STATION REIMBURSEMENT AND COMPENSATION AGREEMENT
This Agreement made this 12th day of August, 1998, by and among Saga
Communications of Iowa, Inc. ("Saga"); Triathlon Broadcasting of Omaha, Inc.
("Triathlon");
WITNESSETH:
WHEREAS, Saga is licensee of KIOA(FM), which operates on FM Channel
227C (93.3 MHz) at Des Moines, Iowa;
WHEREAS, Triathlon is licensee of KTNP(FM), which operates on XX 000X
xx Xxxxxxxxxx, Xxxxxxxx;
WHEREAS, Triathlon desires to make certain changes in the facilities
of KTNP by filing with the Federal Communications Commission ("FCC") a petition
for rule making; the cooperation of Saga is desired in order to make those
changes, and Saga is willing to cooperate with Triathlon on the basis set out
in this Agreement.
WHEREAS, Saga has agreed to make a change of channels from FM Channel
227C to a lower grade FM channel but not to a channel of a lower class than
Channel 227C1 (hereinafter "Channel Downgrade") to accommodate Triathlon's
proposed upgrade of KTNP to Channel 227C3;
WHEREAS, Triathlon has agreed to compensate Saga for making said
Channel Downgrade;
WHEREAS, to secure the faithful performance of its obligations under
this Agreement, Triathlon has agreed to deposit as set forth herein the sum of
FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS with the Escrow Agent to be held
and released pursuant to the Escrow Agreement attached as Appendix 1; and
NOW THEREFORE, the parties intending to be legally bound, agree as
follows:
1. Petition for Rule Making. Within 30 days after execution of this
Agreement, Saga and Triathlon agree to file with the FCC a joint petition to
amend Title 47 C.F.R. ss.73.202(b) [Table of Allotments] seeking (a) the
substitution of FM Channel 227C at Des Moines, Iowa, with Channel 227C1, and
the concurrent modification of the license of KIOA(FM) to operate on Channel
227C1, and (b) the simultaneous substitution of FM Channel 227A at Bennington,
Nebraska, with FM Channel 227C3 and the concurrent modification of the license
of KTNP(FM) to operate on Channel 227C3. Upon the effective date of the FCC's
Report and Order amending Title 47 C.F.R. ss.202(b) making the channel
substitutions and modifications of licenses, Saga will file an application
("Downgrade Application") on FCC Form 301 for a construction permit to operate
on Channel 227C1, and upon grant thereof Saga will file FCC Form 302-FM for a
license to cover the construction permit within 10 days of initiation of
program tests by KIOA(FM) on Channel 227C1.
2. Escrow Fund. Beginning on the date of issuance by the FCC of a
Notice of Proposed Rule Making ("NPRM") proposing to modify the license of
KIOA(FM) to operate on Channel 227C1, and no later than ten days prior to the
date established in the NPRM for the filing of comments on the NPRM ("Comment
Date"), Triathlon shall deposit the sum of FIVE HUNDRED THOUSAND ($500,000.00)
DOLLARS (the "Escrow Fund") with Escrow Agent. Failure of Triathlon to timely
deposit the Escrow Fund with the Escrow Agent shall result in Saga on the
Comment Date filing comments in opposition to the proposal set out in the NPRM.
3. Disbursement of Escrow Funds. In exchange for Saga's cooperation,
upon the Effective Date set forth in the FCC's Report and Order, and the FCC's
action having become a "final" order, that is, no longer subject to, or the
subject of, reconsideration or review by the FCC
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or any Court, and without any further instructions from Triathlon, the Escrow
Agent shall pay to Saga from the Escrow Fund the sum of FIVE HUNDRED THOUSAND
($500,000.00) DOLLARS in immediately available funds and shall pay to Triathlon
any interest that has accrued in the Escrow Fund.
4. FCC Refusal to Act-Result. In the event the FCC refuses to
substitute Channel 227Cl for Channel 227C at Des Moines and to substitute
Channel 227C3 for Channel 227A at Bennington, and the FCC's Report and Order
refusing to make the substitutions shall become a final order, the Escrow Agent
shall deduct his fee and promptly return the balance of the Escrow Fund to
Triathlon.
5. Assignment. This Agreement may not be assigned, except to
successors in interest of Saga and Triathlon. This Agreement must be assigned
to and the obligations hereunder assumed by such successors and assigns.
6. Notices. All necessary notices, demands and requests shall be
deemed duly given, if mailed by registered mail, postage prepaid, and addressed
to the following:
If to Triathlon: Xx. Xxxxxx Xxxxx
Symphony Towers
000 "X" Xxxxxx - Xxxxx 0000
Xxx Xxxxx, XX 00000
with copy to: Xxxxxx X. Leader, Esquire
Xxxxxx Xxxxxxx Xxxxxx Leader & Xxxxxxxx L.L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
If to Saga: Xx. Xxxxxx Xxxxxx
President/General Manager
Saga Communications of Iowa, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
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with copy to: Xxxx X. Xxxxxxxxx, Esquire
Xxxxxxxxx & Belendiuk, P.C.
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
7. Entire Agreement. This Agreement and Appendix 1 contain the entire
agreement of the parties with respect to the transaction contemplated and
supersedes all prior negotiations between the parties concerning the subject
matter contained herein. No change, modification or waive of any provision
hereof will be valid unless in writing and signed by the party to be bound.
8. Waiver. No delay or failure on the part of either party in
exercising any rights hereunder, and no partial or single exercise thereof,
will constitute a waiver of such rights or of any other rights hereunder.
9. Binding Effect. This Agreement is binding upon, and inures to the
benefit of and is enforceable by the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
10. Third Party Beneficiaries. Nothing in this Agreement will be
construed as giving any person, firm, corporation or other entity, other than
the parties hereto, their respective heirs, executors, administrators,
successors and assigns any right, remedy or claim under or in respect of this
Agreement or any provision hereof.
11. Construction. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Iowa.
12. Counterparts, This Agreement may be executed in counterpart, each
of which shall be deemed an original.
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13. Effect of New FCC Rules on Rule Making Proceeding. In the event
the FCC adopts the proposal described in Notice of Proposed Rule Making and
Order, FCC 98-117, released June 15, 1998 ("New Rules"), to create a new class
of FM Station, i.e. "Class C-zero," and it is possible for Triathlon to upgrade
KTNP to Class C3 while permitting Saga to downgrade KIOA(FM) to Class C-zero,
then the parties agree to cooperate with each other to file a joint
counterproposal by the Comment Date (if the New Rules are in effect at that
time) proposing to downgrade KIOA(FM) to Class C-zero instead of Class Cl. If
the New Rules go into effect after the Comment Date, and the Commission has
acted on the NPRM, Triathlon agrees not to oppose any application filed by Saga
to upgrade KIOA(FM) to Class "C-zero" so long as the upgrade does not preclude
Triathlon from obtaining a construction permit for Class C3 facilities for
KTNP.
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WHEREFORE, the parties hereto have agreed as herein stated, on the
date first above written.
TRIATHLON BROADCASTING,
OF OMAHA, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------
Xxxxxx Xxxxx
President
SAGA COMMUNICATIONS
OF IOWA, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
President
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