MANAGEMENT SERVICES AGREEMENT
between
ARGOSY EDUCATION GROUP, INC.
and
XXXX XXXXXXXX LAW SCHOOL, Inc.
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT dated as of September 1, 1999, is
entered into between ARGOSY EDUCATION GROUP, INC., an Illinois corporation (the
"Manager"), and XXXX XXXXXXXX LAW SCHOOL, INC., a Georgia non-profit corporation
("JMLS").
W I T N E S S E T H:
WHEREAS, JMLS is engaged in the business of providing legal education and
related services and supplies (the "School");
WHEREAS, JMLS desires to engage the Manager to manage the School and the
Manager is willing to be so engaged to manage the School, in accordance with the
terms and conditions set forth in this Agreement; and
WHEREAS, this Agreement and an Option Agreement between Argosy Education
Group, Inc. and Xxxx Xxxxxxxx Law School, Inc., dated July 29, 1999, are among
the conditions precedent to the Loan Agreement between Argosy Education Group,
Inc. and Xxxx Xxxxxxxx Law School, dated July 29, 1999.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained in this Agreement, and in order to permit the Manager
to take over the management of the School, it is hereby agreed as follows:
1. Definitions.
-----------
a. For purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Affiliate" of any Person (the "first person") shall mean (a) any Person,
directly or indirectly, owning or controlling or holding power to vote ten
percent (10%) or more of the outstanding voting securities of the first person,
(b) any Person, ten percent (10%) or more of whose outstanding voting securities
are directly or indirectly owned, controlled or held with power to vote by the
first person, (c) any Person, directly or indirectly, controlling, controlled by
or under
common control with the first person, (d) if the Person is a partnership, any
general partner of such partnership and (e) if the first person is an officer,
director or general partner, any Person for which the first person acts in such
capacity. As used in the definition of "Affiliate", the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise. Neither JMLS nor the Manager is
an Affiliate of the other.
"Agreement" shall mean this Management Services Agreement, including all
Schedules hereto, as it may be amended from time to time in accordance with its
terms.
"American Bar Association Standards" (ABA standards) shall mean the
Standards for the Approval of Law Schools.
"Anniversary" shall mean, when preceded by the term "First", "Second",
etc., the date which is the applicable anniversary of the Effective Date.
"Arbitrator" shall mean any natural person who is a resident of the United
States and who is not an employee or Affiliate of any of the parties hereto or
of any Person which is an Affiliate of any such party. In the selection and
appointment of Arbitrators the parties each agree to act in good faith to name
persons with experience and expertise in the subject matter involved.
"Budget" shall mean the budget for any Budget Period of JMLS, prepared and
approved in accordance with Section 13.
"Business Day" shall mean any day on which national banks located in
Chicago, Illinois are generally open for business.
"Effective Date" shall mean the effective date of this Agreement, set forth
in the introductory paragraph of this Agreement as the date as of which this
Agreement is entered into by the Manager and JMLS.
"GAAP" shall mean U.S. generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, which are
2
applicable to the circumstances as of the date of determination. For purposes of
this Agreement, when GAAP permits the use of alternative accounting methods, the
choice of methods acceptable under GAAP shall be applied in a manner consistent
with the historic practices used by the Person to which the term applies.
"Include" and "including" shall mean include or including, as the case may
be, without any implied exclusion of other items.
"Law" shall mean any law, statute, regulation, rule, ordinance, order,
consent decree, settlement agreement or government requirement, including any
ruling or requirement having the effect of law and applicable to JMLS, Manager,
or their respective Affiliates issued by any federal, state or local executive,
legislative or judicial body or entity.
"Manager" shall have the meaning given to it in the preamble.
"JMLS" shall have the meaning given to it in the preamble.
"Person" shall mean any natural person, corporation, partnership or other
business structure recognized as a separate legal entity.
"Term" shall mean the period commencing on the Effective Date and ending on
the Termination Date.
"Termination Date" means the date on which this Agreement is terminated in
accordance with its terms.
2. Appointment. JMLS hereby appoints and engages the Manager as JMLS's
-----------
sole and exclusive business manager of the School, and the Manager accepts such
appointment and engagement on and subject to the terms and conditions set forth
in this Agreement. Subject to the limitations and conditions set forth in this
Agreement, the Manager, in such capacity, shall have the authority and
responsibility to direct, supervise and manage the business operations of the
School on behalf of and for the account of JMLS and to take all actions related
thereto.
3. Facilities Provided by JMLS. JMLS shall obtain such facilities and
---------------------------
shall provide such equipment and supplies as are reasonably necessary for the
3
proper and efficient operation of the School. To the extent such facilities
and/or equipment are not in place at the time this Agreement is executed and
delivered, the Manager may advise JMLS of the need for same, whereupon unless
objected to in writing by JMLS, the Manager will arrange for the rental of such
facilities and/or the purchase or leasing of such equipment, in each case in the
name of, as the obligation of and funded by, JMLS. Such facilities, equipment
and supplies shall include the following:
a. Premises and Equipment.
----------------------
i. The Manager will maintain present leases and negotiate leases
or purchase contracts on behalf of and in the name of JMLS for such premises as
may be determined by the Manager to be necessary for the conduct of the School.
All premises used by JMLS in the conduct of the School are collectively referred
to herein as the "Premises".
ii. JMLS will make available for the Manager's use in connection
with the performance of the management services being provided hereunder
equipment, furniture and furnishings as are reasonably determined by the Manager
from time to time to be necessary for the operation of the School. At the
expense of JMLS, the Manager shall cause to be maintained such equipment in good
condition and repair, reasonable wear and tear excepted, and shall cause to be
refurbished or replaced the same as it becomes worn out or obsolete. The Manager
shall have no title in the equipment made available by JMLS hereunder; provided
however with the consent of JMLS, the Manager may from time to time take title
to any newly acquired equipment and lease such equipment to JMLS on terms that
are customary in the marketplace for similar leases or on terms otherwise
reasonably acceptable to JMLS. All of such equipment, furniture and furnishings
are collectively referred to as the "Equipment".
iii. This paragraph shall not be construed to effect the purchase
or lease of equipment in the academic program, specifically including computers
and peripherals used for students and faculty. Such leases and purchases shall
be made part of the Academic Support Budget.
b. Supplies. JMLS will provide all office and other supplies
--------
reasonably required for the operation of the School. The Manager will have the
authorization to order and/or purchase, in the name of JMLS, all such supplies.
4
4. Manager's Basic Duties. Consistent with ABA Standard 204, the manager
----------------------
shall perform the following duties: supervise and direct the general financial
operations of the School; develop practices and structures with respect to the
implementation of new features and educational programs to the extent that the
financial obligations and resources of JMLS permit; develop a marketing program
for the purpose of creating an increased awareness of the School and its
program; stimulate the general business of the School; employ at the expense of
JMLS such personnel for the financial operation of the School as may be
reasonably considered required by the Manager; collect income; at the expense of
JMLS, cause the furniture, furnishings and equipment to be kept in good repair;
at the expense of JMLS, arrange for necessary replacements, improvements and
changes in the furniture, furnishings and equipment; supervise the placing of
insurance on the operations of the School and its assets against all risks
usually covered in the case of similarly situated businesses; and perform all
other acts necessary or desirable in the operation of the School consistent with
ABA Standards.
5. Expenses. All staff and administrative personnel employed to perform
--------
services at the JMLS facilities, other than employees of the Manager who may
visit the facilities of JMLS from time to time to provide assistance and other
than employees of the Manager who the Manager may, in its sole discretion,
locate at JMLS facilities, shall be the employees or independent contractors of
JMLS but shall be supervised and/or directed by the Manager. The Manager shall
make all hiring and termination decisions, establish and pay (from JMLS's funds)
all wages, salaries and compensation, determine staffing levels, individual work
hours, personnel policies and employee benefit programs for all of the JMLS
personnel engaged in providing services for the School, as determined by the
Manager to be competitive with comparable and/or nearby businesses. All academic
personnel shall be selected, retained, promoted and terminated in accordance
with Chapter 4 of the ABA Standards and Standard 204 and the Faculty Policies as
approved by the Board of Trustees. Academic personnel shall include all tenure
tract faculty, instructors whether or not on tenure tract, and library
professionals. JMLS shall enter into an Employment Agreement with Xxxxxx X.
X'Xxxxxxxx, in substantially the form attached hereto as Exhibit "A." Xxxxxx X.
X'Xxxxxxxx shall have discretion in choosing his administrative assistant, who
is currently Xxxxxxx Xxxxx.
6. Billing and Collection. The Manager shall provide such billing and
----------------------
collection services as are determined by the Manager to be reasonably necessary
to attempt to collect in a timely manner all charges resulting from
5
JMLS provision of legal education and related services, and supplies to students
in connection with the operation of the School.
7. Expenditures by Manager. The Manager shall have the power and
-----------------------
authority to make all contracts and disbursements necessary to carry out the
duties conferred and imposed upon it by this Agreement, including, but not
limited to, the authority to pay for all salaries, operating expenses,
management expenses, maintenance and insurance. The Manager may, in the name
and at the expense of JMLS, institute any legal or equitable action or
proceeding for the collection of outstanding invoices fees, and/or other income
owing to the School. The Manager shall pay such expenses from the funds of
JMLS, or to the extent paid directly by the Manager, shall be entitled to prompt
reimbursement by JMLS for any and all such expenditures, provided that the
Manager shall bear the cost of its own overhead and the salaries of its own
officers and employees.
8. Bank Accounts.
-------------
a. JMLS shall establish or shall authorize the Manager to establish
segregated bank accounts at a banking institution or banking institutions
selected by the Manager (but consented to by JMLS, such consent not to be
unreasonably withheld). JMLS shall provide the Manager with control and
signature authority with respect to all such bank accounts for purposes of
enabling the Manager to carry out its duties hereunder. During the Term of this
Agreement, JMLS will not withdraw any funds from such accounts or issue any
checks against such accounts without first notifying the Manager of its desire
to do so and obtaining written approval from the Manager to do so. In the event
that there are any shortfall in funds necessary to pay the expenses of the
operation of the School (including the Manager's compensation), the Manager will
so notify JMLS and JMLS will deposit or cause to be deposited into the
appropriate bank account or bank accounts the funds necessary to fund such
shortfall.
b. At the commencement of this relationship, JMLS shall advise the
Manager as to the initial amounts deposited into each such bank account and the
Manager shall be entitled to take such reasonable action to verify such opening
balances. There shall be no outstanding checks drawn against such accounts at
the time this relationship commences.
9. Financial Aid. The Manager shall provide consulting services to
-------------
JMLS's administrative staff and students of the School to the extent that they
6
interact with federal student aid organizations. Such services may also include
processing applications for federal student loans, reports on approval and
status of such loans and internal audits of JMLS records to assist JMLS in
remaining in compliance with federal regulations.
10. Attorney-in-Fact. JMLS hereby appoints the Manager its true and
----------------
lawful attorney-in-fact to take the following actions for and on behalf of and
in the name of JMLS:
a. xxxx and collect all charges resulting from JMLS provision of
legal educational services and supplies to students in connection with the
operation of the School;
b. take possession of and endorse in the name of JMLS all cash,
notes, checks, money orders, insurance payments and any other instruments
received as payment of accounts receivable;
c. deposit all such collections directly into a JMLS account or
accounts with a banking institution selected by the Manager, with the consent of
JMLS, and to make withdrawals from such JMLS account(s); and
d. place accounts for collection, settle and compromise claims, and
institute legal action for the recovery of accounts, provided, however, that the
decision to take such steps shall be subject to the prior approval of, or
policies developed by, JMLS.
11. Bookkeeping and Accounting Services. The Manager shall perform all
-----------------------------------
bookkeeping and accounting services required for the operation of the School,
including the maintenance, custody and supervision of the School's business
records, ledgers and reports; the establishment, administration and
implementation of accounting procedures, controls and systems; the preparation
of the financial and management reports referenced in Section 12; implementation
and management of computer-based management information systems; and
implementation and management of records retrieval and confidentiality systems.
12. Financial and Management Reports. The Manager shall prepare and
--------------------------------
furnish to JMLS the following reports:
7
a. Monthly and annual balance sheets and income statements for JMLS.
All such statements shall be prepared on an accrual basis of accounting in
accordance with GAAP, with such exceptions thereto as are determined by the
Manager to be advisable; and
b. Any additional financial and management reports and information
that the Manager determines would assist JMLS in evaluating its productivity and
services.
The tax returns of JMLS for any period shall be the responsibility of JMLS,
although the Manager will reasonably cooperate with the person preparing such
returns.
13. Budgeting.
---------
The duties of the Manager hereunder include participating in the overall
financial planning for the School, and assisting JMLS in making business and
financial decisions with respect to the School. As part of that responsibility,
the Manager shall provide technical support and guidance in the preparation of
budgets. JMLS shall have initial responsibility to prepare the law school's
budget in conformity with the ABA Standards, specifically standards 209 and 602.
14. School Operating Plan.
---------------------
Within ninety (90) days of the Effective Date of the Agreement, and
every three (3) years thereafter, JMLS and the Manager will develop and adopt a
business operating plan (the "School Operating Plan"). JMLS and the Manager
each agree to cooperate and work together to implement the School Operating Plan
in accordance with the timetable specified therein, with such amendments and
modifications thereto as are deemed appropriate by the parties from time to
time. It is anticipated that the School Operating Plan will be consistent with
the School's mission of offering tuition below the price of competing private
schools, emphasizing first year writing courses, developing a third year program
oriented to practical training and maintaining a first-class teaching faculty.
15. Manager's Compensation.
----------------------
8
a. The Manager shall be compensated at the rate of twenty percent
(20%) of the net revenues from the School. Such compensation shall be paid on
the 15th day of each month on the basis of the net revenues during the preceding
month (the "Monthly Fee"). The term "net revenues" as used in this Agreement
includes all revenue of JMLS, on an accrual basis, from all sources (other than
donations, grants, sums from sale of capital assets and from sums, including
tuition, due for services rendered prior to September 1, 1999), less discounts
and allowances not otherwise already deducted from such revenues. For the
purpose of calculating the Manager's compensation, funds used to make payments
on the Bank Loan and the Xxxxxxxxxx Loan (as defined herein) will be excluded
from the calculation of net revenues regardless of the source of such funds.
All computations of net revenues shall be made on an accrual basis in accordance
with GAAP.
b. JMLS currently has a loan with First Citizens/The Bank in the
principal amount of $196,000 (the "Bank Loan") and a loan with Xxxxxx Xxxxxxxxxx
in the principal amount of $170,000 (the "Xxxxxxxxxx Loan") which shall be paid
in accordance with (S)15(a) and the Loan Agreement. If, in any month, JMLS has
insufficient cash to pay the current monthly payment due on the Bank Loan or the
Xxxxxxxxxx Loan, Manager agrees to defer and accrue its Monthly Fee, in full or
in part, as necessary to make the then current payments on the Bank Loan and
Xxxxxxxxxx Loan. The Manager may also defer and accrue it's Monthly Fee to the
extent necessary to make any monthly payments due in JMLS's ordinary course of
business. Any Monthly Fees accrued pursuant to this subsection (b) during the
course of any fiscal year shall be paid in full out of the first available net
cash, after current payments due on the Bank Loan and the Xxxxxxxxxx Loan, but
in no event later than sixty (60) days after the end of the School's fiscal
year, unless otherwise agreed by the Manager in writing.
15. Insurance.
---------
The Manager shall be responsible for procuring and maintaining
insurance for the benefit of the School at the expense of JMLS and shall name
the Manager as an additional insured under all such insurance. Such insurance
shall include all insurance customarily maintained by businesses similarly
situated including without limitation the following:
9
a. Comprehensive general liability insurance and fidelity bonds (if
determined by the Manager to be necessary) in amounts and with coverages
approved by the parties;
b. Property insurance covering the premises, equipment and supplies
used in the conduct of the School, in an amount and with coverages approved by
the parties. The Manager may procure and maintain any insurance required of it
by this Agreement through any program of self-insurance that complies with
normal actuarial standards or through an Affiliate acting in the capacity as
agent or insurance company, including off-shore captive insurance companies, in
amounts not less than those approved by the parties; and
c. Such other insurance coverage as is determined by the parties to
be advisable and the cost of which is included in the applicable Budget.
16. Additional Covenants and Board Resolution.
-----------------------------------------
a. During the Term, JMLS agrees that it will not, without the prior
written consent of the Manager, (i) merge, consolidate, or acquire all or any
substantial portion of the assets or capital stock of any Person, (ii) sell,
lease, transfer or otherwise dispose of any of its assets, other than assets
sold in the ordinary course of its business, or (iii) dissolve JMLS.
b. Prior to the execution of this Agreement, the Board of Trustees
of JMLS shall have executed a resolution, substantially in the form attached
hereto as Exhibit B.
17. Events of Default.
-----------------
The following events shall each be a Default under this Agreement:
a. If either party fails to perform in any material respect any
material obligation required of it hereunder, and such default continues for 90
days after the giving of written notice by the non-defaulting party, specifying
the nature and extent of such default; provided, however, that if such default
is not cured within 90 days, but is capable of being cured within a reasonable
period of time in excess of 90 days, then a Default shall not occur if the
defaulting party commences the cure of such default within the first 90-day
period and thereafter diligently and in good faith continues to cure such
default until completion.
10
b. If either party (i) applies for or consents to the appointment of
a receiver, trustee or liquidator of all or a substantial part of its assets,
files a voluntary petition in bankruptcy or consents to an involuntary petition,
makes a general assignment for the benefit of its creditors, files a petition or
answer seeking reorganization or arrangement with its creditors, or admits in
writing its inability to pay its debts when due, or (ii) suffers any order,
judgment or decree to be entered by any court of competent jurisdiction,
adjudicating such party bankrupt or approving a petition seeking its
reorganization or the appointment of a receiver, trustee or liquidator of such
party or of all or a substantial part of its assets, and such order, judgment or
decree continues unstayed and in effect for 90 days after its entry, then the
other party shall be entitled to terminate this Agreement by delivering written
notice of termination to such party.
18. Remedies Upon Default.
---------------------
a. If JMLS shall Default under this Agreement and such Default is not
cured by JMLS as provided in Section 18, then at the option of the Manager, the
Manager shall be entitled to terminate this Agreement.
b. In the event that the Manager shall Default under this Agreement
and such Default shall not be cured as provided in Section 18, then at the
option of JMLS, JMLS shall be entitled to terminate this Agreement.
19. Term. This Agreement shall commence on the Effective Date and, unless
----
earlier terminated pursuant to the terms hereof, shall expire on the tenth
anniversary of the Effective Date. Except for termination upon Default as
described in Section 18 or termination upon expiration of the Term, this
Agreement shall not be terminated by either party for any reason whatsoever.
20. Effect of Termination. Notwithstanding any other provisions of this
---------------------
Agreement, following the termination of this Agreement, this Agreement shall
remain in full force and effect with respect to events, actions, omissions or
occurrences which occurred prior to the termination of this Agreement. The
provisions of Sections 15, 19, 22-25, and of this Section, shall survive any
such termination and shall not expire.
11
21. Indemnification. JMLS shall indemnify and hold harmless the Manager
---------------
from damages for injuries to persons or property resulting from any cause
whatsoever in connection with the operation of the School, and at its own cost
and expense, to defend any action or proceeding against the Manager arising
therefrom, except as to circumstances where such damages are a direct result of
the negligence or malfeasance of the Manager or principally a result of the
failure of the Manager to fully and faithfully perform its duties hereunder.
This indemnification shall include, but not be limited to, all costs in
defending against the suit, attorneys' fees and any eventual settlement or
judgment amount, plus interest.
22. Governing Law. This Agreement shall be construed, interpreted and
-------------
applied in accordance with the laws of the State of Illinois.
23. Dispute Resolution.
------------------
a. The parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except for action seeking temporary
restraining order or injunction related to the purposes of this Agreement, or
suit to compel compliance with this dispute resolution process, the parties
agree to use the following alternative dispute resolution procedure as their
sole remedy with respect to any controversy or claim arising out of or relating
to this Agreement or its breach.
b. At the written request of a party, each party will appoint a
knowledgeable, responsible representative to meet and negotiate in good faith to
resolve any dispute arising under this Agreement. The parties intend that these
negotiations be conducted by non-lawyer, business representatives. The
location, format, frequency, duration and conclusion of these discussions shall
be left to the discretion of the representatives. Upon agreement, the
representatives may utilize other alternative dispute resolution procedures such
as mediation to assist in the negotiations. Discussions and correspondence
among the representatives for purposes of these negotiations shall be treated as
confidential information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in the arbitration
described below or in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications, which are not
prepared for purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in arbitration or lawsuit.
12
c. If the negotiations do not resolve the disputes within sixty (60)
days of the initial written request, the disputes shall be submitted to binding
arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. A party may demand such arbitration in
accordance with the procedures set out in those rules. Discovery shall be
controlled by the arbitrator and shall be permitted to the extent set out in
this section. Each party may submit in writing to a party, and that party shall
so respond, to a maximum of any combination of thirty-five (none of which may
have subparts) of the following: interrogatories, demands to produce documents,
and requests for admission. Each party is also entitled to take the oral
deposition of one individual of another party. Additional discovery may be
permitted upon mutual agreement of the parties. The arbitration hearing shall
commence within sixty (60) days of the demand for arbitration. The arbitration
shall be held in Chicago, Illinois. The arbitrator shall control the scheduling
so as to process the matter expeditiously. The parties may submit written
briefs. The arbitrator shall rule on the dispute by issuing a written opinion
within thirty days after the close of the hearings. The times specified in this
section may be extended upon mutual agreement of the parties or by the
arbitrator upon a showing of good cause. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
d. Each party shall bear its own costs of these procedures. A party
seeking discovery shall reimburse the responding party for the costs of
production of documents (to include search time and reproduction costs). The
parties shall equally split the fees of the arbitration and the arbitrator.
24. Confidential Information and Records.
------------------------------------
a. JMLS and the Manager agree that each will acquire certain
information and materials that are the confidential and proprietary information
of the others (the "Confidential Information"). JMLS and the Manager each agree
not to disclose or use the Confidential Information of the other except in the
performance of this Agreement or with the prior, express, written consent of the
other. JMLS and the Manager each agree to take all actions reasonably necessary
and satisfactory to the other to protect the confidentiality of the Confidential
Information of the other. JMLS and the Manager each shall assume that all
information and materials exchanged are Confidential Information except that the
following shall not be considered Confidential Information:
13
(1) Information known to the disclosee prior to the date the parties
first contacted each other.
(2) Information in the public domain, through no act or omission of
the party to this Agreement is required to keep such information
confidential.
(3) Information received from a third party with a legal or
contractual right to disclose such information.
(4) Information independently developed by the disclosee without
reference to the Confidential Information.
(5) Information disclosed without restriction pursuant to judicial
action or government regulation; provided, the party proposing to
disclose or use such Confidential Information has notified the other
party prior to such disclosure and reasonably cooperates with the
others in the event the other party chooses to legally contest and
avoid such disclosure.
b. All business records, information, software and systems of the
Manager relating to the provision of its services under this Agreement shall
remain the property of the Manager, and may be removed by the Manager from
supporting the School upon any termination of this Agreement; provided, however,
that JMLS shall be entitled upon reasonable written request, to access such
records and make copies or extracts thereof to the extent necessary to prosecute
or defend against any tax or other liabilities imposed on JMLS by any
governmental authority or other party.
c. Student data in usable form and student records shall remain the
property of JMLS and shall be delivered by the Manager to JMLS, upon request,
following any termination of this Agreement.
d. Except as otherwise provided in this Agreement, the parties shall
safeguard all records maintained by them pursuant to this Agreement for a period
of time specified by the parties (no less than three years) from the date of the
last activity recorded in such records and, prior to destruction of any such
records, shall give the other party notice of such destruction and, if the other
party
14
so elects and applicable Law so permits, shall deliver such records to the other
party in lieu of destroying them.
25. Assignment. The Manager shall have the right to assign, transfer,
----------
sell or pledge its rights hereunder to any Affiliate of the Manager. JMLS shall
not have the right to assign its rights and obligations hereunder without the
prior written consent of the Manager. This Agreement shall be binding upon and
inure to the bereft of the parties hereto and their respective heirs, personal
representatives, and permitted successors and assigns.
26. Enforcement Rights. JMLS acknowledges that both JMLS and the Manager
------------------
will be directly or indirectly affected by the enforcement of JMLS's rights
against third parties, and that the Manager may need from time to time to take
legal action against third parties to enforce the rights of JMLS. Therefore,
JMLS hereby appoints the Manager its true and lawful attorney-in-fact to enforce
an any all rights of JMLS, other than any rights JMLS may have against the
Manager, to the extent not contrary to applicable Law.
27. Miscellaneous.
-------------
a. Amendment. This Agreement may be amended, modified or
---------
supplemented but only in writing signed by each of the parties hereto.
b. Notices. Any notice, request, instruction or other document to be
-------
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (i) when received if given in person or by U.S. mail, certified
or registered mail, return receipt requested, postage prepaid, or (ii) on the
date of acknowledgment of receipt if sent by facsimile or other wire
transmission or by overnight courier.
If to JMLS, addressed as follows:
Xxxx Xxxxxxxx Law School, Inc.
0000 Xxxx Xxxxxxxxx Xx., X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. X'Xxxxxxxx
If to the Manager, addressed as follows:
15
Argosy Education Group, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. X'Xxxxxxx, Ph.D.
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
c. Waivers. The failure of a party hereto at any time or times to
-------
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term contained in this Agreement shall be effective unless in
writing, and no waiver in any one or more instances shall be deemed to be a
further or continuing waiver of any such condition or breach in other instances
or a waiver of any other condition or breach of any other term.
d. Counterparts. This Agreement may be executed simultaneously in
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
e. Headings. The headings preceding the text of Sections of this
--------
Agreement are for convenience only and shall not be deemed part of this
Agreement.
f. Further Assurances. Each party will, at the reasonable request of
------------------
any other party hereto, execute and deliver to such other party all such further
instruments, assignments, assurances and other documents, and take such actions
as such other party may reasonably request in connection with the carrying out
of this Agreement.
g. Remedies Cumulative. No remedy set forth in this Agreement or
-------------------
otherwise conferred upon or reserved to any party shall be considered exclusive
of any other remedy available to any party, but the same shall be distinct,
separate and cumulative and may be exercised from time to time as often as
occasion may arise or as may be deemed expedient.
16
h. Construction. The language in all parts of this Agreement shall
------------
be construed, in all cases, according to its fair meaning. The parties
acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
i. Authorized Persons. Whenever any consent, approval or
------------------
determination of a party is required pursuant to this Agreement, such consent,
approval or determination shall be rendered on behalf of the party by the person
or persons duly authorized to do so, which the other party shall be justified in
assuming means any officer of the party rendering such consent, approval or
determination, or such party's board of directors.
j. Severability. If any provision of this Agreement is or becomes
------------
invalid. illegal or unenforceable in any respect, the validity, legally and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
k. Entire Understanding. This Agreement, the Loan Agreement the
--------------------
Option Agreement and the other agreements between the parties expressly
contemplated hereby and thereby set forth the entire agreement and understanding
of the parties hereto in respect to the transactions contemplated hereby and
thereby and supersede all prior agreements, arrangements and understandings
relating to the subject matter hereof and thereof and is not intended to confer
upon any other person any rights or remedies hereunder or thereunder. There have
been no representations or statements, oral or written, that have been relied on
by any party hereto, except those expressly set forth in this Agreement, the
Loan Agreement, the Option Agreement and such other agreements.
l. Binding Effect. The provisions of this Agreement shall be binding upon and
--------------
inure to the benefit of both parties and their respective legal representatives,
successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
17
ARGOSY EDUCATION GROUP, INC.
By:__________________________
Title:_______________________________
XXXX XXXXXXXX LAW SCHOOL, INC.
By:________________________________
Title:_______________________________
18
