Exhibit 10.25
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
AMENDED AND RESTATED CONTRIBUTION AGREEMENT dated as of June 2, 1999, by
and among Colorado Technical University, Inc., a Colorado corporation (CTU");
Huron University, L.L.C., a South Dakota limited liability company ("HUI");
Newco, L.L.C., a South Dakota limited liability company (Newco); and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, the sole member of Newco (Member). HUI, Newco and Member are
collectively referred to herein as the HUI Group.
RECITALS
A. CTU is a proprietary provider of career-oriented education to primarily
adult learners. Huron University, founded in 1883, was acquired by CTU in 1996.
Since that time, CTU has significantly improved Huron Universitys faculty and
staff and invested significant funds in upgrading Huron Universitys classrooms
and dormitories, all of which has resulted in increased student enrollment.
B. During this time, however, Member and CTU realized that there were
fundamental differences in the requirements of a campus, such as Colorado
Technical Universitys other three campuses, that serve working adults, and
Huron University that caters to more traditional younger adult students pursuing
degree-based higher education after high school.
C. As a result, Member and CTU have concluded that Colorado Technical
University, Huron University, its students, the City of Huron and the
surrounding region would be best served if Huron University were once again
independently owned and governed and thus better able to pursue its separate
mission.
D. To accomplish this, Member has formed Newco and HUI to own and operate
Huron University and CTU has agreed to contribute the operating assets and
liabilities relating to the business and operations of Huron University (the
Business) and cash to Newco, and Newco has agreed to accept such assets and
cash and assume such liabilities on the terms and conditions set forth herein.
E. Newco will then contribute the Business to HUI in exchange for a 100%
ownership interest in HUI.
F. For United States federal income tax purposes, it is intended that the
transactions contemplated by this Agreement qualify as a non-taxable transfer of
property described in Section 721 of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used herein, the terms below shall have the
following meanings. Any of these terms, unless the context otherwise requires,
may be used in the singular or plural depending upon the reference.
"ACCOUNTS" shall mean all accounts, accounts receivable, other
receivables, contract rights, chattel paper, insurance claims and proceeds
and notes receivable of CTU as of the Closing Date relating exclusively to the
Business.
"ACCREDITATION" shall mean accreditation by the NCA and all
licenses, permits, certifications, approvals, and other governmental and
regulatory authorizations required under all laws, rules and regulations
applicable to or affecting the Business or the Institution, exclusive of
the Certification.
"ASSETS" shall mean all of CTU's right, title and interest in
and to all properties, assets and rights of any kind, whether tangible or
intangible, real or personal, owned by CTU or in which CTU has any interest
whatsoever, which are used primarily in the Business, including without
limitation, the following (except to the extent any of same are specifically
listed as Excluded Assets):
(a) Accounts, refunds or deposits and prepaid expenses relating
exclusively to the Assets, including without limitation, any prepaid insurance
premiums;
(b) all Contract Rights;
(c) all Fixtures and Equipment;
(d) all Inventory;
(e) all Books and Records;
(f) the Insurance Policies to the extent Newco desires
such policies to be assigned;
(g) all Permits;
(h) all Miscellaneous Assets;
(i) all Other Rights;
(j) all Leases;
(k) all goodwill of CTU related to the Business (including all
rights to the name Huron University);
(l) the Huron letter; and
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(m) the Software License, to the extent assignable to Huron without
cost to CTU and to the extent such assignment does not
prohibit CTU from utilizing the software at no cost for the
purpose of obtaining historical information.
"BOOKS AND RECORDS"shall mean all records pertaining to the Assets,
Assumed Liabilities, customers, or suppliers of the Business (but specifically
excluding the corporate minute books, corporate tax returns, stock ledger
and related items) provided that HUI and Newco shall make available to CTU
such Books and Records as CTU shall reasonably require after the Closing in
the event of an audit or similar matter.
"CERTIFICATION" shall mean certification by the U.S. Department
of Education for institutional participation in the programs of student
financial assistance pursuant to Title IV of the Higher Education Act of 1965,
as amended.
"CLOSING DATE" shall be as defined in Section 3.01.
"CODE" shall mean the Internal Revenue Code of 1986, as the same
may be amended from
time to time.
"CONTRACT" shall mean with respect to CTU any of the agreements,
contracts, Leases, HEI Lease, notes, loans, evidences of indebtedness,
purchase orders, letters of credit, franchise agreements, undertakings,
covenants not to compete, employment agreements, licenses, instruments,
obligations, commitments to which CTU is a party and which relate exclusively
to the Business or to which any of the Assets are subject, whether oral
or written, express or implied.
"CONTRACT RIGHTS" shall mean with respect to CTU all of CTU's
rights and obligations under the Contracts.
"ED" shall mean the U.S. Department of Education.
"ENCUMBRANCES" shall mean any claim, lien, pledge, option, charge,
easement, security interest, right-of-way, encumbrance or other right of third
parties, other than (a) liens for taxes and other governmental charges and
assessments which are not yet due and payable and (b) liens of landlords and
liens of carriers, warehousemen, mechanics and materialmen and other like liens
arising in the ordinary course of business for sums not yet due and payable.
"EXCLUDED ASSETS" shall mean the following assets of CTU: (a) all
cash, cash equivalents and bank accounts; (b) all Tax files and returns, minute
books and corporate seals; (c) all assets of CTU of every kind and description,
tangible or intangible, which are not related exclusively to the Business; (d)
all Insurance Policies not assigned to Newco pursuant to this Agreement; (e) all
refunds of any Tax for which CTU is liable pursuant to Section 6.05; and (f)
CTUs employee benefit agreements, plans or arrangements maintained by CTU or
its affiliates on behalf of Persons employed by CTU or its affiliates.
"FIXTURES AND EQUIPMENT" shall mean all of the furniture, fixtures,
furnishings, machinery and equipment, spare parts, supplies, vehicles and other
tangible personal property owned by CTU and used exclusively in the Business.
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"HEI LEASE" shall mean that certain real property lease dated
December 30, 1996, between CTU and Huron Education, Inc.
"HURON LETTER" shall mean all of CTUs rights, to the extent
assignable, under that certain letter dated December 30, 1996, from the City of
Huron to CTU regarding the City of Hurons commitment to contribute funds for
the abatement of asbestos and environmental problems at the Real Property.
"HURON UNIVERSITY" OR "INSTITUTION" shall mean Huron University in
Huron, South Dakota.
"INSURANCE POLICIES" shall mean with respect to CTU the insurance
policies relating to the Assets and that certain key-man life insurance policy
on the life of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"INVENTORY" shall mean all of CTUs inventory and supplies utilized
exclusively in the Business and all other materials utilized exclusively in
connection with the Assets.
"LEASES" shall mean all of the leases of CTU or other agreements or
rights under which CTU is a lessee of, or holds or operates, any machinery,
equipment, vehicle or other tangible personal property owned by a third Person
and used exclusively in the Business.
"MISCELLANEOUS ASSETS" shall mean all employee records relating to
those employees to be employed by Newco or HUI as of the Closing; all accounting
information pertaining to the continued operations of the Business and all media
in which or on which any of the information, knowledge, data or other records
relating to the Assets may be related or stored; all computer software relating
to accounting and operations systems; all office and other supplies; all
warranties, claims and causes of action (and the benefit of any and all
collateral or security given in connection therewith) inuring to the benefit of
CTU relating exclusively to the Assets; and all other assets used exclusively in
connection with the Business not otherwise described in this Agreement of any
character whatsoever, whether personal, tangible or intangible, wherever
located, owned by CTU and related exclusively to the Business.
"NCA" shall mean the North Central Association of Colleges and
Schools.
"OTHER RIGHTS" shall mean all assignable or conveyable rights under
licenses, permits, approvals, qualifications or the like relating directly to
the Business issued or to be issued prior to the Closing by any government or by
any governmental unit, agency, body or instrumentality whether Federal, State,
local, foreign or other.
"PERMITS" shall mean all licenses, permits and other governmental
authorizations necessary to carry on the Business as presently conducted.
"PERSON" means any individuals, partnership, corporation, limited
liability company, business trust, joint stock company, unincorporated
association, joint venture, or other governmental authority or regulatory body.
"QUALIFIED PARTY" shall mean any Person that does not meet the
criteria set forth in 34 C.F.R. 668.15(c).
"REAL PROPERTY" shall mean the real property leased to CTU pursuant
to the HEI Lease.
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"SOFTWARE LICENSE" shall mean CTUs right to use the Solomon
general ledger software.
"SUBSIDIARY" shall mean any Person in which Newco directly or
indirectly owns any equity interest.
"TAX" OR "TAXES" shall mean all federal, state, local, foreign and
other taxes, assessments or other government charges, including, without
limitation, income, estimated income, business, occupation, franchise, property,
sales, transfer, use, employment, commercial rent or withholding taxes,
including interest, penalties and additions in connection therewith.
"TITLE IV PROGRAMS" shall mean the Programs of Student Financial
Assistance in effect under Title IV of the Higher Education Act of 1965, as
amended.
ARTICLE II
CONTRIBUTION OF ASSETS
SECTION 2.01. CONTRIBUTION OF ASSETS; ASSUMPTION OF CERTAIN LIABILITIES.
Upon the terms and subject to the conditions herein set forth, on the Closing
Date:
(a) CTU shall contribute, convey, transfer, assign, and deliver to
Newco, and Newco shall acquire from CTU, the Assets.
(b) Newco shall assume and agree to discharge the following
obligations and liabilities of CTU (the "Assumed Liabilities"):
(i) All liabilities, obligations and commitments of CTU
pursuant to the Contracts of CTU (including unearned tuition
and the obligation to teach), except to the extent a Contract
is not assignable pursuant to this Agreement;
(ii) all liabilities in respect of Taxes of CTU for which
Newco is liable pursuant to Section 6.05;
(iii) all liabilities and obligations related to, associated
with or arising out of the occupancy, operation, use or
control of the Real Property (including, without limitation,
all facilities, improvements, structures and equipment
thereon, surface water thereon or adjacent thereto and soil or
groundwater thereunder) or any conditions whatsoever on, in,
at, under or in the vicinity of such Real Property;
(iv) all Title IV liabilities assessed against Huron
University by ED as a result of CTUs operation of Title IV
Programs, including liabilities arising from financial aid
audits; and
(v) all obligations and liabilities of CTU under all
outstanding indebtedness of CTU relating to the Business,
including indebtedness outstanding under CTUs loan from
Pueblo Bank in the original principal amount of $1.5 million
and CTUs loan from BankOne in the orignial principal amount
of $200,000, and all trade payables of the Business; and
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(vi) all other obligations and liabilities of CTU related to
or arising out of the operation of the Business, whether
arising prior to the Closing Date or otherwise, whether direct
or indirect, known or unknown, absolute or contingent.
SECTION 2.02. EXCLUDED LIABILITIES. Newco shall not assume, or otherwise be
responsible for, any of the following liabilities or obligations of CTU (the
"Excluded Liabilities"):
(i) all liabilities in respect of Taxes for which CTU is
liable pursuant to Section 6.05;
(ii) all liabilities or obligations in respect of Excluded
Assets;
(iii) all intercompany payables and other liabilities or
obligations of the Business to any affiliates of CTU; and
(iv) Title IV liabilities owed by CTU to ED for the
administration of Title IV programs at the Institution in the
periods of 1994 through 1996 for which EIEA America, Inc.
and/or Lansdowne University, Ltd. have established a Letter of
Credit with Farmers and Merchants Bank to reimburse CTU.
SECTION 2.03. ADDITIONAL CAPITAL CONTRIBUTIONS. CTU shall contribute to
Newco as additional capital contributions: (i) Five Hundred Thousand Dollars
($500,000) in cash or bank check at the Closing (the Cash Amount), and (ii)
within forty-five days (45) after the Closing Date, an additional cash amount
(Pre-Paid Cash) equal to the difference between the amount of cash collected
from students of the Business which is unearned as of the Closing Date and the
amount of accounts receivable of the Business related to the term in progress
which have been earned by the Business through the Closing Date (the Cash Amount
and the Pre- Paid Cash being collectively referred to as the Capital
Contribution). CTU and Newco shall cooperate to determine the amount of
Pre-Paid Cash from the Books and Records of CTU. CTU shall receive a credit
against the Capital Contribution otherwise due pursuant to this Section 2.03 for
the full amount paid by CTU as Newco Fees (as defined herein).
SECTION 2.04. CONSIDERATION. Newco shall issue to CTU units of capital of
Newco which will represent 19.9% of the total outstanding limited liability
company interests in Newco on the Closing Date (the LLC Units). The LLC Units
will have a liquidation preference equal to the sum of $3.3 million and the
Capital Contribution, less the amount of assumed liabilities set forth on
Schedule 2.04 (the Liquidation Preference).
SECTION 2.05. ALLOCATION OF CONSIDERATION. At the Closing, the parties
hereto shall allocate the value of the LLC Units among the Assets in accordance
with Schedule 2.05 hereto. The parties hereto shall (a) prepare all required tax
returns and reports in a manner that is consistent with such allocation, (b)
file Internal Revenue Service Form 8594 in such manner, and (c) not voluntarily
take any position inconsistent therewith upon examination of any such tax
return, in any refund claim, in any litigation or otherwise with respect to such
income tax returns.
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ARTICLE III
CLOSING
SECTION 3.01. CLOSING. Upon the terms and subject to the conditions set
forth herein, the closing of the transactions contemplated herein (the
"Closing") shall be held [____________] at 10:00 a.m. local time or such other
day when all of the conditions set forth in Articles VII and VIII are satisfied
(the "Closing Date") at the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ unless
the parties hereto otherwise agree.
SECTION 3.02. DELIVERIES AT CLOSING.
(a) INSTRUMENTS AND POSSESSION. To effect the transfer referred to
in Section 2.01 hereof, CTU shall, on the Closing Date, execute and deliver to
Newco:
(i) assignment documents, in form and substance satisfactory
to Newco,conveying in the aggregate all personal property
included in the Assets; and
(ii) such other instruments as shall be reasonably requested
by Newco to vest in Newco title in and to the Assets in
accordance with the provisions hereof.
(B) ASSUMPTION DOCUMENTS. Upon the terms and subject to the
conditions contained herein, on the Closing Date, Newco shall execute and
deliver to CTU instruments of assumption evidencing Newco's assumption of the
Assumed Liabilities.
(c) LLC CERTIFICATES. On the Closing Date, Newco shall deliver to
CTU a certificate or certificates representing the LLC Units.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CTU
CTU hereby represents and warrants to, and covenants with the HUI Group as
follows:
SECTION 4.01. ORGANIZATION AND CAPITALIZATION. CTU is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation.
SECTION 4.02. POWER AND AUTHORITY. CTU has all requisite corporate power
and authority to own, lease and operate its properties and to conduct its
business as presently conducted and is duly qualified or licensed as a foreign
corporation in good standing in each jurisdiction in which the character of its
properties or the nature of its business activities requires such qualification.
section 4.03. authority for agreement. The Board of Directors of CTU has
approved this Agreement and has authorized the execution and delivery and
performance hereof. CTU has full corporate power, authority and legal right to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement is a legal, valid and binding obligation of CTU,
enforceable against CTU in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights in general.
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SECTION 4.04. NO VIOLATION TO RESULT. Except as set forth on Schedule 4.04,
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby:
(a) are not in violation or breach of, do not conflict with or
constitute a default under, and will not accelerate or permit the acceleration
of the performance required by, any of the terms of the charter documents or
by-laws of CTU or any Contract, note, debt instrument, security agreement or
mortgage, or any other contract or agreement, written or oral, to which CTU is a
party and which affects any of the Assets;
(b) will not be an event which, after notice or lapse of time or
both, will result in any such violation, breach, conflict, default, or
acceleration;
(c) will not result in a violation under any law, judgment, decree,
order, rule, regulation, Permit or other legal requirement of any governmental
authority, court or arbitration tribunal whether federal, state, provincial,
municipal or local (within the U.S. or otherwise) at law or in equity, and
applicable to CTU; and
(d) will not result in the creation or imposition of any new
Encumbrance in favor of any Person upon any of the Assets.
SECTION 4.05. TAXES. CTU has, with respect to the Business, prepared (or
caused to be prepared) and timely and properly filed (or caused to be timely and
properly filed) with the appropriate federal, state, provincial, municipal or
local authorities all tax returns, information returns and other reports
required to be filed and has paid or accrued (or caused to be so paid or
accrued) in full all Taxes, if any, due to, or claimed to be due by, any taxing
authority. With respect to Taxes directly related to the Business, CTU has not
executed or filed with any taxing authority any agreement extending the period
for assessment or collection of such Taxes.
SECTION 4.07. TITLE TO ASSETS. CTU has good and marketable title to each of
the Assets purported to be owned by it, free and clear of any and all
Encumbrances other than those evidenced by the Assumed Liabilities. As of the
Closing Date, CTU will transfer to Newco good and marketable title to such
Assets purported to be owned by it, free and clear of any and all Encumbrances
other than Encumbrances evidenced by the Assumed Liabilities.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE HUI GROUP
HUI, Newco and Member hereby, jointly and severally, represent and warrant
to, and covenant with, CTU as follows:
SECTION 5.01. ORGANIZATION AND CAPITALIZATION OF HUI. Each of HUI and Newco
is a limited liability company duly formed, validly existing and in good
standing under the laws of the state of South Dakota.
Section 5.02. Power and Authority. Each of HUI and Newco has all requisite
power and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as proposed to be conducted and is duly
qualified or licensed as a foreign corporation in good standing in each
jurisdiction in which the character of its properties or the nature of its
business activities requires such qualification.
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SECTION 5.03. AUTHORITY FOR AGREEMENT. The Managers of HUI and Newco have
approved this Agreement and have authorized the execution and delivery and
performance hereof, including Newcos obligation to issue and deliver the LLC
Units. Each of HUI and Newco has full power, authority and legal right to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement is a legal, valid and binding obligation of HUI, Newco and Member
enforceable against each of them in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights in general.
SECTION 5.04. NO VIOLATION TO RESULT. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby:
(a) are not in violation or breach of, do not conflict with or
constitute a default under, and will not accelerate or permit the acceleration
of the performance required by, any of the terms of the articles of organization
or operating agreement of HUI or Newco or any note, debt instrument, security
agreement or mortgage, or any other contract or agreement, written or oral, to
which HUI, Newco or Member is a party or by which HUI, Newco or Member or any of
their respective properties or assets are bound;
(b) will not be an event which, after notice or lapse of time or
both, will result in any such violation, breach, conflict, default, or
acceleration;
(c) will not result in violation under any law, judgment, decree,
order, rule, regulation or other legal requirement of any governmental
authority, court or arbitration tribunal whether federal, state, provincial,
municipal or local (within the U.S. or otherwise) at law or in equity, and
applicable to either HUI, Newco or Member; and
(d) will not result in the creation or imposition of any
Encumbrance in favor of any Person upon any of the properties or assets of HUI
or Newco.
SECTION 5.05. CAPITALIZATION. As of the date hereof, all of the limited
liability company interests in Newco are owned and held, beneficially and of
record, by Member and all of the limited liability company interests in HUI are
owned and held beneficially and of record and at the Closing Date will be owned
and held, beneficially and of record, by Newco. The amount of cash and a
description and statement of the agreed value of the other property or services
contributed by Member and Newco and which Member and Newco have agreed to
contribute to Newco and HUI, respectively, is set forth on SCHEDULE 5.05. Except
as set forth on Schedule 5.05 or otherwise provided in this Agreement, (a) no
subscription, warrant, option, convertible security or other rights (contingent
or otherwise) or commitments of any character to purchase or acquire any limited
liability company interests of Newco or HUI is authorized or outstanding, (b)
neither Newco nor HUI has any obligation (contingent or otherwise) to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any limited liability company interests any
evidences of indebtedness or assets of Newco or HUI, and (c) neither Newco nor
HUI has any obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any of its limited liability company interests or any other
interests therein or to pay any dividend or make any other distribution in
respect thereof. There are no outstanding or authorized equity appreciation,
phantom interests or similar rights with respect to Newco or HUI. All of the
issued and outstanding limited liability company interests of Newco and HUI have
been and will be offered, issued and sold by Newco and HUI
in compliance with applicable federal and state securities laws.
The consummation of the transactions contemplated in this
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agreement will not give rise to any preemptive rights or antidilution rights
exerciseable by any holder of interests of Newco.
SECTION 5.06. LLC UNITS. The LLC Units, when issued and delivered pursuant
to this Agreement will be duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. When issued and delivered pursuant
to this Agreement, CTU will receive good title to such LLC Units, free and clear
of all liens, security interests, pledges, charges, Encumbrances, members
agreements (other than the operating agreement delivered to CTU) and voting
trusts.
SECTION 5.07. SUBSIDIARIES. HUI is the only Subsidiary of Newco. Newco has
good and marketable title to all of the equity interests it purports to own of
HUI, free and clear in each case of any Encumbrance, and all such interests have
been duly issued and are fully paid and nonassessable. There are no outstanding
warrants, options, or other rights or commitments of any character to subscribe
for or purchase from Newco or HUI, or obligating HUI to issue, any additional
equity interests in HUI or any securities convertible into or exchangeable for
such equity interests.
SECTION 5.08. NO PRIOR ACTIVITIES. Neither Newco nor HUI have incurred any
liabilities or obligations, except those incurred in connection with their
organization or with the negotiation and consummation of this Agreement and the
transactions contemplated hereby. Neither Newco nor HUI have engaged in any
business or activities of any type or kind whatsoever, or entered into any
agreements with any Person, and are not subject to or bound by any obligations
or undertakings which are not contemplated by this Agreement or incurred in
connection with their incorporation.
SECTION 5.09. CHARTER AND BYLAWS. A true and complete copy of the articles
of organization and operating agreement of Newco and HUI have been delivered to
CTU.
ARTICLE VI
COVENANTS
SECTION 6.01. ACCESS TO PROPERTIES AND RECORDS. Member acknowledges that,
as President of CTU, he is familiar with the operations of the Business, the
value of the Assets and the status of the Assumed Liabilities and that he is
familiar with the financial condition and operating history of the Business.
Nevertheless, CTU hereby authorizes Member, in his capacity as President of CTU,
to afford to the other officers, employees, attorneys, accountants and other
authorized representatives of Newco, free and full access to all of CTUs
assets, properties, Books and Records, and employees relative to the Business in
order to afford Newco as full an opportunity of review, examination and
investigation as Newco shall desire to make of the affairs of the Business, and
Newco shall be permitted to make extracts from, or take copies of, such Books
and Records or other documentation as may be reasonably necessary; and CTU shall
furnish or cause to be furnished to Newco such reasonable financial and
operating data and other information about the Business, which any of Newco's
respective officers, employees, attorneys, accountants or other authorized
representatives may request; provided Newco and its agents shall not
unreasonably interfere with the operations of the Business.
SECTION 6.02. PUBLIC ANNOUNCEMENTS. Newco and CTU will consult with each
other with respect to any announcement to the public or
any statement to their employees (and students in the case of CTU)
generally concerning or relating to the transactions contemplated hereby.
Prior to the Closing Date neither Newco, HUI nor CTU will
make any announcement to the public without the prior written consent of the
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other, except for announcements which CTU believes to be required by or
advisable under applicable securities laws or stock exchange rules.
SECTION 6.03. TRANSFERRED EMPLOYEES. Effective as of the Closing Date,
Newco or HUI shall offer employment to all employees of the Business who are
employed on the Closing Date, including those who are on short-term disability
leave. CTU shall cooperate with Newco and HUI in the orderly transfer of the
Transferred Employees to Newco or HUI, as applicable. As of 11:59 p.m.
immediately prior to the Closing Date, CTU shall cease all benefit accruals in
any of its employee benefit plans attributed to Transferred Employees. In
administering employee benefit plans for the Transferred Employees after the
Closing Date, Newco or HUI, as applicable will credit each Transferred Employee
solely for vesting and eligibility purposes with all years of service of such
Transferred Employee credited for such purpose with the Business. Without
limiting the generality of the foregoing, no waiting period or exclusion from
coverage of any pre-existing medical condition shall apply to the Transferred
Employees' participation in any employee benefit plan of Newco or HUI, as
applicable, after the Closing Date if such Transferred Employee was a
participant in CTU's benefit plans for at least thirty days prior to the date of
employment of such Transferred Employee by Newco or HUI. The parties hereto
expressly acknowledge that CTU shall not be liable for (i) any claims arising
out of or accruing under any employee benefit plans of HUI or Newco or otherwise
to or in respect of any Transferred Employees terminated by HUI or Newco for any
reason on or after the Closing Date, including without limitation, any severance
benefits or termination payments or (ii) any liability triggered under any
unemployment compensation or other government-mandated benefits relating to the
termination of any Transferred Employee on or after the Closing Date.
SECTION 6.04. SECURITIES LAW COMPLIANCE. The HUI Group hereby jointly and
severally covenant and agree that all issuances and offers of limited liability
company interests or other securities of Newco and HUI have been and will be
conducted in compliance with applicable federal and state securities laws.
Member, Newco and HUI hereby jointly and severally indemnify and hold CTU and
its affiliates and agents harmless from and against any and all liabilities,
losses, damages, claims, costs and expenses arising out of or due to the
issuance of any limited liability company interests or other securities of Newco
or HUI.
SECTION 6.05. TAXES.
(a) CTU shall be liable for and shall pay all Taxes (whether
assessed or unassessed) applicable to the Business or the Assets, in each case
attributable to periods (or portions thereof) ending on or prior to the Closing
Date. Newco or HUI shall pay all Taxes (whether assessed or unassessed)
applicable to the Business or the Assets, in each case attributable to periods
(or portions thereof) beginning after the Closing Date. For purposes of this
Section 6.05(a), any period beginning before and ending after the Closing Date
shall be treated as two partial periods, one ending on the Closing Date and the
other beginning after the Closing Date.
(b) Notwithstanding Section 6.05(a), any Tax (including, without
limitation, a sales Tax, use Tax, real property transfer or gains Tax or
documentary stamp Tax) directly attributable to the sale or transfer of the
Assets shall be paid one-half by CTU and one-half by Newco. CTU and Newco agree
to timely sign and deliver such certificates or forms as may be necessary or
appropriate to establish an exemption from (or otherwise reduce), or make a
report with respect to, such Taxes.
(c) CTU or Newco, as the case may be, shall provide reimbursement
for any Tax paid by one party all or a portion of which
is the responsibility of the other party in accordance with the terms of
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this SECTION 6.05. Within a reasonable time prior to the payment of any said
Tax, the party paying such Tax shall give notice to the other party of the Tax
payable and the portion which is the liability of each party, although failure
to do so will not relieve the other party from its liability hereunder.
SECTION 6.06. CONSENTS OF THIRD PARTIES; GOVERNMENTAL APPROVALS.
(a) Newco, HUI and CTU will use their best efforts to secure,
before the Closing Date, the consent, approval or waiver, from any party to a
Contract, to assign or transfer any such Contract to Newco or HUI or to
otherwise satisfy the conditions set forth in SECTION 7.04 and to obtain the
release of CTU from liability in respect thereof; provided that neither CTU,
Newco, nor HUI shall have any obligation to offer or pay any consideration in
order to obtain any such consents or approvals.
(b) During the period prior to the Closing Date, CTU, Newco and HUI
shall act diligently and reasonably, and shall cooperate with each other and use
their best efforts to secure any consents and approvals of any governmental or
regulatory authority required to be obtained by them in order to assign or
transfer any Permits to Newco or HUI or to permit the consummation of the
transactions contemplated by this Agreement.
SECTION 6.07. RESIGNATION OF MEMBER. Member shall resign, effective as of
the Closing Date, all positions he holds as either an officer or director of CTU
or MDJB, Inc., and shall serve as President of Newco or HUI and Chancellor of
Huron University.
SECTION 6.08. BEST EFFORTS TO OBTAIN CERTIFICATION AND ACCREDITATION. The
parties hereto shall use their best efforts to obtain Certification and
Accreditation for Huron University upon the Closing. In this regard, the parties
hereto shall diligently pursue Certification and Accreditation through prompt,
timely and complete filings of the requisite documents and properly and promptly
responding to inquiries of the ED and the NCA. CTU and the HUI Group shall
provide to the ED and the NCA, and to all state regulatory agencies and
accrediting bodies, all information reasonably required or reasonably requested
by any of such agencies or bodies, and each of CTU and the HUI Group shall use
their best efforts to satisfy promptly all requirements and demands of the ED,
the NCA or any such agency or body requisite to obtaining Certification and
Accreditation, whether absolute or provisional. With respect to the ED, HUI
shall, as soon as practicable after execution of this Agreement but in no event
later than June 1, 1999, submit a Preacquisition Review Application (PRA) to
the ED for a Preacquisition Review of HUI, as applicable. CTU shall cooperate in
the preparation and filing of the PRA and the parties shall jointly use their
best efforts to obtain from the ED the responsive letter described in SECTION
7.06 herein.
SECTION 6.09. BEST EFFORTS. Subject to the terms and conditions provided in
this Agreement, each of the parties shall use its best efforts in good faith to
take or cause to be taken as promptly as practicable all actions that are within
its power to cause to be fulfilled those conditions precedent to its obligations
or the obligations of the other parties to consummate the transactions
contemplated by this Agreement that are dependent upon its actions, including
with respect to the HUI Group, HUI Groups best efforts to cause the condition
set forth in SECTION 8.05 to be satisfied.
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ARTICLE VII
CONDITIONS TO THE HUI GROUP'S OBLIGATIONS
All obligations of the HUI Group under this Agreement are subject to the
fulfillment and satisfaction, prior to or at the time at which the Closing Date
is scheduled to occur, of each of the following conditions precedent, any one or
more of which may be waived by Newco in writing.
SECTION 7.01. REPRESENTATIONS AND WARRANTIES TRUE AT THE CLOSING DATE. At
the Closing Date, the representations and warranties of CTU contained in this
Agreement will be true and correct in all material respects at and as of such
time, and at the Closing Date, CTU shall have delivered to Newco a certificate
to such effect signed by the President of CTU.
SECTION 7.02. CTU'S PERFORMANCE. Each of the obligations of CTU to be
performed on or before the Closing Date pursuant to the terms of this Agreement
shall have been duly performed in all material respects at the Closing Date, and
at the Closing Date, CTU shall have delivered to Newco a certificate to such
effect signed by the President of CTU
SECTION 7.03. OPINION OF CTU'S COUNSEL. Newco shall have been furnished an
opinion or opinions of counsel to CTU, dated the Closing Date, in form
substantially as set forth on Schedule 7.03 hereto.
SECTION 7.04. ASSIGNMENT OF CONTRACTS. CTU shall have received consents
under all material Contracts comprising the Assets which require the consent of
any Person to the assignment thereof either by the terms thereof or as a matter
of law for their assumption or performance by Newco or HUI.
SECTION 7.05. NCA ACCREDITATION. Newco or HUI shall have received an
indication from NCA that it will grant institutional Accreditation for Huron
University upon the Closing.
SECTION 7.06. PREACQUISITION REVIEW. Newco or HUI shall have received an
indication from ED indicating that a Preacquisition Review has been completed
and in substance, indicating that there is nothing in the information submitted
which would prevent the Institution from being recertified following the
Closing.
ARTICLE VIII
CONDITIONS TO CTU'S OBLIGATIONS
All obligations of CTU under this Agreement are subject to the fulfillment
and satisfaction, prior to or at the time at which the Closing Date is scheduled
to occur, of each of the following conditions, any one or more of which may be
waived in writing by CTU.
SECTION 8.01. REPRESENTATIONS AND WARRANTIES TRUE AT THE CLOSING DATE. At
the Closing Date, the representations and warranties of the HUI Group contained
in this Agreement will be true and correct in all material respects at and as of
such time, and at the Closing Date, Newco shall have delivered to CTU a
certificate to such effect signed by the President and Manager of HUI and Newco.
SECTION 8.02. NEWCOS AND HUI'S PERFORMANCE. Each of the obligations
of Newco and HUI to be performed by either of them on or
before the Closing Date pursuant to the terms of this Agreement shall have
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been duly performed in all material respects at the Closing Date, and at the
Closing Date, the HUI Group shall have delivered to CTU a certificate to such
effect signed by the President of HUI and Newco.
SECTION 8.03. OPINION OF THE HUI GROUPS COUNSEL. CTU shall have been
furnished an opinion or opinions of counsel to the HUI Group, dated the Closing
Date, in form substantially as set forth on Schedule 8.03 hereto.
SECTION 8.04. EMPLOYMENT AGREEMENTS. Member shall have executed and
delivered to CTU an amendment to his existing employment agreement with CTU and
▇▇▇▇ Zing shall have executed and delivered to CTU an Employment Agreement with
CTU, substantially in the forms attached as Schedule 8.04A and 8.04B hereto,
providing for Member and Mr. Zing to assist CTU in its management transition and
other operational and strategic matters.
SECTION 8.05. ADDITIONAL CAPITAL. Newco shall have received commitments, in
form and substance satisfactory to CTU, to purchase limited liability company
interests in Newco in an amount of at least $1.85 million.
SECTION 8.06. HEI LEASE. CTU and its affiliates shall have been
unconditionally released from all obligations under the HEI Lease.
SECTION 8.07. NCA ACCREDITATION. Newco or HUI shall have received an
indication from NCA that it will grant institutional Accreditation for Huron
University upon the Closing.
SECTION 8.08. PREACQUISITION REVIEW. Newco or HUI shall have received an
indication from ED that a Preacquisition Review has been completed and in
substance, indicating that there is nothing in the information submitted which
would prevent the Institution from being recertified following the Closing.
SECTION 8.09. LIST OF MEMBERS. At the Closing Date, Newco shall deliver to
CTU a list, certified by the President and Manager of Newco, identifying (i) the
name and State of residence of each record and beneficial member of Newco, (ii)
the amount of limited liability company interests each member owns and (iii) the
amount of cash and a description and statement of the agreed value of the other
property or services contributed by each member and which each member has agreed
to contribute to Newco.
ARTICLE IX
PERFORMANCE SUBSEQUENT TO CLOSING
SECTION 9.01. COVENANTS OF NEWCO AND HUI PENDING EXPIRATION OF CONDITION
SUBSEQUENT. Each of Newco and HUI covenants and agrees with CTU that from and
after the Closing and until the satisfaction or expiration of the condition
subsequent described in SECTION 9.04 hereof (the Condition Subsequent) or the
exercise of the Recission Right (as defined in SECTION 9.04 below), unless
otherwise agreed in writing by CTU and except as set forth on SCHEDULE 9.01
hereto, it (i) shall not mortgage, pledge, assign, sell or otherwise transfer
any of the Assets other than in the ordinary course of HUI's business, (ii)
shall conduct the business, operations, activities and practices of the
Institution and the Business herein acquired in the usual and ordinary course,
consistent with past practices, (iii) shall use its best efforts to preserve the
business organization of the Business intact, keep available to itself and the
Business the services of the Transferred Employees, and preserve
for itself and CTU the goodwill of the suppliers, students and others
with whom CTU, with respect to the Business, Newc or HUI
has a buusiness relationship, (iv) shall maintain the tangible
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property in the same condition as it now exists, ordinary usage, wear and tear
excepted, (v) shall not breach any agreements necessary for its operations, and
(vi) shall not enter into any contract or commitment the performance of which
may extend beyond the expiration of the Condition Subsequent, except those made
in the ordinary course of business, the terms of which are consistent with past
practice.
SECTION 9.02. FINANCIAL CONDITION. Until the satisfaction of the Condition
Subsequent or HUIs exercise of the Rescission Right, HUI and Newco shall
maintain sufficient, unimpaired equity capital as shall be acceptable to the ED
and other governmental, quasi-governmental, or accrediting agency authorities
including satisfaction of all applicable financial responsibility regulations
and standards, so as to provide reasonable assurances that HUI and Newco shall
be financially capable of obtaining HUIs Accreditations and Certifications and
performing its obligations hereunder.
SECTION 9.03. ADMINISTRATION IN ACCORDANCE WITH REGULATIONS, ACCREDITATIONS
AND CERTIFICATIONS. Until the satisfaction of the Condition Subsequent or HUIs
exercise of the Rescission Right, HUI and Newco shall administer and operate the
Institution in accordance with all material federal and state laws, statutes,
rules and regulations and in accordance with all permits, accreditations,
authorizations and agreements issued by or entered into with any federal, state
or local government, quasi-governmental or accrediting agency in any way
regulating or otherwise relating to the administration and operation of the
Institution. Subject to the terms and provisions of this Agreement, each of HUI
and Newco shall use its best efforts to obtain any and all approvals from the
ED, any state education regulatory authority and any other governmental quasi-
governmental or accrediting agency that may be necessary or appropriate to vest
in HUI or Newco the right and authority to administer and operate the
Institution and to verify HUI or Newco for participation in Title IV Programs in
the same manner and to the same extent as CTU with respect to the Business prior
to the transactions contemplated hereunder.
SECTION 9.04. CONDITION SUBSEQUENT TO OBLIGATIONS OF HUI. Notwithstanding
anything to the contrary contained in this Agreement, if within 90 calendar days
after the Closing Date, the ED fails to grant Certification, whether absolutely
or provisionally, for Huron University to participate in the Title IV Programs,
HUI may, at its option, terminate and rescind this Agreement (the Rescission
Right) by giving CTU written notice to such effect, within 5 days after the
expiration of such period; provided that such rescission can be and is effected
within 30 days of such notice and in a manner so as to restore CTUs use and
ownership of the Business and the Assets in the same state and in the same form
and character as it was immediately prior to the Closing Date (except for
transactions occurring since the Closing Date in accordance with the covenant
described in SECTION 9.01 and except that in the event the Real Property is
transferred to a different owner, the parties hereto acknowledge and understand
that there will be a different lessor of the Real Property, but that the terms
and provisions of any lease of the Real Property to CTU will be no less
favorable to CTU than those provided currently in the HEI Lease) and permit CTU
to operate the Business immediately after the Rescission Date in the same manner
as the Business was conducted by CTU immediately prior to the Closing Date. If
subsequent to such election the Institution is recertified, CTU shall reimburse
HUI for the Title IV Program funds attributable to and received for such period.
Immediately upon triggering the condition subsequent set forth in this Section,
the parties shall work cooperatively and in good faith to rescind the transfer
of the Assets and assumption of the Assumed Liabilities in the manner and to the
extent herein contemplated, including immediately seeking reinstitution of all
of CTU's Accreditations, prompt reconveyance of the Assets and Assumed
Liabilities to CTU, and preservation of the goodwill of the business of the
Institution. Without limiting the generality of the foregoing, upon any
rescission of the purchase of the Assets pursuant to this Section: (a) CTU shall
deliver to Newco the certificates representing the LLC Units; (b) HUI or Newco
shall pay to CTU cash in an amount equal to (i) the Cash Amount, plus
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(ii) an amount of cash equal to the difference between the amount of cash
collected from students of HUI and Newco which is unearned as of the date the
Assets and Assumed Liabilities are reconveyed (the Rescission Date) (including
Pre-Paid Cash which is unearned, if any) and the amount of accounts receivable
of HUI and Newco related to the term in progress which have been earned by HUI
or Newco through the Recission Date; and (c) HUI or Newco shall reconvey the
Assets to CTU.
SECTION 9.05. DISBURSEMENT OF TITLE IV FUNDS. CTU agrees that immediately
prior to the Closing Date, CTU will disburse Title IV funds in accordance with
34 C.F.R. 668.26. Each of Newco and HUI expressly acknowledges that
documentation establishing HUI's or Newcos eligibility and certification to
participate in the programs administered under Title IV must be issued by the
U.S. Department of Education before HUI or Newco may participate in the federal
student financial assistance programs under Title IV.
ARTICLE X
TERMINATION
SECTION 10.01. TERMINATION. Notwithstanding anything herein or elsewhere to
the contrary, this Agreement may be terminated at any time prior to Closing:
(a) by CTU or Newco if the Closing Date shall not have taken place
on or prior to December 31, 1999 (the Termination Date); or
(b) by CTU at any time in its sole discretion if any of the
representations or warranties of the HUI Group in this Agreement are not in all
material respects true, accurate and complete or if any of the HUI Group
breaches in any material respect any covenant contained in this Agreement,
provided that such misrepresentation or breach is not cured within ten business
days after notice thereof, but in any event prior to the Termination Date;
(c) by Newco at any time in its sole discretion if any of the
representations or warranties of CTU in this Agreement are not in all material
respects true, accurate and complete or if CTU breaches in any material respect
any covenant contained in this Agreement, provided that such misrepresentation
or breach is not cured within ten business days after notice thereof, but in any
event prior to the Termination Date;
(d) by CTU at any time after June 30, 1999, if CTU reasonably
believes that either the NCA or the ED will not certify or accredit the
Institution at any time or in a timely manner; or
(e) by CTU at any time after June 15, 1999, if Newco has not
received commitments, in form and substance satisfactory to CTU, to purchase
limited liability company interests in Newco in an amount of at least $1.85
million.
SECTION 10.02. NOTICE; EFFECT OF TERMINATION. If this Agreement is
terminated pursuant to Section 10.01, written notice thereof shall promptly be
given by the party electing such termination to the other party and, subject to
the expiration of the cure periods provided in clauses (b) and (c) of SECTION
10.01, if any, this Agreement shall terminate without further actions by the
parties and no party shall have any further obligations under this Agreement;
provided that any termination of this Agreement pursuant this Section shall not
relieve any party from any liability for the breach of any representation,
warranty or covenant contained in this Agreement or be deemed
to constitute a waiver of any remedy available for such breach.
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Notwithstanding the termination of this Agreement, the respective obligations of
the parties under SECTIONS 11.02, 11.06, 11.09 and 11.10 shall survive the
termination of this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SUCCESSORS, ASSIGNS AND THIRD PARTIES. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that none of the parties
hereto may make any assignment of this Agreement or any interest herein without
the prior written consent of the other parties hereto provided that CTU may
trade or assign all or part of its interest in the LLC Units at any time to a
Qualified Party without the consent of any of the HUI Group; provided, however,
that in the event CTU desires to sell all or a portion of its interest in the
LLC Units to an unaffiliated Person (the Offeree) it shall first offer the HUI
Group the right, exercisable by written notice to CTU delivered within ten days
after receipt of notice from CTU, to purchase all, but not less than all, of the
offered LLC Units at the same price and on the same terms as those offered to
the Offeree; provided, that the HUI Group shall have thirty days from the
receipt of the above-referenced notice from CTU to complete the purchase of the
offered LLC Units. Except as provided herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any Person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.
SECTION 11.02. GOVERNING LAW. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the internal
substantive laws of the State of South Dakota, disregarding principles of
conflict of laws and the like.
SECTION 11.03. SEVERABILITY. Each section, subsection and lesser section of
this Agreement constitutes a separate and distinct undertaking, covenant and/or
provision hereof. In the event that any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed severed
from this Agreement, but every other provision of this Agreement shall remain in
full force and effect and such unlawful provision shall be interpreted as
closely as possible to the manner in which it was written.
SECTION 11.04. CERTAIN WORDS. Words such as "herein," "hereof," "hereby,"
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular section or subsection of this Agreement. Whenever the word
"including" is used herein, it shall be deemed to be followed by the words
without limitation.
SECTION 11.05. NOTICES. Except as otherwise expressly provided herein, any
notice, consent, or other communication required or permitted to be given
hereunder shall be in writing, delivered by certified mail or a national
overnight delivery services and shall be deemed to have been given when
received, and shall be addressed as follows:
(a) If to the HUI Group: Huron University
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
-▇▇-
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(b) If to CTU: ▇▇▇▇▇▇▇ Education Group
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President -
Legal Affairs and
General Counsel
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or at such other address or addresses as the party addressed may from time to
time designate in writing. Any communication dispatched by telegram or telex
shall be confirmed by letter.
SECTION 11.06. EXPENSES. Except as otherwise provided in Article XI, all
legal and other costs and expenses incurred in connection herewith and the
transactions contemplated hereby shall be paid by the party incurring such
expenses; provided, however, that CTU shall pay reasonable attorneys fees
incurred by the HUI Group (the HUI Fees) in connection with this transaction.
SECTION 11.07. HEADINGS. The headings in this Agreement are intended solely
for convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SECTION 11.08. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute the same agreement.
section 11.09. litigation; prevailing party. In the event of any litigation
with regard to this Agreement, the prevailing party shall be entitled to receive
from the non-prevailing party and the non-prevailing party shall pay upon demand
all reasonable fees and expenses of counsel for the prevailing
party.
SECTION 11.10. INJUNCTIVE RELIEF. It is possible that remedies at law may
be inadequate and, therefore, the parties hereto shall be entitled to equitable
relief including, without limitation, injunctive relief, specific performance or
other equitable remedies in addition to all other remedies provided hereunder or
available to the parties hereto at law or in equity.
SECTION 11.11. ENTIRE AGREEMENT. This Agreement contains every obligation
and understanding between the parties relating to the subject matter hereof and
merges all prior discussions, negotiations and agreements, if any, between them,
and none of the parties shall be bound by any representations, warranties,
covenants, or other understandings, other than as expressly provided or referred
to herein.
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SECTION 11.12. WAIVER AND AMENDMENT. Any representation, warranty,
covenant, term or condition of this Agreement which may legally be waived, may
be waived, or the time of performance thereof extended, at any time by the party
hereto entitled to the benefit thereof, and any term, condition or covenant
hereof may be amended by the parties hereto at any time. Any such waiver,
extension or amendment shall be evidenced by an instrument in writing executed
on behalf of the appropriate party by a person who, to the extent applicable,
has been authorized by its Board of Directors to execute waivers, extensions or
amendments on its behalf. No waiver by any party hereto, whether express or
implied, of its rights under any provision of this Agreement shall constitute a
waiver of such party's rights under such provisions at any other time or a
waiver of such party's rights under any other provision of this Agreement. No
failure by any party hereto to take any action against any breach of this
Agreement or default by another party shall constitute a waiver of the former
party's right to enforce any provision of this Agreement or to take action
against such breach or default or any subsequent breach or default by such other
party.
IN WITNESS WHEREOF, the parties hereto have caused their signatures to be
affixed to this Agreement as of the date first above written.
COLORADO TECHNICAL UNIVERSITY, INC.,
A COLORADO CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HURON UNIVERSITY, LLC,
a South Dakota limited liability company
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Manager
NEWCO, LLC, A SOUTH DAKOTA LIMITED
LIABILITY COMPANY
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: President and Manager
/s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, Individually
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