facility naming and sponsorship agreementcovered, ordigitally manipulated in visual images without...

FACILITY NAMINGAND

SPONSORSHIP AGREEMENT

This Facility Naming Agreement (“Agreement”) is entered into this . day of ___________________

_______ between SAS Institute Inc., a North Carolina corporation with offices located at SASCampus Drive, Cary, North Carolina 27513 (“SAS”) and the Town of Cary with offices located at316 N. Academy Street, Cary, North Carolina 27513 (“Town”).

WHEREAS, the Town has entered into an agreement with Wake County, North Carolina tomanage the soccer park located at 201 Soccer Park Drive, Cary, North Carolina 27511 (the“Facility”); and

WHEREAS, the Facility will be utilized by local, regional, state, national and international soccer

teams, both amateur and professional, among other uses; and

WHEREAS, SAS desires to sponsor the Facility in return for certain benefits as set forth below;

NOW, THEREFORE, in consideration of the mutual promises and conditions set forth herein,and for other good and valuable consideration, the receipt and sufficiency of which are herebyacknowledged, the Town and SAS hereby agree as follows:

1. RECITALS. The recitals set forth above are hereby incorporated into this Agreement.

2. TERM AND TERMINATION.

2.1 The term of this Agreement shall commence as of the date first above writtenand, unless sooner terminated in accordance with this Agreement, shall continue until June 30,2007.

2.2 Provided SAS is not in default hereunder, SAS shall have the option to extendthe term of this Agreement for an additional three (3) years at a mutually agreed upon yearlyinvestment. SAS can exercise its option by providing written notice to Town of SAS’ intent torenew by no later than September 1, 2006.

2.3 SAS shall have the right to terminate this Agreement upon 30 days written noticeto Town in the event of the occurrence of any of the following contingencies:

2.3.1 If Town is not using its best efforts to utilize the Facility to its potential andSAS is not receiving the desired brand exposure;

2.3.2 If Town is adjudicated as insolvent, declares bankruptcy or is otherwiseunable to perform its management duties for the Facility; or

2.3.3 Upon material breach of any provision of this Agreement by Town, if suchbreach is not cured within thirty (30) days after Town’s receipt of written notice from SAS.

2.4 Town shall have the right to terminate this Agreement upon written notice to SASin the event of the occurrence of any of the following contingencies:

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2.4.1 If SAS is adjudicated as insolvent, declares bankruptcy or is otherwiseunable to pay its debts when due; or

2.4.2 Upon a material breach of any provision of this Agreement by SAS, ifsuch breach is not cured within thirty (30) days after SAS’ receipt of written notice from Town.

2.5 The provisions of Sections 8, 11, 17, 18, 19, 20, and 2lshall survive expiration ortermination of this Agreement.

3. SAS’ RIGHTS AND BENEFITS.

3.1 Naming Rights.

3.1.1 SAS shall have the exclusive right to retain the Facility name “SASSoccer Park”.

3.1.2 SAS shall have the exclusive right to retain the name of the stadium as“SAS Stadium” (the “Stadium”).

3.1.3 SAS shall have the exclusive right to retain the name of one (1) field atthe Facility (the “Field”) as “Koka Booth Field”.

3.1.4 All references to the Facility, the Stadium and the Field, regardless ofmedia, made by Town will include the names selected by SAS. Such references shall include,but not be limited to, all marketing materials, press releases, other print materials, and radio,web and television broadcasts.

3.2 Town agrees that no sponsorships or other forms of advertisements relating tothe Facility, the Stadium and/or the Field may be offered to third parties in the software andtechnology industry without prior written approval from SAS, which approval shall not beunreasonably withheld. In addition, Town agrees that it will not offer sponsorships or seliadvertising to persons or entities whose business reputation or ongoing business activitiesmight reflect adversely upon the image and reputation of SAS.

3.3 Signage.

3.3.1 Unless otherwise stated herein, Town will maintain the existing signage atno additional costs to SAS. Appropriate lighting will be provided and maintained, at a minimum,for the main entrance sign and the main directory sign.

3.3.2 Town shall use best efforts to maintain a minimum of two (2) directionalsigns for the Facility on major highways. Town shali be responsible for obtaining all approvalsfrom the North Carolina Department of Transportation and other governmental agenciesregarding placement of such signs.

3.3.3 Consistent with Town of Cary ordinances, SAS shall have the right, atSAS’ expense, to place banner signs (the “Banners”) on light poles at the Facility. In the eventSAS elects to place the Banners, SAS shall be responsible for mounting, maintaining, andremoving the Banners when necessary. Town shall be responsible for providing SAS adequatenotice, using best efforts to provide one (1) month notice, but not less than two (2) weeks notice,of the need to remove the banners prior to an event. No use of the banner brackets may be

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made by third parties without SAS’ prior consent, such consent not to be unreasonably withheld.Notwithstanding the foregoing, SAS hereby authorizes use of the brackets by the NationalCollegiate Athletic Association (“NCAA”), Atlantic Coast Conference (“ACC”), and State Gamesof North Carolina so long as no other business entities are identified on the banners beingplaced thereon.

3.3.4 SAS shall have the right, at SAS’ expense, to have at least one (1) flag ofSAS’ design displayed on the concourse flagpoles.

3.3.5 SAS acknowledges that Town may, from time to time, be required toremove temporary signage, such as the Banners and field boards, by certain event promoters;however, Town agrees to use all reasonable efforts to maintain SAS’ right to display thetemporary signage at each event.

3.3.6 Town shall use best efforts to see that permanent signage is not modified,covered, or digitally manipulated in visual images without the prior written approval of SAS.

3.3.7 In the event the Town desires to sell naming rights to any portion(s) of theFacility not covered under this Agreement, e.g. other fields and the cross country course, SASshall have the right of first refusal to such naming rights at the most favorable rates and termsbeing offered by the Town to any prospective purchaser of such rights. Town shall providewritten notice to SAS of the naming right, rate and term being offered. SAS shall have a periodof two weeks within which to exercise its right of first refusal to such right, rate and term. In theevent SAS declines such offer, or in the event SAS fails to respond within such two week periodof time, then Town shall be free to enter into a naming right agreement with a third party. Ineach event that SAS exercises such right, SAS shall have final approval of the design of anysigns relating thereto, provided such signs are in compliance with Town ordinances andstandards for Facility.

3.4 Luxury Box.

3.4.1 SAS shall have exclusive use of one (1) Luxury Box designated by SAS,at all times. SAS shall be responsible for maintenance and upkeep of all furnishings in suchLuxury Box.

3.4.2 Any use of the Luxury Box by the Town is subject to SAS’ prior approval,which approval shall not be unreasonably withheld. The Town shall provide SAS with not lessthan one (1) week notice of any request to use said Luxury Box.

3.5 Admission, Parking Passes.

3.5.1 Town shall provide SAS with the following to ticketed events at the

stadium for which the Town controls the ticketing process:

(i) Adequate admission passes for attendees utilizing the SAS

Luxury Box;

(ii) Fifty (50) Category I (premier seating) admission passes;

(iii) Thirty-five (35) General Parking passes; and

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(iv) Fifteen (15) VIP Parking passes.

3.5.2 If SAS does not intend to utilize its Category I admission passes andrelated parking passes, it will, upon request from Town, give Town the option of using suchpasses for its own purposes as it sees fit, including the ability to sell them to the general public.

3.5.3 In any event for which Town does not control sale and/or distribution ofthe admission passes and parking passes, Town shall use reasonable efforts to obtain fifty (50)Category I admission passes and related parking passes, but “reasonable efforts” shall notinclude having to purchase said passes. In such event, Town shall, however, at SAS’ request,use best efforts to reserve the fifty (50) Category I admission passes and related parking passesfor SAS employees to purchase up to 30 days prior to the respective event. Notwithstandingthe foregoing, for all stadium ticketed events, Town must provide the admission passes and VIPParking passes to a Luxury Box designated by SAS at no cost to SAS.

3.6 Use of Facility. SAS shall have the right, subject to the provisions of this Section,to utilize the Facility and/or Stadium for company events. SAS shall provide Town of not lessthan thirty (30) days notice of any such request to utilize the Facility and/or Stadium. Suchusage shall be on dates mutually agreed upon by the parties based on Facility availability. SASshall reimburse the Town for any related costs incurred by the Town associated with companyevents (i.e., set up, security, supervision, clean up, etc.).

3.7 Additional Sponsorship Opportunities. In the event any professional sports teamenters into an agreement with Town for use of the Facility as its primary home venue, Townshall use best efforts to provide an opportunity for SAS to enter into a sponsorship with suchteam(s).

3.8 Advisory Board. In the event an Advisory Board is created with regard to use ofthe Facility by the Town of Cary, SAS shall have the option, in its sole discretion, to place atleast one (1) member on such Advisory Board.

4. PAYMENTS. SAS shall, on or before thirty (30) days following the date of thisagreement, pay to Town the amount of One Hundred Fifty Thousand and No/100 Dollars($150,000.00). In addition, SAS shall pay to Town the amount of One Hundred Fifty Thousandand No/I 00 Dollars ($150,000.00) on or before July 31, 2005 and on or before July 31, 2006.

5. INTELLECTUAL PROPERTY.

5.1 SAS grants Town the right to use its trademarks, trade names and servicesmarks, including SAS’ logo (“SAS Marks”) solely in connection with the identification of theFacility, Stadium and Field. Town acknowledges that its use of SAS Marks shall inure to thesole benefit of SAS and shall not create any right, title or interest in same in favor of Town.Town agrees to comply with SAS’ guidelines as may be provided to Town from time to timeconcerning use of SAS Marks. SAS reserves the right to prohibit the use of SAS Marks, or tomodify any materials depicting SAS Marks, if in its sole judgment such use may be illegal,misleading or inappropriate.

5.2 Town grants SAS the right to use the Facility, Stadium and Field names andimages for marketing purposes, in any media, subject to prior and timely review by the Town.Such review is intended to help ensure accuracy and coordination of marketing and publicrelations efforts between SAS and the Town related to the Facility.

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5.3 Town grants SAS the right to use the Town of Cary seal (logo), which is aregistered mark with the North Carolina Secretary of State’s office, solely in connection with theidentification of the Facility, Stadium and Field. SAS acknowledges that its use of the Town ofCary’s seal (logo) shall inure to the sole benefit of the Town of Cary and shall not create anyright, title or interest in same in favor of SAS. SAS agrees to comply with the Town of Cary’sguidelines as may be provided to SAS from time to time concerning use of the Town of Caryseal (logo). The Town of Cary reserves the right to prohibit the use of its seal (logo), or tomodify any materials depicting its seal, if in its sole judgment such use may be illegal,misleading or inappropriate.

5.4 Each party shall provide a single point of contact for any approvals requiredunder this Agreement (“Approval Coordinator”), as named below:

For the Towri:~ William DavisP.O. Box 8005Cary, NC 27512-8005

c~jq — L)~~. ~-/~L,/ (Telephone)_________________________(Fax)

• ct ~-~~u-n ~ (Email)

For SAS: Toni RichMarketing Operations Specialist100 SAS Campus DriveCary, NC [email protected]

Either party may change their Approval Coordinators upon written notice to the other party inaccordance with this Agreement.

6. MAINTENANCE OF FACILITY, NON-DISCRIMINATION.

6.1 Town shall maintain the Facility in good and safe condition.

6.2 Town shall ensure that in no event shall usage of the Facility discriminate on thebasis of race, sex, religion or national origin.

7. INSURANCE REQUIREMENTS, RELEASES REQUIRED.

7.1 Town agrees to secure and maintain in force and effect throughout the term ofthis Agreement insurance coverage for all facilities and equipment located at the Facilityconsistent with that maintained by the Town of Cary at all other municipal locations. Suchcoverage should include, at a minimum the following:

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7.1.1 Statutory workers’ compensation in accordance with the laws of tilhe statewhere such compensation would be payable. Employers’ liability (Coverage B) with limhits of notless than $100,000 per accident.

7.1.2 Comprehensive General Liability Insurance, including products3 liability,completed operations liability, blanket contractual liability, broad form property damaage andbodily injury liability insurance, with limits of at least $2,000,000 for each occurreance andcombined single limit.

7.1.3 Umbrella Liability Insurance for a limit of not less than $5,000j000 peroccurrence and policy aggregate limit.

7.1.4 Commercial Property Insurance on the Facility with a limit of no leess than$3,500,000.

7.2 The Town shall deliver to SAS Certificates of Insurance evidencing the e~xistenceof the insurance required above no later than thirty (30) days following the final executioon of thisAgreement. Such Certificates shall provide for the giving to SAS of thirty (30) days prioor writtennotice of cancellation.

7.3 The Town agrees that it will use best efforts to require all credentials of aany kindused for admission to events at the Facility and/or Stadium to include the follo~iwingorsubstantially similar language:

The holder of this ticket assumes all risk and danger incidental to the game or5f soccerand releases the SAS Soccer Park, its sponsors, and host organizations and al/Il agentsthereof from any and all liabilities resulting from your attendance at this evennt. Youagree to abide by all rules and regulations established for the SAS Soccer Parkk, and aviolation of these rules and regulations can be cause for forfeiture of your tict~ketandremoval from the premises.

7.4 The Town further agrees to use best efforts to obtain signed releases f from allorganizations engaged in activities at the Facility, which release SAS, its parent, subsidiaa,y andaffiliated companies and all agents thereof from any and all liabilities resulting from theirir use ofthe Facility and participation in the activity held at the Facility.

7.5 With regard to any event for which the Town is unable to include the lannguagedescribed in 7.3 above or unable to obtain the releases described in 7.4 above, thee Townagrees to use efforts to provide SAS with notice of same prior to such event.

8. INDEMNITY.

8.1 To the extent permitted by law and up to the amount of its insurance co~werage,the Town agrees to indemnify, defend and hold harmless SAS, its parent, subsidiaary andaffiliated companies and their respective directors, officers, employees, agents, successoors andassigns, from and against any and all claims, damages, liabilities, losses, gove~rnmentproceedings and costs and expenses, including reasonable attorneys’ fees and costs cof suit,arising out of or in connection with (i) the negligent or reckless acts or omissions of the Töown, itsemployees, agents or representatives, or (ii) the Town’s breach of this Agreement.

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8.2 SAS agrees to indemnify, defend and hold harmless the Town, its parent,subsidiary and affiliated companies and their respective directors, officers, employees, agents,successors and assigns, from and against any and all claims, damages, liabilities, losses,government proceedings and costs and expenses, including reasonable attorneys’ fees andcosts of suit, arising out of or in connection with (i) the use of the SAS Marks or (ii) SAS’ breachof this Agreement.

8.3 Each party shall promptly notify the other party of any suit or threat of suit ofwhich that party becomes aware which may give rise to a right of indemnification pursuant tothis Agreement. The parties agree to cooperate in the settlement or defense of any such claim,demand, suit or proceeding.

8.4 In the event of a breach or threatened breach of this Agreement by the otherparty, the non-breaching party shall be entitled, in addition to any other remedies available to it,to obtain relief by way of injunction or other equitable relief.

8.5 The obligations of this Section 8 shall survive the expiration or termination of thisAgreement.

9. AGREEMENT SUBJECT TO GROUND LEASE AND SUBLEASE / WARRANTIES.Town occupies premises as a proposed assignee of Sub-Lease Agreement between CASLSoccer Properties, LLC and Wake County as set forth in “Interlocal Agreement” between andamong Wake County, and Town of Cary. This Agreement is subject to (1) execution of suchInterlocal Agreement between Town and Wake County, (2) Ground Lease between State ofNorth Carolina and Wake County, Sublease,. and Interlocal Agreement and (3) approval of thisAgreement by Wake County.. The parties hereto agree that, in the event the foregoingrequirements do not take place prior to July 31, 2005, SAS shall be responsible only for theinitial payment of $150,000.00 due upon execution of this Agreement and that, unless otherwiseexpressly agreed in writing by the parties, this Agreement shall terminate and SAS shall haveno further obligations hereunder except as set forth in Section 2.5.. Subject to the foregoing,the parties represent and warrant to each other that they are under no obligation or restrictionwhich would in any way prevent or interfere with their ability to perform their obligations underthis Agreement, and that no other authorizations are necessary to permit the other the full useand enjoyment of its rights granted hereunder.

10. COMPLIANCE WITH LAWS. In the course of their respective performance under thisAgreement, both parties shall comply with all applicable federal, state and local laws andregulations, including, without limitation, laws and regulations pertaining to trademark andcopyrights.

11. NOTICES, STATEMENTS AND PAYMENTS. AU notices, statements and paymentsrequired hereunder shall be sent by fax and overnight mail, or first class mail, or by wiretransfer, as appropriate, to the parties at the following addresses:

SAS Jim DavisSr. Vice President and Chief Marketing OfficerSAS Institute Inc.SAS Campus DriveCary, NC 27513Fax: (919) 677-4444

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With copy to:John G. Boswell, Esq.Vice President and General CounselSAS Institute Inc.SAS Campus DriveCary, NC 27513Fax: (919) 677-8177

Town William Coleman Jr.Town ManagerP.O. Box 8005Gary, NC 27512-8005

With copy to:Benjamin ShivarAssistant Town ManagerP.O. Box 8005Cary, NC 27512-8005

All notices shall be effective upon receipt.

12. WAIVER. The failure of SAS or Town at any time to demand strict performance by theother of any of the terms, covenants or conditions set forth herein, shall not be construed as acontinuing waiver or relinquishment thereof, and either may at any time demand strict andcomplete performance by the other of said terms, covenants and conditions.

13. ASSIGNMENT. Neither Town nor SAS shall have any right to assign or transfer any ofits rights or obligations hereunder without the express prior written consent of the other party.Any unauthorized attempt at assignment shall be void and unenforceable.

14. FURTHER ASSURANCES. Each party shall, upon the request of the other and withoutfurther consideration, execute and deliver to such other parties such documents as may benecessary and proper, and take such other action as may be required, to effectively carry outthis Agreement.

15. INDEPENDENT CONTRACTORS. Both parties shall be independent contractors untoone another. Nothing herein contained shall be construed to constitute the parties hereto aspartners or as joint venturers, or either as agent of the other, and neither shall have power toobligate or bind the other in any manner whatsoever.

16. SIGNIFICANCE OF HEADINGS. Paragraph headings contained hereunder are solelyfor the purpose of aiding in speedy location of subject matter and are not in any sense to begiven weight in the construction of this Agreement. Accordingly, in case of any question withrespect to the construction of this Agreement, it is to be construed as though such paragraphheadings had been omitted.

17. SEVERABiLITY, If this Agreement or any of its provisions is found to be illegal orunenforceable under the law now or hereafter in effect, then the parties shall be excused fromthe performance of such portions of this Agreement as shall be found to be illegal orunenforceable under the applicable laws or regulations, without affecting the validity of theremaining provisions of the Agreement.

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18. FORCE MAJEURE. Neither party shall be liable for any delays, damages or failure toact caused by force majeure or act of God, failure of any governmental or other regulatoryagency or national sport governing body to grant necessary permits or approvals, threat and/oracts of terrorism, or any similar contingency beyond its control (a “Force Majeure Event”), andany failure or delay in the performance of the respective obligations of the parties due to a ForceMajeure Event shall not be deemed a breach of this Agreement.

19. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding betweenSAS and Town relating to the subject matter hereof, and cannot be altered or modified exceptby an agreement in writing signed by both parties. Upon its execution, this Agreement shallsupersede all prior negotiations, understandings and agreements regarding the Facility,Stadium and/or Field, whether oral or written, and such prior agreements shall thereupon be nulland void without further legal effect. Any terms inconsistent with or additional to the terms andconditions set forth in this Agreement which may be included with a purchase order,acknowledgement, invoice or the like, of either party shall not be binding on the other partyhereto. This Agreement may be executed in two (2) or more counterparts, each of which will beconsidered an original, but all of which will constitute one and the same Agreement. The partieshave agreed that faxed signature copies shall be legally binding.

20. GOVERNING LAWS. This Agreement shall be governed by and construed inaccordance with the laws of the State of North Carolina applicable to contracts entered into andwholly to be performed with the State of North Carolina.

21. NO THIRD PARTY BENFICIARIES. Unless otherwise specifically provided herein, noperson or entity who is not a party to this Agreement will have any equitable or other rights byvirtue of this Agreement.

IN WITNESS WHEREOF, the parties have caused their authorized representative to execute

this Agreement as of the date first above written.

SAS Town

Town of Cary

By:L3~ ~

Signaturé

S~V.Rand Chief Marketing Officer /~ SAS InstituteInc. Name and Title

Reviewed and Approved:

County of Wake

Joe Bryan, Chair

Facility Naming 22Apr05.doc/PLB

SAS Ii

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