AGREEMENT
This Agreement is made and entered into this 20th day of February, 1998 by
and between Radio One, Inc. (hereafter "Radio One"), and WUSQ License Limited
Partnership (hereafter "Partnership").
W I T N E S S E T H
WHEREAS, Radio One Licenses, Inc., a wholly-owned subsidiary of Radio One,
Inc., is the licensee of Class A FM broadcast station WMMJ, Bethesda, Maryland,
which operates on Channel 272 (102.3 MHz);
WHEREAS, Partnership is the licensee of Class B FM broadcast station
WUSQ-FM, Winchester, Virginia, which operates on Channel 273 (102.5 MHz);
WHEREAS, by the Second Report and Order, FCC 89-232, released August 18,
1989 (MM Docket No. 88-375), the Federal Communications Commission (hereafter
Commission or FCC) amended its rules to increase the maximum permitted effective
radiated power (hereafter ERP) for Class A FM broadcast stations from 3,000 to
6,000 xxxxx;
WHEREAS, in the Second Report and Order, the Commission also increased the
minimum distance separation requirements for a Class A station which is a first
adjacent channel to a Class B station from 105 kilometers to 113 kilometers;
WHEREAS, the distance between the WMMJ and WUSQ-FM main transmitter sites
is approximately 105 kilometers;
WHEREAS, as a condition for the acceptance of applications to modify the
facilities of a Class A station for which the requirements of Section 73.207
will not be met, the FCC rules require that an exhibit be submitted
demonstrating the consent of a licensee such as Partnership which operates on a
first adjacent channel; and
WHEREAS, the purpose of this Agreement is to state the consent of
Partnership to a modification of the WMMJ facilities and an extension of WMMJ's
contour in the direction of WUSQ-FM; and
WHEREAS, Radio One and Partnership desire to cooperate with one another to
further the public interest.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties agree as follows:
1. Cooperation by Partnership. Partnership hereby consents to Radio One
applying for an authorization from the FCC to modify WMMJ's facility to specify
maximum Class A facilities and thereby extend WMMJ's contour in the direction of
WUSQ-FM in substantially the manner specified in either Exhibit A-1 or Exhibit
A-2 hereto. Exhibit A-1 depicts a contour for WMMJ from a site known as the
"WKYS Site", located at the coordinates of 38(Degree) 56' 24"/77(Degree) 04' 54"
Exhibit A-2 depicts a contour for WMMJ from a site known as the "WMMJ Site"
located at the coordinates of 38(Degree) 56' 09"/77(Degree) 05' 33". The
application to be filed with the FCC specifying either the WKYS Site or the WMMJ
Site is hereinafter referred to as the "Contour Extension Application", and
shall be filed within ninety (90) days of the execution of this Agreement.
Partnership hereby consents to Radio One filing the attached Statement in
support of the Contour Extension Application. Partnership acknowledges that the
decision to pursue any modification of facilities of WMMJ is within the sole
discretion of Radio One. Partnership agrees that so long as this Agreement is in
effect, Partnership will cooperate with Radio One's effort to pursue the
proposed modification, will provide such further information concerning the
application(s) filed by Radio One to implement the change as the FCC may
reasonably require, including the filing of this Agreement if required, and will
not take action at any time which is inconsistent with such cooperation.
Notwithstanding Partnership's agreement to cooperate, the parties expressly
acknowledge that the burden of prosecuting the Contour Extension Application
shall remain at all times with Radio One.
2. Frequency Allocation Fee. In exchange for Partnership's cooperation and
agreement to undertake the obligations described herein, Radio One agrees to pay
to Partnership by certified check or wire transfer the total sum of Three
Hundred Seventy Five Thousand Dollars ($375,000) in the manner and at the times
described below:
(a) Simultaneously with the execution and delivery of this Agreement,
Radio One shall deliver the sum of One Hundred Twenty Five Thousand Dollars
($125,000) to an Escrow Agent. So long as this Agreement is in effect, Radio One
shall cause the Escrow Agent to send copies to Partnership of the monthly bank
statements evidencing the escrow deposit.
(b) Radio One shall direct that the Escrow Agent pay to Partnership
the sum of One Hundred Twenty Five Thousand Dollars ($125,000) by certified
check or wire transfer in one of the three circumstances described below:
2
(i) Should the Contour Extension Application filed by Radio One
be granted by the Commission or the Commission's staff pursuant to delegated
authority and should that action become a Final Order, then the sum of One
Hundred Twenty Five Thousand Dollars ($125,000) (the "Partnership Payment")
shall be paid to Partnership within ten (10) business days of the date that the
action becomes a Final Order. For purposes of this Agreement the term "Final
Order" shall mean an action that has been taken by the FCC (including action
duly taken by the FCC's staff, pursuant to delegated authority) which shall not
have been reversed, stayed, enjoined, set aside, annulled or suspended, with
respect to which no timely request for stay, petition for reconsideration,
rehearing, appeal or certiorari or sua sponte action of the FCC with comparable
effect shall be pending, and as to which the time for filing any such request,
petition, appeal, certiorari or for the taking of any such sua sponte action by
the FCC shall have expired or otherwise terminated.
OR
(ii) Should the Contour Extension Application filed by Radio One
be granted by the Commission or the Commission's staff pursuant to delegated
authority, then Radio One in its sole discretion may waive the requirement that
the action shall have become a Final Order prior to making said payment. Should
Radio One decide to waive the requirement that the action become a Final Order,
then the Partnership Payment shall be paid to Partnership no later than two (2)
business days after the commencement of program test authority for the
facilities specified in the construction permit issued pursuant to the Contour
Extension Application filed by Radio One. For purposes of this provision, Radio
One's operation of the station pursuant to program test authority shall be
deemed a waiver of the Final Order requirement and the Partnership Payment shall
be due and payable as set forth above.
OR
(iii) Should the Contour Extension Application filed by Radio One
be granted by the Commission or the Commission's staff pursuant to delegated
authority, and if such a grant has conditions adverse to Radio One that are not
reasonably acceptable to Radio One, then Radio One may, in its sole discretion,
notify Partnership within ten (10) business days of the date of public notice of
such grant that Radio One either will appeal the grant and seek to modify or
remove the conditions or seek to have the construction permit cancelled. If
Radio One provides such notification to Partnership pursuant to this section and
such notification states that Radio One will appeal the grant, then the
Partnership Payment shall not be due until ten (10) business days after the
order modifying the grant in a manner reasonably
3
acceptable to Radio One becomes a Final Order. If Radio One provides such
notification to Partnership pursuant to this section and such notification
states that Radio One will seek to have the construction permit cancelled, then,
subject to the following sentence, the Partnership Payment shall not be made,
provided, however, that this Agreement shall remain in effect until such
construction permit is cancelled by Final Order. Notwithstanding the foregoing,
if Radio One or any of its successors or assigns commences construction or
operation of the facilities contemplated by the construction permit referenced
in this paragraph, the Partnership Payment shall be due and payable immediately.
(c) In the event that the payment of One Hundred Twenty Five Thousand
Dollars ($125,000) has been made to Partnership pursuant to Section 2(b)(i) or
2(b)(ii) or 2(b)(iii) above, or Section 8 below then two additional payments of
One Hundred Twenty Five Thousand Dollars each shall be made by Radio One to
Partnership. The first such payment of $125,000 shall be made on the one year
anniversary of the date that the payment in Section 2(b) or Section 8 is made or
should have been made, whichever is earlier. The second such payment of $125,000
shall be made on the second anniversary of the date that the payment in Section
2(b) or Section 8 is made or should have been made, whichever is earlier.
(d) Partnership acknowledges that the consideration specified herein
in conjunction with the consideration specified in Section 7 is sufficient to
induce it to undertake the obligations specified in this Agreement and that it
shall not be entitled to receive any additional consideration for the
performance of its obligations hereunder.
3. Representations and Warranties.
(a) Representations and Warranties of Partnership. Partnership
represents and warrants to Radio One as follows:
(i) Agreements re WUSQ-FM. As of the date hereof, no agreements,
understandings or discussions are underway or contemplated regarding the sale of
WUSQ-FM, assignment of the FCC licenses or transfer of any ownership interest,
other than pro forma transfers or assignments that may be accomplished using FCC
Form 316, or any modification of the facilities of WUSQ-FM .
(b) Representations, Warranties and Agreements of Radio One. Radio One
represents and warrants to Partnership as follows:
(i) No Further Contour Extension or Interference. Radio One
agrees that, except as set forth in Exhibits A-1 and A-2, Radio One shall not
extend its contours in the direction of WUSQ-FM or otherwise modify its
facilities in a manner that would create
4
additional interference to WUSQ-FM, nor shall it seek FCC authorization for any
such modification or contour extension, without the prior consent of
Partnership.
4. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective representatives, successors and
assigns. Except as provided for in Section 4(b), no party hereto may assign any
of its rights or delegate any of its duties hereunder without the prior written
consent of the other party, and any such attempted assignment or delegation
without such consent shall be void.
(b) Partnership agrees to include as a condition of any proposed
assignment, sale or transfer of ownership or control of Partnership's license
for WUSQ-FM a contractually binding provision that the assignee or transferee of
WUSQ-FM shall assume and become bound by this Agreement. Partnership agrees to
procure and deliver in writing to Radio One the agreement of the proposed
assignee or transferee that, upon consummation of the assignment or transfer of
control of the license for WUSQ-FM, the assignee or transferee will assume and
perform this Agreement in its entirety without limitation of any kind.
Partnership acknowledges that any such assignment, sale or transfer which does
not provide for such assumption will cause irreparable injury to Radio One for
which damages are not an adequate remedy. Therefore, Partnership agrees that
Radio One shall be entitled to seek an injunction or other appropriate equitable
relief, including specific performance, from any court of competent
jurisdiction. Partnership agrees to waive the defense in any such suit that
Radio One has an adequate remedy at law and to interpose no opposition, legal or
otherwise, as to the propriety of specific performance as a remedy.
5. Amendments; Waivers. The terms and conditions of this Agreement may be
changed, amended, modified, waived, discharged or terminated only by a written
instrument executed by both parties. The failure of any party at any time or
times to require performance of any provision of this Agreement shall in no
manner affect the right of such party at a later date to enforce the same. No
waiver by any party of any condition or the breach of any provision or term
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed to be or construed as a further or continuing waiver
of any such condition or of the breach of any other provision or term of this
Agreement.
6. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing (which shall
include notice by facsimile transmission) and shall be deemed to have been duly
made and received when personally served, or when delivered by Federal Express
or a
5
similar overnight courier service, expenses prepaid, or, if sent by facsimile
communications equipment, delivered by such equipment, addressed as set forth
below:
(1) If to Partnership, then to:
Xx. Xxxxxxx Xxxxxxxx
Executive Vice President
Capstar Broadcasting
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Xx. Xxx Xxxxxxx
Capstar Broadcasting
0000 Xxxxxxxxx Xxxx XX
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy given in the manner prescribed above to:
Xxxxxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxx
3700 Xxxxxxxx Xxxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
(2) If to Radio One, then to:
Xx. Xxxxxx Xxxxxxx
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
with a copy given in the manner prescribed above to:
Xxxxx X. Xxxxxx, Esq.
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Any party may alter the address to which communications are to be sent by giving
notice of such change of address in conformity with the provisions of this
section providing for the giving of notice.
7. Expenses. Radio One shall pay all of its expenses incurred in connection
with the obligations specified by this Agreement, including without limitation,
legal fees incurred in
6
connection herewith and the engineering studies in support of a modification of
WMMJ. Radio One shall also reimburse reasonable legal and engineering expenses
incurred by Partnership in reviewing and negotiating this Agreement. Radio One
shall make such payment within thirty (30) days of the execution of this
Agreement.
8. Termination of Agreement. This Agreement may be terminated by Radio One:
(a) if Partnership should materially default in the performance of its
obligations hereunder or (b) if at any time Radio One decides not to pursue the
Contour Extension Application, provided that if the Contour Extension
Application has been filed, no such termination shall be effective until the
Contour Extension Application has been dismissed by Final Order. This Agreement
may be terminated by Partnership if (a) Radio One materially defaults in the
performance of the obligations hereunder; or (b) Radio One fails to file the
Contour Extension Application within ninety (90) days of the execution of this
Agreement; or (c) the Partnership Payment has not been made by the date which is
twenty-one (21) months after the date that the Contour Extension Application is
filed ("Termination Date"). Partnership may not terminate this Agreement
pursuant to Section 8(c) unless Partnership has provided written notice to Radio
One. Such notice may be given at any time beginning on the 60th day prior to the
Termination Date. If Radio One pays the Partnership Payment within sixty (60)
days of receipt of the notice, then Partnership shall have no right to terminate
this Agreement. If this Agreement is properly terminated by Partnership, then
Partnership's consent shall be considered revoked and Radio One shall have no
authority to construct the facilities specified in the Contour Extension
Application even if the FCC has issued a construction permit for such
facilities. No payment shall be due Partnership upon Partnership's or Radio
One's proper termination of this Agreement and the $125,000 held by the Escrow
Agent, if it has not already been paid to Partnership, shall be returned to
Radio One. Notwithstanding the above sentence, Partnership's right to be
reimbursed for its expenses as provided in Section 7 shall survive termination
of this Agreement.
9. Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of Maryland.
10. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable, such provision shall be fully severable, and in lieu
of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and
7
be legal, valid and enforceable. This Agreement shall then be construed and
enforced as so modified.
11. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and supersedes all prior agreements, understandings,
inducements or conditions, express or implied, oral or written, relating to the
subject matter hereof, except as herein contained. The express terms hereof
control and supersede any course of performance and/or usage of trade
inconsistent with any of the terms hereof.
12. Execution; Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized representatives, all as of the day and year
first above written.
WUSQ License Limited Partnership
------------------------------
Name:
Title:
RADIO ONE, INC.
-----------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: President
8
