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THIS MEMBERSHIP AGREEMENT ("Agreement") is entered into as of this 15th day of
March, 2011 ("Effective Date") by and between the MID-AMERICAN CONFERENCE, INC.,
an Ohio not-for-profit corporation having its principal place of business in Cleveland, Ohio (the
"MAC") and the UNIVERSITY OF MASSACHUSETTS AMHERST ("UMass").
The MAC is a National Collegiate Athletic Association ("NCAA") Division I athletic
conference consisting of full and affiliate members. The MAC sponsors, among other sports,
Football Bowl Subdivision ("FBS") intercollegiate football under the rules and regulations of
NCAA. UMass has an NCAA intercollegiate football program and after execution of this
Agreement shall commence the process of converting such program to FBS status. UMass
desires to become a football-only affiliate member of the MAC, and the MAC and its member
institutions desire that the UMass become a football-only affiliate member of the MAC
("Football Member"), on the terms and subject to the conditions contained in this Agreement.
Accordingly, in consideration of the mutual covenants and agreements set forth below, intending
to be legally bound, the parties agree as follows:
a. UMass shall become a Football Member of the MAC and shall commence play beginning with the 2012 season. It shall be subject to and have the benefit of all of the MAC rules, policies and sport operating codes and procedures relating to football.
b. Subject to any modifications or changes necessitated by the specific terms and conditions of this Agreement, as a Football Member. UMass shall be subject to the MAC Constitution, Bylaws and other governing documents ("Governing Documents"),
C, UMass shall have the right to participate and vote in meetings of the Council of Presidents, the Joint Committee and the Council of Directors of Athletics as provided for in Article V of the MAC Constitution, but such participation shall be limited to football-only related matters and decisions that would increase UMass' financial obligations to the MAC as a Football Member and shall not include full Conference member matters or issues and/or issues pertaining to or impacting any or all other Conference sports.
d. UMass shall playa full MAC schedule of football games beginning with the 2012 football season. Beginning with the 2013 football season, UMass shall be eligible for the MAC Championship and entitled and subject to all other rights, privileges and obligations of a football member of the MAC, including without limitation,
eligibility for MAC television participation, receipt of football-related distributions, and participation in any of the MAC post-season football bowl game tie-ins.
e. UMass shall include MAC football as a principal element of its football marketing, and will use good faith efforts consistent with budget limitations and existing MAC media agreements, to televise in its geographic area its football games.
2. Tenn; Effective Date. Subject to Section 7 hereof, it is the intention of the parties that this Agreement shall be open-ended, with no fixed termination date ("Open Ended Term"), This Agreement shall be deemed to have an effective date of March 15, 2011 ("Effective Date").
3. Initiation Fee; Annual Assessment.
a. Initiation Fee. UMass agrees to pay the MAC the sum of Five Hundred Thousand Dollars ($500,000) (the "Initiation Fee") by wire transfer or delivery of other immediately available funds on or before March 31, 2011. Subject to Section 6 hereof, the Initiation Fee is non-refundable, and UMass shall not he liable for any additional initiation fees if, as otherwise provided for herein, it subsequently joins the MAC for all other sports besides football.
b. Annual Assessment. Commencing in 2012, during each year of this Agreement UMass shall pay to the MAC an annual assessment of One Hundred Thousand Dollars ($100,000) or such other annual assessment amount as is paid by other
MAC football members, plus all other football related fees (except the Bowl assessments for 2012) paid by other MAC football members. Commencing in 2013, UMass shall thereafter also be responsible to pay the Bowl assessment equal to that paid by other MAC football members. As a Football Member UMass shall not be required to pay any other fees or assessments pertaining to any other sport.
4. Basketball Scheduling. UMass agrees that beginning with the 2012-13 academic year, it will contract with other MAC institutions to play two home and two away games in both men's and women's basketball. In consultation with full member institutions and football-only affiliate members, the MAC office will produce a multi-year schedule of game opponents that will allow dates to be scheduled a minimum of one season in advance. Directors of Athletics of the participating institutions will be mutually responsible for scheduling specific game dates/times, providing such information to the Conference office no later than the conclusion of the Conference's annual spring meetings of the season prior to the games being played. If by the conclusion of the spring meeting the participating institutions are unable to agree upon game date(s), the Conference Commissioner shall determine and assign such game date(s).
5. Withdrawal Fee. Subject to Section 7, below, should UMass withdraw from the MAC, such withdrawal shall be subject to the procedures, terms and conditions set forth in the Governing Documents, save and except for the following specific modifications: (i) the withdrawal fee shan be Two Million Five Hundred Thousand Dollars ($2,500,000); (ii) UMass shall provide a minimum of two football seasons prior notice before withdrawal;
and (iii) UMass shall not be entitled to any football-related revenue distribution from the MAC for the season prior to withdrawal.
Notwithstanding the foregoing, if at any time UMass gives Timely Notice to withdraw from the Conference to give effect to a UMass decision either to drop to a lower competitive NCAA football division (e.g., Division I Football Championship Subdivision, Division II, Division III), or NAIA, or to eliminate NCAA intercollegiate competition in the sport of football, or if the MAC drops to a lower competitive NCAA football Division or Subdivision, or NAIA, or drops the sport of football (collectively "Status Change"), then the Conference shall waive its right to any withdrawal fees. "Timely Notice" shall mearr providing notice to the Conference on or before the date required by the NCAA for notification to it by UMass of a Status Change. In the event there is no NCAA notification requirement then UMass shall provide the Conference with notice of Status Change immediately after it makes the determination to drop to a lower competitive division or to eliminate football.
If UMass believes that extraordinary circumstances warrant a waiver of the withdrawal provisions set forth above, UMass may petition the Conference's Council of Presidents for a waiver. UMass may not vote in connection with any decision regarding such a waiver. The Council of Presidents may grant or deny the petition, with or without conditions, as it may determine in its sole discretion.
6. Conditions Precedent to Obligations. As a condition precedent to the performance by either party of their respective obligations under this Agreement, by no later than March 15, 2011, the MAC shall have concluded and executed a football-only affiliate
membership agreement with Temple University ("Temple") on terms and conditions comparable in all material respects to those provided for in this Agreement, except for Initiation Fee. In the event this.condition precedent is not satisfied, the MAC shall refund the Initiation Fee paid by UMass and the parties shall have no further obligations to one another under this Agreement.
7. Notice of Withdrawal of Temple. If Temple executes the membership agreement referred to in Section 6, above, and thereafter provides notice of withdrawal as a member of the MAC, the following terms and conditions shall thereafter apply as between the parties to this Agreement:
a. The MAC shall retain the right to (i) continue the Agreement, (ii) explore obtaining another Football Member and/or (iii) convert the Open Ended Term of this Agreement to a term contract, requiring a two-thirds affirmative vote of the Council of Presidents (with UMass not permitted to vote). In no event, however, shall the initial term be less than two full years.
b. If the MAC converts the contract to a Term Contract as set forth in the preceding paragraph, the MAC must provide an offer of full membership with no additional initiation fee and otherwise on the same terms and conditions as other members.
c. If converted to a Term Contract, UMass shall pay a $500,000 withdrawal fee if it terminates its membership before the first season of the Term Contract or $250,000 if it terminates its membership thereafter. UMass shall pay no
withdrawal fee if it remains as a MAC Football member until the conclusion of the tenn contract determined in accordance with paragraph 7.a., above.
8. Facility hnprovements. By no later than the dates specified therein, UMass agrees that it shall make those improvements to its athletics facilities as are otherwise provided for in Addendum 1 to this Agreement. UMass agrees not to play any football games at its oncampus stadium until the specified facility improvements are completed.
a. No Third Party Beneficiaries. Subject to subparagraph 8.b. below, this Agreement shall not confer any rights or remedies upon any third party.
h. Independent Contractors. The MAC's relationship with UMass under this Agreement will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Except as otherwise expressly set forth in this Agreement, neither party is the agent of the other party nor is either party authorized to make any representation, contract, or commitment on behalf of the other party, except as expressly provided for in the MAC Constitution and Bylaws.
c. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior understandings, agreements or representations by or between the parties, written or oral, to the extent they related in any way to the subject matter ofthe Agreement.
d. Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the parties named 'in this Agreement and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests, or obligations under this Agreement without prior written approval of the other party.
e. Countemarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
f. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way meaning or interpretation of this Agreement.
g. Notices. All notices, requests, demand, claims and other communications under this Agreement will be in writing, as set forth below:
Ifto the MAC:
Mid-American Athletic Conference, Inc. 24 Public Square, 15th Floor
Cleveland, Ohio 44113
Attn: Jon A. Steinbrecher, Commissioner
Walter & Haverfield LLP
1301 East Ninth Street, Suite 3500 Cleveland, Ohio 44114
Attn: James P. Conroy, Esq.
If to UMass:
University of Massachusetts Amherst Office of the Chancellor
374 Whitmore Building
Amherst, MA 01003
Attn: Chancellor Robert C. Holub
University of Massachusetts Amherst 308 Mullins Center
200 Commonwealth Avenue Amherst, MA 01003-9254
Attn: John McCutcheon, Athletic Director
Any party may send any notice request, demand, claim or other communication under this Agreement to the intended recipient at the address set forth above using any of the following means: certified mail with return receipt requested, personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail. No such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands. claims, and other communication under this Agreement are to be delivered by giving the other party notice in the manner set forth in this Agreement.
h. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without application of any Ohio law pertaining to choice oflaw.
i. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or a breach thereof, unless resolved by the parties within 15 business days, shall be settled by final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator, and judgment upon the award rendered may be entered in any court having appropriate jurisdiction. Any such arbitration shall be conducted either in Cincinnati, Ohio (if initiated by UMass) or Boston, Massachusetts (if initiated by the MAC). Each party shall be responsible for its own attorney's fees and expenses related to the arbitration.
j. Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same amendment shall be in writing and signed by the MAC and UMass. No waiver by any party of any covenant under this Agreement, whether intentional or not, shall be deemed to extend to any prior or subsequent covenant under this Agreement or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
k. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the
validity or enforceability of the offending term or provision in any other situation or in any jurisdiction.
1. Expenses. Each of the MAC and UMass will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement.
m. Construction. The MAC and UMass have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the MAC and UMass and no presumption or burden of proof shall arise favoring or disfavoring either the MAC or UMass by virtue of authorship of any of the provisions of this Agreement.
n. Authority. The MAC and UMass each represents and warrants that it has obtained all necessary authorizations and approvals to enter into and perform this Agreement, and that the undersigned individual has requisite authority to bind the respective party to the tenus of this Agreement.
o. Conflict with Governing Documents. Should any term or condition of this Revised Agreement conflict with or otherwise alter any of the Governing Documents, the terms and conditions of this Revised Agreement shall apply.
[SIGNATURES ON FOLLOWING PAGE]
ADDENDUMl Facility Related Conditions
UMass agrees to on-campus stadium improvements to include a new end zone facility, a new andlor renovated press box, and a renovated visiting team locker room. The press box shall be built andlor renovated such that it is sufficient to allow for the operation, presentation and conduct of games consistent with the usual, customary and required standards of the NCAA for Football Bowl Championship member institutions, including:
• Adequate technological access and capabilities, seating and working spaces, and hospitality area for print and electronic media (radio, television and internet streaming).
• Adequate and appropriate space and technological capabilities for home and visiting coaches.
• Adequate spac~ and technological capabilities for video replay officials.
• Adequate technology and space for an event management control center, including but not limited to: scoreboard and clock operation, public address system, facility and event security, and other required event management functions and staff.
• Video recording areas with adequate technological capabilities for home and visiting videographers.
• Dedicated area for use by home and visitors Sports Information Directors (SID), including photocopy, facsimile, such other reasonable equipment, and adequate technological capabilities, as are normally required for a SID.
• Private hospitality boxes for home and visiting institutions' executive administration and their guests.
Subject to satisfaction of the above specific requirements for inclusion in the press box construction andlor renovation, UMass shall be responsible for all decisions concerning the design, scope and expense of the stadium improvements. However, UMass shall provide the Commissioner of the MAC with regular reports concerning the progress of the stadium improvements.
UMass shall not play any MAC Conference games on-campus until the stadium improvements are completed. Games prior to the completion of these improvements shall be played at Gillette Stadium, Foxboro, MA.
IN WI1NESS WHEREOF, the undersigned have executed this Membership Agreement
as of the date first above written.
UNIVERSITY OF MASSACHUSETTS