms and conditions hereinafter set forth (if the
proposed transaction is a sublease of all or substantially all or a portion of
the demised premises), (b) terminate this Lease as provided in subsection 42 A
(4) and Section 42 C hereof or have this Lease assigned to Owner (or its
designee) as provided in subsection 42 A (3) hereof (if the proposed transaction
is an assignment or a sublease of all or substantially all of the demised
premises or a sublease which will leave Tenant or its successors in possession
of less than twenty-five (25%) percent of the demised premises or (c) terminate
the Lease with respect to the Leaseback Space as provided in subsections 42 A
(4) (b) and (c) only if the proposed transaction is a sublease for a portion of
the demised premises and either (X) (i) the term of the proposed sublease is for
all or substantially all of the remaining term of this Lease or (ii) a period of
at least five (5) years, or (Y) the proposed sublease term shall commence during
the final five (5) years of the term of this Lease. An Owner's Option may be
exercised by notice to Tenant, given at any time within thirty (30) days after
Tenant has given the Tenant's Assignment/Subletting Notice to Owner (the
"Owner's Response Period"), and during the Owner's Response Period Tenant shall
not assign this Lease nor sublet any such space to any person or entity.
(3) If Owner exercises its Owner's Option to have this Lease
assigned to it (or its designee) in the case where Tenant desires either to
assign this Lease or sublet all or substantially all of the premises, then
Tenant shall (a) assign this Lease to Owner (or Owner's designee) by an
assignment in form and substance satisfactory to Owner, and (b) surrender the
entire demised premises to Owner on or prior to the date on which the proposed
assignment was to occur or the proposed sublease was to commence, as the case
may be, in the same manner and condition as is required by this Lease, as if
such date were the Expiration Date of this Lease. Such assignment shall be
effective on the date the proposed assignment was to be effective or the date
the proposed sublease was to commence, as the case may be. Tenant shall not be
entitled to consideration or payment from Owner (or Owner's designee) in
connection with any such assignment. If the proposed assignee or sublessee was
to receive any consideration or concessions from Tenant in connection with the
proposed assignment or sublease, then Tenant shall pay such consideration and/or
grant any such concessions to Owner (or Owner's designee) on the date Tenant
assigns this Lease to Owner (or Owner's designee).
(4) (a) If Owner exercises its Owner's Option to terminate
this Lease in its entirety in the case where Tenant desires to either assign
this Lease, sublet all or substantially all of the premises or enter into a
sublease which will leave Tenant or its successors in possession of less than
twenty-five (25%) percent of the demised premises, then (i) this Lease shall end
and expire with respect to the entire demised premises on the date on which the
proposed assignment was to occur or
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the proposed sublease was to commence, as the case may be, (ii) Tenant shall
surrender the entire demised premises to Owner on or prior to the date on which
the proposed assignment was to occur or the proposed sublease was to commence,
as the case may be, in the same manner and condition as required by this Lease,
as if such date were the Expiration Date of this Lease, and (iii) from and after
such date any Fixed Rent and additional rent paid to such date, shall be
apportioned and adjusted if required.
(b) If Owner exercises its Owner's Option to terminate
this Lease, in part, in any case where Tenant desires to sublet a portion of the
demised premises (the "Portion Premises") for a term as provided in clause (c)
of subsection 42 A (2), (i) this Lease shall end and expire in its entirety with
respect to the Portion Premises, for the remaining Term of this Lease, on the
date that the proposed sublease was to commence; (ii) Tenant shall surrender the
Portion Premises to Owner on or prior to the date on which the proposed sublease
was to commence in the same manner and condition as required by this Lease as if
such date were the Expiration Date of this Lease, for the remaining Term of this
Lease; (iii) from and after such date, the Fixed Rent, all additional rent and
the Tenant's Proportionate Share as set forth in this Lease shall be adjusted
and reduced, based upon the proportion that the rentable area of the demised
premises remaining after such surrender of the Portion Premises to Owner bears
to the total rentable area of the demised premises including an equitable
portion of any corridor area(s) constructed by Owner as hereinafter in
subdivision (iv) of this subsection 42 A (4) (b) provided; (iv) Owner, at
Owner's expense may, and, if required by any legal requirements, shall: (A) make
such alterations as may be required or deemed necessary by Owner to physically
separate the Portion Premises from the balance of the demised premises; (B) make
any alterations and installations in the Portion Premises, required in Owner's
reasonable judgement, to make the Portion Premises a self-contained rental unit
with access through corridors to the Building's elevators and core toilets
serving the Portion Premises and the demised premises, respectively, as the case
may be, and if the demised premises shall contain any core toilets or any
corridors (including any corridors proposed to be constructed by Owner pursuant
to this subdivision (iv), providing access from the Portion Premises to the core
area(s)), Owner and any tenant or other occupant of the Portion Premises shall
have the right to use such toilets and corridors in common with Tenant and any
other permitted occupant(s) of the demised premises, respectively, as the case
may be; (C) install signs and directional indicators in or about such corridors
indicating the name and location of such tenant or other occupant(s) of the
Portion Premises and the demised premises, respectively, as the case may be; and
(D) comply with any laws and requirements of any public authorities relating to
such separation, alterations, installations and/or construction including any
construction of such corridors, respectively, as the case may be (unless such
costs are to be paid by the sublessee under the proposed sublease); and (v)
Owner shall have the unqualified and unrestricted right, from and after such
date, without Tenant's permission, to assign its interest in, and/or to sublet
the Portion Premises or any portion or portions of the Portion Premises to any
person or entity for the remaining term of this Lease and to make any and all
changes, alterations and improvements in and to the Portion Premises as
required.
(c) At the request of Owner, Tenant shall execute and
deliver an instrument or instruments, in form satisfactory to Owner, setting
forth any modifications of this Lease contemplated in or resulting from the
operation of the foregoing provisions of this subsection 42 A (4); provided,
however, neither Owner's failure to request any such instrument or instruments
nor Tenant's failure to execute or deliver any such instrument or instruments
shall vitiate or nullify the foregoing provisions of this subsection 42 A (4).
(5) If Owner exercises its Owner's Option to sublet all or
substantially all of the demised premises or the portion of the demised premises
which Tenant desires to sublet, as the case may be, as Leaseback Space, such
sublease to Owner or its designee (as subtenant) shall be at the lower of (X)
the rental rate per rentable square foot of Fixed Rent and additional rent then
payable pursuant to this Lease, or (Y) the rentals set forth in the proposed
sublease, as the case may be, and shall be for the same term as that of the
proposed subletting, and such sublease:
(i) shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease except
such as are irrelevant or inapplicable, and except as otherwise expressly set
forth to the contrary in this Section;
(ii) shall be upon the same terms and
conditions as those contained in the proposed sublease, except such as are
irrelevant or inapplicable and except as otherwise expressly set forth to the
contrary in this Section;
(iii) shall give the sublessee the
unqualified and unrestricted right, without Tenant's permission, to assign such
sublease or any interest therein and/or to sublet the Leaseback Space or any
portion or portions of the Leaseback Space and to make any and all changes,
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alterations, and improvements in the space covered by such sublease and if the
proposed sublease will result in all or substantially all of the demised
premises being sublet, grant Owner or its designee the option to extend the term
of such sublease for the balance of the term of this Lease less one (1) day;
(iv) shall provide that any assignee or further
subtenant, of Owner or its designee, may, at the election of Owner, be permitted
to make alterations, decorations and installations in the Leaseback Space or any
portion thereof and shall also provide in substance that any such alterations,
decorations and installations in the Leaseback Space or any portion thereof
therein made by any assignee or subtenant of Owner or its designee may be
removed, in whole or in part, by such assignee or subtenant, at its option,
prior to or upon the expiration or other term-ination of such sublease, provided
that such assignee or subtenant, at its expense, shall repair any damage and
injury to that portion of the Leaseback Space so sublet caused by such removal;
and
(v) shall also provide that: (A) the parties to
such sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties; (B) any
assignment or subletting by Owner or its designee (as the subtenant) may be for
any purpose or purposes that Owner, in Owner's discretion, shall deem suitable
or appropriate; (C) Tenant, at Tenant's sole cost and expense, shall and will at
all times provide and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by Tenant to Owner or its designee;
(D) Owner, at Tenant's expense, may and, if required by any legal requirements,
shall: (I) make such alterations as may be required or deemed necessary by Owner
to physically separate the Leaseback Space from the balance of the demised
premises; (II) make any alterations and installations in the Leaseback Space,
required in Owner's judgement, to make the Leaseback Space a self-contained
rental unit with access through corridors to the Building's elevators and core
toilets serving the Leaseback Space and the demised premises, respectively, as
the case may be, and if the demised premises shall contain any core toilets or
any corridors (including any corridors proposed to be constructed by Owner
pursuant to this subdivision (v), providing access from the Leaseback Space to
such core area(s)), Owner and any tenant or other occupant of the Leaseback
Space shall have the right to use such toilets and corridors in common with
Tenant and any other permitted occupant(s) of the demised premises,
respectively, as the case may be; (III) install signs and directional indicators
in or about such corridors indicating the name and location of such tenant or
other occupant(s) of the Leaseback Space and the demised premises, respectively,
as the case may be; and (IV) comply with any laws and requirements of any public
authorities and insurance requirements relating to such separation, alterations,
installations and/or construction including any construction of such corridors,
respectively, as the case may be (unless such costs are to be paid by the
sublessee under the proposed sublease); and (E) that at the expiration of the
term of such sublease, Tenant will accept the space covered by such sublease in
its then existing condition, subject to the obligations of the sublessee to make
such repairs thereto as may be necessary to preserve the premises demised by
such sublease in good order and condition, provided, however, Owner shall return
the space covered by such sublease to Tenant at the expiration of the term of
such sublease, in at least substantially the same condition than that required
of the sublessee under the terms of the proposed sublease that Tenant desired to
enter into of which Owner shall have been given notice by Tenant precipitating
the exercise of Owner's Option.
(6) (a) If Owner exercises its Owner's Option to sublet the
Leaseback Space, Owner shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Owner.
(b) Performance by Owner (or its designee), under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this Lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease.
(c) Tenant shall have no obligation, at the expiration
or earlier termination of the term of this Lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Owner (or its
designee).
(7) In the event Owner does not exercise an Owner's Option
provided to it pursuant to the provisions of this Section 42 A and provided that
Tenant is not in default of any of Tenant's obligations under this Lease,
Owner's consent (which must be in writing and form reasonably satisfactory to
Owner) to the proposed assignment or sublease shall not be unreasonably
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withheld or delayed provided, however, Owner, shall not be deemed unreasonable
in withholding its consent to any sublease or assignment if:
(a) the proposed subtenant or assignee, as the
case may be, is not of a character or does not have financial worth such as is
in keeping with the standards for the Building, or does not have sufficient net
worth given the responsibilities involved, or the nature of the proposed
subtenant's or assignee's business or its reputation is not in keeping with the
character of the Building and its tenancies;
(b) a purpose for which the proposed
subtenant or assignee intends to use the demised premises is a use which is not
a Permitted Use under this Lease or is a "Restricted Use" (as such term is
hereinafter defined) under this Lease or is prohibited by any other lease in the
Building;
(c) Tenant shall have (i) advertised or
publicized in any way the availability of all or part of the demised premises
without Owner's consent, or (ii) listed or publicly advertised the demised
premises for subletting or assignment, whether through a broker, agent,
representative or otherwise, at a rental rate less than the greater of (y) the
Fixed Rent and additional rent then payable hereunder, or (z) the rent at which
Owner is then offering to lease comparable space in the Building (provided that
nothing contained in this Subsection (c) shall be deemed to prohibit Tenant from
negotiating and consummating a sublease at a lesser rental rate);
(d) the proposed occupancy shall impose an
extra burden upon the Building's mechanical, electric, sanitary, plumbing,
heating, air conditioning, ventilating, utility or other systems or the Building
services;
(e) the proposed sublease or assignment
shall not prohibit any further assignment or subletting, except in accordance
with this Article 42;
(f) Tenant shall be in default in the
performance of any of its obligations under this Lease, either at the time
Owner's consent to such subletting or assignment is requested or at the
commencement of the term of any proposed sublease or on the effective date of
any such assignment;
(g) Tenant shall fail to reimburse Owner
for any reasonable costs that may be incurred by Owner in connection with said
sublease or assignment, including the costs of making investigations as to the
acceptability of a proposed subtenant or assignee;
(h) the proposed subtenant or assignee
shall then be a tenant of any space in the Building or a related entity of any
other tenant in the Building and there is comparable space available or soon to
be available in the Building for such assignee's or subtenant's needs;
(i) the proposed subtenant or assignee
shall be entitled, directly or indirectly, to diplomatic or sovereign immunity
or shall not be subject to the service of process in, and the jurisdiction of
the courts of, New York State; or
(j) the proposed subtenant or assignee
shall be a person then negotiating with Owner for the rental of any space in the
Building or in any other building owned by Owner or its affiliates. Tenant shall
pay to Owner a reasonable processing fee and the reasonable attorneys' fees and
disbursements incurred in connection with Owner's review of any proposed
assignment or subletting.
B. If there is a dispute between Owner and Tenant as to the
reasonableness of Owner's refusal to consent to any assignment or subletting,
such dispute shall be determined by arbitration in accordance with the
provisions of Article 54. Any such determination shall be final and binding upon
the parties, whether or not a judgment shall be entered in any court. If the
determination of any such arbitration proceeding shall be adverse to Owner,
Owner shall not be liable to Tenant for a breach of Owner's covenant not
unreasonably to withhold such consent, and Tenant's sole remedy in such event
shall be to enter into the proposed assignment or subletting.
C. Anything contained in the foregoing provisions of this
Article 42 to the contrary notwithstanding, if Tenant proposes to sublet all or
substantially all of the demised premises or assign this Lease, and Owner has
exercised its Owner's Option, as provided in subsection 42 A (4) hereof, this
Lease shall terminate on the date (hereinafter called the "Earlier Termination
Date")
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immediately prior to the effective date of the assignment or the proposed
commencement date of the term of the proposed subletting, as the case may be,
and, if such notice is given, (1) this Lease and the term hereof shall come to
an end and expire on the Earlier Termination Date with the same effect as if it
were the Expiration Date, (2) the Fixed Rent and additional rent shall be
apportioned as of said Earlier Termination Date, and (3) any prepaid portion of
Fixed Rent or additional rent for any period after such date shall be refunded
by Owner to Tenant. Anything contained in this Section C to the contrary
notwithstanding, provided Tenant complies with all of the provisions of this
Article 42 (including, without limitation, Section A), a proposed assignment by
Tenant of this Lease in connection with a sale of all or substantially all of
the assets of Tenant to the proposed assignee shall not be subject to Owner's
right to terminate this Lease in accordance with this Section C or to cause this
Lease to be assigned to Owner (or its designee) as herein provided; provided,
however, that the aforesaid limitation on Owner's right to terminate this Lease
or to cause this Lease to be assigned to Owner (or its designee) as herein
provided shall not apply, and Owner shall be free to terminate this Lease in
accordance with this Section C, or to cause this Lease to be assigned to Owner
(or its designee) as herein provided, under circumstances where one of the
principal reasons prompting such asset sale has been to enable Tenant to sell,
and such purchaser to acquire, Tenant's interest in this Lease, thereby
circumventing the provisions of this Section C.
D. If Tenant obtains Owner's consent to the assignment of this
Lease or the subletting of the demised premises, then within ten (l0) days of
the execution thereof, Tenant shall deliver to Owner (1) in the case of an
assignment (a) a duplicate original instrument of assignment in form and
substance theretofore approved by Owner, duly executed by Tenant, and (b) an
instrument in form and substance theretofore approved by Owner, duly executed by
the assignee, in which such assignee assumes the observance and performance of,
and agrees to be bound by, all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed, and (2) in the case of a
subletting, an executed duplicate original of the sublease in form and substance
theretofore approved by Owner.
E. (1) For purposes of this Article 42, the term "assignment"
shall be deemed to include, but shall not be limited to the following, whether
occurring at any one time or over a period of time through a series of
transfers: (a) the sale or transfer of all or substantially all of the assets
of, or the sale, assignment or transfer of any issued or outstanding stock which
results in a change in the controlling interest of any corporation which
directly or indirectly is Tenant under this Lease or is a general partner of any
partnership or joint venturer of any joint venture which directly or indirectly
is Tenant under this Lease, (b) the issuance of any additional stock, if the
issuance of such additional stock will result in a change of the controlling
stock ownership of such corporation as held by the shareholders thereof when
such corporation became Tenant under this Lease, and (c) the sale, assignment or
transfer of a general partner's or joint venturer's interest in the partnership
or joint venture, as the case may be, which is Tenant under this Lease, or in
the distributions of profits and losses of such partnership or joint venture,
which results in a change of control of such partnership or joint venture, as
the case may be.
(2) The foregoing provisions of this Section 42 E shall not
apply to transactions with a corporation into or with which Tenant is merged or
consolidated or to transactions with a corporation or partnership to which
substantially all of Tenant's assets are transferred or to any corporation which
"controls" or is "controlled by Tenant" or is "under common control with
Tenant", provided that in any of such events (a) the successor to Tenant is a
reputable entity of good character and has a net worth computed in accordance
with generally accepted accounting principles consistently applied, at least
equal to the greater of (i) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, or (ii) the net worth of the Tenant herein
named on the date of this Lease, (b) proof satisfactory to Owner of such net
worth shall have been delivered to Owner at least ten (10) days prior to the
effective date of any such transaction, (c) a duplicate original instrument of
assignment in form and substance satisfactory to Owner duly executed by Tenant,
shall have been delivered to Owner at least ten (10) days prior to the effective
date of any such transaction, and (d) an instrument in form and substance
satisfactory to Owner, duly executed by the assignee, in which such assignee
assumes (as of the Commencement Date) observance and performance of, and agrees
to be personally bound by, all of the terms, covenants and conditions of this
Lease on Tenant's part to be performed and observed shall have been delivered to
Owner at least ten (10) days prior to the effective date of any such
transaction. Further, any agreement pursuant to which (x) Tenant is relieved
from the obligation to pay, or a third party agrees to pay on Tenant's behalf,
all or a part of Fixed Rent or additional rent under this lease, and (y) such
third party undertakes or is granted any right to assign or attempt to assign
this Lease or sublet or attempt to sublet all or any portion of the premises,
shall be deemed an assignment of this Lease and subject to the provisions of
this Article 42.
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(3) For purposes of this Section 42 E, the term "control",
"controlled by Tenant" or "under common control with Tenant" shall mean (a) in
the case of a corporation, ownership by Tenant, whether directly or indirectly,
of at least fifty-one (51%) percent of all of the voting stock thereof, and (b)
in the case of a partnership, joint venture or other legal entity, ownership by
Tenant whether directly or indirectly of at least fifty-one (51%) percent of all
of the legal or beneficial interests thereof.
F. (1) If Tenant shall receive any consideration from its
assignee for or in connection with the assignment of Tenant's interest in this
Lease (including, but not limited to, sums paid for the sale or rental of
Tenant's Property, Tenant's Work and any other Tenant fixtures, leasehold
improvements, equipment, furniture or other personal property, less, in the case
of a sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns), Tenant shall
account to Owner therefor and shall pay to Owner, as additional rent hereunder,
fifty (50%) percent of such consideration as and when the same are paid to
Tenant by the assignee, less any brokerage commissions, to the extent the same
are reasonable and are actually paid by Tenant.
(2) If Tenant shall sublet the demised premises to anyone
for rents or other consideration which for any period shall exceed the Fixed
Rent and additional rent payable under this Lease for the same period, Tenant
shall account to Owner therefor and shall pay to Owner, as additional rent
hereunder, fifty (50%) percent of such excess rents or other consideration as
and when the same are paid to Tenant by the subtenant, less any brokerage
commissions, to the extent the same are reasonable and are actually paid by
Tenant.
G. In the event that Owner consents to any assignment or
subletting pursuant to this Article 42 and Tenant fails to execute and deliver
the assignment or sublease to which Owner shall have consented within forty-five
(45) days after the giving of consent, then Tenant shall again comply with all
of the requirements of this Article 42 before assigning its interest in this
Lease or subletting the demised premises.
H. (1) If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of ll U.S.C. Section l0l et. seq (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Tenant, then notice
of such proposed assignment shall be given to Owner by Tenant no later than
twenty (20) days after receipt by Tenant, but in any event no later than ten
(l0) days prior to the date that Tenant shall make application to a court of
competent jurisdiction for authority and approval to enter into such assignment
and assumption. Such notice shall set forth (a) the name and address of such
person, (b) all of the terms and conditions of such offer, and (c) adequate
assurance of future performance by such person under this Lease, including,
without limitation, the assurance referred to in Section 365 (b)(3) of the
Bankruptcy Code. Owner shall have the prior right and option, to be exercised by
notice to Tenant given at an time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which would otherwise be payable
by Tenant out of the consideration to be paid by such person in connection with
the assignment of this Lease.
(2) The term "adequate assurance of future performance" as
used in this Lease shall mean that any proposed assignee shall, among other
things (a) deposit with Owner on the assumption of this Lease an amount equal to
the then annual Fixed Rent and additional rent as security for the faithful
performance and observance by such assignee of the terms and obligations of this
Lease, which sum shall be held in accordance with the provisions of Article 34
hereof, (b) furnish Owner with financial statements of such assignee for the
prior three (3) fiscal years, as finally determined after an audit and certified
as correct be a certified public accountant, which financial statements shall
show a net worth of at least two (2) times the net worth of Tenant as of the
date of this Lease for each of such three (3) years, (c) grant to Owner a
security interest in such property of the proposed assignee as Owner shall deem
necessary to secure such assignee's future performance under this Lease, and (d)
provide such other information or take such action as Owner, in its reasonable
judgement, shall determine is necessary to provide adequate assurance of the
performance by such assignee of its obligations under this Lease.
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43. ELECTRICITY. A. (l) (a) The Building is equipped with risers,
feeders and wiring so as to supply electrical service to the demised premises. A
submetering system shall be installed, at Tenant's expense, by Owner (or its
affiliate(s) and/or contractor(s)), as hereinafter provided, to measure the
amount of "Usage" (as defined in Section 43 C (1) hereof) to the demised
premises and all equipment and facilities servicing the demised premises,
including, but not limited to, the heating and air conditioning units servicing
the demised premises (whether or not located therein). Where more than one meter
measures the amount of Usage, Usage through each meter shall be computed and
billed separately in accordance with the provisions of this Article 43.
(b) Owner hereby agrees that Owner shall furnish
Tenant with electric current with an average connected load of six (6) watts of
electricity per rentable square foot to the demised premises (exclusive of usage
for the Building's centrally provided air conditioning) for Tenant's lighting,
office equipment and business machinery, and for Tenant's broadcasting studios
and kitchen and dining facilities.
(2) (a) Owner agrees that Owner shall be responsible, at
Owner's sole cost and expense, to install the submetering system to measure
Tenant's consumption of electric energy at and within the demised premises.
(b) Owner shall install the aforedescribed submetering
system as part of the Initial Construction Work to be performed at the demised
premises by Owner and/or Owner's affiliate(s) and/or contractor(s) in accordance
with the terms and provisions of Article 60 of this Lease.
(c) The aforedescribed installation of the submetering
system is called the "Electric Meter System Installation". The date on which
Owner and/or its affiliate(s) and/or contractor(s) shall have completed the
Electric Meter System Installation, is called the "Electric Meter System
Installation Date". Tenant acknowledges and agrees that on the Commencement Date
Tenant shall be obligated to commence payment for its electric energy
consumption at the demised premises based on the measurement of such electric
consumption by such submetering system as is hereinbelow provided in Sections C
and D of this Article 43, and except as is otherwise hereinafter expressly
provided in Sections I and J of this Article 43.
B. Any additional risers, feeders or other equipment or service
proper or necessary to supply Tenant's electrical requirements, will, upon
written request of Tenant, be installed by Owner, at the sole cost and expense
of Tenant, if in Owner's sole judgement, the same are necessary and will not
cause permanent damage or injury to the Building or the demised premises or
cause or create a dangerous or hazardous conditions or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants. Rigid conduit only will be allowed.
C. For purposes of Sections D and E of this Article 43:
(1) "Usage" shall mean actual usage of electricity as
measured by the aforesaid submetering system for each calendar month or such
other period as Owner shall determine during the term of this Lease and shall
include the quantity and peak demand (kilowatt hours and kilowatts) and all
applicable taxes, surcharges, demand charges, energy charges, fuel adjustment
charges, time of day charges, seasonal rate adjustment charges and all other
sums and adjustments made from time to time by the public utility company
supplying electric current to the Building or any governmental authority having
jurisdiction thereover;
(2) "Owner's Rate" shall mean the public utility service
classification (including all surcharges, demand charges, energy charges, fuel
adjustment charges, time of day charges, seasonal rate adjustment charges and
all applicable taxes regularly passed on to consumers by the public utility and
all other sums and adjustments payable in respect thereof) pursuant to which
Owner purchases electric energy for the Building as if Owner were supplying
electric energy solely for the demised premises;
(3) "Basic Cost" shall mean the product of (a) Usage,
multiplied by (b) the Owner's Rate; and
(4) "Tenant's Cost" shall mean an amount equal to the sum of
(a) the Basic Cost, plus (b) five (5%) percent of the Basic Cost for Owner's
overhead and expenses incurred in connection with the costs and administration
of such submetering.
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D. Owner shall, from time to time but not more than monthly,
furnish Tenant with an invoice indicating the period during which the Usage was
measured and the amount of the Tenant's Cost payable by Tenant to Owner for such
period. Within ten (10) days after receipt of each such invoice, Tenant shall
pay the amount of Tenant's Cost set forth thereon to Owner as additional rent.
In addition, if any tax is imposed upon Owner by any municipal, state or federal
agency or subdivision with respect to the purchase, sale or resale of electrical
energy supplied to Tenant hereunder, Tenant covenants and agrees that, where
permitted by law, Tenant's Proportionate Share of such taxes shall be passed on
to, included in the bill to, and paid by Tenant to Owner, as additional rent
hereunder.
E. Owner shall not in anywise be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if either
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements due to matters beyond Owner's
control.
F. Owner reserves the right to discontinue furnishing
electricity to Tenant in the demised premises on not less than sixty (60) days'
notice to Tenant, provided either such dis-continuance is required by law or
Owner has elected to discontinue furnishing electric energy to all other
similarly situated tenants in the Building. If Owner exercises such right to
discontinue furnishing electricity to Tenant, this Lease shall continue in full
force and effect and shall be unaffected thereby. If Owner so discontinues
furnishing electricity to Tenant, Tenant shall obtain electric energy directly
from the public utility company furnishing electric service to the Building. The
costs of such service shall be paid by Tenant directly to such public utility
company furnishing electric service to the Building, but a default by Tenant in
the timely payment of any bill or charge of such public utility company shall be
deemed a default by Tenant under this Lease. Such electric energy may be
furnished to Tenant by means of the then existing systems to the extent that the
same are available, suitable and safe for such purposes as determined by Owner,
which existing systems Owner agrees to continue to make available to the demised
premises to such extent. All meters, submeters and all additional panel boards,
feeders, risers, wiring, and other conductors and equipment which do not then
exist to service the demised premises and which may be required to obtain
electric energy, shall (i) if Owner has elected to discontinue furnishing
electricity to Tenant because Owner has elected to discontinue furnishing
electric energy to all office tenants in the Building, be installed by Owner at
Owner's sole coast and expense, and (ii) if Owner has been required by law to
discontinue furnishing electric energy to Tenant, be installed by Tenant, at
Tenant's sole cost and expense, and the installation thereof shall be subject to
Owner's approval and shall be performed in accordance herewith and with the
applicable provisions of Articles 3 and 38 of this lease.
G. Tenant agrees that, regardless of which method governs the
supply of electricity to the demised premises, it will make no electrical
installations, alterations, additions or charges to electrical equipment or
appliances without prior written consent of Owner in each instance. Tenant
covenants and agrees that, at all times, its use of electric current will not
exceed the capacity of existing feeders to the Building or the risers or wiring
installation, and Tenant will not use any electrical equipment which will
overload such installations or interfere with the use thereof by other tenants
or occupants of the Building. If, in Owner's judgement, Tenant's electrical
requirements necessitate installation or an additional riser, risers or other
proper and necessary equipment, the same may be installed by Owner (if Owner
determines such installation is practicable) at Tenant's sole cost and expense,
which shall be chargeable and collectible as additional rent and paid with ten
(10) days after the rendition of a bill to Tenant therefor.
H. At Owner's option, Tenant shall purchase from Owner or its
designee all lighting tubes, lamps, bulbs and ballasts used in the demised
premises and Tenant shall pay, on demand, as additional rent, Owner's reasonable
charges for providing and installing the same.
I. (1) In the event the submetering system installed for the
measurement of electricity consumption at the demised premises, or any
alternative submetering system installed by Owner at a later date, becomes
prohibited by law from use, then Owner, at its expense, may cause an independent
electrical engineer chosen by Owner or an electrical consulting firm selected by
Owner (hereinafter called the "Electrical Consultant") to survey and determine
Usage in, and Basic Cost for, the demised premises from time to time, at least
once per twelve (12) month period, and the Electrical Consultant shall make such
determination using criteria generally accepted in the
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metropolitan New York City area and the Owner's Rate in effect at the time, and
shall include the quantity and peak demand, for all electricity consumed by
Tenant plus five (5%) percent of the Basic Cost for Owner's expenses and
administration fees. The determination made by the Electrical Consultant shall
be binding on both Owner and Tenant, except as provided in subsection (2) below,
and such amount shall be deemed the Tenant's Cost for all purposes of this
Article 43.
(2) The Owner's Determination given by the Electrical
Consultant to Owner and Tenant above shall be conclusive and binding upon
Tenant, unless within sixty (60) days after the receipt of Owner's
Determination, Tenant shall notify Owner that it disputes the correctness of
Owner's Determination. If such dispute is based on Tenant's Usage, Tenant shall
submit with its dispute notice a survey and determination of such demand and
consumption made at its sole expense, by a reputable and independent electrical
engineer or electrical consulting firm selected by Tenant and reasonably
acceptable to Owner (the "Tenant's Engineer"), within sixty (60) days after
receipt by Tenant of Owner's Determination. If Owner and Tenant are unable to
resolve the differences between them by agreement within thirty (30) days after
receipt by Owner of a copy of Tenant's Determination, the dispute shall be
decided by a third reputable and independent electrical engineer or electrical
consulting firm (the "Additional Engineer"). If the parties shall fail to agree
upon the designation of the Additional Engineer within forty (40) days after the
rendering of Tenant's Determination, then either party may apply to the American
Arbitration Association or any successor thereto for the designation of the
Additional Engineer. The Additional Engineer shall conduct such hearings as he
deems appropriate and, within thirty (30) days after his designation, render his
determination (the "Additional Engineer's Determination"), and such Additional
Engineer's Determination shall be conclusive and binding upon the parties
whether or not a judgement shall be entered in any court. The fees of the
Additional Engineer and the costs of arbitration shall be paid equally by the
parties, except that each party shall pay its own counsel fees and expenses, if
any, in connection with the arbitration. Pending the resolution of such by
agreement or arbitration as aforesaid, Tenant shall pay the amount as set forth
on Owner's Determination in accordance with the Owner's Determination, without
prejudice to Tenant's position, as herein provided. If the dispute shall be
resolved in Tenant's favor, Owner shall forthwith pay to Tenant the amount of
Tenant's overpayment of such amount as indicated by the Additional Engineer's
Determination.
J. In the event that Owner and/or its affiliate(s) and/or
contractor(s) shall not have timely installed the aforementioned submetering
system as of the Commencement Date, all for reasons beyond the Owner's
reasonable control, Tenant shall pay to Owner the sum of $6,812.50 (the "Interim
Electric Period"), for each month from the Commencement Date until the
occurrence of the Electric Meter System Installation Date. The Interim Electric
Payment shall be paid by Tenant, as additional rent, but in advance prior to
Tenant's taking possession of the demised premises, respectively, as the case
may be, as aforesaid, and thereafter on the first (1st) day of each calendar
month until the occurrence of the Electric Meter System Installation Date. The
Interim Electric Payment shall be pro-rated to reflect any period less than a
full calendar month.
K. Owner's failure during the term of this Lease to prepare
and/or deliver any invoice, and/or Owner's failure to make a demand under this
Article 43 or any other provisions of this Lease, respectively, as the case may
be, shall not in any way be deemed to be a waiver of, or cause Owner to forfeit
or surrender, its rights to collect any amount which may have become due
pursuant to this Article 43. Tenant's liability for the amounts due under this
Article 43 shall be paid by Tenant to Owner, as additional rent, and shall
survive the expiration or sooner termination of this Lease.
44. END OF TERM. A. Tenant's obligation to pay Fixed Rent,
additional rent and any other charges accruing hereunder shall survive the
expiration or earlier termination of this Lease, to the extent necessary to
carry out the provisions of this Lease with respect to Tenant's obligations
accrued prior to such expiration or earlier termination.
B. Tenant acknowledges that possession of the demised premises
must be surrendered to Owner on the Expiration Date. Tenant agrees to indemnify
and save harmless Owner from and against any and all cost, damage, expense, loss
or liability (including, without limitation, reasonable attorneys' fees and
disbursements and any claims made by any succeeding tenant) resulting from delay
by Tenant in so surrendering the demised premises. The parties recognize and
agree that the damage to Owner resulting from any failure by Tenant to timely
surrender possession of the demised premises as aforesaid will be substantial
and will be impossible to accurately measure. Tenant therefore agrees that if
possession of the demised premises is not surrendered to Owner within
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twenty-four (24) hours after the Expiration Date, then Tenant shall pay to Owner
for each month and for each portion of any month during which Tenant holds over
in the demised premises after the Expiration Date, a sum equal to one and one
half (1 1/2) times the aggregate of that portion of the Fixed Rent and
additional rent which was payable under this Lease during the last month of the
term hereof (or a pro rata portion thereof, if applicable). Nothing herein
contained shall be deemed to permit Tenant to retain possession of the demised
premises after the Expiration Date. The pro-visions of this Article 44 shall
survive the expiration or sooner termination of this Lease.
45. INABILITY TO PERFORM. A. It is expressly understood that no
inability or delay in either the performance of obligations or the supply of
services on the part of Owner to be performed and/or supplied in this Lease
provided, as the case may be, which is due to any of the reasons set forth in
Article 27 hereof or any other reason beyond Owner's reasonable control, shall
constitute a constructive eviction, and that Owner shall not be liable to Tenant
in damages, nor shall Tenant be entitled to make any claims for or be entitled
to any abatement in the payment of Fixed Rent or additional rent hereunder, in
the event of such inability or delay.
B. Notwithstanding the foregoing provisions of this Article 45,
if (1) Owner shall make repairs, alterations, additions or improvements in or to
the Building (or any portion thereof) including those referred to in Articles 4
and 20 of this Lease, or to the demised premises, or to the fixtures,
appurtenances or equipment thereof, or if Owner shall be required to interrupt
the furnishing or supply of services to Tenant hereunder (a) when necessary by
reason of accident, emergency, or for repairs, or by reason of legal
requirements or insurance requirements or any compliance therewith, or (b) as a
result of additions, alterations, replacements, decorations or improvements to
the Building or to the demised premises which in the judgement of Owner are
desirable or necessary to be made, and/or (2) Owner shall fail to perform or to
make those necessary repairs or alterations to the Building, the Building's
Systems, or to the demised premises, which Owner is obligated to perform, make
or maintain as in Articles 4 and 13 of this Lease provided, and which Tenant is
not obligated to perform, maintain and/or make as in this Lease provided, and
such repairs, alterations, additions, improvements, or such interruption of such
services to Tenant, or failure on the part of Owner to perform or make such
necessary repairs or alterations, as aforesaid, as the case may be, shall result
in a substantial and material interruption of Tenant's business at the demised
premises, as provided herein, Owner hereby agrees that if the circumstances
described in either subdivisions (1) or (2) of this Section B shall result in a
substantial and material interruption of Tenant's business (as reasonably
determined by Owner and Tenant) for a period in excess of ten (10) business days
from and after the giving of notice by Tenant to Owner of such interruption,
then, from and after said ten (10) business day period, Fixed Rent shall abate
in proportion to the substantiality and materiality of the interruption (as
reasonably determined by Owner and Tenant) until such time as Tenant's business
is no longer substantially and materially interrupted as a result of such
circumstances (as reasonably determined by Owner and Tenant). In the event that
Owner and Tenant are unable to mutually agree within a reasonable period of time
on their reasonable determination as to the substantiality and materiality of
any of the foregoing matters referred to above in this Section 45 B (where such
mutual reasonable determination shall be required as hereinabove provided),
either party shall have the right to refer their dispute or disagreement, as to
the matter in question, to resolution by arbitration in accordance with the
provisions of Article 54 of this Lease.
46. AIR CONDITIONING. A. Owner, at Owner's expense, shall furnish to
and distribute in the demised premises, through the air conditioning equipment
of the Building, cool air at reasonable temperatures, pressures and degrees of
humidity, and in reasonable volume and velocities at suitable locations, from
8:30 a.m. to 6:00 p.m. on business days from May l5th through September 30th,
both dates inclusive. Owner shall furnish mechanical ventilation of the demised
premises through said air conditioning system, from 8:30 a.m. to 6:00 p.m. on
business days from October lst through May l4th, both dates inclusive. If Tenant
desires such air conditioning or mechanical ventilation services at times other
than those hereinabove specified, Owner will furnish the same upon reasonable
advance notice and Tenant shall pay for such additional services at Owner's
established Building standard rates, or if no standard rates are established, at
reasonable rates to be agreed upon before the services are rendered.
B. Tenant shall keep all windows in the demised premises closed
whenever the air conditioning system is in operation, and at all times shall
cooperate fully with Owner and comply with all Rules and Regulations which Owner
may prescribe for the proper functioning and protection of said air conditioning
and ventilating system.
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C. Owner, throughout the term of this Lease shall have free and
unrestricted access to any air conditioning room located within or adjacent to
the demised premises.
D. No diminution or abatement of Fixed Rent, additional rent or
other compensation shall be claimed by Tenant, nor shall this Lease or any of
the obligations of Tenant hereunder be affected or reduced by reason
interruption, curtailment, stoppage, or suspension of such air conditioning or
mechanical ventilation when the same shall be due to any of the reasons set
forth in Article 27 hereof or any other reason beyond Owner's control.
E. (1) In addition to Owner's furnishing of cool air and
mechanical ventilation to the demised premises, as hereinabove in this Article
46 provided, Owner is making available to Tenant for Tenant's use in the demised
premises, the "Supplemental A/C Unit" (as such terms are herein-after defined in
this Section 46 E).
(2) Tenant may elect to utilize the Supplemental A/C Unit at
any time during the Lease term, for the provision of such extra air conditioning
capacity as Tenant deems necessary or desirable to supplement the building's
ventilating and air conditioning system servicing the demised premises and the
Additional Space, as described above in this Article 46.
(3) Owner makes no representation or warranty with regard to
the Supplemental A/C Unit and/or its condition or fitness for use and Tenant
agrees to accept the Supplemental A/C Unit on the Commencement Date in its "as
is" condition as of that date. Owner shall connect the A/C Supplemental Unit to
the metering system to be installed at the premises by Owner to measure Tenant's
consumption of electricity required to use and operate the Supplemental A/C Unit
and Tenant shall pay for all electricity used to operate the Supplemental A/C
Unit, as provided in Section 43 B of this Lease.
(4) Tenant shall, at Tenant's sole cost and expense, perform
all necessary repairs, maintenance and/or replacement of the Supplemental A/C
Unit, throughout the term of this Lease. Owner shall have no obligation with
respect to the proper functioning, repair, maintenance and/or replacement of the
Supplemental A/C Unit, and the same shall not constitute or be deemed to
constitute part of the Building's plumbing, electrical, mechanical, heating,
ventilating or any other systems.
(5) On the Expiration Date or earlier termination of this
Lease, Tenant shall surrender the Supplemental A/C Unit, or any replacements
thereof to Owner, and Owner shall accept the same in its then "as is" condition.
(6) For purpose of this Section 46 E, the term "Supplemental
A/C Unit" shall mean a Building-standard three (3) ton capacity supplemental air
conditioning unit and related machinery and equipment, including air
conditioning piping, ductwork and/or other means of distributing the cool or
conditioned air from said supplemental air conditioning unit throughout the
demised premises.
47. ADDITIONAL CHARGES. A. For purposes of this Article 47:
------------------
(l) "Taxes" shall mean the aggregate amount of real estate
taxes and any general or special assessments (exclusive of penalties and
interest thereon) imposed upon the Real Property, and the Building and all other
improvements located on the Real Property (collectively, the "Total Property"),
including without limitation, (a) any City, Town, County, Village, School or
other local tax, (b) assessments made upon or with respect to any "air" and
"development" rights now or hereafter appurtenant to or affecting the Total
Property, (c) any fee, tax or charge imposed by any governmental authority for
any vaults, vault space or other space within or outside the boundaries of the
Real Property, and (d) any assessments levied after the date of this Lease for
public benefits to the Total Property; provided, however, that if because of any
change in the taxation of real estate, any other tax or assessment, however
denominated (including, without limitation, any franchise, income, profit,
sales, use, occupancy, gross receipts or rental tax), is imposed upon Owner or
the owner of the Total Property, or the occupancy, rents or income therefrom,
whether in substitution for or in addition to any of the foregoing Taxes, such
other tax or assessment shall be deemed part of Taxes. With respect to any "Tax
Year" (as such term is hereinafter defined), all expenses, including attorney's
fees, court costs and disbursement and experts' and other witnesses' fees
incurred in contesting the validity or amount of any Taxes or the "Assessed
Valuation" (as such term is hereinafter defined) of the Total Property, or in
obtaining a refund of Taxes, shall be considered as part of Taxes for such Tax
Year.
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(2) "Assessed Valuation" shall mean the amount for which the
Total Property is assessed pursuant to applicable provisions of the New York
City Charter and of the Administrative Code of The City of New York for the
purpose of imposition of Taxes.
(3) "Tax Year" shall mean the twelve (12) month period of
July l through June 30 (or such other period as may hereafter be duly adopted by
The City of New York as its fiscal year for real estate tax purposes).
(4) "Base Tax Year" shall mean the Tax Year consisting of
the twelve (12) month period of July l, l995 through June 30, l996.
(5) "Tenant's Proportionate Share" shall mean three and
three tenths (3.3%) percent.
(6) "Comparison Year" shall mean (a) with respect to Taxes,
any Tax Year subsequent to the Base Tax Year, and (b) with respect to "Operating
Costs" (as such term is hereinafter defined), any calendar year subsequent to
1996 calendar year, ie. the twelve (12) month period of January 1, 1996 to
December 31, 1996, for any part or all of which there are Additional Charges,
payable as additional rent, pursuant to Sections B and C of this Article 47.
(7) "Operating Costs" shall mean:
(a) all costs and expenses incurred or payable by
Owner in connection with the operation, maintenance, repair and management of
the Real Property and/or the Building and/or the Total Property, respectively,
including, without limitation, all maintenance costs, management fees (provided
the same are reasonably comparable to the fees charged for managing other office
buildings located in Mid-town Manhattan of similar size and quality), costs for
steam, electricity (other than electricity furnished to and paid for by Tenant
and other tenants in the Building), water, water rates, frontage charges, sewer
rents, insurance, fuel, air-conditioning, labor, window and other cleaning,
sales tax and taxes of like import and other expenses of operation, maintenance,
repair and management of the Real Property and/or the Building and/or the Total
Property, respectively, (including the equipment located therein), but
specifically excluding (i) leasing commissions to agents of Owner or to other
persons or brokers, (ii) salaries of personnel above the grade of Building
manager, (iii) the cost of capital improvements (except as specifically provided
in clause (b) hereof), (iv) Taxes, (v) interest and penalties for late payment
of water and sewer rents, (vi) any expenses for which the Owner is compensated
through proceeds of insurance, (vii) the cost of any tenant changes or
alterations, (viii) the cost of repair or rebuilding caused by fire or other
casualty or condemnation, (ix) advertising and promotional expenditures, (x)
legal and auditing fees other than reasonable legal and auditing fees
necessarily incurred in connection with the operation of management of the Real
Property and/or the Building, (xi) expenses of relocating or moving tenants and
of leasing to and processing new tenants, including lease concessions, (xii)
expenses resulting from any violations by the Owner of the terms of any lease in
the Building, (xiii) depreciation (except for the cost of capital improvements
as specifically provided in clause (b) hereof), (xiv) debt service on any
mortgage, including without limitation, the Existing Mortgage, and (xv) rent
payable under any Superior Lease.
(b) If Owner shall purchase or lease any item of
capital equipment or make any capital expenditure, which is (i) required after
the date hereof by law or any other requirement of any governmental or
quasi-governmental department, authority or agency, or by the Board of Fire
Underwriters or any successor or similar organization or by Owner's insurance
carrier, or (ii) for the purpose of reducing Operating Costs (as, for example, a
labor-saving improvement), as the case may be, then the cost of such capital
equipment or expenditure shall be included in Operating Costs for the Comparison
Year in which such cost was incurred; provided, however, that if and to the
extent such cost is required to be capitalized or amortized, as the case may be,
for federal income tax purposes, such cost shall be treated for purposes of this
Article 47 as if the same had been capitalized or amortized over the shortest
useful life permitted pursuant to the Internal Revenue Code of 1986, as amended,
and the annual deduction, as if so capitalized or amortized, as the case may be,
together with interest thereon at the prime rate, as announced by Citibank, N.A.
from time to time, shall be deemed an Operating Cost in each of the Comparison
Years during which such cost would be amortized.
(c) If, during all or part of any Year, Owner shall
not furnish any particular item(s) of work or service which would constitute an
Operating Cost hereunder to premises in the Building as a result of the fact
that (i) such premises are not occupied or leased, (ii) such item of work or
service is not required or desired by the tenant occupying such premises, (iii)
such tenant is itself obtaining and providing such item or work or service, or
(iv) for any other reason, then Operating Costs for such period shall be deemed
to include an amount equal to the additional costs and expenses which would
reasonably have been incurred during such period by Owner if it had at its own
expense furnished such item of work or services to such portion of the Building
or to such tenant.
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(8) "Base Operating Amount" shall mean the Operating Costs
for the 1996 calendar year, ie. the twelve (12) month period of January 1, 1996
to December 31, 1996.
(9) "Operating Statement" shall mean an instrument or
instruments containing a statement of the Additional Charges, constituting
additional rent, due and owing with respect to Operating Costs for the preceding
Comparison Year.
(l0) "Tax Statement" shall mean a statement setting forth a
comparison of Taxes and the "Tax Payment" (as such term is hereinafter defined)
due for a Tax Year.
B. (l) If Taxes payable for any Comparison Year (any part or all
of which falls within the term of this Lease) shall increase above Taxes payable
for the Base Tax Year, then Tenant shall pay, as additional rent for such
Comparison Year, an amount equal to Tenant's Proportionate Share of such
increase (such amount being is called the "Tax Payment"), which amount shall be
payable as hereinafter provided.
(2) The Tax Payment shall be payable by Tenant, in its
entirety, as additional rent, within five (5) days after Tenant shall have
received a Tax Statement from Owner. The Tax Payment shall be pro rated for any
portion of a Tax Year occurring during the term of this Lease. Owner's failure
to deliver a Tax Statement to Tenant during or with respect to any Comparison
Year shall not prejudice Owner's right to demand such Tax Payment during or with
respect to any subse-quent Comparison Year and shall not eliminate or reduce
Tenant's obligation to pay Additional Charges, as additional rent, pursuant to
this Article 47 for such Comparison Year.
(3) If Owner shall receive a refund of Taxes applicable to
any Comparison Year for which a Tax Payment shall have been made by Tenant,
Owner, at its option, shall either repay to Tenant, or credit against subsequent
payments of Additional Charges hereunder, Tenant's Proportionate Share of such
refund, after deducting from the refund the costs and expenses of obtaining the
same (to the extent such costs and expenses were not theretofore included in
Taxes).
(4) If, after a Tax Statement has been sent to Tenant, the
Assessed Valuation which had been utilized in computing Taxes during the Base
Tax Year is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then, in such event: (a) the Taxes for the Base Tax
Year shall be retroactively adjusted to reflect such reduction, and (b) all
retroactive increases in additional rent resulting from such retroactive
adjustment shall be due and payable when billed by Owner. Owner promptly shall
send to Tenant a statement setting forth the basis for such retroactive
adjustment and additional rent payments.
C. (1) If the Operating Costs for any Comparison Year (any part
or all of which falls within the term of this Lease) shall increase above the
Base Operating Amount, then Tenant shall pay as additional rent for such
Comparison Year an amount equal to Tenant's Proportionate Share of such increase
(such amount is called the "Operating Payment"), which amount shall be payable
as hereinafter provided.
(2) At any time prior to or during any Comparison Year,
Owner may furnish to Tenant Owner's reasonable estimate (the "Owner's Estimate")
of the Operating Payment for such Comparison Year. If Owner furnishes an Owner's
Estimate to Tenant prior to the commencement of a Comparison Year, then on the
first day of each month during such Comparison Year Tenant shall pay to Owner,
as additional rent, one-twelfth (l/12th) of the amount of the Owner's Estimate
in equal monthly installments together with payments of Fixed Rent. If, however
Owner furnishes a Owner's Estimate to Tenant subsequent to the commencement of a
Comparison Year, then (a) until the first day of the month following the month
in which Owner's Estimate is furnished to Tenant, Tenant shall pay as additional
rent hereunder the amount which was payable pursuant to this Section C for the
last month of the preceding Comparison Year, (b) promptly after such Owner's
Estimate is furnished to Tenant or together therewith, Owner shall notify Tenant
as to whether the installments of Tenant's Operating Payment previously made for
such Comparison were greater or less than the installments required to be made
in accordance with such Owner's Estimate, and (i) if there shall have been a
deficiency, Tenant shall pay the amount thereof within ten (10) days after
receipt of such notice, or (ii) if there shall have been an overpayment, Owner
shall credit the amount thereof against subsequent payments of Additional
Charges hereunder, and (c) on the first day of the month following the month in
which such Owner's Estimate is furnished and continuing monthly until the next
rendition to Tenant of Owner's Estimate, Tenant shall pay, as additional rent
hereunder, one-twelfth (1/12th) of the amount of such Owner's Estimate. Owner
may at any time and from time to time furnish to Tenant a revised Owner's
Estimate for any Comparison Year, and in such case, Tenant's installments of the
Operating Payment shall be adjusted and paid in the same manner as hereinabove
provided.
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(3) Within one hundred and eighty-two (182) days after the
end of each Comparison Year, Owner shall furnish to Tenant an Operating
Statement for such Comparison Year, setting forth the Operating Costs for such
Comparison Year. If the Operating Statement shall show that the sums paid by
Tenant under subsection C (2) exceeded the Operating Payment required to be paid
by Tenant for such Comparison Year, Owner shall either refund to Tenant the
amount of such excess forthwith after such Operating Statement is furnished or,
at Owner's election, credit the amount of such excess against subsequent
payments of Additional Charges payable hereunder. Comparison Year shall show
that the sums so paid by Tenant were less than the Operating Payment required to
be paid by Tenant for such Comparison Year, Tenant shall pay the amount of such
deficiency within ten (10) days after receipt of such Operating Statement.
D. Each Tax Statement and Operating Statement shall be
conclusive and binding upon Tenant unless within sixty (60) days after the
receipt of such Tax Statement or Operating Statement, as the case may be, Tenant
shall notify Owner that it disputes the correctness thereof, specifying the
particular respects in which the Tax Statement or Operating Statement, as the
case may be, is claimed to be incorrect. If such dispute is not settled by
agreement, either party may submit the dispute to arbitration, as provided in
Article 54 hereof, within ninety (90) days after receipt of said Tax Statement
or Operating Statement. Pending the determination of such dispute by agreement
or arbitration as aforesaid, Tenant shall pay the Additional Charges, as
additional rent, in accordance with Sections B and/or C, above, and such payment
shall be without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Owner shall forthwith pay to Tenant the amount of
Tenant's overpayment of Additional Charges resulting from compliance with the
Operating Statement. Owner agrees to grant Tenant reasonable access to Owner's
books and records for the purpose of verifying Operating Costs incurred by
Owner.
E. The failure of Tenant to make any payment of Additional
Charges, as additional rent pursuant to this Article 47, or payment of
additional rent as elsewhere in this Lease provided, shall entitle Owner to all
rights and remedies provided hereunder for the non-payment of Fixed Rent, and
the acceptance of all or any portion of such additional rent or Fixed Rent shall
not be deemed a waiver of the rights of Owner with respect to any additional
rent or Fixed Rent payable pursuant to the terms of this Lease.
48. BROKER. Tenant represents and warrants that Tenant has dealt
directly with (and only with) EDWARD S. GORDON COMPANY (the "Broker") as the
sole broker and finder in connection with this Lease, and that to the best of
Tenant's knowledge, no broker or finder, other than the Broker, negotiated this
Lease or is entitled to any commission in connection therewith or with the
execution and delivery hereof. The execution and delivery of this Lease by Owner
shall be conclusive evidence that Owner has relied upon the foregoing
representation and warranty of Tenant. Tenant hereby agrees to indemnify and
hold Owner harmless of and from any and all loss, cost, damage of expense
(including, without limitation, attorneys' fees, court costs and disburse-ments)
incurred by Owner by reason of any claim of, or liability to, any broker or
finder, other than the Broker, resulting from or caused by any breach (or
actions constituting a breach) of the aforesaid representation and warranty is
untrue. Owner shall pay the Broker any compensation due and owing it in
accordance with the terms and provisions of a separate agreement between Owner
and Broker. This provision shall survive the cancellation or expiration of this
Lease.
49. CONSENTS. A. Wherever it is specifically provided in this Lease
that a party's consent is not to be unreasonably withheld, a response to a
request for such consent shall also not be unreasonably delayed. If either Owner
or Tenant considers that the other has unreasonably withheld or delayed a
response, it shall so notify the other party within ten (l0) days after receipt
of such response, or, in case such response is not received, within twenty (20)
days after making its request for the response.
B. Tenant hereby waives any claim for damages against Owner
which it may have based upon any assertion that Owner has unreasonably withheld
or unreasonably delayed any such consent. Tenant agrees that its sole remedy in
any such case shall be an action or proceeding to enforce the relevant provision
of this Lease by specific performance, injunction or declaratory judgment.
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C. Notwithstanding anything to the contrary provided in this
Lease, in any instance where the consent of the lessor under a Superior Lease
and/or the holder of a Mortgage, including the Existing Mortgagee under the
Existing Mortgage, respectively, is required, Owner shall not be required to
give its consent until and unless such lessee or holder, including the Existing
Mortgagee, has given its consent. Owner agrees to seek the consent of such
lessor and/or holder, including the Existing Mortgagee, if Owner would otherwise
consent in such instance.
50. PARTNERSHIP TENANT. If Tenant is a partnership (or is comprised of
two (2) or more persons, individually and as co-partners of a partnership) or if
Tenant's interest in this Lease shall be assigned to a partnership (or to two
(2) or more persons, individually and as co-partners of a partnership) pursuant
to Article 42 (any such partnership and such persons are called, in this Article
50, the "Partnership Tenant"), the following provisions shall apply to such
Partnership Tenant: (A) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, (B) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by (1) any written instrument which may hereafter be executed, changing,
modifying or discharging this Lease, in whole or in part, or surrendering all or
any part of the demised premises to Owner, (2) any notices, demands, requests or
other communications which may hereafter be given by Partner-ship Tenant or by
any of the parties comprising Partnership Tenant, and (3) any bills, statements,
notices, demands, requests or other communications given or rendered to
Partnership Tenant or any of the parties comprising Partnership Tenant, (C) if
Partnership Tenant shall admit new partners, all of such new partners shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (D) Partnership Tenant shall give prompt notice to
Owner of the admission of any such new partners, and upon demand Owner, shall
cause each such new partner to execute and deliver to Owner an agreement, in
form satisfactory to Owner, wherein each such new partner shall assume
performance of all the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed (but neither Owner's failure to request any
such agreement nor the failure of any such new partner to execute or deliver any
such agreement to Owner shall vitiate the provisions of Sections A, B, and C of
this Article 50).
5l. PARTIES BOUND. A. This Lease is offered for signature by Tenant
and it is understood that this Lease shall not be (1) binding upon Owner unless
and until Owner shall have executed and delivered a fully executed copy of this
Lease to Tenant, and (2) deemed in full force and in effect unless and until the
Effective Date shall have occurred.
B. If more than one person executes this Lease as Tenant, each
of them understands and hereby agrees that the obligations of each of them under
this Lease are and shall be joint and several, that the term "Tenant" as used in
this Lease shall mean and include each of them jointly and severally, and that
the act of or notice from, or notice or refund to, or the signature of, any one
or more of them, with respect to the tenancy of this Lease (including without
limitation, any renewal, extension, expiration, termination or modification of
this Lease) shall be binding upon each and all of the persons executing this
Lease as Tenant, with the same force and effect as if each and all of them had
so acted or so given or received such notice or refund or so signed.
52. TENANT'S AND OWNER'S CERTIFICATE. A. From time to time during the
Term, within seven (7) days following receipt by Tenant of Owner's request
therefor, Tenant shall: (1) deliver to Owner or its designee, which may include,
but not be limited to, a purchaser of the Building and/or the Real Property, the
holder of a Mortgage or the lessor under a Superior Lease encumbering and/or
covering any or all of the above, respectively, as the case may be, at no cost
or expense to Owner, a written statement executed and acknowledged by Tenant, in
form satisfactory to Owner: (a) stating that this Lease is then in full force
and effect and has not been modified (or if modified, setting forth all such
modifications); (b) setting forth the date to which the Fixed Rent, additional
rent and other charges hereunder have been paid, together with the amount of the
monthly Fixed Rent then payable; (c) stating whether or not, to the best
knowledge of Tenant, Owner is in default hereunder, and setting forth the
specific nature of all such defaults, if any; (d) stating the amount of the
security deposit, if any, under this Lease; (e) stating whether there are any
subleases affecting the Premises; (f) stating the address to which all notices
and communications to Tenant under the Lease are to be sent; (g) stating the
Commencement Date, Rent Commencement Date and the Expiration Date of this Lease,
respectively, as the case may be; and (h) any other matters requested by Owner;
and (2) complete, as required, execute and deliver to the Existing Mortgagee, an
estoppel certificate in the form annexed to this Lease as Exhibit D and made a
part hereof.
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B. From time to time, within seven (7) days following receipt by
Owner of Tenant's request therefor, Owner shall delivery to Tenant, at no cost
or expense to Tenant, a written statement executed and acknowledged by Owner, in
form reasonably satisfactory to Tenant, (1) stating that this Lease is then in
full force and effect and has not been modified (or if modified, setting forth
all such modifications, (2) setting forth the date to which the Fixed Rent,
Additional Rent and the charges hereunder have been paid, (3) stating whether or
not, to the best knowledge of Owner, Tenant is in default hereunder, and setting
forth the specific nature of all such defaults, and (4) any other matters
reasonably requested by Tenant.
C. Tenant acknowledges that any statement and/or estoppel
certificate delivered pursuant to this Article 52, respectively, as the case may
be, may be relied upon by any purchaser or owner of the Real Property, the
Building and/or the Total Property, or Owner's interest in the Real Property,
the Building and/or the Total Property and/or any Superior Lease encumbering
and/or covering any or all of the above, or by any holder of a Mortgage,
including the Existing Mortgagee under the Existing Mortgage, or by any lessor
under any Superior Lease encumbering and/or covering any or all of the above, or
by any assignee of any holder of a Mortgage, respectively, as the case may be.
53. EXCULPATION AND NON-LIABILITY. A. No recourse shall be had on any
of Owner's obligations hereunder against any incorporator, subscriber of capital
stock, stockholder, officer or director, past, present or future, of any
corporation, or against any general or limited partner of any partnership or
joint venture which shall be Owner hereunder, or other holders of any equity
interest in such corporation, partnership or joint venture, or the shareholders,
directors or officers of such partners, or the partners comprising such
partners, or of any successor of any such corporation, partnership or joint
venture, or against any principal of any of the foregoing, disclosed or
undisclosed, or any affiliate of any party which shall be Owner or included in
the term "Owner", whether directly or through Owner or through any receiver,
assignee, trustee in bankruptcy or through any other person, firm or corporation
(collectively, the "Parties") whether by virtue or any constitution, statute or
rule of law or by enforcement of any assessment or penalty otherwise, it being
expressly understood and agreed that Tenant shall look solely to Owner to
enforce Owner's obligations hereunder and shall not seek any damages against any
of the Parties. The liability of Owner for Owner's obligations under this Lease
shall not exceed and shall be limited to Owner's interest in the Real Property
and Tenant shall not look to other property or assets of Owner or of any of the
Parties in seeking either to enforce Owner's obligations under this Lease or to
satisfy a judgment for Owner's failure to perform such obligations.
B. Further, neither Owner, nor any of the Parties, nor any
lessor under a Superior Lease nor any holder of a Mortgage, including the
Existing Mortgagee under the Existing Mortgage, nor any partner, director,
officer, shareholder, principal, agent, servant or employee of such lessor under
a Superior Lease or any holder of such Mortgage, including the Existing
Mortgagee under the Existing Mortgage (in any case, whether disclosed or
undisclosed), shall be liable to Tenant for any loss, injury or damage to Tenant
or to any other person, or to its or their property, irrespective of such
injury, damage loss, nor shall any of the aforesaid entities or Parties be
liable for any damage to property of Tenant or of others entrusted Owner nor for
loss of or damage to any such property by theft or negligence of Owner, its
agents, servants or employees, or any of the Parties in the operation or
maintenance of the premises, the Building, the Real Property and/or the Total
Property, respectively, without contributory negligence of the party of Tenant
or any of its subtenants or licensees or its or their respective agents,
contractors or employees.
C. In addition, neither Owner nor any of the Parties, nor any
lessor under a Superior Lease nor any holder of a Mortgage, including the
Existing Mortgagee under the Existing Mortgage, nor any partner, director,
officer, agent, servant or employee of Owner or any such lessor or holder,
including the Existing Mortgagee, respectively, shall be liable for any such
damage caused by other tenant's or persons in, upon or about the Building, the
Real Property and/or the Total Property, respectively, or caused by operations
in construction of any private, public or quasi-public work; or even if
negligent, for consequential damages arising out of any loss of use of the
premises or any equipment or facilities therein by Tenant or any person claiming
by, through or under Tenant.
54. ARBITRATION. A. Either party may request arbitration in
accordance with this Article 54 of any provision of this Lease in dispute
wherein arbitration is expressly stated in such provision as the appropriate
remedy for such dispute. The party requesting arbitration shall do so
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by giving notice to that effect to the other party, specifying in said notice
the name and address of the person designated to act as an arbitrator on its
behalf. Within fifteen (l5) days after the service of such notice, the other
party shall give notice to the first party specifying the name and address of
the person designated to act as an arbitrator on its behalf. If the second party
fails to notify the first party of the appointment of its arbitrator within the
aforesaid time period, then subject to the provisions of Section B of this
Article 54, the appointment of the second arbitrator shall be made in the same
manner as hereinafter provided for the appointment of a third arbitrator in a
case where the two arbitrators appointed hereunder and the parties are unable to
agree upon such appointment. The two arbitrators so chosen shall meet within ten
(l0) days after the second arbitrator is appointed, and shall conduct such
hearings and investigations as they may deem appropriate. If within thirty (30)
days after the second arbitrator is appointed, the two arbitrators shall not
agree upon the question in dispute, they shall together appoint a third
arbitrator. In the event the two arbitrators are unable to agree upon such
appointment within forty (40) days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree to such selection within a further period of ten (l0) days. If
the parties do not so agree, then either party, on behalf of both and on notice
to the other, may request such appointment by the American Arbitration
Association (or any successor organization thereto) in accordance with its
commercial arbitration rules then prevailing, or if the American Arbitration
Association (or such successor organization) shall fail to appoint said third
arbitrator within fifteen (l5) days after such request is made, then either
party may apply, on notice to the other, to the Supreme Court of the State of
New York (or any other court having jurisdiction and exercising functions
similar to those now exercised by said court) for the appointment of such third
arbitrator. The third arbitrator shall conduct such hearings and investigations
as he may deem appropriate and, within thirty (30) days of this designation,
render an independent decision of the matter in dispute, which decision shall be
con-clusive and binding upon the parties. Each arbitrator chosen or appointed
pursuant to this Article 54 shall be a disinterested person having at least ten
(l0) years experience as an arbitrator in the City of New York.
B. If Tenant gives notice requesting arbitration, Tenant shall
simultaneously serve a duplicate of the first notice on the holder of each
Mortgage (including the Existing Mortgagee under the Existing Mortgage, at its
address as set forth in Section 39 F of this Lease), and each lessor under any
Superior Lease. If Owner fails to appoint an arbitrator within fifteen (l5) days
after the giving of the first notice by Tenant, such holder, including the
Existing Mortgagee, or lessor shall have an additional period of ten (l0) days
within which to appoint the second arbitrator, who shall thereupon be recognized
in all respects as if he had been appointed by Owner.
C. The arbitration shall be conducted, to the extent consistent
with this Article 54, in the City and County of New York in accordance with the
commercial arbitration rules then prevailing of the American Arbitration
Association (or any successor organization thereto). Such decision shall be in
writing and counterpart copies thereof shall be delivered to each of the
parties. In rendering such decision and award, the arbitrator(s) shall not add
to, subtract from, or otherwise modify the provisions of this Lease.
D. If for any reason whatsoever the written decision and award
of the arbitrator(s) shall not be rendered within the time periods specified in
this Article 54, then at any time thereafter, either party may apply to the
Supreme Court of the State of New York, or to any other court having
jurisdiction and exercising the functions similar to those now exercised by such
Court, by action, proceeding, or otherwise (but not by a new arbitration
proceeding) as may be proper to determine the question in dispute consistently
with the provisions of this Lease.
E. Each party shall pay the fees and expenses of the arbitrator
appointed by or for such party. The fees and expenses of the third arbitrator
(if appointed), and all other expenses of the arbitration shall be borne by the
parties equally.
F. Notwithstanding anything to the contrary contained in this
Lease, wherever submission to the New York office of the American Arbitration
Association is designated as the method of resolving disputes arising hereunder,
the method for the resolution of such dispute shall be deemed to mean
arbitration in accordance with the provisions of this Article 54.
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<PAGE>
55. MISCELLANEOUS. A. On the date of execution of this Lease and from
time to time, either within seven (7) days next following Owner's request
therefor, or immediately after any change or modification thereof, Tenant shall
deliver to Owner a written statement, executed and acknowledged by Tenant and in
form satisfactory to Owner, setting forth (1) the names, percentage of ownership
interest and residence and business address of (a) any incorporator, subscriber
of capital stock, shareholder, officer and director of any corporation which
shall be Tenant hereunder or a general or limited partner of Tenant hereunder,
and/or (b) any general or limited partner of any partnership or joint venture
which shall be Tenant hereunder, and (c) any other holders of any equity
interest in such corporation, partnership or joint venture, and (2) such other
information as Owner may reasonably request; provided, however, in satisfaction
of this Paragraph, as long as Tenant continues to be a corporation, the stock of
which is publicly traded through any recognized national securities exchange or
the "over the counter market", Tenant may delivery to Owner its most recently
filed proxy statement with the United Sates Securities and Exchange Commissions
and a statement, executed and acknowledged by Tenant as to any material changes
in the information sought hereunder from that contained in the proxy statement.
B. As a further inducement to Owner to enter into this Lease
with Tenant, Tenant hereby agrees that with respect to the service of a notice
of petition or petition upon Tenant by Owner in any proceeding commenced by
Owner against Tenant under the Real Property Actions and Proceedings Law of the
State of New York, service of such notice of petition or petition in any such
proceeding shall be effective if made upon Tenant at the demised premises,
irrespective of the fact that Tenant's principal office or principal place of
business, or any other office or place of business of Tenant is located at a
place other than the demised premises.
C. This Lease shall be deemed to have been jointly prepared by
both of the parties hereto, and any ambiguities or uncertainties herein shall
not be construed for or against either of them.
D. In and to the extent that there is a conflict between the
provisions contained in the printed portion of the Lease to which this Rider is
attached and the provisions contained in this Rider, then the provisions
contained in this Rider shall govern and be controlling to the extent necessary
to resolve such conflict.
E. All references to "Owner" shall mean "Owner", as such term
is defined in Article 31 hereof.
F. In no event may Tenant record this Lease or memorandum
thereof, and any such recordation shall be deemed a material breach of the terms
and provisions hereof.
G. If any provisions of this Lease or portion of such provision
or the application thereof to any person or circumstance is for any reason held
invalid or unenforceable, the remainder of the Lease (including the remainder of
such provisions) and the application thereof to the persons or circumstances
shall not be affected thereby.
H. This Lease shall be governed and construed in accordance with
the laws of the State of New York, without giving effect to the principles of
conflicts of laws.
I. If Tenant is a corporation, each person executing this Lease
on behalf of Tenant hereby covenants, represents and warrant that Tenant is a
duly incorporated or duly qualified corporation and is authorized to do business
in the State of New York, and that each person executing this Lease on behalf of
Tenant is an officer of Tenant and that he is duly authorized to execute,
acknowledge and deliver this Lease to Owner.
56. BUILDING'S ELECTRONIC DIRECTORY. Owner, at its expense and at
Tenant's written request, shall maintain listings on the Building's electronic
directory of the names of Tenant and any others in lawful occupancy of the
demised premises, and the names of their respective officers and employees,
provided that the names so listed shall not take up more than Tenant's
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Proportionate Share of the space on the Building's electronic directory. Such
quantity of listing lines shall initially be at Owner's expense, but any excess
listings, if permitted by Owner, or any subsequent changes of listings, as the
case may be, shall be at Tenant's expense, at Owner's then standard charge
therefor. All listings requested shall be generally consistent with then
Building standard practice.
57. CHANGES IN BUILDING FACILITIES, NAME: A. Owner reserves the
right, without incurring any liability to Tenant therefore, to make such changes
in or to the Building and the fixtures and equipment thereof, as well as in or
to the street entrances, halls, passages, elevators, escalators and stairways
thereof, as it may deem necessary or desirable; provided, however, that the
changes do not materially or adversely affect Tenant's access to or use of the
demised premises.
B. Owner may adopt any name for the Building. Owner reserves
the right to change the name or address of the Building at any time during the
term of this Lease.
58. LOCAL LAW 5 COMPLIANCE. A. (1) In the event Tenant's use and
occupancy of the demised premises requires that certain Building personnel be on
duty in compliance with the requirements of Local Law 5, after normal Building
hours, which for this purpose shall be deemed to be 8:00 A.M. to 6:00 P.M. on
business days (as defined in Article 31) only, Tenant agrees, at its own cost
and expense, to reimburse Owner for Owner's fees, costs and expenses in having
such Building personnel available to Tenant so that Tenant can comply with such
requirements of Local Law 5, provided, however, Tenant shall not be required to
reimburse Owner unless at least fifty (50) persons are in the demised premises
after normal Building hours.
(2) If, at the time that Tenant requires that the aforesaid
Building personnel be available to Tenant so that Tenant can comply with the
requirements of Local Law 5, other tenant(s) in the Building also require that
such Building personnel be available to them so that they can likewise comply
with such Local 5 requirements, Owner hereby agrees that the costs and expenses
of having such personnel available to Tenant and such other tenant(s), in order
for each of them to meet the requirements of Local Law 5, shall be
proportionately and equitably pro-rated, apportioned and shared among Tenant and
such other tenant(s).
B. It is understood that in connection with compartmentalization
or other provisions of Local Law 5, or New York City Building Department
regulations, Owner may find it necessary to make certain alterations in the
ducting above, or in the configuration thickness of the demising walls. Owner
shall have the right to enter upon the premises for this purpose if, in Owner's
sole judgement, it may become necessary and Tenant shall cooperate with Owner's
reasonably expeditious completion of such work by permitting Owner's workmen
access to the area immediately contiguous to such ducting and/or demising wall.
Owner shall take reasonable steps to minimize interference with the conduct of
Tenant's business at the demised premises during any work conducted pursuant to
this Section.
59. RESTRICTIONS ON USE. A. Tenant shall not use or occupy or
permit or suffer the premises to be used or occupied for any purposes other than
the Permitted Uses set forth in Article 2 of this Lease.
In addition, Tenant shall not use the Premises, or any portion thereof, in any
manner which, in Owner's judgment, will: (1) materially adversely affect (a) the
appearance, character, reputation or first-class nature of the Building, or (b)
the proper or economic condition of services to other tenants in the Building,
or (c) the use and enjoyment of any other portion of the Building by any other
tenant(s), or (d) the proper and economic functioning of any Building services,
facilities, systems or equipment, or (e) Owner's ability to obtain from
reputable insurance companies authorized to do business in New York, all risk
property insurance or liability, elevator, boiler or other insurance at standard
rates required to be furnished by Owner under the terms of any Superior Lease
and/or Mortgage covering the Real Property; (2) violate any requirements of
legal authorities or insurance bodies or the certificate of occupancy for the
Building and/or the Premises; and (3) be in violation of any of the Restricted
Uses as are set forth and defined below.
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B. Tenant shall not use or permit the use of the Premises, or
any part thereof for the following uses and/or purposes (collectively, the
"Restricted Uses"): (1) for the business of photographic, multilith or
multigraph reproductions or offset printing; (2) for manufacturing of any kind;
(3) as a restaurant or bar or for the sale of confectionery, beverages,
sandwiches, ice cream or baked goods or for the preparation, dispensing or
consumption of food or beverages in any manner whatsoever except, however, as is
expressly permitted as part of Permitted Uses; (4) as a bank or other financial
services office; (5) as an employment or travel agency, labor union office,
physician's, dentist's, medical or psychiatric office, medical or dental
laboratory, dance or music studio, or health club or sports or exercise
facility; (6) as a barber shop or beauty salon; (7) for the direct sale, at
retail or otherwise, of any goods or products of any sort or kind, except,
however, for those goods and products which are included within and as part of
Permitted Uses; (8) by any governmental body, agency, authority or
instrumentality, or by any foreign or domestic governmental or
quasi-governmental entity entitled, directly or indirectly, to diplomatic or
sovereign immunity or not subject to the service of process in, and the
jurisdiction of the courts of the State of New York; (9) for the sale of
traveler's checks and/or foreign exchange; (10) for the conduct of an auction;
(11) for gambling activities; (12) for the conduct of obscene, pornographic,
similar or any other disreputable activities or for the sale of obscene,
pornographic or similar books, magazines, periodicals or other literature or
materials, as determined by Landlord in its sole judgment; or (13) by or for any
charitable, religious or other not-for-profit organization's activities.
Notwithstanding anything contained herein to the contrary, Owner acknowledges
that Tenant is using the premises for the broadcast of WXRK, and that Tenant's
use for that purpose or any similar radio broadcasting purposes shall not be
deemed a violation of this Paragraph 59 B.
C. Notwithstanding anything to the contrary contained in this
Lease, Tenant agrees that if, in its stationery, correspondence, literature,
brochure, publicity, advertising, reports or listings, Tenant uses the name of
the Building along or in conjunction with the street number of the Building, it
will use the following designation, "SQUIBB BEECH-NUT BUILDING", or "SQUIBB
BUILDING" and will not use any abbreviation or contraction thereof. Further, if
Tenant is engaged in a business which is in competition with "Squibb Beech-Nut,
Inc.", or the "Bristol-Meyers Squibb Company", Tenant shall not use the name
"SQUIBB BEECH-NUT BUILDING", or "SQUIBB BUILDING", or any abbreviation or
contraction thereof in any of its stationery, correspondence, literature,
brochure, publicity, advertising, reports or listings.
60. CONDITION OF THE DEMISED PREMISES. A. Tenant acknowledges that
Tenant accepts the demised premises "As Is" without any requirements, liability,
covenants, agreements or obligations on the part of Landlord to do, perform or
pay for any construction, installation, repair, replacement or other work in
connection with Tenant's initial occupancy of the demised premises. The taking
of possession of the demised premises by Tenant shall be conclusive evidence, as
against Tenant, that Tenant accepts the same "As Is" and that the demised
premises was in good and satisfactory condition at the time possession was
taken.
B. Tenant agrees that in executing this Lease, it has not relied
upon any statements, representations, covenants or warranties made by the
Landlord or any person acting on or behalf of Landlord other than those, if any,
expressly set forth in this Lease and on such investigations, examinations and
inspections as Tenant has chosen to make or has made.
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E X H I B I T A
FLOOR PLAN FOR THE PREMISES
<PAGE>
E X H I B I T B
FIXED RENT SCHEDULE
RENTAL PERIOD FIXED RENTAL AMOUNT
For the period commencing on the Commencement $616,000.00 per annum,
Date to and including December 31, 1999 payable $51,333.33 monthly;
For the period commencing on January 1, 2000 $660,000.00 per annum,
to and including December 31, 2004 payable $55,000.00 monthly; and
For the period commencing on January 1, 2005 $748,000.00 per annum,
to and including the Expiration Date of the Lease. payable $62,333.33 monthly.
<PAGE>
E X H I B I T C
EXISTING MORTGAGEE'S FORM OF SUBORDINATION,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
<PAGE>
E X H I B I T D
EXISTING MORTGAGEE'S FORM
OF TENANT ESTOPPEL CERTIFICATE
<PAGE>
<PAGE>
20808176.5
AGREEMENT OF SUBLEASE, dated as of the 9th day of August,
1999, by and between Infinity Broadcasting Corporation, having an office at 40
West 57th Street, New York, New York 10019 (hereinafter referred to as the
"Landlord") and Westwood One Radio Networks, Inc., having an office at 1675
Broadway, 17th Floor, New York, New York, (hereinafter referred to as the
"Tenant").
W I T N E S S E T H
WHEREAS, Lefrak-SBN Associates, predecessor to Lefrak SBN
Limited Partnership (hereinafter "Prime Landlord") and Landlord entered into a
Lease dated March 15, 1996, (as subsequently amended, the "Prime Lease") with
respect to certain premises, including a portion of the 15th floor, in the
building located at 40 West 57th Street, New York, New York.
WHEREAS, Prime Landlord and CBS, Inc.,then successor to
Landlord, entered into a Second Amendment of Lease dated as of September 30,
1998 demising additional space on the 15th floor;
WHEREAS, a copy of the Prime Lease has been delivered to
Tenant and Tenant, by its execution hereof, acknowledges receipt of the Prime
Lease.
WHEREAS, Landlord, as successor to CBS, Inc., desires to
sublet to Tenant, and Tenant desires to sublet from Landlord, the 15th floor
portion (hereinafter, the "Demised Premises") more particularly described on
Exhibit A attached hereto and made a part hereof under the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and
other valuable consideration, rental payments to be made hereunder by Tenant as
hereinafter set forth, Landlord and Tenant agree as follows:
1. Subleasing of the Demised Premises. Landlord hereby
subleases and demises to Tenant, and Tenant hereby subleases and hires from
Landlord, the Demised Premises, which for purposes of this Sublease shall be
deemed to consist of 16,922 rentable square feet, upon and subject to the terms
and conditions hereinafter set forth.
<PAGE>
2. Term. The term (the "Term") of this Sublease shall commence
on the date hereof (the "Commencement Date") and shall expire at midnight on
February 28, 2012, which is one day prior to the expiration of the term of the
Prime Lease, unless sooner terminated as provided herein or pursuant to law (the
"Expiration Date").
3. Base Rent. Tenant hereby covenants and agrees to pay
Landlord during the Term base rent (the "Base Rent") as set forth on Schedule A
attached hereto, in equal monthly installments payable on the first day of each
month during the term of the Lease, commencing on the Commencement Date, without
notice or demand and without abatement, set-off or deduction of any amount
whatsoever. If the Commencement Date occurs or this Sublease terminates other
than on the first day of a month, the Base Rent and Additional Rent, if any (as
defined below) payable hereunder shall be appropriately prorated for such month.
4. Electricity. Tenant shall pay to Landlord the same
amount paid by Landlord to Prime Landlord for electricity consumption in the
Demised Premises in accordance with the Prime Lease.
5. Additional Rent. In addition to the Base Rent and
electricity charges specified above, Tenant shall pay Landlord as additional
rent (the "Additional Rent") all sums which Landlord is required to pay to Prime
Landlord with respect to the Demised Premises by reason of all increases in
Taxes and Operating Costs (as such terms are defined in Article 47 of the Prime
Lease).
After receipt from Prime Landlord of an Escalation Statement
(the "Statement"), Landlord shall send to Tenant a copy of the Statement and
prepare a voucher indicating the escalated amounts due pursuant to the
provisions hereof. So long as Tenant has received the Statement and voucher in a
timely manner, then Additional Rent payments shall be made by Tenant to Landlord
not less than three days prior to the date upon which Landlord is required to
make such payments to Prime Landlord. Payments of Additional Rent shall be
prorated equitably for any period of less than one full year occurring at the
respective commencement and expiration or termination of the Term.
<PAGE>
6. Subordination to and Incorporation of the Prime Lease a.
This Sublease shall be expressly subject and subordinate to and does hereby
incorporate all of the terms, covenants and conditions contained in the Prime
Lease, except for any term, covenant or condition to the extent relating to the
14th floor, the Fixed Rent and such other terms, covenants and conditions as are
not relevant or applicable or are specifically inconsistent with the terms
hereof. Tenant covenants and agrees not to violate any of the terms, covenants
and conditions contained in the Prime Lease. Wherever the term "Tenant" occurs
in the Prime Lease the same shall be deemed to refer to Tenant herein, and the
term "Landlord" as used therein shall refer to Landlord herein, except as
otherwise provided in this document.
b. Landlord does not assume any obligation to perform the
terms, covenants and conditions contained in the Prime Lease on the part of
Prime Landlord to be performed, and in the event that the Prime Landlord should
fail to perform any of the terms, covenants and conditions contained in the
Prime Lease, Landlord shall, if so requested by Tenant and at the expense of
Tenant, use its reasonable efforts to cause the Prime Landlord to perform its
obligations under the Prime Lease, provided that in no event shall Landlord be
required to commence a lawsuit against Prime Landlord. Tenant shall have the
right, in its own name, to request performance of obligations required of the
Prime Landlord and to conduct such proceedings as may be required to obtain
performance of such obligations. Copies of all such requests shall be
simultaneously delivered to Landlord together with responses thereto of Prime
Landlord. Landlord agrees to reasonably cooperate with Tenant in connection
therewith. In any event, except as otherwise provided in the Prime Lease (and
then only to the extent that Landlord receives the same from Prime Landlord),
Tenant shall not be allowed any abatement or diminution of rent under this
Sublease because of the failure of Prime Landlord to perform any of its
obligations.
c. (1) Tenant and Landlord covenant and agree with each other
that each shall not do anything that would constitute a default under the Prime
Lease or omit to do anything that each is obligated to do under the terms of
this Sublease so as to cause there to be a default under the Prime Lease.
<PAGE>
(2) The time limits set forth in the Prime Lease for the
giving of notices or the performance of any act by Tenant are changed for the
purpose of this Sublease, by shortening the same in each instance by three days,
so that notices may be given or any act performed by Tenant within the time
limit relating thereto contained in the Prime Lease, provided, however, that
Tenant shall have at least one business day to comply or perform unless Landlord
has less than one business day to comply or perform. Landlord shall, no later
than three business days after receipt thereof, deliver to Tenant copies of all
notices, requests or demands or other communications which relate to the Demised
Premises or the use or occupancy thereof after receipt of same from Prime
Landlord. Tenant shall, no later than three business days after receipt thereof,
deliver to Landlord copies of all notices, requests or demands received by
Tenant from Prime Landlord.
d. In any case where Prime Landlord reserves a right or
disclaims any liability under the Prime Lease, the right or disclaimer shall
inure to the benefit of Landlord as well as to Prime Landlord, and any right or
disclaimer inuring to Landlord as tenant under the Prime Lease shall likewise
inure to the benefit of Tenant.
e. Tenant shall make its own arrangements with Prime Landlord
for additional services under the terms of the Prime Lease, and Tenant agrees
that it shall have the sole obligation to pay for such additional services.
Landlord shall cooperate with Tenant as reasonably required in obtaining such
additional services, at no cost to Landlord.
7. Use. Tenant shall use and occupy the Demised
Premises for the same purposes as Landlord is permitted to do pursuant to the
Prime Lease.
8. Condition of Demised Premises. Tenant has inspected the
Demised Premises and agrees to accept the same in "as is" condition as of the
date hereof. Landlord shall not now or at any time in the future be required to
make any expenditures whatsoever with respect to the Demised Premises. Tenant
shall remove Tenant's own personal property at the expiration of the Term in
accordance with the requirements of the Prime Lease and shall be responsible for
complying with the provisions of the Prime Lease at the expiration of the Term
of this Sublease.
<PAGE>
9. Tenant Alterations. Tenant has submitted to Landlord and
Prime Landlord for their respective approval its plans and specifications for
improvements to be made to prepare for Tenant's occupancy. Prior to engaging in
any additional improvements or work to the Demised Premises, Tenant shall comply
with the requirements of the Prime Lease with respect to alterations and
improvements, and shall seek the consent of both Landlord and Prime Landlord,
and Tenant shall not engage in such work until it has received written consent
from Landlord, which consent of Landlord shall not be unreasonably withheld or
delayed following Landlord's receipt of the consent of Prime Landlord. Any
permanent improvements shall become the property of Landlord (or Prime Landlord)
and shall remain on the Demised Premises at the termination of the Sublease;
provided, however, that Tenant shall, at its sole cost and expense, if Landlord
is so required pursuant to the terms of the Prime Lease, remove such
improvements installed by Tenant prior to or concurrently with the termination
of the Sublease and restore the Demised Premises to their condition on the
Commencement Date. Tenant's failure to comply with Landlord's request shall
entitle Landlord to remove the improvements installed by Tenant at Tenant's cost
and expense.
10. Indemnification; Insurance. (a) Tenant shall indemnify
Landlord against, and hold Landlord harmless from, any and all loss, cost,
damage, expense or liability (including but not limited to reasonable attorney's
fees and disbursements) incurred by Landlord by reason of (i) any injuries to
persons or damage to property occurring in, on or about the Demised Premises,
(ii) any breach or default hereunder on Tenant's part, (iii) any work or thing
whatsoever done, or any condition created, in, on or about the Demised Premises
during the term of this Sublease by Tenant, (iv) any act or omission of Tenant,
its agents, contractors, servants, employees, invitees or licensees or (v) any
breach of its representations, warranties and agreements hereunder. Tenant shall
obtain and keep in full force and effect during the term of this Sublease, at
its sole cost and expense, a policy of Comprehensive Public Liability Insurance,
such insurance to afford protection in an amount not less than $3,000,000 in
respect of bodily injury or death to any one person, and of not less than
$3,000,000 in respect of any one occurrence or accident and of not less than
$500,000 for property damage. All such policies shall name Landlord, Prime
Landlord, Prime Landlord's Lender and Tenant as insureds thereunder and shall
conform in all respects with insurance requirements under the Prime Lease. The
certificates of insurance shall conform to the requirements of the Prime Lease
and be with insurers authorized to issue insurance in the State of New York. (b)
Landlord shall indemnify Tenant against, and hold Tenant harmless from, any and
all loss, cost, damage, expense or liability (including but not limited to
reasonable attorney's fees, and disbursements) incurred by Tenant by reason of
Landlord's breach of its representations, warranties and agreements hereunder.
11. Assignment and Subleasing. Tenant shall not
assign this Sublease or sublet the Demised Premises or any part thereof without
first obtaining the written consent of Prime Landlord and Landlord.
<PAGE>
12. Default; Remedies. Tenant covenants and agrees that in the
event that it shall default in the performance of any of the terms, covenants
and conditions of this Sublease after notice and grace period, if any, as
provided in the Prime Lease, Landlord shall be entitled to exercise any and all
of the rights and remedies to which it is entitled by law, including, without
limitation, the remedy of summary proceeding, and also any and all of the rights
and remedies specifically provided for in the Prime Lease, which are hereby
incorporated herein and made a part hereof, with the same force and effect as if
herein specifically set forth in full, and that wherever in the Prime Lease
rights and remedies are given to Prime Landlord, the same shall be deemed to
refer to Landlord. Landlord shall have the same remedies for default in the
payment of Additional Rent as for default in the payment of Base Rent. If the
terms of the Prime Lease permit a time period in which a default can be cured,
that provision is incorporated herein.
13. Termination. On the date upon which the term hereof shall
expire and come to an end, whether by expiration, by lapse of time or otherwise,
Tenant at Tenant's sole cost and expense, shall quit and surrender the Demised
Premises to Landlord in as good order and condition as existed on the
Commencement Date, normal wear and tear excepted, and shall remove all of
Tenant's personal property. Tenant's failure to vacate or to remove its personal
property or to leave the Demised Premises in the condition required hereby shall
subject Tenant to the remedies provided to Prime Landlord in the Prime Lease,
including the penalty for holdover included in the Prime Lease, and any delay by
Tenant in vacating the premises shall be deemed to create a delay of the
equivalent number of days by Landlord for which Tenant shall be liable to the
extent Landlord shall be held liable, including all damages, if any, for which
Landlord shall be held as a result thereof.
14. Broker. Each party represents that it has had no dealings,
either direct or indirect, with any real estate agent or broker in connection
with this transaction. Each party hereby agrees to indemnify and hold harmless
the other from and against any loss or damage, including attorney's fees,
resulting from a misrepresentation in this Article.
15. Authority. Each party represents that it has full
power and authority to enter into and perform this Sublease. Landlord represents
that it has not entered into any other inconsistent commitments or agreements
with respect to the Demised Premises.
<PAGE>
16. Notices. Any notice, demand, request or other
communication which is required or may be given pursuant to or in connection
with this Sublease shall be in writing and, any law or statute to the contrary
notwithstanding, shall be effective for any purpose if given or served by
personal delivery or overnight courier to its address in the introductory
paragraph of this Sublease.
17. Termination of the Prime Lease. If, for any reason, the
term of the Prime Lease shall terminate prior to the Expiration Date of this
Sublease, this Sublease shall thereupon terminate, and Landlord shall not be
liable to Tenant by reason thereof unless such termination resulted from a
default by Landlord under the Prime Lease and (a) such default by Landlord was
not due to default by Tenant of its obligations hereunder, including, without
limitation, the obligations under the Prime Lease incorporated by reference
herein or (b) Tenant is not in default of any of its monetary obligations
hereunder beyond any applicable grace period.
18. Governing Law. The laws of the State of New York
shall govern the rights, duties and remedies of the parties hereto and of the
construction and interpretation of the terms and provisions hereof.
19. Successors and Assigns. All of the terms and
provisions of this Sublease shall inure to the benefit of and be binding upon
the successors and permitted assigns of the respective parties hereto.
20. Separability. In the event that any provisions
of this Sublease shall be held to be invalid or unenforceable in any respect,
the validity, legality or enforceability of the remaining provisions of this
Sublease shall be unaffected thereby.
21. Headings. The headings contained in this Sublease are
for convenience only and are not to be deemed a part hereof.
22. Execution of Sublease. This Sublease may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant herein have duly
executed this instrument the day and year first above written.
<PAGE>
LANDLORD:
Infinity Broadcasting Corporation, successor to CBS, Inc.
By:_________________________
Title:______________________
TENANT:
WESTWOOD ONE RADIO NETWORKS, INC.
By:_________________________
Title:______________________
GUARANTOR:
The undersignd hereby
guarantees to Prime
Landlord and Landlord full
performance by Tenant of
all obligations of Tenant
required to be performed by
Tenant pursuant to this
Sublease.
WESTWOOD ONE, INC.
By:_________________________
Title:______________________
PRIME LANDLORD:
The undersigned
acknowledges receipt of and
consents to this Sublease.
LEFRAK SBN LIMITED PARTNERSHIP
By:___________________________
Title:________________________
<PAGE>
SCHEDULE A
----------
Years Rent per rentable square foot
----- -----------------------------
1999-2000 $34.00
2001 $34.17
2002-2003 $35.00
2004 $33.08
2005 $29.25
2006 $29.63
2007-2/2012 $32.25
EXHIBIT 10.13
WESTWOOD ONE, INC.
LIST OF SUBSIDIARIES
WESTWOOD ONE RADIO, INC.
WESTWOOD ONE RADIO NETWORKS, INC.
MUTUAL BROADCASTING SYSTEM, INC.
WESTWOOD NATIONAL RADIO CORPORATION, INC.
NATIONAL RADIO NETWORK, INC.
THE SOURCE, INC.
TALKNET, INC.
WESTWOOD ONE STATIONS GROUP, INC.
WESTWOOD ONE STATIONS - L.A., INC.
KM RECORDS, INC.
WESTWOOD ONE SATELLITE SYSTEMS, INC.
WESTWOOD ONE STATIONS - NYC, INC.
WESTWOOD ONE BROADCASTING SERVICES, INC.
METRO NETWORKS, INC.
METRO NETWORKS COMMUNICATIONS, INC.
METRO NETWORKS SERVICES, INC.
WASHINGTON NEWS NETWORK, INC.
METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP
EXHIBIT 22
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (No. 33-57637, No. 33-28849, No. 33-64666, No. 333-68785,
and No. 333-89595) of Westwood One, Inc., of our report dated February 11, 2000,
except as to Note 14 which is as of March 8, 2000 relating to the financial
statements, which appear in this Form 10-K.
/s/PRICEWATERHOUSECOOPERS LLP
- - ------------------------------------
PricewaterhouseCoopers LLP
Century City, California
March 30, 2000
EXHIBIT 24
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 10,626
<SECURITIES> 0
<RECEIVABLES> 145,833<F1>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 169,259
<PP&E> 55,957<F2>
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,334,888
<CURRENT-LIABILITIES> 128,005
<BONDS> 158,000
0
0
<COMMON> 644<F3>
<OTHER-SE> 1,019,131
<TOTAL-LIABILITY-AND-EQUITY> 1,334,888
<SALES> 0
<TOTAL-REVENUES> 358,305<F4>
<CGS> 0
<TOTAL-COSTS> 261,538<F5>
<OTHER-EXPENSES> 35,970<F6>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,150
<INCOME-PRETAX> 49,257
<INCOME-TAX> 25,370
<INCOME-CONTINUING> 23,887
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 23,887
<EPS-BASIC> .33<F7>
<EPS-DILUTED> .30<F7>
<FN>
<F1>REFLECTED NET OF THE ALLOWANCE FOR DOUBTFUL ACCOUNTS.
<F2>REFLECTED NET OF ACCUMULATED DEPRECIATION AND AMORTIZATION.
<F3>COMPRISED OF COMMON STOCK AND CLASS B STOCK.
<F4>COMPRISED OF NET REVENUES.
<F5>COMPRISED OF OPERATING COSTS AND EXPENSES EXCLUDING DEPRECIATION AND
AMORTIZATION.
<F6>COMPRISED OF DEPRECIATION AND AMORTIZATION, AND CORPORATE GENERAL AND
ADMINISTRATIVE EXPENSES.
<F7>REFLECTS EFFECT OF TWO-FOR-ONE STOCK SPLIT TO BE PAID ON MARCH 22, 2000.
</FN>
</TABLE>
