TRANSITION AND OPERATIONS SUPPORT AGREEMENT Relating to the Transfer of Kaplan University

 

	CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH "[***]". AN UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMISSION AS REQUIRED BY RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

Relating to the Transfer of ▇▇▇▇▇▇ University

Dated as of March 22, 2018

 

TABLE OF CONTENTS

 

 

 

 

TABLE OF EXHIBITS

Exhibit A Definitions

Exhibit B NU Policy Guide

Exhibit C Support Functions - Additional Detail

Exhibit D NU Policy Guide Departures

Exhibit E Initial Budget

Exhibit E-1 New University Academic Cost Line Items

Exhibit E-2 Contributor Support Cost Line Items

Exhibit F Reimbursements and Payments

Exhibit G Agreed Principles

Exhibit H Deposit Credits

Exhibit I-1 Form of Early Termination Note

Exhibit I-2 Form of Post-Initial Term Note

Exhibit I-3 Terms of Security Interest Grant

Exhibit J Transfer - Examples

This Transition and Operations Support Agreement (together with the Exhibits hereto, this “Agreement”), dated March 22, 2018 (the “Effective Date”), is made by and among ▇▇▇▇▇▇ Higher Education, LLC, a Delaware limited liability company (“KHE”), Iowa College Acquisition, LLC, a Delaware limited liability company (“ICA”) (KHE and ICA, collectively, “Contributor”), and Purdue University Global, Inc. (f/k/a Purdue NewU, Inc.), an Indiana nonprofit, public benefit corporation (“New University”). The Trustees of Purdue University, an Indiana body corporate that manages and conducts Purdue University, the State of Indiana’s land-grant university (“Purdue”), joins as a Party to this Agreement solely for the purpose of being bound by the Purdue Provisions. The term “Party” refers to Contributor, New University, or Purdue, and the term “Parties” refers collectively to Contributor, New University and Purdue; provided that, each of “Party” and “Parties” applies to Purdue only to the extent applicable pursuant to the Purdue Provisions. Capitalized terms not otherwise defined in this Agreement have the meanings set forth in Exhibit A (Definitions).

RECITALS:

            D.            Toward these ends, New University intends to utilize the ED Institution and assets acquired from Contributor, together with other assets owned by Contributor or its Affiliates, including, among others, test preparation, professional education and international student recruitment businesses, to advance and deliver its educational offerings.

 

            G.            In order to perform the terms and obligations of this Agreement, and to ensure that the Parties’ respective rights and obligations under this Agreement are aligned with the economic assumptions made by them, and their expectations, in entering into the Transfer Agreement and this Agreement, the Parties wish to set forth, among other things, the manner in which the Support Functions will be provided, including advice and consultation by Contributor to support the following: (i) the strategies and objectives of New University and the performance of activities designed to implement them, (ii) the financial terms of this Agreement, including allocation of expenses of both New University and Contributor, and compensation to Contributor for its operational support and other efforts, and (iii) all other rights and obligations of Contributor and New University in respect of the functions to be performed by each as detailed in this Agreement.

AGREEMENT

            NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.	Defined Terms; Interpretation.

1.1.	Terminology.

If this Agreement does not define a particular term, it will have its generally understood meaning (e.g., in the information technology or education industries) based on the context in which it is used.

1.2.	Interpretation.

 

 

(xii)      reference to, and the definition of, any document shall be deemed a reference to such document as it may be amended, supplemented, revised, or modified, in writing, from time-to-time;

2.	Control of New University; Responsibilities of the Parties.

2.1.	New University Board of Trustees.

 

            The operation and control of New University shall at all times be subject to the oversight and exclusive control of the New University Board of Trustees, the members of which shall be appointed by Purdue. The New University Board of Trustees shall have ultimate approval (including veto power) and decision-making authority with respect to all functions of New University, all pursuant to New University’s organizational authority.

2.2.	New University Obligations.

            Without limiting the powers of the New University Board of Trustees to oversee the institution’s academic policies and practices and ensure it meets its legal and fiduciary responsibilities, New University shall have sole responsibility for, and oversight and control over, its operations, including development and delivery of its Academic Programs and performance of Academic Functions in alignment with academic and financial policies approved by the New University Board of Trustees from time-to-time. The term “Academic Functions” means the functions, responsibilities and duties performed in the ordinary course of business in support of the academic operations of New University, including:

management, internal and external surveying of students, faculty and alumni, and the research pipeline (the systemic use of learning engineering to conduct 20 to 50 controlled trials annually exploring all aspects of learning and student support).

 

 

 

 

 

2.3.	New University Operating Policies.

            New University shall perform its Academic Functions in accordance with applicable Laws and Educational Approvals. The New University Board of Trustees has also adopted the Key Academic and Operating Policy Guide, attached as Exhibit B, under which New University operates (the “NU Policy Guide”). New University promptly shall provide the Advisory Committee with copies of each amendment to the NU Policy Guide.

2.4.	Contributor’s Support Functions.

            During the Term, Contributor will perform, on behalf of New University, and subject to the ultimate control of New University and its Board of Trustees, the following support functions (collectively referred to as the “Support Functions”), which functions are critical to the performance of the Academic Functions by New University and will be subject to oversight by the New University Board of Trustees.

 

 

 

 

 

 

 

 

 

 

            The obligations of Contributor under Section 2.4(e) and Section 2.4(f) shall continue only so long as Contributor or any of its Affiliates own such businesses.

2.5.	Support Function Standards.

            Subject to Section 2.7 (Excused Performance; Force Majeure), Contributor will deliver the Support Functions, in accordance with the Service Levels. “Service Levels” means the service levels and standards for the performance of the Support Functions in the categories set forth in Sections 2.5(a) through (j), which levels and services are agreed upon by New University and Contributor in writing annually in connection with the development of, and conditioned upon the adoption of, a mutually approved Annual New University Budget. New University and Contributor agree that such Service Levels (including the budgeted line items reflecting Support Costs to deliver such Service Levels) shall substantially represent, and be consistent in all material respects with, the manner in which Contributor and its Affiliates have performed Support Functions for ▇▇▇▇▇▇ University prior to the Effective Date. If Contributor and New University do not agree on the line items costs in the Annual New University Budget that relate to Support Costs to deliver Service Levels, New University and Contributor shall revise the Service Levels to conform with the line item costs so approved. To the extent Contributor’s collective ongoing failure to meet Service Levels directly causes a material adverse effect on the operations and results of New University taken as a whole (“Critical Service Level Failure”), then such Critical Service Level Failure, and no other Service Level failure or failures, may be a material breach under this Agreement under Section 14.5(c) (Termination for Contributor Material Breach).

 

 

 

 

 

 

 

 

 

2.6.	Root Cause Analysis

problems at the lowest reasonable level so that corrective action can be taken that will eliminate repeat failures.

2.7.	Excused Performance; Force Majeure

 

 

2.8.

Reports.

            Each Party will produce (“Reporting Party”) and provide to the other Party such reports as are agreed by the Parties, or that are required by applicable Law, in the form and timeframe, and using the delivery method, agreed by the Parties, including the Financial Reports (collectively, the “Reports”). Disputes regarding the matters addressed in the Financial Reports will be addressed pursuant to Section 10.2(d) (Examination Notice; Disputes) and Section 10.2(e) (Resolution), and disputes regarding the matters addressed in the Reports other financial Reports (if any) will be addressed pursuant to Section 16.1 (Management Escalation).

2.9.

Access.

            Each Party shall provide the other Party with reasonable and necessary Access, as necessary for such other Party to perform its obligations under the Agreement. In furtherance of the foregoing, and subject to Contributor’s compliance with the terms of this Agreement, New University shall provide Contributor with immediate and ongoing Access to the Campuses and to New University’s systems as necessary to facilitate the performance of the Support Functions.

3.	Coordination of Functions.

3.1.	Advisory Activities - Cooperation.

            The Parties agree to cooperate and perform all functions contemplated in this Agreement in good faith and in accordance with the terms and conditions set forth in this Agreement. Without limiting the foregoing, the Parties agree that the economic terms of this Agreement and Contributor’s willingness to enter into this Agreement are based upon the assumption that New University will operate in a manner consistent with its NU Policy Guide, which policies are designed to ensure institutional success.

3.2.	Relationship Managers; Advisory Committee.

 

 

 

 

4.	New University Budgets.

4.1.	New University Budget and Line Items.

 

 

4.2.	Line Items.

            Each New University Budget recommended by the Advisory Committee and/or approved by the Board of Trustees shall include at least the following line items:

provided that, in no event shall costs include Losses arising from or related to a Party’s failure to comply with applicable Law, including Educational Law, or Educational Approvals.

 

5.	Marketing Plan.

            The Parties shall develop and finalize an initial Marketing Plan no later than ten (10) days after the Effective Date. Thereafter, the Parties shall consult with each other on an annual basis or more frequently as the Parties may agree, to develop a Marketing Plan for upcoming periods, or to modify the then existing Marketing Plan. The Parties shall use commercially reasonable efforts to conduct the activities set forth in the Marketing Plan, and shall operate within the constraints of the marketing budget set forth in the applicable New University Budget. Any use of a Party’s trademarks or logos contemplated by a Marketing Plan shall be done in accordance with the provisions of Article 8 of this Agreement and such Party’s brand usage guidelines.

6.	Compliance with Laws and Policies.

6.1.	FERPA; GLB.

            New University acknowledges that, in order to perform certain of the Support Functions requested under this Agreement, it will be necessary and desirable for Contributor to have Access to personally identifiable information of students and prospective students of New University, and of New University employees, that is subject to the provisions of the Family Educational Privacy & Rights Act (“FERPA”), 20 U.S.C. § 1232g, the Gramm ▇▇▇▇▇ ▇▇▇▇▇▇ Act, 15 U.S.C. § 6801 et seq. (the “GLB”) and/or any other applicable Laws. New University and Contributor agree to maintain and use all such information in material compliance with the requirements of all such Laws, including taking required steps to comply with the requirements of 34 C.F.R. 99.31(a)(1) with respect to information protected by FERPA that may be disclosed to a party to whom an institution has outsourced institutional services or functions.

6.2.	Compliance with Law; Changes in Law.

 

 

(b)     Changes in Law. The Parties will work together to identify the effect of changes in Law on New University and Support Functions performed under this Agreement, and the respective operations and businesses of each Party, and each Party will give notice to the other Parties of any such change in Law. With respect to any change in Law that affects any of the Academic Functions or Support Functions performed under this Agreement, the Advisory Committee will discuss, and recommend to New University for consideration, modifications to the Academic Functions or Support Functions necessary to comply with such change in Law, and modifications to the New University Budget to allocate costs associated with actions necessary to comply with such changes in Law. Subject to the consent of the New University Board of Trustees, the applicable Party will implement in a timely manner any modifications necessary to comply with such change in Law.

            Neither Contributor nor its Affiliates (nor third party service providers) shall be required to provide any Support Functions to the extent that providing such Support Functions would require Contributor or its Affiliates (or the third party service providers) to violate any Law; provided, however, that promptly upon learning of such circumstance, Contributor shall deliver to New University written notice of such potential violation, and Contributor and the Parties shall reasonably cooperate to mitigate the impact of Contributor being unable to provide such Support Functions, including the development and implementation of a reasonable work-around.

6.3.

Policies.

            New University will access and use the Contributor Platform and any Contributor Confidential Information in compliance with the Contributor policies and procedures delivered to New University in writing (as modified from time-to-time, the “Contributor Policies”); provided that, subject to Section 6.2(b) (Changes in Law) and changes in data security or privacy measures responsive to market conditions, Contributor shall not modify the Contributor Policies in a way that prevents, in any material respect, New University’s use of or access to the Contributor Platform in connection with the Academic Functions for which the Contributor Platform is used.

7.	Confidentiality.

7.1.	Definition.

            “Confidential Information” shall mean: (a) the terms of this Agreement; (b) any non-public, proprietary information, intellectual property and other confidential information, including any technical and non-technical information regarding current, future and proposed business operations, products and services, including for example, information concerning research and development, financial information, procurement requirements, student and customer information and lists, business forecasts, sales information and marketing plans, descriptions, specifications and the like of a Disclosing Party, and (c) any information the Disclosing Party has received from its Affiliate(s) or a third party, which the Disclosing Party is obligated to treat as confidential or proprietary, that is provided or communicated by the Disclosing Party to the Receiving Party in connection with this Agreement, including pursuant to Article 17 (Duty to Cooperate).

7.2.	Obligations.

            Each Party (in such capacity, the “Receiving Party”) acknowledges that Confidential Information may be disclosed to it by another Party (in such capacity, the “Disclosing Party”) in connection with this Agreement, and agrees to: (a) use, with respect to the Confidential Information of the Disclosing Party, the same care and discretion to prevent such Confidential Information from being disclosed, published or disseminated as it employs to avoid disclosure, publication or dissemination of its own similar Confidential Information (but in no event less than reasonable care); (b) use the Disclosing Party’s Confidential Information only for the purpose for which it was disclosed; and (c) not disclose, disseminate or provide access to the Disclosing Party’s Confidential Information to any person other than to those Affiliates, employees and agents who: (i) have a need to know it in order to assist the Receiving Party in performing its obligations hereunder, or to permit the Receiving Party to exercise its rights under this Agreement, and (ii) are legally bound by substantially the same obligations regarding Confidential Information as the Parties under this Article 7; provided that, the Receiving Party assumes full responsibility for any failure by such Affiliates, employees and agents to abide by the confidentiality obligations under this Article 7. In addition, each of the Parties shall take commercially reasonable steps by agreement or otherwise so that their respective Affiliates, employees, and agents comply with these confidentiality provisions.

 

 

7.3.	Exclusions.

            Notwithstanding anything to the contrary in the foregoing, Confidential Information does not include, and this Article 7 will not apply to, any information that the Receiving Party can demonstrate was:

7.4.	Requests for Documents.

            If any Receiving Party is presented with a request for documents: (a) by any Governmental Entity or Accrediting Body, or (b) by any other Person pursuant to applicable public records laws or (c) pursuant to a subpoena duces tecum regarding any records, data or documents of a Disclosing Party, which may be in such Receiving Party’s possession by reason of this Agreement, such Receiving Party must immediately give notice to the Disclosing Party, and the Disclosing Party will have the opportunity to contest such process by any means available to it, or to redact Confidential Information as provided below in this Section, before the records, data or documents are submitted to such Governmental Entity, Accrediting Body, court or other Person. The Receiving Party, however, is not obligated to withhold the delivery beyond the time ordered by the Governmental Entity, Accrediting Body or court, or pursuant to applicable public records laws, unless the subpoena or request is quashed or the time to produce is otherwise extended. In the event documents are requested pursuant to applicable public records laws, the Parties shall cooperate in producing a redacted version of the requested document(s) that is in conformance with requirements under the applicable public records law, with the Disclosing Party having the right to produce the first draft of such redacted documents.

7.5.	Loss of Confidential Information.

            In the event of any disclosure or loss of, or inability to account for, or unauthorized use of, Confidential Information, the Receiving Party will notify the Disclosing Party immediately in writing, and shall reasonably assist the Disclosing Party in remedying the unauthorized disclosure or use.

7.6.	Period of Confidentiality.

            Confidential Information will be subject to the terms of this Agreement until such time as it ceases to be characterized as Confidential Information under one or more provisions of this Article 7.

 

 

7.7.	Return of Confidential Information.

            Each Party will, upon expiration or termination of this Agreement or otherwise upon demand, at the Disclosing Party’s option, either return to the Disclosing Party or destroy (and certify in writing to the Disclosing Party the destruction of), any and all documents (including any writing, instrument, agreement, letter, memorandum, chart, graph, blueprint, photograph, financial statement or data, telex, facsimile, cable, tape, disk or other electronic, digital, magnetic, laser or other recording or image in whatever form or medium), papers and materials and notes thereon in the Receiving Party’s possession, including copies or reproductions thereof, to the extent they contain Confidential Information of the Disclosing Party. All records in Contributor’s possession pertaining to the Title IV, HEA program funds received from or on behalf of New University shall be returned to New University pursuant to Section 20.1(e). Notwithstanding the foregoing, each Party shall have the right to retain archival copies of the Confidential Information required for compliance with applicable Law; provided, however, that any use of such Confidential Information shall be restricted to uses that are required by applicable Law.

8.	Proprietary Rights.

8.1.

Licenses.

            In addition to the License Agreement - Academic Content, dated the date of this Agreement, between KHE, ICA and New University, the Parties grant the following licenses under this Agreement.

 

 

8.2.	Third Party Materials.

            To the extent a Party provides to the other Party access to, or use of, or uses in connection with meeting such Party’s obligations under this Agreement (“Supplier Party”), any third party Materials, such Supplier Party shall be responsible for obtaining any Consent or other rights with respect to such third party Materials, necessary to allow such Supplier Party to sublicense to the other Party the rights necessary for the other Party to perform its obligations under this Agreement, and to receive the benefits to which such Party is entitled under this Agreement. In addition, each Party shall comply with any applicable third party restrictions or limitations regarding such third party materials made known to such Party.

8.3.	Reservation.

            Each Party retains all rights in its owned materials and third party Materials not expressly granted or licensed pursuant to this Agreement. Notwithstanding anything to the contrary, no Party shall resell or distribute the other Party’s owned Materials or third party Materials other than as permitted under this Agreement. For the avoidance of doubt, marketing and other data that is generated in connection with the provision of the Support Functions, including data relating to inquiries from individuals who do not enroll as students within 60 days of initial inquiry, as between the Parties, shall be owned by Contributor. Upon the request of New University or Purdue, made with reasonable advance notice, Contributor will afford New University or Purdue reasonable access to such marketing and other data (on an aggregated, anonymized basis) for the purpose of conducting analytics designed to evaluate and improve New University’s performance in such areas as student access, recruitment and retention.

8.4.	Residuals.

            Nothing contained in this Agreement shall restrict either Party from the use of any general ideas, concepts or know-how which either Party, individually or jointly, develops or discloses under this Agreement, provided that in doing so such Party does not breach its obligations regarding confidentiality, or infringe or misappropriate the Intellectual Property Rights of any of the other Parties or any third party.

9.	Reimbursements and Payments.

            In order to provide financial protection and certain financial incentives to New University, while compensating Contributor fairly for its original contribution of the Institutional Assets to New University under the Transfer Agreement and its performance of the Support Functions hereunder, the Parties have agreed that, in addition to the payments required under Article 14 and all other covenants of New University and Purdue in this Agreement, the Revenue that New University generates each Fiscal Year shall be applied in the order of the priorities set forth in Sections 2 and 3 of Exhibit F, as applicable (the “Distribution Waterfall”), and Contributor will not be reimbursed its costs or paid its Contributor Fee (as defined in Exhibit F) unless and until New University costs and fees with priority under the Distribution Waterfall have been paid. In order to establish a mechanism to ensure the efficient day-to-day academic operations of New University and related Support Functions, the Parties have agreed on procedures for the timely payment of such expenses from cash in the NU Account, as described in Exhibit F. In addition, to ensure that the Distribution Waterfall is given effect as intended, the Parties have established the Reconciliation procedures set forth in Exhibit F to reconcile the amounts paid under this Agreement with the priorities under the Distribution Waterfall.

10.	Books and Records; Audited Financial Statements; Examination.

10.1.

Books and Records; Audited Financial Statements.

 

 

10.2.

Examination.

            During the twelve (12) month period following receipt of any Financial Report, including Fiscal Year End Reconciliation Statement, each Party shall have the right to examine and audit (or cause its external auditors to examine and audit) the Books and Records of the other Party as necessary to verify the examined Party’s compliance with the terms of this Agreement, including the calculation of any of the information required to be included in the Reconciliation Statements and any other Financial Reports. All examinations shall be performed in accordance with the following terms:

 

 

            For purposes of this Agreement, “Independent Accounting Firm” means either: (i) a nationally recognized independent chartered accounting firm mutually agreed upon and engaged by Contributor and New University within twenty (20) days after the expiration of the applicable time period for the Parties to resolve their disputes through negotiations, or (ii) if Contributor and New University are unable to mutually agree upon and engage the Independent Accounting Firm during such twenty (20) day period, then, no later than twenty (20) days thereafter, each of Contributor and New University shall select and engage a nationally recognized independent chartered accounting firm and those two accounting firms will promptly, but in no event more than twenty (20) days later, select and engage a third nationally recognized independent chartered accounting firm, which third accounting firm shall serve as the Independent Accounting Firm. Notwithstanding the foregoing, in the case of the application of clause (ii) of this definition, if either Contributor or New University fails to timely engage an accounting firm, then the Independent Accounting Firm will be the accounting firm timely engaged by the non-defaulting Party.

            Within thirty (30) days after the Independent Accounting Firm has been engaged, Contributor and New University shall each submit a written statement to the other Party and the Independent Accounting Firm identifying in reasonable detail such Party’s calculation of each disputed amount. If either Party fails to timely submit its written statement to the other Party and the Independent Accounting Firm, or if either Party fails to timely provide records requested by the other Party, then the Independent Accounting Firm shall resolve such disputed matters in accordance with the written statement of the Party that was timely submitted. Otherwise, the Independent Accounting Firm shall resolve each disputed amount by selecting either the calculation submitted by Contributor or the calculation submitted by New University, based on which calculation the Independent Accounting Firm determines to be more accurate. The Independent Accounting Firm shall submit its final written report to the Parties within sixty (60) days (or such other time period as the Parties mutually agree in writing) after the deadline for the Parties to submit their written statements to the Independent Accounting Firm. For the avoidance of doubt, the Independent Accounting Firm shall only decide the specific items under dispute by the Parties and its decision for each disputed amount must be either the calculation submitted by Contributor or New University and not a different calculation it performs. In connection with the resolution of the disputes, each of the Parties shall make available to the other Parties and the Independent Accounting Firm, as the case may be, such Books and Records, documents, work papers, facilities and other information as such Party or the Independent Accounting Firm may reasonably request to resolve the dispute. The Independent Accounting Firm determination made in accordance with this Section will be final and binding upon the Parties and will not be subject to appeal, absent fraud or manifest error.

            Each Party shall be responsible for its own costs and fees relating to any dispute resolution pursuant to this Section 10.2(e) except that the cost and fees of the Independent Accounting Firm shall be the responsibility of the Party that fails to prevail in any such dispute.

11.	Tax Matters.

11.1.

Tax.

            The Contributor Fees are exclusive of all Tax. New University will pay and be liable for any and all Tax imposed on, sustained, incurred, levied and measured by the cost, value or price of the Support Functions; provided, however, that in no event shall New University be liable for any Taxes that are imposed on or calculated by reference to the net income received or receivable by Contributor. All such Taxes for which New University is liable will be New University Costs. Notwithstanding anything to the contrary contained in this Agreement, in the event that any applicable Taxing Authority imposes a transaction privilege, sales or similarly denominated Tax on the delivery of the Support Functions, the responsibility for such Tax shall be borne by New University. The Parties shall cooperate in obtaining any available exemption from, or reduction of, any Taxes for which New University is liable.

11.2.

Tax Withholding.

            New University shall: (a) make all payments of Contributor Fees to Contributor without any Tax withholding, unless, based on either the written notice of any Taxing Authority or the Contributor’s Tax opinion, a Tax withholding is required by applicable Law and (b) promptly upon becoming aware that New University must make a Tax withholding (or that there is any change in that rate or the basis of a Tax withholding) notify Contributor accordingly. If any such withholding is so required, New University shall increase the amount payable such that the amount that Contributor receives, net of such withholding, shall equal the amount Contributor would have received had no such withholding been made. The Parties shall cooperate in obtaining any available exemption from, or reduction of, any withholding Taxes, including by completing any procedural formalities necessary for New University to obtain authorization to make payment without a Tax withholding.

 

 

11.3.

Tax Treatment.

            The Parties intend that, for U.S. federal income tax purposes, the payment of the Contributor Fees constitutes service fee income and agree to treat such payments consistent with the foregoing unless required to do otherwise by a change in applicable Tax Law or pursuant to the good faith resolution of any action with an applicable Taxing Authority.

12.	Representations and Warranties; Covenants.

12.1.

Representations and Warranties; Covenants - Purdue and New University.

has authorized the execution, delivery and performance of this Agreement by New University intending that both it and New University shall comply with this Agreement.

12.2.

Representations and Warranties; Covenants - Contributor

 

 

12.3.

Performance Warranties.

            Without limiting Section 2.5 (Support Function Standards) or the Service Levels established by the Parties from time-to-time, each of the Parties agrees that, in performing their respective Academic Functions or Support Functions, as the case may be, it shall:

12.4.

Disclaimer.

            EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, NEITHER KHE NOR ICA MAKES ANY REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SUPPORT FUNCTIONS OR ANY ITEMS TO BE DELIVERED OR PROVIDED TO NEW UNIVERSITY OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND CONTRIBUTOR HEREBY DISCLAIMS THE SAME.

13.	Certain Covenants.

13.1.

Restrictive Covenants.

 

13.2.

Transfer of Revenue Generating Assets

            The assumptions and expectations which the Parties made in entering into this Agreement included, among other things, the continued operation and growth of New University’s ED Institution and Academic Programs. Accordingly, without limiting Section 13.1(b), during the Term, any sales, assignments, licenses or other transfers (whether by merger, consolidation, sale of equity, sale of assets, joint venture or otherwise), of any Revenue generating assets or Academic Programs by New University (collectively, a “Transfer”), shall be made on an arm’s length basis in exchange for cash consideration, payable at the consummation of the Transfer, representing the fair market value of such transferred assets or Academic Programs. New University shall pay to Contributor (without regard to any of the priorities set forth in Exhibit F), at the closing of any such Transfer, an amount in cash equal to (i) the Fee Based Product if such Transfer has not resulted in the Material Sales Threshold being exceeded or such Transfer occurs after the Initial Term, or (ii) the Revenue Based Product for all other Transfers.

            For purposes hereof:

            Any dispute between the Parties relating to payment under this Section 13.2, including the calculation of Revenues and Contributor Fees, shall be resolved by the Financial Expert pursuant to Section III of Part C of Exhibit D and pending such resolution, the proceeds of the Transfer shall be placed into an escrow account which requires the approval of both Parties to withdraw. If New University wishes to Transfer any assets or Academic Programs prior to the first anniversary of the Effective Date, the Revenue generated from the assets or Academic Programs proposed to be Transferred, and the Contributor Fee paid or payable to Contributor, shall be annualized for purposes of determining the Fee Based Product or the Revenue Based Product, as the case may be. New University shall provide Contributor with not less than thirty (30) days prior written notice of any Transfer, specifying in such notice the projected closing date and details of such transaction, including the purchaser, purchase price, the Revenue earned from the transferred assets or Academic Programs during the applicable period, the amount projected to be payable to Contributor under this Section 13.2 at the closing of such Transfer, and the advice and opinions obtained by New University regarding fairness and valuation of the purchase price. Purdue shall not take or permit any action to be taken which would impede New University’s compliance with the terms of this Section. Whenever this Section refers to Transfers of assets or Academic Programs, the meaning is either or both.

 

 

            Exhibit J sets forth, by way of example only, an illustration of the methodology contemplated by this Section.

14.	Term; Termination.

14.1.

Term.

The term of this Agreement shall commence on the Effective Date and, unless earlier terminated as provided in this Agreement, continue until the thirtieth (30th) anniversary of the Effective Date (“Initial Term”), and shall automatically renew for successive five (5) year terms (each, a “Renewal Term”; the Initial Term and all Renewal Terms, the “Term”), unless either Party shall give written notice to the other Party of non-renewal at least twelve (12) months prior to the end of the Initial Term or then current Renewal Term.

14.2.

Early Termination.

            To secure timely payments of the Early Termination Fee in accordance with the terms of the Early Termination Note (which Early Termination Fee, the Parties acknowledge and agree, is a contingent obligation until the termination date on which the Early Termination Fee becomes payable), New University hereby grants to Contributor a continuing security interest in, and a right to set off against, any and all right, title and interest of New University in and to all of the assets described, and pursuant to the terms set forth, in Exhibit I-3. At the time of execution and delivery to Contributor of an Early Termination Note, the Parties also shall execute and deliver a Security Agreement, which amends and supplements the terms of the security interest herein, containing reasonable and customary terms designed to secure New University’s obligations under the Early Termination Note and otherwise in form and substance reasonably acceptable to the Parties.

 

 

 

14.3.

Non-Renewal by New University.

            If New University chooses not to renew this Agreement either after the Initial Term or any Renewal Term (“Non-Renewal”), then, as a condition to such Non-Renewal, New University shall have the obligation to pay, and Contributor shall have the right to receive on the last day of the Initial Term or then current Renewal Term, as applicable, a Post-Initial Term Fee, in the amount and payable in the form of the Post-Initial Term Note and otherwise in the manner described in Section 14.2(c) (Post-Initial Term Fee). Upon such Non-Renewal, New University shall not be subject to any non-competition covenant with respect to Contributor’s business or to any non-solicitation covenant with respect to the Exclusive Employees.

14.4.

Termination for Certain Financial Results.

            Either Party shall have the right to terminate this Agreement in the event that New University generates $25 million or more in annual Cash Operating Losses for three (3) consecutive Fiscal Years, or incurs, during any period of the Initial Term, aggregate Cash Operating Losses greater than $75 million (taking into account gains during such period) (either circumstance being called a “Triggering Loss”). At any time within six (6) months of the completion of Audited Financial Statements of New University that demonstrate the existence of a Triggering Loss, either Party may notify the other in writing of its election to terminate this Agreement, specifying therein the effective date of such termination, which shall not be more than sixty (60) days from the date the Parties agree that the Audited Financial Statements of New University demonstrate the existence of the Triggering Loss. In the event of a termination under this Section 14.4, no termination fee shall be owed by either Party to the other unless New University elects to exercise its Buy Out Option under Section  14.8, in which case New University shall be obligated to pay the consideration in the amount, at the time and on the terms set forth in that Section. If Contributor objects to information contained on the Audited Financial Statements on which the determination of a Triggering Losses is based, Contributor shall have the right to object to such information and the Parties shall attempt to resolve any differences between them pursuant to Section 10.2. Upon any termination of this Agreement pursuant to this Section 14.4, New University shall not be subject to any non-competition covenant with respect to Contributor’s business or to any non-solicitation covenant with respect to the Exclusive Employees.

14.5.

Termination of Agreement for Material Breach.

 

 

 

 

14.6.

Reports; Unpaid Fees.

14.7.

Teach-Out Period.

 

 

 

14.8.

Buyout Option.

            Upon each of the following events, New University shall have the right to acquire from Contributor the Buyout Assets, subject to the terms and conditions described in this Section 14.8: (i) Non-Renewal of this Agreement by New University pursuant to Section 14.3 (Non-Renewal by New University), or (ii) termination of this Agreement by New University pursuant to Section 14.2, Section 14.4 or Section 14.5 (each of the foregoing being called “Buyout Option”). New University shall exercise the Buyout Option by delivering written notice of its exercise to Contributor at least thirty (30) days prior to the effective expiration date under Section 14.3 or the effective date of termination in Section 14.2, Section 14.4 or Section 14.5 (or such shorter period as exists between the date of a notice of termination (or notice of material breach) and the effective date of termination) (“Buyout Notice”).

 

 

            Within ten (10) Business Days of Buyer’s timely exercise of the Buyout Option as permitted by this Section 14.8, Contributor shall deliver to New University for its approval, a calculation of the amount of the Early Termination Fee or Post-Initial Term Fee, as applicable, arising solely by reason of the exercise of the Buyout Option under Section 14.4 and Section 14.5, and all supporting documentation relating to such calculation. If New University objects to such calculation, the Parties shall cooperate to reach a settlement of any differences between them, and if the Parties fail to reach resolution, such differences shall be resolved pursuant to Section 10.2(d) (Examination Notice; Disputes) and Section 10.2(e) (Resolution).

New University shall offer to hire Exclusive Employees, not later than five (5) days prior to the Buyout Closing Date, and Contributor shall cooperate with New University in New University’s efforts to accomplish the retention and hiring of such Exclusive Employees. New University will offer employment to such Exclusive Employees on such terms and conditions of employment reasonably comparable to those enjoyed by such Exclusive Employees prior to the Buyout Closing. The obligations of New University to hire such Exclusive Employees shall not be affected by virtue of the absence of any such Exclusive Employee as of the Buyout Closing Date due to any short term disability, long term disability or leave of absence. Effective as of the Buyout Closing, the employment of all of those Exclusive Employees who are so hired by New University will be terminated by Contributor, and Contributor shall be responsible for severance, if any, due such Exclusive Employees who are hired by New University. Nothing contained in this Agreement shall confer upon any Contributor employee any right with respect to continuance of employment by New University after the Buyout Closing Date.

 

 

            To the extent that any of Contributor’s assets, contracts or personnel used to deliver the Support Functions at the time of exercise of the Buyout Option are also used in another area of business engaged in by Contributor or its Affiliate(s), or are subject to restrictions on transfer or assignment, Contributor will use commercially reasonable efforts to provide to New University assets substantially comparable to those which are shared, or which are subject to agreements which prohibit transfer or assignment (through transition services, forking of code or otherwise), and will assist New University in obtaining comparable contracts from third party service Contributors, it being the intent of the Parties that following the consummation of the transfer of the Buyout Assets, New University will have the property required to operate and perform services for itself that are substantially comparable to the Support Functions performed at the time of exercise of the Buyout Option.

 

 

 

14.9.

Transfer of Certain Support Functions and Related Assets.

 

 

 

14.10.

Elections and Options.

 

            Any provision in this Article 14 that grants to any Party the right to make an election or exercise an option shall not obligate such Party to make such election or exercise such option.

            The provisions of Section 1(b) (Presumption), Section 1(c) (Exhibits), Section 1(d) (Precedence), Section 2.4(k)(ii) (No Practice of Accountancy), Section 6.1 (FERPA; GLB) (with respect to the last sentence), Article 7 (Confidentiality), Section 8.3 (Reservation), Section 8.4 (Residuals), Section 10.1(a) (Books and Records), Section 10.2 (Examination), Article 11 (Tax Matters), Section 12.1(b)(ii) (with respect to the last sentence of Section 12.1(a)(ii)), Section 12.4 (Disclaimer), Section 13.1(a) (Discontinued Courses), Section 13.1(c) (Non-Solicitation; Non-Hire), Section 13.2 (Transfer of Revenue Generating Assets) and Exhibit J (Transfer - Example), Section  14.2(a) (Early Termination for Convenience) (with respect to the last two sentences), Section 14.2(b) (Early Termination Fee), Section  14.2(c) (Post-Initial Term Fee), Section 14.3 (Non-Renewal by New University), Section 14.4 (Termination for Certain Financial Results (with respect to the last three sentences), Section 14.5(a) (Termination for Material Breach - Generally) (with respect to the fifth sentence), Section 14.5(b) (Termination for New University Material Breach), Section 14.5(c) (Termination for Contributor Material Breach), Section 14.6 (Reports; Unpaid Fees), Section 14.7 (Teach-Out Period), Section 14.8 (Buyout Option), Section 14.10 (Elections and Options), Section 14.11 (Survival), Article 15 (Limitation of Liability), Section 16.2 (Governing Law; Jurisdiction and Forum; Waiver of Jury Trial); Section 16.3 (Certain Remedies), Article 17 (Duty to Cooperate), Sections 20.1(b), (c), (d)(ii) and (e), Section 20.2 (Relationship of the Parties), Section 20.3 (Expenses), Section 20.4 (Notices) Section 20.5 (Amendment; Waiver) (with respect to the last sentence), Section 20.7 (Third Party Rights) through Section 20.10 (Severability), and Section 20.12 (Further Assurances), and Exhibit A (Definitions) (as applicable), Exhibit I-1 (Early Termination Note), Exhibit I-2 (Post-Initial Term Note) and Exhibit I-3 (Terms of Security Interest Grant), as well as any other provisions of this Agreement which contemplate performance or observance subsequent to any termination or expiration of this Agreement, or is required to survive to give the Parties the benefits of this bargain, will survive any termination or expiration of this Agreement and continue in full force and effect. To the extent a provision of this Agreement relates to the Teach-Out Period or provides for rights, interests, duties, claims, undertakings and/or obligations during any Teach-Out Period, such provision shall survive termination or expiration until such Teach-Out Period is completed and any issues with respect thereto have been fully resolved. To the extent a provision of this Agreement relates to any reimbursement or payment to be made under this Agreement, or to payments under any Note, or provides for rights, interests, duties, claims, undertakings and/or obligations related to any such payment, including Article 9 (Reimbursements and Payments), Section 10.1(b) (Audited Financial Statements), Article 19 (Accreditation and Licensing) (with respect to the second paragraph), Section 20.6 (Successors and Assigns), Exhibit F (Reimbursements and Payments), Exhibit G (Agreed Principles) and Exhibit H (Deposit Credits), such provision shall survive termination or expiration until the later of that time when all reimbursements and payments have been paid in full in accordance with this Agreement, or until all amounts due under any Note have been fully paid, and any issues with respect to any of the foregoing have been fully resolved.

 

 

15.	Limitation of Liability.

            Except as provided below, the Parties hereby agree that: (i) the total aggregate liability of Contributor under or in connection with the Agreement, regardless of the form of the action or the theory of recovery, shall be limited to an amount equivalent to the Contributor Fees paid or payable during the twelve (12) months prior to the month in which the most recent event (before asserting the claim) giving rise to liability occurred (provided that if such event giving rise to liability occurs during the first twelve (12) months after the Effective Date the amount will be calculated as four (4) times the average quarterly Contributor Fees paid or payable under this Agreement during the elapsed time since the Effective Date) and (ii) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WILL A PARTY BE LIABLE TO THE OTHER PARTY UNDER THE AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST REVENUES, LOST PROFITS, OR CONTRIBUTION IN RESPECT OF ANY CLAIM AGAINST THE PARTY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY. The foregoing limitations shall not apply to any losses arising from the willful malfeasance, gross negligence or fraud of a Party.

            For purposes of clarification, this limitation of liability is an aggregate limitation of liability for this Agreement, and all remedies provided for in this Agreement are cumulative.

16.	Management Escalation; Choice of Law; Available Remedies.

16.1.

Management Escalation.

            Except for a dispute, claim or other controversy that is subject to the Evaluation Process, to Section 10.2 (Examination) or is a matter that is subject to the process set forth in Section 14.5(b) (Termination for New University Material Breach), in the event of any other dispute, controversy or claim, whether based on contract, tort, statute or other legal or equitable theory (including any claim of fraud, misrepresentation or fraudulent inducement), arising out of or related to each Party’s obligations hereunder, prior to taking formal legal action, the Parties agree to: (a) work in good faith for thirty (30) days to attempt to resolve such matter, and (b) if such matter is not resolved in such thirty (30) day period, escalate the matter to the Chief Executive Officer of Contributor and the President of Purdue, who will then work in good faith for thirty (30) days to attempt to resolve the matter, and following such time if the matter has not been resolved, the Parties are free to pursue any legal remedy available to them.

16.2.

Governing Law; Jurisdiction and Forum; Waiver of Jury Trial.

 

 

 

16.3.

Certain Remedies.

            Notwithstanding anything herein to the contrary, the Parties agree that the failure of a Party to perform any obligation which arises under Section 6.1 (FERPA; GLB), Article 7 (Confidentiality), Section 8.1(e) (Trademark Provisions), Section 8.3 (Reservation) and Section 13.1 (Restrictive Covenants) will cause irreparable harm to the other Party, which may not be fully or adequately compensated by the award and/or payment of monetary damages alone. In the event of actual or threatened breach by a Party of any of the foregoing Sections, the Parties agree that the non-breaching Party shall be entitled to seek injunctive or other equitable relief in order to enforce or prevent any such conduct or continuing violation, without having to post a bond or other security and the breaching Party agrees not to raise the defense of an adequate remedy at law in any such proceeding. Nothing herein shall be construed as prohibiting either Party from pursuing any other remedies available for such breach or threatened breach, including the recovery of damages, costs, and reasonable attorneys’ fees from the other.

17.	Duty to Cooperate.

            If a Governmental Entity, Educational Agency, or third party files any type of demand, suit, claim, action or cause of action, or commences an investigation, review, audit, or site visit against Contributor or one of its Affiliates or New University or one of its Affiliates, each Party (and its respective Affiliates, to the extent applicable) shall use commercially reasonable efforts to cooperate with the other Party’s defense. Each Party (and its Affiliates, to the extent applicable) further agrees in principle to execute such joint defense agreements, on customary terms, as may be necessary or appropriate for the protection of any privilege or confidentiality in the course of cooperating with the other Party’s defense. Contributor and New University agree to use commercially reasonable efforts to make available to the other, upon reasonable request in writing, any and all non-privileged or non-proprietary documents that either Party (or either of their respective Affiliates, to the extent applicable) has in its or their possession, which relate to any such demand, suit, claim, action or cause of action, investigation, review, audit, or site visit. This provision is not intended to waive or otherwise limit any privilege or work product protection any Party may have over any documents or other information. However, neither Party (nor any of their respective Affiliates) shall have the duty to cooperate with the other Party if the dispute is between the Parties themselves, nor shall this provision preclude the raising of cross-claims or third party claims between Contributor and New University (or one of their respective Affiliates) if the circumstances justify such proceedings. The Parties agree that this provision shall survive the termination of this Agreement.

18.	Insurance.

            Throughout the Term, each Party shall purchase and maintain, at its expense, insurance coverage in types and amounts as is customary and reasonable for similarly situated organizations and businesses.

19.	Accreditation and Licenses.

            The Parties have set forth the terms, conditions and responsibilities in this Agreement in the good faith belief that they are fully in compliance with all legal and accreditation requirements generally applicable to New University or Contributor, or specifically applicable to such party’s obligations hereunder; provided, however, in the event that either Party reasonably determines that the performance of any particular service, duty or function by either Party is in violation of such legal or accreditation requirements, the Parties agree that such service, duty or function shall be promptly modified to the extent reasonably necessary to secure continued compliance with such legal and accreditation requirements.

 

 

            New University shall maintain in full force and effect, as required for the offering of the Academic Programs: (a) state authorization where such authorization is material to New University and its Academic Programs, (b) accreditation by the Higher Learning Commission and any other Accrediting Body where such accreditation is material to New University and its Academic Programs, and (c) eligibility and certification to participate in the Title IV Programs, including complying with the Higher Education Act of 1965, as amended, and its implementing regulations and the terms and conditions of the Program Participation Agreement between New University and ED, as in effect from time-to-time.

20.	Miscellaneous.

20.1.

Third Party Servicer Requirements.

20.2.

Relationship of the Parties.

            The Parties intend to create an independent contractor relationship and nothing contained in this Agreement will be construed to make either Contributor or New University, or any of their respective Affiliates, partners, joint venturers, principals, agents, or employees of the other. No officer, director, employee, agent, Affiliate, or contractor retained by a Party to perform services under this Agreement will be deemed to be an employee, agent, or contractor of the other Party. Neither Party will have any right, power or authority, express or implied, to bind the other.

 

 

            Each Party shall be solely responsible for the fulfillment of all applicable Fair Labor Standard Act, state labor laws and other labor laws and Social Security provisions that affect the labor relationships with its personnel, either currently in force or that may be enacted during the Term, expressly discharging the other Party from any liability for the breach thereof. Each Party shall hold the other Party harmless in connection with any Tax and salaries to be paid in connection with its activity, to the extent such Tax and salaries are imposed upon such other Party under applicable Law or under the terms of this Agreement. The terms of this Agreement are not intended to cause any of the Parties or their respective Affiliates to become a joint employer for any purpose.

20.3.

Expenses.

Whether the transactions contemplated by this Agreement are consummated or not, all legal and other costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the Party incurring such costs and expenses except as expressly otherwise set forth in this Agreement.

20.4.

Notices.

            All notices, requests, demands and other communications permitted or required to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed conclusively to have been given: (a) when personally delivered, (b) when sent by facsimile (with hard copy to follow in accordance with sub clauses (a), (d) or (e)) during a Business Day (or on the next Business Day if sent after the close of normal business hours or on any non-Business Day), (c) when sent by electronic mail (with hard copy to follow in accordance with sub clauses (a), (d) or (e)) during a Business Day (or on the next Business Day if sent after the close of normal business hours or on any non-Business Day), (d) one Business Day after being sent by reputable overnight express courier (charges prepaid) or (e) three Business Days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing, notices, requests, demands and communications to the Parties shall be sent to the following addresses:

The Trustees of Purdue University

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇

▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

with a copy to:

Stuart & Branigin LLP

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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇

Attn: ▇▇▇▇▇▇ ▇. Parent

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

Purdue University Global, Inc.

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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

 

 

with a copy to:

Stuart & Branigin LLP

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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇

Attn: ▇▇▇▇▇▇ ▇. Parent

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

▇▇▇▇▇▇, Inc.

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Attn: ▇▇▇▇▇▇ Block

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

With a copy to:

Dentons US LLP

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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

20.5.

Amendment; Waiver.

            This Agreement (including the Exhibits other than the NU Policy Guide Policy) may not be modified or amended except by an instrument or instruments in writing signed by Contributor and New University. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of such rights and the waiver by any Party of any one breach shall not be construed as a waiver of any other or subsequent breach.

20.6.

Successors and Assigns.

            This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns; provided, however, that no Party to this Agreement may assign its rights or delegate or subcontract any or all of its obligations under this Agreement without the express prior written consent of each other Party to this Agreement, except that Contributor may assign this Agreement to another entity owned, directly or indirectly, by ▇▇▇▇▇▇ Holdings Company or its successor, or to a purchaser of all or substantially all of the assets or equity of Contributor (regardless of the form of such transaction), and Contributor may subcontract portions of its services consistent with past practices, and in any event so long as it does not subcontract all or substantially all of any Service Function. For purposes of this Section, a Change of Control will be deemed an assignment under this Agreement. Each Party shall notify the other Party in writing upon the public announcement of a Change of Control of such Party or its parent.

20.7.

Third Party Rights.

            Nothing in this Agreement, whether express or implied, is intended to confer in or on behalf of any Person not a Party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof.

20.8.

Public Announcements.

            Except as required by Law or the rules of any national securities exchange, each of the Parties shall (and shall cause their respective Affiliates and representatives to) consult with the other Parties and obtain the prior written consent of the other Parties (which consent (other than with respect to price) shall not be unreasonably conditioned, withheld or delayed) before issuing any press releases or any public statements or announcements with respect to the activities hereunder contemplated by this Agreement; provided that, prior to any such release, statement or announcement as required by Law or the rules of any such exchange, the Person required to issue the release, statement or announcement shall allow the other Parties reasonable time to comment thereon in advance of such issuance.

 

 

20.9.

Entire Agreement.

            This Agreement constitutes the entire agreement among the Parties with respect to the subject matter of this Agreement and supersedes any prior discussion, correspondence, negotiation, proposed term sheet, agreement, understanding or arrangement and there are no agreements, understandings, representations or warranties among the Parties other than those set forth or referred to in this Agreement.

            If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

            This Agreement may be executed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each of the other Parties. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “.pdf” form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

            Each Party shall execute such deeds, assignments, endorsements, evidences of transfer and other instruments and documents and shall give such further assurances as shall be necessary to perform such Party’s obligations hereunder.

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

 

[Signature Page to Transition and Operations Support Agreement]

 

EXHIBIT A

“Academic Costs” has the meaning set forth in Section 2 of Exhibit F.

“Academic Functions” has the meaning set forth in Section 2.2.

“Academic Programs” means New University’s programs, plans, procedures and systems pursuant to which educational instruction and training is delivered either online or via hybrid ground-based programs on the Physical Campuses, and academic degrees, diplomas, honors or certificates are awarded for completion of undergraduate degree programs, graduate degree programs, certificate programs, professional studies programs or other educational programs offered by New University from time-to-time.

“Access” means the ability of authorized agents, officers, directors and employees of Contributor to: (i) enter and exit the Campuses to perform the Services, (ii) review and analyze relevant documents, books and records of New University (including copies) as reasonably necessary to perform the Services and (iii) consult with any employees, agents or other representatives, or students, of New University as reasonably necessary to perform the Services.

“Accountancy” has the meaning in Section 2.4(k)(ii).

“Accrediting Body” means any governmental or non-governmental entity, including any institutional and/or specialized accrediting agency, that engages in the granting or withholding of accreditation of postsecondary educational institutions or programs in accordance with standards relating to the performance, operations, financial condition or academic standards of such institutions, including the Higher Learning Commission.

“Action” means any action, claim (including any cross-claim or counterclaim), lawsuit, complaint, charge, arbitration, litigation, proceeding or hearing by or before a court, Governmental Entity or arbitral tribunal, whether at law or in equity.

“Additional Fee” has the meaning in Part B of Exhibit D.

“Advisory Committee” has the meaning in Section 3.2(b).

“Affiliate” means, (a) with respect to any Person, any other Person that directly, or through one or more intermediaries, controls, is controlled by or is under common control with such Person; and (b) in the case of Purdue and New University, any such Party or other Person that directly, or through one or more intermediaries, is a support organization for, or exists for the benefit of, either of Purdue or New University. For purposes hereof, “control” shall mean, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise (and the terms “controlled by” and “under common control with” shall have correlative meanings).

 

“Audited Financial Statements” means the income statement, balance sheet, cash flow statement and footnotes of New University prepared in accordance with GAAP consistently applied and certified by such Party’s auditor.

“Available Cash” has the meaning in Section 2 of Exhibit F.

“Back-Office Support Functions” has the meaning in Section 14.9(a).

“Books and Records” means originals (or true, correct and complete copies) of all business, accounting, Tax and financial records (including supporting orders and invoices), files, lists, ledgers, correspondence, studies, reports databases and other documents (whether in hard copy, electronic or other form), including: (a) all analysis reports, advertising, promotional and marketing materials and creative material and (b) all records and lists relating to students, vendors or personnel, but shall exclude student records, other than lists of students.

“Brand Costs” has the meaning in Section 2 of Exhibit F.

“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are authorized or obligated by Law or executive order to remain closed.

“Business Office” has the meaning in Section 2.4(g).

“Buyout Assets” has the meaning in Section 14.8(a).

“Buyout Closing” has the meaning in Section 14.8(c)(i).

“Buyout Contracts” has the meaning in Section 14.8(a)(ii).

 

“Buyout Notice” has the meaning in Section 14.8.

 

 

 

“Chosen Courts” has the meaning in Section 16.2(b).

“Closure” has the meaning in Section 14.7(a).

“Closure Budget” has the meaning in Section 14.7(c).

“Closure Period” has the meaning in Section 14.7(c).

“Closure Reserve” has the meaning in Section 14.7(c).

“Code” means the Internal Revenue Code of 1986, as amended for time-to-time.

“Collateral” has the meaning in Exhibit I-3.

“Confidential Information” has the meaning in Section 7.1.

 

 

 

“Course” means any academic course to be offered as part of the Academic Program.

“Critical Service Level Failure” has the meaning in Section 2.5.

“Cure Period” has the meaning in Section 14.5.

“Current Fair Market Rate” has the meaning in Section 14.2(b).

“Defaulting Party” has the meaning in Section 14.5.

 

 

 

“Employer Party” has the meaning in Section 13.1(c).

“Evaluation Process” has the meaning set forth in Section 3.2(e).

“Examination Notice” has the meaning in Section 10.2(d).

“Excess Payments” has the meaning in Section 1(d) of Exhibit F.

“Exclusive Employees” has the meaning in Section 14.8(a)(iii).

“Fee” means the Early Termination Fee or the Post-Initial Term Fee.

“Fee Based Product” has the meaning in Section 13.2.

“FERPA” has the meaning in Section 6.1.

“Financial Expert” has the meaning in Section III of Part C of Exhibit D.

“Financial Reports” means the Reports prepared and delivered under this Agreement, which relate to financial and accounting matters of New University, Contributor or the functions each Party performs in connection with this Agreement, including the Reconciliation Statements, the Agreed Reconciliation Statements, the Unpaid Funds Reports, and the Termination Fee Report.

“Fiscal Year” means the fiscal year of New University, beginning on July 1 and ending on June 30.

“GAAP” means the generally accepted accounting principles for the United States as in effect at the time the applicable financial statements or other calculations or statement were prepared, consistently applied.

“GLB” has the meaning in Section 6.1.

“Governmental Entity” means any court, administrative agency, commission or other governmental authority, body or instrumentality, supranational, national, federal, state, provincial, local, municipal, domestic or foreign government or governmental or regulatory authority or any self-regulatory authority or arbitral or similar forum of any nature, including any agency, branch, bureau, commission, department, entity, official or political subdivision, whether domestic or foreign, including any Educational Agency.

“Guaranty” has the meaning in Section 14.8(c)(ii)(2).

“HEA” means the Higher Education Act of 1965, 20 U.S.C. § 1001 et seq., as amended, or successor statutes thereto.

“HR Evaluation Standard” has the meaning in Section 2.2(f).

“ICA” has the meaning in the Prologue.

 

 

“▇▇▇▇▇▇ University” or “KU” has the meaning in Recital A.

 

“KHE” has the meaning in the Prologue.

“Law” means any laws, statutes, rules, regulations, ordinances, orders, codes, arbitration awards, judgments, decrees or other legal requirements of any Governmental Entity or Educational Agency, including any Educational Law, applicable to a Party.

 

“Licensee” has the meaning in Section 8.1(e).

“Licensor” has the meaning in Section 8.1(e).

“Losses” means losses, costs, charges, expenses, fees (including reasonable fees of attorneys, consultants and advisors), obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, demands, claims, assessments or deficiencies of any kind.

“Marketing Materials” means the works of authorship and other content created by both or either of New University and Contributor under the Marketing Plan or otherwise under this Agreement and which may be made available to each Party under this Agreement, including presentations, webcasts, video and audio clips, pictures, sound files, graphics, logos, and other similar materials and content; provided, however, in no event shall any IP or proprietary information of New University or Contributor be considered or deemed jointly owned.

“Marketing Plan” means the marketing plans developed jointly by the Parties which outline the marketing activities relating to the Academic Programs and the responsibilities of the Parties for those activities, which shall include the process regarding the production of Marketing Materials and the determination of marketing channels employed to display or disseminate such Marketing Materials.

 

 

“NewU Relationship Manager” has the meaning in Section 3.2(a).

“Non-Defaulting Party” has the meaning in Section 14.5(a).

“non-performing Party” has the meaning in Section 2.7(a).

“Non-Renewal” has the meaning in Section 14.3.

“Note” means an Early Termination Note or a Post-Initial Term Note.

“NPS” has the meaning in Section 2.5(b)(iv).

“NU Account” has the meaning in Section 1(a) of Exhibit F.

“NU Cash Transactions” has the meaning in Section 1(b)(i) of Exhibit F.

“NU Costs Cap” has the meaning in Section 2 of Exhibit F.

“NU Policy Guide” has the meaning in Section 2.3.

“NU Upfront Payment” has the meaning in Section 3(b) of Exhibit F.

“OIG” has the meaning in Section 20.1(b).

 

 

 

“Purdue” has the meaning in the Prologue.

“Purdue Provisions” means those provisions of this Agreement (including the Exhibits to this Agreement) and defined terms, which by their terms or as the context provides refer to Purdue, including the Recitals, Section 2.1 (New University Board of Trustees), Section 2.7 (Excused Performance; Force Majeure), Section 3.2(b) (Advisory Committee Make-Up and Meetings), Section 6.2 (Compliance with Law; Changes in Law), Article 7 (Confidentiality), Section 8.1(b) (Purdue License to Contributor), Section 8.1(c) (Purdue License to New University), Section 8.1(d) (Kaplan License to New University and Purdue), Section 8.1(e) (Trademark Provisions), Section 8.2 (Third Party Materials), Section 8.3 (Reservation), Section 8.4 (Residuals), Section 10.1(a) (Books and Records), Section 12.1  (Representations and Warranties; Covenants - Purdue and New University), Section 12.4 (Disclaimer), Section 13.1 (Restrictive Covenants), Section 13.2 (Transfer of Revenue Generating Assets), Section 14.1 (Term), Section 14.2(b) (Early Termination Fee), Section 14.5(a) (Termination for Material Breach - Generally), Section 14.7 (Teach-Out Period), Sections 14.8(c)(ii)(2), (3) and (7) (Closing Deliverables by New University), Article 15 (Limitation of Liability), Section 16.1 (Management Escalation), and Section 16.2 (Governing Law; Jurisdiction and Forum; Waiver of Jury Trial), Article 17 (Duty to Cooperate), Section 20.2 (Relationship of Parties), Section 20.3 (Expenses), Section 20.4 (Notices), Section 20.5 (Amendment; Waiver), Section 20.7 (Third Party Rights), Section 20.8 (Public Announcements), Section 20.9 (Entire Agreement), Section 20.10 (Severability), Section 20.11 (Counterparts), Section 20.12 (Further Assurances), and Sections 1(a) (NU Account) and 4(b) (Calculations of Payments; Process) of Exhibit F.

 

 

 

“Short Term Advances” has the meaning in Section 1(c) of Exhibit F.

“Significant Adverse Impact” has the meaning set forth in Section 3.2(e).

“Special Academic Costs” has the meaning in Section 1(e)(i) of Exhibit F.

 

“State Subsidy” means, where applicable: (a) Revenue collected by New University relating to any State share of instruction earned by New University students as a result of the Courses and credit hours of such students; and (b) the success points earned on a proportionate basis of such students compared to the total subsidy eligible enrollment.

“Student Financial Assistance Program” means any form of student financial assistance, grants or loans administered by any Governmental Entity, including the Title IV Programs, state grant programs, and veterans’ education benefits administered by the U.S. Department of Veterans’ Affairs.

“Supplier Party” has the meaning in Section 8.2.

“Support Costs” has the meaning in Section 2 of Exhibit F.

“Support Functions” has the meaning in Section 2.4.

“Support Transfer Notice” has the meaning in Section 14.9(a).

“Target Outreach and Admission Spend” has the meaning in Part A, Section IV of Exhibit D.

“Tax” means any and all taxes and all other charges, fees, duties, contributions, levies, assessments or liabilities in the nature of a tax, whether disputed or not, imposed by any Governmental Entity, and any interest, fines, penalties, assessments or additions to tax imposed with respect to such items or any contest or dispute thereof.

“Taxing Authority” means any Governmental Entity exercising regulatory authority in respect of any Taxes.

“Teach-Out Period” has the meaning in Section 14.7.

“Term” has the meaning in Section 14.1.

“Threshold Amount” has the meaning in Part B of Exhibit D.

“Title IV” means Title IV of the HEA, and any amendments or successor statutes thereto.

“Title IV Program” means the programs of federal student financial assistance administered pursuant to Title IV of the HEA.

“Transfer” has the meaning in Section 13.2.

“Transfer Agreement” has the meaning in Recital E.

“Transition Services Agreement” has the meaning in Section 14.8(c)(ii)(4).

“Triggering Loss” has the meaning in Section 14.4.

“UCC” has the meaning in Exhibit I-3.

 

“Unpaid Contributor Fees” has the meaning in Section 2 of Exhibit F.

 

“Unpaid Contributor Funds” has the meaning in Section 2 of Exhibit F.

 

“Unpaid Funds Report” has the meaning in Section 4(c) of Exhibit F.

 

“Unpaid NU Funds” has the meaning in Section 2 of Exhibit F.

“Valuation Period” has the meaning in Section 14.5(b)(iv).

“Valuation Process” is the process set forth in Section 14.5(b)(iv).

“Wind-Down Costs” has the meaning in Section 14.7(c).

“Year End Reconciliation” has the meaning in Section 4(a)(ii) of Exhibit F.

 

 

DATE PRINTED: 08/04/2016		PAGE A – 1
NAME AND ADDRESS OF INSTITUTION:  ▇▇▇▇▇▇ University                                                                                                                           ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇                                                                                                                           ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇               TYPE OF INSTITUTION: Proprietary

OPE ID: 00458600         TIN: ▇▇▇▇▇▇▇▇▇    IPEDS ID: 260901 DUNS NBR: 078090388		FEDERAL PELL GRANT ID: 004586 FEDERAL FAMILY EDUCATION LOAN ID: 004586 FEDERAL DIRECT STUDENT LOAN ID: G04586 FEDERAL ▇▇▇▇▇▇▇ LOAN ID: 001406 FEDERAL SCHOOL CODE: 004586 FEDERAL WORK STUDY ID: 001406
FEDERAL SUPPLEMENTAL EDUCATIONAL OPPORTUNITY GRANT ID: 001406
ACADEMIC CALENDAR: Trimester Hours, Quarter Hours, Clock Hours, Semester Hours EDUCATIONAL PROGRAM LEVELS OFFERED: Graduate/Professional (>-= 300 hours) Non-Degree (600-899 hours) Non-Degree 1 Year (900-1799 hours) Non-Degree 2 Years (1800-2699 hours) Associate’s Degree Bachelor’s Degree First Professional Degree Master’s Degree or Doctor’s Degree		ELIGIBLE: Y INITIAL APPROVAL DATE: 01/26/1985 CERTIFIED: Provisional LOAN DEFERMENT: Y       PROGRAM PARTICIPATION AGREEMENT EFFECTIVE DATE: 02/05/2016 EXPIRATION DATE: 09/30/2018
WAIVER(S): DEDP - 50% CORRESPONDENCE COURSES DEDP - 50% STUDENTS IN CORRESPONDENCE COURSES DEDP - 50% TELECOM STUDENTS ARE CORRESPONDENCE DEDP - EXCEPTION CERTIFICATE/DEGREE PROGRAMS DEDP - WEEKS IN AY (ACADEMIC YEAR) DEDP - WEEKS IN PROGRAM
THE INSTITUTION IS ELIGIBLE TO APPLY FOR PARTICIPATION IN THE FOLLOWING PROGRAMS AUTHORIZED UNDER THE HIGHER EDUCATION ACT OF 1965, AS AMENDED: TITLE IV: Y

Program TEACH GRANT			Certified:		DATE:
TITLE IV STUDENT FINANCIAL ASSISTANCE PROGRAMS
PROGRAM	CERTIFIED	APPROVAL DATE		PROGRAM		CERTIFIED	APPROVAL DATE
FWS Com Serv	Y	01/26/1985		FWS Priv Sec Empl		Y	01/26/1985
FWS Job Loc Dev	Y	01/26/1985		FFEL Staff		Y	01/26/1985
FEEL Staff Unsub	Y	01/26/1985		FFEL PLUS		Y	01/26/1985
FPerkins	Y	01/26/1985		FSEOG		Y	01/26/1985
FPell	Y	01/26/1985		FDSLP Staff		Y	07/01/1994
FDSLP Staff Unsub	Y	07/01/1994		FDSLP PLUS		Y	07/01/1994

		EFFECTIVE NUMBER OF
ACCREDITING AGENCY	DESIGNATION SCOPE	YEAR	YEARS
North Central Assoc of Colleges and Schools, the Higher Learning Commission Primary	Institutional	2009	6

NAME AND ADDRESS	TITLE	PHONE FAX	EMAIL
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	President	(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇	bvandenbosch@ ▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇, Vergishna ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Executive Director of Administration & Ops	(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇	vsimeon@ ▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	CFO	(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇	hrogoff@ ▇▇▇▇▇▇.▇▇▇
▇▇▇▇, ▇▇▇▇	Member of the Board
▇▇▇▇, ▇▇▇▇	Member of the Board
Gefen Sicilian, ▇▇▇▇	Member of the Board
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇	Member of the Board
▇▇▇▇▇▇, ▇▇▇▇▇▇▇	Member of the Board
▇▇▇▇, ▇▇▇▇▇▇	Member of the Board
▇▇▇▇▇▇, ▇▇▇▇▇▇▇	Member of the Board
▇▇▇▇▇, ▇▇▇ K	Member of the Board
Gefen-Sicilian, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	CAO	(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇	lgefen@ ▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	Senior Vice President and General Counsel	(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇	dadams@ ▇▇▇▇▇▇.▇▇▇

OPE ID	NAME AND ADDRESS	APPROVED FOR CERTIFICATION	INITIAL APPROVAL DATE
00458604	▇▇▇▇▇▇ University - Cedar Rapids ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458605	▇▇▇▇▇▇ University - Des Moines ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458606	▇▇▇▇▇▇ University - ▇▇▇▇▇ City Plaza West ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458607	▇▇▇▇▇▇ University - Cedar Falls ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458608	▇▇▇▇▇▇ University - Omaha ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458609	▇▇▇▇▇▇ University - Lincoln ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	12/04/2007
00458610	▇▇▇▇▇▇ University - Council Bluffs ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	N	12/04/2007
00458611	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	N	12/04/2007
00458612	▇▇▇▇▇▇ University - Hagerstown ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	07/06/2009
00458613	▇▇▇▇▇▇ University - Hagerstown - Career Technology Center ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	07/06/2009

00458614	▇▇▇▇▇▇ University - Frederick ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	N	07/06/2009
00458615	▇▇▇▇▇▇ University - Portland ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	05/10/2011
00458616	▇▇▇▇▇▇ University - Lewiston ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	05/10/2011
00458617	▇▇▇▇▇▇ University - Augusta ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	05/31/2013
00458618	▇▇▇▇▇▇ University - Indianapolis ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	11/30/2015
00458619	▇▇▇▇▇▇ University - Milwaukee ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇	Y	11/30/2015

CIP	INSTITUTION’S PROGRAM NAME	APPROVED FOR CERTIFICATION	FULL CREDIT TO DEGREE	INITIAL APPROVAL	CREDIT HOURS	TYPE	CLOCK HOURS	DURATION IN WEEKS
03.0103	Bachelor of Science in Environmental Policy & Management	Y	Y	05/31/2013	180	Quarter		130
03.0103	Master of Science in Environmental Policy	Y	Y	05/31/2013	55	Quarter		50
09.0702	Bachelor of Science in Communications	Y	Y	05/31/2013	180	Quarter		130
11.0101	Computer Systems Technician	N	Y	05/18/2000	48	Quarter	484	33
11.0101	Computer Systems Technician	N	Y	09/08/2003	47	Quarter	517	33
11.0101	Information Technology Pathway	N	Y	09/08/2003	40	Quarter	440	33
11.0101	Master of Science in Information Technology	Y	Y	05/31/2013	56	Quarter		90
11.0103	Associate of Applied Science in Computer Forensics	Y	Y	05/31/2013	90	Quarter	900	60
11.0103	Associate of Applied Science in Computer Forensics	Y	Y	11/30/2015	90	Quarter		60
11.0103	Bachelor of Science in Information Technology	Y	Y	05/31/2013	180	Quarter		130
11.0201	Introduction to Computer Programming Language	N	Y	09/08/2003	36	Quarter	360	30
11.0901	Bachelor of Science in Network Technology	Y	Y	05/31/2013	180	Quarter		130
11.1003	Bachelor of Science in Cybersecurity	Y	Y	11/30/2015	180	Quarter		170
11.1003	Master of Science in Cybersecurity Management	Y	Y	11/30/2015	60	Quarter		90
11.1006	Associate of Applied Science in Information Technology	Y	Y	05/31/2013	90	Quarter		60
11.9999	Internet and Website Development	N	Y	09/08/2003	45	Quarter	495	33
13.0401	Bachelor of Science in Early Childhood Administration	Y	Y	11/30/2015	180	Quarter		170

13.0406	Master of Science in Higher Education - Nonthesis Concentration 1	Y	Y	11/30/2015	68	Quarter		118
13.0406	Master of Science in Higher Education - Nonthesis Concentration 2	Y	Y	11/30/2015	70	Quarter		108
13.0406	Master of Science in Higher Education - Nonthesis No Concentration	Y	Y	05/31/2013	50	Quarter		60
13.0406	Master of Science in Higher Education - Nonthesis Student Affairs	Y	Y	11/30/2015	61	Quarter		78
13.0406	Master of Science in Higher Education - Thesis	Y	Y	11/30/2015	50	Quarter		60
13.0406	Master of Science in Higher Education - Thesis Student Affairs	Y	Y	11/30/2015	71	Quarter		90
13.0501	Master of Science in Education in Instructional Technology - Adult Learning	Y	Y	11/30/2015	51	Quarter		60
13.0501	Master of Science in Education in Instructional Technology - K-12	Y	Y	05/31/2013	50	Quarter		60
13.1206	Master of Arts in Teaching - Iowa Certification Track	Y	Y	05/31/2013	54	Quarter		78
13.1206	Master of Arts in Teaching - Nationwide Non-Certification Track	Y	Y	11/30/2015	45	Quarter		66
13.1206	Master of Science in Education - Educational Leader Emphasis Area Track	Y	Y	11/30/2015	54	Quarter		72
13.1206	Master of Science in Education - Standard Emphasis Area Track	Y	Y	05/31/2013	46	Quarter		60
13.1210	Associate of Applied Science in Early Childhood Development	Y	Y	05/31/2013	90	Quarter		60
13.1210	Bachelor of Science in Early Childhood Development	Y	Y	05/31/2013	180	Quarter		130
13.1210	Bachelor of Science in Early Childhood Development - Maine Student Teaching Opt.	Y	Y	11/30/2015	192	Quarter		140
13.1299	Teacher Intern Certificate	N	N	11/26/2007	44	Quarter	880	50
13.1501	Associate of Applied Science in Educational Paraprofessional	Y	Y	05/31/2013	90	Quarter		60
22.0000	Legal Studies - Certificate - Andover	N	Y	04/27/2011	36	Semester	485	56
22.0101	Juris Doctor	Y	Y	05/31/2013	92	Semester	920	208
22.0301	Legal Secretary Certificate	Y	Y	01/20/2006	31	Quarter	930	20
22.0302	Associate of Applied Science in Paralegal Studies	Y	Y	05/31/2013	90	Quarter		60
22.0302	Bachelor of Science in Legal Studies	Y	Y	05/31/2013	180	Quarter		130
22.0302	Bachelor of Science in Paralegal Studies	Y	Y	05/31/2013	180	Quarter		130
22.0302	Master of Science in Legal Studies	Y	Y	05/31/2013	▇▇	▇▇▇▇▇▇▇		▇▇
▇▇.▇▇▇▇	▇▇▇▇▇▇▇ to Paralegal Postbaccalaureate Certificate	Y	Y	09/08/2003	36	Quarter	1080	40
22.0399	Associates of Applied Science in Legal Support and Service	Y	Y	11/30/2015	90	Quarter		90
22.0399	Bachelor of Science in Legal Support and Services	Y	Y	05/31/2016	180	Quarter		170
22.9999	Executive Juris Doctor	Y	Y	05/31/2013	72	Semester	720	156
22.9999	Small Business Practice LLM	Y	Y	05/31/2013	24	Trimester	240	104
30.1701	Bachelor of Science in Psychology	Y	Y	05/31/2013	180	Quarter		130

30.1701	Master of Science in Psychology - Comp. Exam Track: ABA - Nonpracticum	Y	Y	11/30/2015	60	Quarter		70
30.1701	Master of Science in Psychology - Comp. Exam Track: ABA - Practicum	Y	Y	11/30/2015	65	Quarter		80
30.1701	Master of Science in Psychology - Comp. Exam Track: Addictions	Y	Y	05/31/2013	70	Quarter		80
30.1701	Master of Science in Psychology - Comp. Exam Track: General Psychology	Y	Y	11/30/2015	60	Quarter		70
30.1701	Master of Science in Psychology - Comp. Exam Track: I/O Psychology Nonpracticum	Y	Y	11/30/2015	60	Quarter		70
30.1701	Master of Science in Psychology - Comp. Exam Track: I/O Psychology Practicum	Y	Y	11/30/2015	65	Quarter		80
30.1701	Master of Science in Psychology - Thesis Track: ABA - Nonpracticum	Y	Y	11/30/2015	65	Quarter		80
30.1701	Master of Science in Psychology - Thesis Track: ABA - Practicum	Y	Y	11/30/2015	70	Quarter		90
30.1701	Master of Science in Psychology - Thesis Track: Addictions	Y	Y	11/30/2015	75	Quarter		100
30.1701	Master of Science in Psychology - Thesis Track: General Psychology	Y	Y	11/30/2015	65	Quarter		80
30.1701	Master of Science in Psychology - Thesis Track: I/O Psychology Nonpracticum	Y	Y	11/30/2015	65	Quarter		80
30.1701	Master of Science in Psychology - Thesis Track: I/O Psychology Practicum	Y	Y	11/30/2015	70	Quarter		90
30.9999	Associate of Science in Interdisciplinary Studies	Y	Y	05/31/2013	90	Quarter		60
30.9999	Bachelor of Science in Liberal Studies	Y	Y	05/31/2013	180	Quarter		130
30.9999	Bachelor of Science in Professional Studies	Y	Y	05/31/2013	180	Quarter		130
42.2806	Master of Science in Educational Psychology	Y	Y	08/18/2011	52	Quarter		66
42.2814	Bachelor of Science in Psychology in Applied Behavior Analysis	Y	Y	11/30/2015	180	Quarter		170
43.0102	Corrections Certificate	Y	Y	11/26/2007	36	Quarter	1080	36
43.0103	Management and Supervision Certificate in Criminal Justice	Y	Y	06/25/2009	36	Quarter	1080	36
43.0103	Master of Science in Criminal Justice	Y	Y	05/31/2013	55	Quarter		60
43.0103	Master of Science in Criminal Justice	Y	Y	05/31/2013	55	Quarter		70
43.0104	Associate of Applied Science in Criminal Justice	Y	Y	05/31/2013	90	Quarter		60
43.0104	Bachelor of Science in Criminal Justice	Y	Y	05/31/2013	180	Quarter		130
43.0104	Bachelor of Science in Criminal Justice Administration & Management	Y	Y	05/31/2013	180	Quarter		130
43.0104	Bachelor of Science in Criminal Justice Management & Supervision	Y	Y	05/31/2013	180	Quarter		130
43.0104	Bachelor of Science in International & Comparative Criminal Justice	Y	Y	05/31/2013	180	Quarter		130
43.0107	Associate of Applied Science in Public Safety and Security	Y	Y	11/30/2015	90	Quarter		90

43.0109	Private Security Certificate	Y	Y	01/20/2006	53	Quarter	1590	36
43.0112	Private Security Management Certificate	N	Y	11/26/2007	42	Quarter	1260	40
43.0113	Bachelor of Science in Corrections	Y	Y	11/30/2015	180	Quarter		170
43.0199	Crime Scene Technician Certificate	Y	Y	05/31/2013	44	Quarter	1320	36
43.0202	Bachelor of Science in Fire & Emergency Management	Y	Y	05/31/2013	180	Quarter		130
43.0202	Bachelor of Science in Fire Science	Y	Y	05/31/2013	180	Quarter		130
43.0202	Master of Science in Homeland Security & Emergency Management	Y	Y	05/31/2013	55	Quarter		60
43.0203	Associate of Applied Science in Fire Science	Y	Y	05/31/2013	90	Quarter		60
44.0000	Associate of Applied Science in Human Services	Y	Y	05/31/2013	90	Quarter		60
44.0000	Bachelor of Science in Human Services	Y	Y	05/31/2013	180	Quarter		130
44.0000	Human Services Certificate in Child and Family Services	Y	Y	11/30/2015	43	Quarter	1260	40
44.0000	Human Services Certificate in Elder Care Services	Y	Y	11/30/2015	43	Quarter	1260	40
44.0000	Master of Science in Human Services	Y	Y	11/30/2015	45	Quarter		50
44.0401	Associate of Applied Science in Public Administration	Y	Y	05/31/2013	90	Quarter		60
44.0401	Bachelor of Science in Public Administration and Policy	Y	Y	05/31/2013	180	Quarter		130
44.0401	Master of Public Administration	Y	Y	05/31/2013	55	Quarter		50
44.0702	Bachelor of Science in Human Services in Youth/Family Service and Administration	Y	Y	05/31/2016	180	Quarter		170
45.0401	Associates of Applied Science in Criminal Justice and Criminology	Y	Y	11/30/2015	90	Quarter		90
45.1001	Bachelor of Science in Political Science	Y	Y	05/31/2013	180	Quarter		130
50.0409	Associate of Applied Science in Graphic Design	Y	Y	05/31/2013	90	Quarter		60
51.0001	Associate of Science in Health Science	Y	Y	05/31/2013	90	Quarter		60
51.0001	Bachelor of Science in Health & Wellness	Y	Y	05/31/2013	180	Quarter		130
51.0001	Bachelor of Science in Health Science	Y	Y	05/31/2013	180	Quarter		130
51.0601	Dental Assistant Diploma	N	N	06/25/2009	45	Quarter	905	48
51.0601	Dental Assistant Diploma	Y	Y	11/26/2007	56	Quarter	960	48
51.0701	Bachelor of Science in Health Care Administration	Y	Y	05/31/2013	180	Quarter		130
51.0701	Master of Health Care Administration	Y	Y	05/31/2013	52	Quarter		60
51.0705	Associate of Applied Science in Medical Office Management	Y	Y	05/31/2013	91	Quarter		70
51.0706	Bachelor of Science in Health Information Management	Y	Y	05/31/2013	180	Quarter		130
51.0706	Master of Health Informatics	Y	Y	11/30/2015	48	Quarter		65
51.0706	Master of Health Information Management	Y	Y	11/30/2015	48	Quarter		65
51.0707	Associate of Applied Science in Health Information Technology	Y	Y	05/31/2013	92	Quarter		70
51.0707	Associate of Applied Science in Health Information Technology	Y	Y	05/31/2013	96	Quarter		70
51.0708	Associate of Applied Science in Medical Transcription	Y	Y.	05/31/2013	90	Quarter		70

51.0708	Medical Transcription Certificate	N	Y	01/25/2001	30	Quarter	374	22
51.0714	Medical Billing and Coding Certificate	Y	Y	06/25/2009	38	Quarter	380	30
51.0716	Medical Office Administration Certificate	Y	Y	11/30/2015	57	Quarter	1720	60
51.0801	Associate of Applied Science in Medical Assisting	Y	Y	05/31/2013	92	Quarter		70
51.0801	Medical Assistant	N	Y	06/25/2009	52	Quarter	450	30
51.0801	Medical Assistant Certificate - Online	Y	Y	06/25/2009	57	Quarter	730	50
51.0801	Medical Assistant Certificate - Onsite	N	Y	06/25/2009	57	Quarter	680	50
51.1009	Phlebotomist Certificate	Y	Y	06/25/2009	35	Quarter	485	30
51.1504	Bachelor of Science in Psychology in Addictions	Y	Y	11/30/2015	180	Quarter		170
51.2201	Bachelor of Science in Public Health	Y	Y	05/31/2013	180	Quarter		130
51.2201	Master of Public Health	Y	Y	05/31/2013	60	Quarter		50
51.2201	Master of Public Health	Y	Y	05/31/2013	60	Quarter		70
51.2207	Master of Science in Health Education	Y	Y	05/31/2013	52	Quarter		60
51.3104	Bachelor of Science in Nutrition Science	Y	Y	05/31/2013	180	Quarter		130
51.3501	Massage Therapy - Omaha	Y	N	11/26/2007		Clock	1000	50
51.3801	Associate of Science in Nursing (Florida)	Y	Y	11/30/2015	110	Quarter		140
51.3801	Associate of Science in ▇▇▇▇▇▇▇ (▇▇▇▇ & ▇▇▇▇▇▇▇▇)	▇	▇	▇▇/▇▇/▇▇▇▇	▇▇▇	▇▇▇▇▇▇▇		▇▇
51.3801	Bachelor of Science in Nursing - Accelerated LPN to BSN Pathway	Y	Y	11/30/2015	182	Quarter		110
51.3801	Bachelor of Science in Nursing - RN to BSN	Y	Y	05/31/2013	180	Quarter		130
51.3801	Bachelor of Science in Nursing - Traditional Pathway	Y	Y	05/31/2013	182	Quarter		130
51.3802	Doctor of Nursing Practice - Post MSN, Executive Leader	Y	Y	11/30/2015	90	Quarter		109
51.3802	Master of Science in Nursing - Executive Leader	Y	Y	05/31/2013	60	Quarter		76
51.3803	Adult Gerontology Nurse Practitioner Certificate	Y	-	05/31/2013	60	Quarter	1100	65
51.3805	Doctor of Nursing Practice - Post MSN, Family Nurse Practitioner	Y	Y	11/30/2015	108	Quarter		150
51.3805	Family Nurse Practitioner Certificate	Y	-	05/31/2013	60	Quarter	1100	65
51.3805	Master of Science in Nursing - Family Nurse Practitioner	Y	-	05/31/2013	90	Quarter		97
51.3817	Master of Science in Nursing - Nurse Educator	Y	Y	05/31/2013	75	Quarter		87
51.3817	Nurse Educator Graduate Certificate	Y	-	05/31/2013	45	Quarter	520	54
51.3817	Nurse Informatics Graduate Certificate	Y	-	05/31/2013	30	Quarter	500	54
51.3821	Doctor of Nursing Practice - Post MSN, Adult Gerontology Nurse Practitioner	Y	Y	11/30/2015	108	Quarter		150
51.3821	Master of Science in Nursing - Adult Gerontology Practitioner	Y	Y	11/30/2015	90	Quarter		97
51.3821	Master of Science in Nursing - Adult Nurse Gerontology Practitioner	Y	Y	05/31/2013	90	Quarter	900	90
51.3899	Doctor of Nursing Practice - General	Y	Y	11/30/2015	60	Quarter		65
51.3899	Executive Leader Graduate Certificate	Y	-	05/31/2013	30	Quarter	390	43

51.3899	Master of Science in Nursing - Informatics	Y	Y	05/31/2013	60	Quarter		76
51.3901	Practical Nursing Diploma	Y	Y	11/26/2007	84	Quarter	1240	50
51.3901	Practical Nursing Diploma	Y	Y	11/26/2007	84	Quarter	1240	60
52.0101	Associate of Applied Science in Business Administration	Y	Y	05/31/2013	90	Quarter		90
52.0201	Bachelor of Science in Business Administration	Y	Y	05/31/2013	180	Quarter		170
52.0201	Bachelor of Science in Management	Y	Y	05/31/2013	180	Quarter		130
52.0201	Master of Business Administration - No Specialization	Y	Y	05/31/2013	60	Quarter		90
52.0201	Master of Business Administration - With Specialization	Y	Y	11/30/2015	76	Quarter		114
52.0201	Master of Science in Management	Y	Y	05/31/2013	56	Quarter		84
52.0204	Office Management Certificate	N	Y	11/26/2007	47	Quarter	470	44
52.0301	Bachelor of Science in Accounting	Y	Y	05/31/2013	180	Quarter		170
52.0301	Graduate Certificate in Accounting	N	Y	04/27/2011	16	Semester	480	24
52.0301	Master of Science in Accounting	Y	Y	05/31/2013	52	Quarter		78
52.0302	Associate of Applied Science in Accounting	Y	Y.	05/31/2013	90	Quarter		90
52.0801	Bachelor of Science in Finance	Y	Y	11/30/2015	180	Quarter		170
52.0801	Master of Science in Finance	Y	Y	05/31/2013	56	Quarter		84
52.0901	Global Travel and Hospitality Management Certificate	N	Y	11/26/2007	50	Quarter	550	40
52.0903	Travel and Hospitality Certificate - Andover	N	Y	04/27/2011	30	Semester	445	36
52.1003	Bachelor of Science in Psychology in Industrial/Organizational Psychology	Y	Y	11/30/2015	180	Quarter		170

TIN	LEVEL	NAME	PERCENT OWNED	START DATE
371377789	1	Iowa Acquisition Corp. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	100%	11/30/1998
650038445	2	▇▇▇▇▇▇ Higher Education Corporation ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	100%	11/30/1998
222573250	3	▇▇▇▇▇▇, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	100%	07/27/2000
530182885	4	▇▇▇▇▇▇ Holdings Company ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	99.77%	12/31/1984
	▇	▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	85.7%	02/25/1977

DATE PRINTED: 08/04/2016		SERVICER INFORMATION SECTION	PAGE H – 1
INSTITUTION NAME :                   OPE ID : INSTITUTION TYPE :	▇▇▇▇▇▇ University  004586 00   Proprietary
SERVICER INFORMATION

SERVICER NAME	CONTACT NAME	SERVICES OFFERED
Loan Science ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇	▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇	Other

NewU Cost Per Credit Hour Ranges (Out-of-State)*
			Military (online and ground)
	Online	Ground	Active	Veteran
Undergraduate	$315 - $371	$321 - $371**	$165	$230
Graduate	$385 - $485	$320 - $485	$320	$331 - $396
Doctorate	$700	$700	$560	$595

NewU Cost Per Credit Hour Ranges (In-State)
			Military (online)
	Online	Ground (N/A)	Active	Veteran
Undergraduate	$		$		$
Graduate	$		$		$ - $
Doctorate	$		$		$