You are on page 1of 25

Sponsorship Agreement

By and between
COCA-COLA BOTTLING COMPANY OF THE SOUTHWEST
And
TEXAS A&M UNIVERSITY-CORPUS CHRISTI

This Sponsorship & Exclusive Rights Agreement (this "Agreement"), which


takes effect on February 16,2005, is made by and between Coca-Cola Bottling
Company of the Southwest, a Delaware corporation (the "Company") and Texas
A&M University-Corpus Christi ("TAMU-CC"), a member of the Texas A&M
University System, an agency of the State of Texas.

1. SCOPE
Company will be the exclusive Beverage sponsor of TAMU-CC, with
Campus-wide Beverage availability rights, and on and off-Campus marketing
rights, on the terms and conditions and subject to the limitations and
exceptions described below. Company will have the exclusive Beverage
rights on Campus.

2. DEFINITIONS

2.1 "Agreement Year" means each twelve-month period beginning with the
first day of the Term (as defined herein) of this Agreement, and each
anniversary there after.

2.2 "Approved Cups" means disposable cups (21 oz., 32 oz., and 44 oz.,
minimum sizes) approved by Company. A rendering of Company's
current Approved Cup is attached hereto as Exhibit A.

2.3 "Beverages" means all non-alcoholic beverages of any kind, excluding


milk & flavored milk, fresh brewed hot coffee, fresh brewed hot tea, tap
water, juices fresh squeezed on the Campus.

2.4 "Campus" means the entire premises of TAMU-CC campus located in


Corpus Christi, Nueces County, Texas, including without limitation, all
existing and future buildings and facilities owned or operated by the
University during the Term, grounds, athletic facilities, dining facilities,
cafeterias, all branded or unbranded food service outlets, vending and
concession areas, athletic facilities, auditoriums, theatres, housing and

Final 2/16/2005
TAMU-CC/Coke Contract
medical facilities, and retail outlets, except as defined in Section 9.,
permitted exceptions.

2.5 "Products" mean Beverages purchased directly from Company or sold


through vending machines owned, stocked and serviced exclusively by
Company.

2.6 "Competitive Product" means any Beverage that is not a Product.

2.7 "Marks" means - any trademark, trade name, service mark, design, logo,
slogan, symbol, mascot, character, identification, or other proprietary
design now or in the future owned, licensed, or otherwise controlled by
TAMU-CC.

2.8 "Team" means any intercollegiate athletic team associated with TAMU-
CC.

3. SPONSORSHIP AND TRADEMARK FUGHTS


Subject to the Permitted Exceptions set forth in Section 9, University grants
Company the following sponsorship and trademark rights:

3.1 General Sponsorship Designation. Company may promote the fact that
Company is a sponsor of TAMU-CC and that Products are available on
Campus. This promotion may occur in advertising (including television,
radio, print and all other media), on packaging, and at the point of sale of
any Beverages. For example, Company may refer to itself in any of
Company's marketing, advertising or promotional materials as "sponsor"
of TAMU-CC, and refer to any Beverage in any of Company's
marketing, advertising or promotional materials as the "official" or
"exclusive" Beverage of TAMU-CC, the Campus and the Athletic Teams.

3.2 License to Use the Marks

(A) Grant of License. Subject to TAMU-CC's approval rights in 10.2,


TAMU-CC grants Company a license to use the Marks throughout the
United States--on a royalty-free basis-for the purposes of
promoting Company Beverages. The license gives Company the right
to use the Marks in or on all of Company's advertising, promotional
and packaging materials and activities, which include-for all
purposes bottles, canlbottle wraps and all other forms of packaging;
broadcast, print, electronic and all other forms of media; and
merchandise. No party will obtain, by this Agreement, any right, title,
or interest in the trademarks of the other party.

(B) Use with Customers. Subject to TAMU-CC's approval rights in


10.2, the license also gives Company the right to use the Marks in

Final 211612005
TAMU-CClCoke Contract
joint advertising and promotions with Company's customers and to
display the Marks with its customers' trademarks, logos and branded
products in or on all advertising, promotional and packaging materials
and activities, so long as they appear with Company's trademark and
the customer is not depicted as a sponsor of TAMU-CC. TAMU-CC
acknowledges that Company's customers operate in all channels of
trade. Because they are included in the Sponsorship Fees, no separate
royalty or license fee will be charged to Company or its customers for
using the Marks in this manner. Any use by Company of Marks in
association with Company customers does not convey rights of use of
any marks to Company customers. While Company's use of the
TAMU-CC will be royalty-free, Company's producing the Mark on
promotional items will be solely at Company's expense.

4. BEVERAGE RIGHTS
Subject to the Permitted Exceptions set forth in Section 9, TAMU-CC grants
Company the following Beverage availability rights and Beverage
merchandising rights:

4.1 Beverage Availability. TAMU-CC agrees that Products shall be the


exclusive Beverages other than permitted exceptions in section 9, sold,
distributed, sampled, dispensed, served, advertised or promoted
anywhere, at anytime on the Campus and in connection with TAMU-CC.
All Beverages sold, dispensed or served on campus must be purchased
directly from Company and subject to the provisions found in section
6.3(A).

4.2 Vending Availability. TAMU-CC hereby grants to Company the


exclusive Beverage vending rights on the Campus. Company shall have
the right to place beverage vending machines in mutually agreed upon
locations on campus. Additional Beverage vending machines will be
placed, relocated, or moved following surveys conducted by Company
and/or TAMU-CC with mutual agreement between Company and
TAMU-CC. Beverage vending machines that are a fire safety or present
an access limitation will be moved or removed within 48 hours notice to
the company.

4.3 Beverage Merchandising. Company has the right to merchandise


Beverages on Campus, including the following specific rights:

(A) Point-of-Sale Advertising. Materials promoting Beverages at the


point of sale must be clearly visible to the purchasing public and must
be displayed in a manner and location mutually acceptable to
Company and TAMU-CC.

Final 211612005
TAMU-CClCoke Contract
(B) Concession and Menu board Advertising. Trademarks of Products
must be prominently listed on the menu boards of all food and
refreshment outlets owned by TAMU-CC. If TAMU-CC's menu
boards have photo translates (which will be provided at Company's
expense), TAMU-CC will ensure that advertising provided by
Company and depicting Products appears in at least one translate in
each menu board.

5. PROMOTIONAL AND ADVERTISING RIGHTS


Subject to the Permitted Exceptions set forth in Section 9, TAMU-CC grants
Company the following promotional and advertising rights:

5.1 Promotional Rights. TAMU-CC grants Company the right to promote


Beverages with respect to TAMU-CC, the Campus and the Marks.

(A) Approval. Prior to Company commencing any promotional


endeavors on the Campus or at TAMU-CC Athletic events, TAMU-
CC must have approved the general scope and context of the
promotion, including the use of TAMU-CC's Mark, such approval not
to be unreasonably withheld. Company agrees to submit the request
for approval no less than twenty-one (21) calendar days before the
start of such promotional event. If TAMU-CC has not issued an
objection to Company's request within ten (10) calendar days of
TAMU-CC's receipt of the request, the request will be deemed
approved by TAMU-CC.

(B) General. Subject to TAMU-CC's approval rights in 10.2, Company


may engage in promotional activities in order to establish and
promote Company's sponsorship association with TAMU-CC, the
Campus, the Athletic Teams and the Marks. These promotional
activities may include, for example, offaing commemorative bottles
or cans or souvenir cups with Marks, for sale at retail outlets on or
off-Campus.

(C) Activities with Customers. These promotional activities may be


conducted jointly with Company's customers, who may be identified
in or on advertising, promotional and packaging materials with their
respective trademarks, logos, and branded products, as well as
generally identified as participants in the promotion, so long as
Company's trademarks are included and the customer is not depicted
as a sponsor of TAMU-CC.

5.2 Consumer Surveys. With TAMU-CC's prior approval as to location and


time, Company may - at Company's expense - conduct on-Campus
consumer surveys relating to Beverages and advertising. TAMU-CC will
not unreasonably withhold its consent.

Final 2/16/2005
TAMU-CCICoke Contract
6. BEVERAGE PRICING

6.1 Prices to TAMU-CC for Vending and other Retail. See Exhibit B-1
for Vending and B-2 for other Retail.

6.2 Prices to Concessionaire. After expiration of Agreement Year One,


Company may adjust the concessionaire prices if:

(A) Company has experienced substantial, unforeseen increases in the


cost of a major component of the Company's beverages (e.g.,
ingredients, packaging); and lor

Company has given TAMU-CC a minimum of thirty (30) calendar


day's written notice, and has demonstrated to TAMU-CC's
satisfaction that the new, adjusted price is competitive with the prices
Company is charging other similar situated Company's customers at
the time. Due to increased costs of raw materials, aluminum, sugar
and the cost to do business, company will notify TAMU-CC of all
price increases within (30) calendar day's.

6.3 Pricing Limitation to Concessionaire

(A) Company will negotiate prices for beverages with concessionaire at


the same or lower price than the concessionaire pays for product f?om
other sources. If the company cannot provide the product for the
same price, the concessionaire will have the right to purchase
beverages f?om any source provided they are approved beverages.
Cups and lids may be purchased from the company but are not
required under this agreement.

7. EQUIPMENT

7.1 Company will loan, at no cost, the Beverage dispensing equipment,


including without limitation, vending machines, that is determined by
Company to be reasonably necessary to dispense Beverages on Campus
("Equipment"). TAMU-CC will be responsible for the cost of all
necessary electricity, plumbing and related construction costs.

Company agrees to purchase and install card readers on the Beverage


vending machines placed on the Campus for use of TAMU-CC's
"SandDollat" cardholder program. In Agreement Year One, Company
agrees that no less than 25% of the Beverage vending machines placed on
the Campus will be equipped with card readers. In Agreement Year Two,
no less thank 60% of the Beverage vending machines placed on the
Campus will be equipped with card readers. In Agreement Year Three,

Final 211612005
TAMU-CCICoke Contract
no less than 75% of the Beverage vending machines placed on the
Campus will be equipped with card readers. TAMU-CC will be
responsible for the purchase, installation, maintenance and service of any
software, technology and peripherals necessary for the debit card readers.

7.2 TAMU-CC's Equipment Obligations. With respect to the equipment


described in this section, TAMU-CC will:

(A)Upon the Company's request, execute UCC financing statements or


other documents evidencing proper ownership of the equipment;

(B) refiain fiom encumbering the equipment or permit any attachment to


it, unless authorized to do so by Company.

7.3 Sewice. Company will provide TAMU-CC with fiee mechanical


service for the Equipment. Upon notification, Company will repair the
equipment within forty-eight (48) hours. If equipment cannot be
repaired, the Company will replace the equipment within fourteen (14)
days of determining malfunction. Such mechanical service will be
available seven (7) days per week, twenty-four (24) hours per day.
Company will be responsible for selecting Beverages for vending,
stocking its vending machines, collecting proceeds fiom vending sales
and paying commissions. Company will be responsible each month for
reimbursing TAMU-CC for malfunctioning equipment to compensate
TAMU-CC for amounts paid to customers. Company will keep its
vending machines neat, sanitary and in good working order, and will clear
the immediate areas of vending related debris whenever onsite to stock or
repair the machines. Repairs will be made during Company's normal
business hours. TAMU-CC will provide Company authorization as
required to permit Company's vehicles to operate and park on Campus, at
no additional charge. Company's vehicles will comply with safety and
parking regulations while on Campus.

7.4 Limitation. The Company will use good faith efforts to maintain all
equipment on campus with stock of beverages. Upon six (6) months
execution of the agreement, the company will provide TAMU-CC with a
stocking schedule, which illustrates the approximate lapse of time
between stocking of each COKE serviced vending machine on Campus.
The Company agrees to modify the stocking schedule to fulfill increased
demand and to prevent "product sold out". Additionally, if TAMU-CC
ascertains that certain machinesllocations show a pattern of repeatedly
being sold out, TAMU-CC will notify the company to increase the
stocking of such machinesllocations, andlor to increase the number of
vending machines on Campus.

Final 211612005
TAMU-CCICoke Contract
8. FEES AND OTHER PAYMENTS

8.1 Annual Fees. In exchange for the rights granted under this Agreement,
Company agrees to pay TAMU-CC and aggregate of Two Hundred
Thousand Dollars ($200,000) for the entire Term (the "Annual Fees").
The Annual Fees will pay in five (5) equal annual installment amounts of
Forty Thousand Dollars ($40,000) each. The first installment of Annual
Fees will be paid within thirty (30) days of the date that this Agreement is
fully executed. TAMU-CC will allow Company to make two (2) initial
installments in year one. The first installment of $10,000 is to be paid
within thirty (30) days of the execution of this contract. The second
installment of $30,000 is to be paid within sixty (60) days. The
installment payments for Agreement Years Two through Five will be paid
on or before September 30 of each of the Agreements Years Two through
Five. TAMU-CC will provide and invoice to Company at least thirty (30)
days prior to the due date for payments for Agreement Years Two
through Five.

8.2 Product Donations. Company agrees to provide TAMU-CC with


complimentary Products of Company's choosing, with an approximate
aggregate price in Exhibit B (2), value of Ten Thousand Dollars
($10,000) over the Term of the Agreement (the "Product Donation',).
Such Product Donations will be delivered to either to the Campus on an
alternative site designated by TAMU-CC, also delivered by dates
determined by TAMU-CC and agreed to by Company.

8.3 Commissions. For the right to place and maintain Beverage vending
machines on the Campus, TAMU-CC shall earn commissions on full-
service vending sales as follows. No Commissions shall be payable on
any sales from vending machines on the Campus, which are not owned,
stocked or serviced exclusively by Company

(A) TAMU-CC shall earn commissions for Beverages sold through


Company's full-service vending machines on Campus based upon the
rates and initial vend prices listed in Exhibit B (the "Actual
Commissions").

(B) Company will pay TAMU-C incentive commissions for each


standard physical case of Products sold through Company's full-
service Beverage vending machines on the Campus in excess of the
Minimum Volume (as defined hereinafter) during each Agreement
Year (the "Incentive Commissions"). If TAMU-C's full-service
Beverage vending sales exceed the Minimum Volume during any
Agreement Year, Company shall pay to TAMU-CC the Incentive
Commissions as set forth in Exhibit C for each standard physical case

Final 2/16/2005
TAMU-CCICoke Contract
exceeding the Minimum Volume. "Minimum Volume" shall mean
the sales volumes of standard physical cases (24 units) of Products
sold through Company's full service Beverage vending machines on
Campus during and Agreement Year, as indicated in Exhibit C.

(C) Company will supply to TAMU-CC every month of this Agreement,


as well as annually, a report for each vending machine serviced by
Company. The report must specify the number of vends by product
for the month. The total amount collected by product for that month
and the total commission by product for that month.

8.4 Exclusive Consideration. TAMU-CC agrees that the payments and


other consideration described in paragraphs 8.1 through 8.3 and the
commissions earned as described in Exhibit B are the sole consideration
due for the rights granted to Company under this Agreement, and no other
fees or other consideration will be charged.

8.5 Company shall maintain complete and accurate records of all operations
under this Agreement in accordance with accepted industry standards and
shall keep such records for a period of not less than five (5) years after the
termination of this Agreement. TAMU-CC reserves the right to conduct
reasonable audits of operations relating to this Agreement at Company's
place of business with prior written notice during regular business hours.
Additionally, once per Agreement Year, the Office of the State Auditor of
Texas will have the right to audit the Company's accounting records for
the vends on Campus.

8.6 Scholarship. If the annual vending sales for Agreement Year One
exceed the volume specified in the 30% commission structure detailed in
Exhibit C, Company will provide TAMU-CC with Two-Thousand and
no1100ths Dollars ($2,000) to establish a student scholarship h d .

9. PERMITTED EXCEPTIONS

9.1 TAMU-CC shall have the right to make Competitive Products available
to TAMU-CC owned retail outlets on the Campus. This provision shall
not be read to allow advertising and promotional rights for such
Competitive Products, except that trademarks for such Competitive
Products may be displayed on menu boards and/or dispensing equipment.

9.2 TAMU-CC shall have the right to utilize unbranded, generic cups in
dining facilities on the Campus, at the dining facility manager's discretion
for dispensing Products.

Final 211612005
TAMU-CCICoke Contract
10. COOPERATION AND APPROVALS

10.1 General Cooperation. TAMU-CC will cooperate with Company's


activities - on and off-Campus - designed to promote Company's
sponsorship association with TAMU-CC, the Campus, the Teams and the
Marks.

10.2 University Approval Rights.

(A) Promotions. TAMU-CC has the right to approve in advance the


Following:
(1) the concept for any promotional activity with respect to
TAMU-CC; and
(2) any materials that display any Marks.
But Company has the right to use the Designations
"sponsor of' or the "official" or "exclusive" Beverage of
TAMU-CC, the Campus andlor the Teams without
TAMU-CC's prior approval.
(3) Company will not use the TAMU-CC Mark, or allow
a third party to use the Mark, unless TAMU-CC has
approved the design and use. Company will submit its
design request to TAMU-CC. TAMU-CC will respond to
Company's request for approval within thirty (30) calendar
days after receiving the request. If TAMU-CC does not
respond within such thirty (30) calendar days, approval
will be deemed to have occurred. If TAMU-CC does not
approve Company's request for approval, TAMU-CC will
specify the rationale for the non-approval; which may
include (but are not limited to):

Mark is incorrect rendered in a technical sense


(e.g., wrong color);
In TAMU-CC's sole opinion, use of the Mark
as requested by Company would reflect
negatively on TAMU-CC; andor
Company's requested use of the Mark exceeds
the boundaries of the royalty-free license
granted in this Agreement.

TAMU-CC agrees that it is unreasonable to withhold


approval of a submission that includes one of Company's
customers or its Marks, solely because that customer is not
also a sponsor or TAMU-CC or because that customer
operates in a trade channel where TAMU-CC already has an
exclusive sponsor.

Final 211612005
TAMU-CClCoke Contract
11. EXCLUSIVE ASSOCIATION; NO COMPETITIVE BEVERAGES

Each of the rights and licenses granted to Company under this Agreement is
exclusive with respect to Beverages subject to the Permitted Exceptions set
forth in Section 9. To protect this exclusivity, TAMU-CC makes the
covenants listed below. These covenants are essential protecting the
Company's exclusive association with TAMU-CC, the Campus, the Teams
and the Marks. TAMU-CC understands that it is required to take certain
actions - and refiain from certain actions - to comply with these covenants.

11.1 No Competitive Products on Campus. Subject to the Permitted


Exceptions set forth in Section 9. TAMU-CC must ensure that no
Competitive Products are sold, dispense, served, or sampled anywhere on
Campus. But this provision does not apply to Competitive Products
purchased off-Campus by students, faculty or their guests for personal
consumption and not for distribution on Campus.

11.2 No Competing Trademark Visibility. TAMU-CC must not grant


any form of trademark visibility or promotional or advertising rights to
Competitive Products. TAMU-CC must ensure that there is no
association or appearance of an association between TAMU-CC, the
Campus, the Teams or the Marks and Competitive Products.

11.3 No Promotion or Advertising of Competitive Products. TAMU-


CC must ensure that no permanent or temporary advertising, signage, or
trademark visibility for Competitive Products is displayed on Campus.

11.4 No Competitive Use of TAMU-CC Marks. TAMU-CC must not


grant any advertising or promotional rights - including use of the Marks -
to third parties (such as broadcasters) in a way that permits those third
parties to use those rights in association with Competitive Products.

11.5 No Third-Party Beverage Promotions. TAMU-CC must not grant


any third party the right to conduct promotions involving Beverages or
Beverage containers, including promotions that relate primarily to non-
Beverage items but involve a Beverage-on a branded or unbranded
basis-as a purchase requirement or promotional fulfillment. This
provision applies even if the promotion involves a Beverage, unless
Company participates in the promotion.

11.6 Steps to Stop Ambush Marketing. If any third party tries without
Company's consent to associate Competitive Products with TAMU-CC,
the Campus, the Teams, or the Marks-or tries to suggest, by implication
or otherwise, that Competitive Products are so associated-TAMU-CC
will take reasonable steps to stop this "ambush marketing" and protect

Final 2/16/2005
TAMU-CCICoke Contract
Company's exclusive association. These steps may include the
following, as circumstances warrant:

(A) complaining in writing to the violating party and to local


media outlets; Any party learning of ambush marketing will
promptly notify the other party of this activity.

12. REPRESENTATION AND COVENANTS

12.1 By TAMU-CC. TAMU-CC represents and covenants to Company


the following:

(A) Authority. It has full power &d authority to enter into this
Agreement and to grant Company the rights described in it.
) Binding Obligation. It has obtained all necessary approvals
for its execution, delivery, and performance of this
Agreement. It has duly executed and delivered this
Agreement, which is now its binding and legal obligation.
(C) Right to License Marks. It has the exclusive right to license
the Marks to Company.
@) Non-Profit Status. It is a non-profit institution self-operating
a food and beverage service on Campus. All Beverages
purchased hereunder are solely for TAMU-CC's use and will
not be resold or otherwise made available to any third party
who sells or distributes Beverages. TAMU-CC will provide
Company with prompt written notice of any third party
retained by it to manage or operate a beverage service on
Campus.
(E) No Conflicting Agreements.
(1) It has not entered into - and during this Agreement's
Term will not enter into -either of the following:

(a) any agreement that would prevent it kom


complying with this Agreement; or
(b) any agreement granting rights that are in conflict
with the rights granted to Company under this
Agreement.
(2) It will require third parties (possible examples include
concessionaires, third party food-service operators,
vending companies, licensing agents and broadcasters)
to comply with the relevant provisions of the
Agreement.

12.2 By Company. Company represents and covenants to TAMU-CC the


following:

Final 211612005
TAMU-CCICoke Contract
(A) Authority. It has the full power and authority to enter into
this Agreement.
(B) Binding Obligation. It has obtained all necessary approvals
for its execution, delivery, and performance of this
Agreement, this is now its binding legal obligation.
(C) No Conflicting Agreements. It has not entered i n t e a n d
during this Agreement's Term will not enter into - any other
agreement that would prevent it fiom complying with this
Agreement.

13. REMEDIES AND TERMINATION

13.1 Term. This agreement takes effect on February 16,2005, and


expires on February 15,2010. Not to exceed five (5) years.

13.2 Default by Company. If Company fails or refuses to tender to


TAMU-CC any consideration, commission or fee required under this
Agreement, or fails or refuses to comply with the terms of this
Agreement, Agency will be in default of this Agreement.

13.3 Default by TAMU-CC. If TAMU-CC fails or refuses to fulfill any


of its duties under this Agreement, or fails or refuses to comply with the
terms of this Agreement, TAMU-CC will be in default of this Agreement.

13.4 TAMU-CC Termination Rights. In addition to other legal and


equitable remedies, TAMU-CC may terminate this Agreement if any of
the following events occur:

13.5 If Company Doesn't Pay. TAMU-CC may terminate if Company


fails to make any payment to TAMU-CC under this Agreement and this
default continues for forty-five (45) days after Company receives written
notice of the default. But TAMU-CC may not terminate if the payment
failure is due to TAMU-CC's failure to perform, any loss of Company's
rights or a bona fide dispute between the parties.

(A) If Company Breaches. TAMU-CC may terminate if Company


breaches any other material term of this Agreement and Company
fails to cure the breach within forty-five (45) days of receiving
written notice of the breach.

Company's failure to provide and maintain service as described


under Section 7.3 of this Agreement shall be a material breach of
this Agreement and TAMU-CC may terminate this Agreement if
such breach is not corrected by Company within fifteen (15) days
of Company's receipt of written notice of breach.

Final 211612005
TAMU-CClCoke Contract
(B) If Company Becomes Insolvent or Bankrupt.
TAMU-CC may terminate on forty-five (45) days written notice if
Company does any of the following:
(1) becomes unable to pay its liabilities when due;
(2) makes an assignment for the benefit of creditors;
(3) files a voluntary petition in bankruptcy or is adjudicated
bankrupt or insolvent;
(4) has a receiver appointed for any portion of its business or
property; or
(5) has a trustee in bankruptcy or trustee in insolvency
appointed for it under federal or state law.

13.6 Company's Termination Rights. In addition to other legal and


Equitable remedies, Company may terminate this Agreement if any of
the following events occur:

(A) If TAMU-CC Breaches. Company may terminate if TAMU-


CC breaches any material term or condition of this Agreement
and fails to cure the breach within forty-five (45) days of
receiving written notice of the breach.

(B) If TAMU-CC Loses Authority. Company may terminate if


TAMU-CC's authority to convey any of the rights in this
Agreement expires or is revoked, in whole or in part.

(C) If Campus Closes. Company may terminate if a portion of


the Campus is closed other than in connection with regularly
scheduled breaks, and for any reason, even if beyond the
reasonable control of TAMU-CC - for a period of more than
one hundred-twenty (120) consecutive days, and during that
period, sales of Company Beverages on Campus decrease by
more than ten percent (lo%), as compared to sales during the
same period occurring twelve (12) months earlier.

0) If TAMU-CC Becomes Insolvent or Bankrupt. Company


may terminate on forty-five (45) days written notice if
TAMU-CC does any of the following:
(1) becomes unable to pay its liabilities when
due;
(2) makes an assignment for the benefit of
creditors;
(3) files a voluntary petition in bankruptcy or is
adjudicated bankrupt or insolvent;
(4) has a receiver appointed for any portion of its
business or property; or

Final 2/16/2005
TAMU-CCICoke Contract
(5) has a trustee in bankruptcy or trustee in
insolvency appointed for it under federal or
state law.

(E) Written Notice Required. Company must give forty-five


(45) days written notice to TAMU-CC when exercising its
termination rights under 13.2 (B) & (C).

13.7 Repayment of Sponsorship Fees.

Prorated Refund. If this Agreement is terminated for any reason


other than Company's breach, TAMU-CC will refund to Company
any Sponsorship Fees paid and allocable to any period after the date
of termination, or, if beginning earlier, after the date of any breach
hereunder by TAMU-CC. TAMU-CC will not refund any products
provided during the contract prior to termination.

13.8 Company's Additional Remedies. In addition to Company's other


available remedies, Company may seek a reduction of the
Sponsorship Fees - as described in Section 13.5, if:

(A) If Campus Closes. A portion of the Campus is closed-


other than in connection with regularly scheduled breaks,
and for any reason, even if beyond the reasonable control
of TAMU-CC-for a period of more than ninety (90)
consecutive days, and during that period, sales of
Company Beverages on Campus decrease by more than
ten percent (lo%), as compared to sales during the same
period occurring twelve (12) months.

(B) If Rights are Limited. Any of Company's rights is


limited, such as by the breach of Company's exclusivity or
by ambush marketing (see Section 11)

13.9 Fee Reduction. If the circumstances described in Section 13.4 occur,


then TAMU-CC and Company will negotiate in good faith for an
appropriate reduction of the remaining Sponsorship Fees payable
under this Agreement (and TAMU-CC will pay Company a r e h d of
any prepaid amounts in excess of the reduced Sponsorship Fees).
This reduction must fairly reflect the decrease in the value of
Company's rights. If TAMU-CC and Company has not agreed on the
amount of this reduction within thirty (30) days of notice by
Company, then Company may immediately terminate the Agreement
on written notice to TAMU-CC.

Final 211612005
TAMU-CCICoke Contract
14. CONFIDENTIALITY
Except as required by applicable law, during the Term, TAMU-CC and its
agents, employees and representatives shall not disclose to any unrelated
third party the financial terms of this Agreement, including pricing and
marketing programs or documents copied pursuant to audit rights of TAMU-
CC under this Agreement, and (b) Company and its agents, employees and
representatives shall not disclose to any unrelated third party any
information maintained as confidential by TAMU-CC. Each party shall
provide the other with prompt written notice of any disclosure of the above
described confidential information that appears to be required by law, so that
such party may assert any exemptions fiom, or defenses to, such disclosures
that may be available.

15. INSURANCE. Each party will maintain sufficient insurance to


Adequately protect the other party's respective interests and in accordance
with good business practices customary in its business. Upon request, each
party will provide proof of the required insurance.

The Texas A&M University System is self-insured for Workers'


Compensation Insurance provided by Chapter 502 of the Texas Labor Code.
Benefits are provided in accordance with the provisions of that law.

The Texas A&M University System is insured under an automobile liability


policy with a bodily injury limit of $250,000 for each person, $500,000 for
each accident and property damage limit of $100,000 each accident for all
owned vehicles.

The liability of the Texas A&M University System for personal injury and
property damage is controlled by the Texas Tort Claims Act, V.T.C.A. Civil
Practice and Remedies Code, Chapter 101, Section 101.201. The limits of
liability are $250,000 for each person, $500,000 for each single occurrence
for bodily injury or death and $100,000 for each single occurrence for injury
to or destruction of property. Following this limited exposure, the System as
a state agency, is protected by the doctrine of sovereign immunity, and as
such, is self insured up to the aforementioned limits.

16. DISPUTE RESOLUTION

"The dispute resolution process provided for in Chapter 2260 of the Government
Code shall be used, as further described herein, by Texas A&M University-Corpus
Christi and to attempt to resolve any claim for breach of contract made by the
contractor:

A claim for breach of this contract that the parties cannot resolve in the ordinary
course of business shall be submitted to the negotiation process provided in Chapter

Final 211612005
TAMU-CCICoke Contract
2260, subchapter Byof the Government Code. To initiate the process, the contractor
shall submit written notice, as required by subchapter Byto the Director of
Purchasing. Said notice shall specifically state that the provisions of Chapter 2260,
subchapter B, are being invoked. A copy of the notice shall also be given to all other
representatives of Texas A&M University-Corpus Christi and the contractor
otherwise entitled to notice under the parties' contract. Compliance by the contractor
with subchapter B is a condition precedent to the filing of a contested case
proceeding under Chapter 2260, subchapter C, of the Government Code.

The contested case process provided in Chapter 2260, subchapter C, of the


Government Code is the contractor's sole and exclusive process for seeking a
remedy for any and all alleged breaches of contract by Texas A&M University-
Corpus Christi if the parties are unable to resolve their disputes under subparagraph
(A) of this paragraph.

Compliance with the contested case process provided in subchapter C is a condition


precedent to seeking consent to sue from the Legislature under Chapter 107 of the
Civil Practices and Remedies Code. Neither the execution of this contract by Texas
A&M University-Corpus Christi nor any other conduct of any representative of
Texas A&M University-Corpus Christi relating to the contract shall be considered a
waiver of sovereign immunity to suit.

The submission, processing and resolution of the contractor's claim is governed by


the published rules adopted, by the Attorney General pursuant to Chapter 2260, as
currently effective, hereafter enacted or subsequently amended.

Neither the occurrence of an event nor the pendency of a claim constitutes grounds
for the suspension of performance by the contractor, in whole or in part.

The designated individual responsible on behalf of Texas A&M University-Corpus


Christi for examining any claim or counterclaim and conducting any negotiations
related thereto as required under $2260.052 of H.B. of the 76thTexas Legislature
shall be Judy Harral, Director of Purchasing.

Final 211612005
TAMU-CClCoke Contract
17. MISCELLANEOUS PROVISIONS

17.1 Entire Agreement, This Agreement and its Exhibits contain all the terms
and conditions agreed on by the parties with respect to this Agreement's
subject matter. This Agreement does not invalidate or amend any other
agreement between TAMU-CC and Company with respect to other subject
matter.

17.2 Modification. This Agreement can be modified or changed only by a


written instrument and signed by both parties.

17.3 Retained Rights. This Agreement does not give any party any interest in
or the right to use the trademarks of another party except as specifically
authorized in this Agreement. Even if use of a party's trademarks is
specifically authorized, the trademarks remain solely that party's property,
and no joint ownership can arise because of the other party's use under this
Agreement. This Agreement does not make any party the agent of another
party, nor does it create any partnership of joint venture between TAMU-CC
and the Company.

17.4 Release, Discharge, or Waiver. A party's release, discharge, or waiver


of any of this Agreement's terms or conditions is effective only if in writing
and signed by that party. A party's specific waiver does not constitute a
waiver by that party of any earlier, concurrent or later breach or default. No
waiver occurs if a party either fails to insist on strict performance of this
Agreement's terms or pays or accepts money under this Agreement with
knowledge of a breach.

17.5 Severability. If any portion of this Agreement is severed-that is, held


indefinite, invalid, or otherwise unenforceable - the rest of this Agreement
continues in full force. But if the severance of a provision affects a party's
rights, the severance does not deprive that party of its available remedies,
including the right to terminate this Agreement.

17.6 Assignment,

1By TAMU-CC. Because this Agreement is for rights unique to


TAMU-CC, TAMU-CC may not assign any of TAMU-CC's rights
or obligations without Company's prior written consent. None of
TAMU-CC's rights or obligations may be assigned by operation of
law without Company's prior written consent. Any assignment
that violates the terms of this provision is void.
(B) By Company. Company may assign all or part of its rights and
obligations under this Agreement.

Final 2/ 16/2005
TAMU-CC/Coke Contract
17.7 Notice. Any notice or other communication under this Agreement must
be in writing and must be sent by registered mail or by an overnight courier
service that provides a confirming receipt. A copy of the notice must be sent
by Fax when the notice is sent by mail or courier. Notice is considered duly
given when it is received by the other party through the mail or delivered by
courier. Unless otherwise designated by the parties, notice must be sent to the
following addresses:

(A) Notice to Company.


Coca-cola Bottling Company of the Southwest
5126 Greenwood Drive
Corpus Christi, Texas 78417
Attention: Division Vice President and General Manager
Fax: (361) 693-4315

With a copy to: Coca-Cola Enterprises, Inc.


2500 Windy Ridge Parkway
Atlanta, Ga. 30339
Attention: General Counsel
Fax: (770) 989-3619

(B) Notice to TAMU-CC.


Texas A&M University-Corpus Christi
6300 Ocean Drive - Unit 5731
Corpus Christi, Texas 78412-5731
Attention: Director of Purchasing
Fax: (361) 825-2772

With a copy to: The Texas A&M University -Corpus Christi


6300 Ocean Drive
Corpus Christi, Texas 78412
Attention: Director of University Sewices
Fax: (361) 825-5925

17.8 Counterparts. This Agreement may be executed in two or more


counterparts.

17.9 Headings. All heading are for reference purposes only and must not
Affect the interpretation of this Agreement. All references to "days" in
this Agreement mean calendar days, unless working days are expressly
stated. All references to "including" mean "including without limitation."

17.10 Exhibits. Exhibits A through C are hlly incorporated into this


Agreement.

Final 211612005
TAMU-CClCoke Contract
17.11 Governing Law. This Agreement is executed and construed under the
Laws of the State of Texas. It is agreed that in the execution of this
Agreement, no party waives any right, privilege, responsibility, immunity
or defense that would otherwise be available to it. Venue in any action
brought hereunder shall be in Nueces County, Texas.

EXECUTED in duplicate originals this 16th day of February, 2005 by


TAMU-CC through its duly appointed officer.

"TAMU-CC"

*fi
TEXAS A&M UNIVERSITY-CQRPUS CHRISTI

BY: Jud H a
h e b t o r o&chasing and HUB Program

R M M E N D APPROVAL:
n

Mrectoi of University Services

"COMPANY"
COCA-COLA ENTERPRISES
SOUTHWEST TEXAS DIVISION

By:
-
Date: 2-18-d

Final 211612005
TAMU-CClCoke Contract
EXHIBIT A

APPROVED CUP GRAPHIC

Final 211612005
TAMU-CCICoke Contract
EXHIBIT B (1)
VENDING COMMISSIONS

PRODUCT COMMISSION RATE INITIAL VEND PRICES

12 oz. cans carbonates 28% $0.65

12 oz. bottles Dasani

20 oz. bottles Dasani

20 oz. bottles carbonated 28% $1.00

20 oz. bottles Minute Maid Fruit Punch 28%

20 oz. bottles Minute Maid Lemonade 28%

20 oz. bottles Minute Maid Refreshments 28% $1.00

20 oz. bottles POWERade 28%

15.2 oz bottles Minute Maid 28%

15.2 bottles Nestea 28% $1.00

Commissions will be based on cash collected (less taxes and government


mandated deposits andor handling fees, if any) fiom full service
Beverage vending sales on the Campus.

Commissions will be paid on a monthly basis, in arrears.

Final 211612005
TAMU-CCICoke Contract
EXHIBIT B (2)
FIRST YEAR PRICING - OTHER RETAILS

Product (Full Service Cases Sold) -


Price -
Units

1202 cans Carbonated $7.10 24

1202 bottles Dasani water $12.00 24

2002 bottles Carbonated $17.00 24

2002 boffles Dasani water $15.00 24

2002 bottles PowerAde $18.50 24

2002 boffles Minute Maid Refresh $17.50 24

4501111Minute Maid Juices $16.50 24

Aramark Pricing reflects Coca-Cola North America National pricing

Final 2/16/2005
TAMU-CC/Coke Contract
EXHIBIT C

INCENTIVE COMMISSIONS

School Year Commission rates paid to TAMU-CC for annual sales


Volumes of standard physical cases sold through Full Service cases

2004-2005 42,923 cases >13,534 cases >14,285 cases

2005-2006 43,957 cases >14,617 cases >15,427 cases

2006-2007 45,073 cases >15,786 cases >16,662 cases

2007-2008 46,279 cases >17,049 cases >17,995 cases

2008-2009 47,528 cases >18,413 cases >19,434 cases

Final 211612005
TAMU-CClCoke Contract
YOUR COMPLETE BEVERAGE SUPPLlER Youth Market Manager
361-6934274 Off ice
El Mercado
-
CARBONATED BEVERAGES
1-10 cases $13.00
11-19cases $11.50 1802 Glass I I 11 Liter Plastic
-
I I
20+ cases $7.10 Classic Coke n Classic Coke
11?oz Cans I I Sprite*
Diet Coke
Classic Coke
Vanilla Coke Dr.Pepper
Diet Vanilla Coke Schweppes Diet Tonic*
CF Classic Coke* - - - - --- Schweppes Club Soda*
? ~, Q ~ , @ ~-....+
....\.
p&-;:
., -- .,* ..,:. .,..*,:: .
,<:~:;:.:.:.':-:',~ s .:~ ~@.jc
I
,,,..-...,.r-. >
.",. .v,,<.., . + >
.,.

'.;,;.3 Schweppes Tonic*


Diet Coke %
. *?
;,$>
:* <*,. ;v>zh*&M% c?%> %-*4; ..,.>,*.><+."b~.
: .7 .:-.<A$ ::x

Diet Coke w l Lemon Classic Coke Nestea Cool


Diet Coke w l Lime Coke C2
CF Diet Coke* Diet Coke
Sprite* Diet Coke w l Lime
Diet Sprite* Diet Coke With Lemon Classic Coke
Dr.Pepper CF Diet Coke* Diet Coke
Cherry Coke Vanilla Coke Sprite
Diet Cherry Coke Diet Vanilla Coke Dr.Pepper
Nestea Cool Sprite* Fanta Orange*
Barq's Root Beer Sprite Remix* Fanta Grape*
Diet Bargs Root Beer* Diet Sprite* Fanta Strawberry*
Tab Dr.Pepper Schweppes Ginger Ale*
Fresca* Cherry Coke
Diet Dr. Pepper Diet Cherry Coke
Fanta Orange* Barq's Root Beer
Fanta Strawberry* MM Lemonade*
Fanta Grape* MM Lemonade Light*
Schweppes Ginger Ale* Fanta Orange*
Red Flash* Fanta Strawberry* Classic Coke
MM Lemonade* Fanta Grape* Diet coke
MM Lemonade Light* Red Flash* Sprite
Vanilla Cherry Dr. Pepper Nestea Cool Dr. Pepper
Dt VanlCherry Dr. Pepper Vanilla /Cherry Dr. Pepper
Diet VanlCherry Dr. Pepper

1602 can

Must meet minimum delivery requirements

COOLER REPAIR (800) 647-2653


SALES DEPARTMENT (800) 647-2653
OPERATOR (361) 6934200

indicates Caffeine Free

SEE NONCARBONATED BEVERAGES ON FOLLOWING PAGE


NON-CARBONATED BEVERAGES
$12.00 -
MINUTE MAID 12 oz Plastic I I
7 - -

I ~POWERADE12 or plastic I
Apple Juice* Lemon Lime*
Orange Juice* Fruit Punch*
Mountain Blast*
)MINUTE MAID 16 or Plastic I I
Apple Juice loo%*
Orange Juice loo%*
Pink Grapefruit* Lemon Lime"
Fruit Punch*
Mountain Blast*

- -
1 '
.@...
: ~ ' i l q @ q $ ~ l ~ ~ s1 q$*?~x<+~~y:f > x
' 8 3 f ;I^S,=;, P i
p ~ ~ ~ s ~ ~ L ~ ; ~ ~ ~ ~ ! 2 k 2; :
: , @
I
Grape*
2002. $15.00 Orange Tropical*
1 Liter $14.50 Mixed Berry*
Fruit Medley*

Berry Kiwi*
Tropical citrus*
Raspberry Lemonade*

Lemonade*
Lemonade Light*

I* Indicates Caffeine Free