Exhibit,Appendix: ED MAP INC Vs DELTA CAREER EDUCATION CORPORATION VS.DELTA CAREER EDUCATION CORPORATION ET AL

On March 15, 2018 a Exhibit,Appendix was filed involving a dispute between and for OTHER CIVIL in the District Court of Franklin County.

Preview
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IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS
CIVIL DIVISION

ED MAP, INC.

Plaintiff,
Case No. 2018 CV 2305

Judge Cain
DELTA CAREER EDUCATION
CORPORATION, et al.,

Defendants.

SUR-REPLY TO DEFENDANTS STVT-AAI EDUCATION, INC. AND
ANCORA INTERMEDIATE HOLDINGS LLC’S REPLY FILED JULY 6, 2018

Plaintiff Ed Map submits this sur-reply because the Ancora Defendants’ Reply

Memorandum filed July 6, 2018 (“Reply”) misrepresents the applicable standard under

Ohio law for evaluating a Rule 12(B)(2) motion to dismiss for lack of personal

jurisdiction. The Ancora Defendants improperly contend that because they filed a Rule

12(B)(2) motion supported by Mr. Zawisky’s self-serving affidavit, Ed Map must

likewise submit an affidavit or other evidence to prove this Court has jurisdiction over

the Ancora Defendants. But that is not what Ohio law requires the Court to consider

when evaluating a motion to dismiss for lack of personal jurisdiction without an

evidentiary hearing, which defendants have not requested. See Info. Leasing Corp. v.

Baxter, 1st Dist. Hamilton No. C-020029, 2002-Ohio-3930, {| 4 (reversing dismissal on

personal jurisdiction grounds because “in the absence of an evidentiary hearing * * * the
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trial court was required view the allegations in the pleadings and the documentary

evidence in a light most favorable to [the plaintiff].

The Ancora Defendants would like this Court to ignore the factual allegations in

Ed Map’s Amended Complaint despite the requirement that the Court construe those

allegations in Ed Map’s favor. See Goldstein v. Christiansen, 70 Ohio St. 3d 232, 236

(1994), cited in Joffe v. Cable Tech, Inc., 163 Ohio App. 3d 479, 486 (10th Dist. 2005),

Giachetti v. Holmes, 14 Ohio App.3d 306, 307 (8th Dist.1984). They contend that a

plaintiff cannot rely on its well-pleaded allegations and must instead identify separate

evidence to establish the court has personal jurisdiction even at this early stage of the

litigation. (See Reply at 2). This is simply not true. See Joffe, 163 Ohio App. 3d at 486

(ruling that “a plaintiff need only establish a prima facie showing of personal

jurisdiction” to survive a motion to dismiss under Civ.R. 12(B)(2), citing Goldstein, 70

Ohio St.3d at 236); cf. Giachetti v. Holmes, 14 Ohio App.3d 306, 307 (8th Dist.1984) (ruling

that “[a]t the evidentiary hearing or the trial, the plaintiff still bears the burden of

proving jurisdiction by a preponderance of the evidence.”).

In Reed Elsevier, Inc. v. Feder, 2d Dist. Montgomery No. 26680, 2015-Ohio-5013, the

appellate court held that on a motion to dismiss without an evidentiary hearing, the

trial court must construe complaint allegations in plaintiffs favor even against

competing evidence presented by a defendant. Id. at {[ 26. In Reed, the defendant

attached evidence to its Civ.R. 12(B)(2) motion in the form of copies of letters that it
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claimed demonstrated an accord and satisfaction related to the debt forming the basis of

the lawsuit, but the plaintiff attached no evidence to its opposition, instead relying on

its well-pleaded complaint. Id. at 1] 3-4, 15-16. The trial court initially granted the

motion to dismiss relying on the defendant's evidence, but the Second District

overturned the trial court, explaining that “the allegations in the relevant pleadings,

construed in favor of [plaintiff], indicate that the trial court had personal jurisdiction

over [the defendant].” Id. { 29.

Likewise, in Clow Water Sys. Co. v. Giuliani Assocs., 5th Dist. No. 99-CA-008, 1999

Ohio App. LEXIS 3872 (Aug. 18, 1999), the trial court granted a motion to dismiss

“because appellee's affidavit alleging that it had never transacted business in Ohio was

unrebutted.” Id. at*2. The appellate court reversed the trial court, holding that

“{a|ppellant correctly asserts in order to rule on a motion to dismiss for lack of personal

jurisdiction pursuant to 12(B)(2), the trial court must determine whether the complaint

alleges any cause of action cognizable in Ohio.” Id. at *3. Upon review, the Fifth

District found that a prima facie case of personal jurisdiction had been shown where

“the documentation attached to the amended complaint demonstrates a contract

between the parties, which contains a forum selection clause, and also demonstrates a

transaction of business in Ohio sufficient to constitute submission to personal

jurisdiction[.|” Id. at *6. Thus, a plaintiff may rely on its well-pleaded allegations to

make a prima facie showing of personal jurisdiction.
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Ed Map relied on factual allegations and documentary evidence, which the

Ancora Defendants dispute but that the Court must construe in favor of Ed Map, to

establish personal jurisdiction. Reed at {| 20. In his affidavit, Mr. Zawisky contends that

Ancora did not assume Delta’s contract with Ed Map. In contrast, Ed Map alleges in its

Amended Complaint that Ancora assumed the Agreement through its acquisition of the

Delta assets. (Am. Compl. {1 45-50.) In particular, the complaint allegations explain

how Ancora acquired the Agreement by accepting services and receiving the benefit of

the Agreement in furtherance of Ancora’s business. (Id., {| 46, 48-49.) Moreover, the

Agreement, which is documentary evidence attached to the Amended Complaint,

contains a forum selection clause that the Ancora Defendants do not dispute confers

jurisdiction over the original contracting party and any successors, which assume or

acquire the Agreement. See Ranco, Inc. of Delaware v. Gold Sec. Australia, Ltd., 10th Dist.

Franklin No. 90AP-114, 1991 Ohio App. LEXIS 406, *6-8 (Jan. 31, 1991).

Mr. Zawisky’s statement that the Ancora Defendants are not assignees of the

Agreement is a legal interpretation of the asset purchase agreement (“APA”) between

Delta and Ancora or, at best, a disputed fact.! Regardless, it is an issue that must be

1 Note that Ancora’s assumption of the Agreement is relevant both to the
issue of personal jurisdiction and to Ancora’s liability for money damages under the
Agreement. At least one federal court has recognized that when personal jurisdiction
and merits issues are intertwined, the court should not hold a hearing to resolve the
personal jurisdiction issue but should instead allow it to be resolved by the jury along
with the merits issue. See Dorchester Fin. Sec., Inc. v. Banco BR], S.A., 722 F.3d 81 (2d Cir.
2013.)
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resolved on a Civ.R. 12(B)(2) motion in Ed Map’s favor. See Goldstein v. Christiansen, 70

Ohio St. at 236; Joffe, 163 Ohio App. 3d at 486; Reed at {| 20. Tellingly, the Ancora

Defendants attached no terms or schedules to demonstrate that the Agreement was

excluded under the APA. In fact, under the APA, Ancora Holdings expressly assumed

liabilities for the ongoing operation of the Delta assets that Ancora Holdings acquired.

(See Smith Aff. {] 12, attached as Ex. A, APA, Section 2.3(a), attached as Aff. Ex. 1.) In

January 2018, Ed Map shipped educational materials to students who were enrolled in

courses at colleges that Ancora Holdings acquired from Delta. (See Smith Aff. {] 11.)

Because the debt owed for those supplies related to the ongoing operation of the Delta

assets that Ancora Holdings acquired, Ancora Holdings expressly assumed the

Agreement. (See APA, Section 2.3(a), attached as Smith Aff. Ex. 1.)

The Ancora Defendants have more contacts with Ohio than they would have this

Court believe. Among those students to whom Ed Map shipped course materials to in

January 2018, were Ohio residents. (Smith Aff. 4 11.) By engaging students in Ohio in

their colleges and online courses, Ancora conducts business in Ohio and should

anticipate being sued in Ohio. See Perrow v. Grand Canyon Educ., Inc., S.D. Ohio No.

2:09-cv-670, 2010 U.S. Dist LEXIS 9538, *13-14 (Jan. 15, 2010); P&G Co. v. Team Techs, Inc.,

S.D. Ohio No. 1:12-cv-552, 2012 U.S. Dist. LEXIS 167208, *11-12 (Nov. 26, 2012). Further,

the Ancora Defendants’ refusal to pay for those materials shipped to Ancora students
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inside and outside of Ohio caused tortious injury to Ed Map in Ohio. (See Smith Aff. 1

10-11, 14.)

Given the forum selection clause in the Agreement assumed by the Ancora

Defendants and their contacts with Ohio, the Court should not permit the Ancora

Defendants to dodge this agreed upon forum and should deny their motion to dismiss.

Respectfully submitted

/s/ Elizabeth L. Moyo
Elizabeth L. Moyo (0081051)
Allen T. Carter (0085393)
Porter, Wright, Morris & Arthur LLP
41 South High Street, 29" Floor
Columbus, Ohio 43215
Telephone: (614) 227-2000
Facsimil : (614) 227-2100

forneys for laintiff Ed Map, Inc.
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CERTIFICATE OF SERVICE

The undersigned certifies that on July 16, 2018, the foregoing was served via the court’s

electronic filing system and/or by regular U.S. Mail on the following:

C. Craig Woods, Esq.
Andrew H. King, Esq
Michael T. Mullaly, Esq.
Squire Patton Boggs (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43125
Counsel for Defendants STVT-AAI Education, Inc.
dba Ancora Education and Ancora Intermediate Holdings LLC

/s/ Elizabeth L. Moyo

Ds/113543663
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IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS
CIVIL DIVISION

ED MAP, INC.

Plaintiff,
Case No. 2018 CV 2305
Vv.

Judge Cain
DELTA CAREER EDUCATION
CORPORATION, et al.,

Defendants.

STATE OF OHIO )
) ss.
COUNTY OF ATHENS )
AFFIDAVIT OF GREGORY P. SMITH

Before me, the undersigned Notary Public, appeared Gregory P. Smith, who,

being duly cautioned and sworn, deposes and says as follows:

1 lam over the age of 18 and am competent to testify in a court of law.

I give this Affidavit based on my personal knowledge.

Tam currently the Chief Financial Officer of Ed Map, Inc.

Delta Career Education Corporation (“Delta”) entered into a contract with

Ed Map for educational books and services on February 2, 2012. A true and accurate

copy of the February 2, 2012 agreement with attachments is attached as Exhibit A to

Plaintiff's First Amended Complaint.

5. Ed Map and Delta amended the Agreement in writing effective
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September 9, 2013 (the “Amendment”). A true and accurate copy of the Amendment is

attached to the First Amended Complaint as Exhibit B. Together the February 2, 2012

agreement with attachments and the Amendment shall be referenced as the

“Agreement.”

6. Although Delta made late payments to Ed Map from time to time, it was

not until 2017, that Delta’s debt owed to Ed Map grew significantly.

7. As of December 1, 2017, Delta owed Ed Map $2,079,000, under the

Agreement.

8. Based on my conversations with Bill Nance, Tim Ryder, and Martina

Hansen, I understood that Delta was selling most, if not all, of its business to Ancora. I

further understood that Mr. Nance would continue to be involved in the business as an

employee of Ancora.

9. On or about December 12, 2017, Ed Map demanded payment on the

ouststanding debt from Delta, and I inquired into the status of the transaction between

Delta and Ancora.

10. On December 27, 2017, I received a phone call from Mr. Nance and Mr.

Ryder, who requested books and educational materials for the next school period. They

assured me that Ed Map would be paid for those materials and the outstanding debt

Delta owed upon the closing of the transaction between Delta and Ancora. Because Mr.
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Nance was going to continue to be involved in the business of Ancora, I thought he had

authority to make those assurances on behalf of both Delta and Ancora.

11. Based on the assurances of Mr. Nance and Mr. Ryder, Ed Map shipped

books and educational materials to students, including students residing in Ohio, in

January 2018.

12. Based on my communications with Mr. Nance and what I gleaned from

the news media, my understanding is that the Delta and Ancora transaction closed on

or about January 18, 2018.

13. At the request of Ed Map’s counsel, Ancora’s counsel provided a redacted

copy without schedules or attachments of the asset purchase agreement (“APA”)

between Delta and Ancora. Attached as Exhibit 1 is a copy of the redacted APA that

Ancora’s counsel provided to us.

14. Despite repeated requests for payment, neither Delta nor Ancora has paid

the outstanding debt owed to Ed Map and that now totals more than $2.4 million.

P|
FURTHER AFFIANT SAYETH NOT.

Gregory P. Smith

SWORN TO before me and subscribed in my ence this {o- d f July 2018.

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SUZ

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JAMES E, ROM
Notary Pubitc rote
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My Commis
November 28, 2022
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EXECUTION VERSION

AMENDED & RESTATED
ASSET PURCHASE AGREEMENT

by and among

Ancora Intermediate Holdings LLC

and

Atlantic Coast Colleges, Inc., Berks Technical Institute, Inc., Creative Circus, Inc., Delta
Career Education Corporation, McCann Education Centers, Inc., McCann School of
Business and Technology, Inc., Miller-Motte Business College, Inc., Palmetto Technical
College, Inc., and Piedmont Business Colleges, Inc.

Dated as of January 18, 2018

EXHIBIT

Pod
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TABLE OF CONTENTS
Page

ARTICLE I DEFINITIONS
Section 1.1 Definitions.

ARTICLE II PURCHASE AND SALE 12
Section 2.1 Purchase and Sale of Purchased Assets 12
Section 2.2 Excluded Assets 16
Section 2.3 Assumed Liabilities 17
Section 2.4 Excluded Liabilities 18
Section 2.5 Purchase Consideration 18
Section 2.6 Closing 18
Section 2.7 Consents of Third Parties... 22
Section 2.8 Working Capital Adjustment.. 23
Section 2.9 Calculation and Payment of Main Adjustment Amount ‘and Creative
Circus Adjustment Amount from Surety Bond Escrow Account.. 27
Section 2.10 Funding of Buyer Wind Down Funds 28
Section 2.11 Insolvency Proceeding 28

ARTICLE III REPRESENTATIONS AND WARRANTIES. 28
Section 3.1 Representations and Warranties of the Seller 28
Section 3.2 Representations and Warranties of the Buyer 34

ARTICLE IV CONDITIONS OF PURCHASE 37
Section 4.1 Conditions to Obligations of the Buyer 37
Section 4.2 Conditions to Obligations of the Seller. 39

ARTICLE V COVENANTS 42
Section 5.1 Conduct of Business 42
Section 5.2 Publicity 45
Section 5.3 Confidentiality 45
Section 5.4 Access to Information 45
Section 5.5 Preservation of Records . 46
Section 5.6 Commercially Reasonable Efforts . 46
Section 5.7 No Shop; Buyerss Consent Over Alternative Transactions AT
Section 5.8 D&O Tail.. AT
Section 5.9 Wrong Pocket 48
Section 5.10 Title IV Management. 49
Section 5.11 Closing Date Expenses and Post-Closing Expenses... 49
Section 5.12 Seller Employment Arrangements... 49

ARTICLE VI TERMINATION. 50
Section 6.1 Termination 50
Section 6.2 Effect of Termination... 50

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ARTICLE VII MISCELLANEOUS 51
Section 7.1 Non-Survival of Representations Warranties, Covenants and
Agreements.. 51
Section 7.2 Assignment; Binding Effect... 51
Section 7.3 Choice of Law... 51
Section 7.4 Arbitration 51
Section 7.5 Notices 52
Section 7.6 Headings 53
Section 7.7 Fees and Expenses 53
Section 7.8 Entire Agreement 53
Section 7.9 Interpretation.. 53
Section 7.10 Waiver and Amendment . 53
Section 7.11 Counterparts... 54
Section 7.12 Third-Party Beneficiaries 54
Section 7.13 Severability . 54
Section 7.14 Specific Performance 54
Section 7.15 Non-Recourse 54
Section 7.16 Release. 55
Section 7.17 Awomey-Chient Privilege ‘and Conflict Waiver. 56
Section 7.18 Fraud... 57
Section 7.19 No Breach .. 58
Section 7.20 Amendment and Restatement 58

EXHIBIT A-1 BILL OF SALE
EXHIBIT A-2 CREATIVE CIRCUS BILL OF SALE
EXHIBIT B-1 ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT B-2 CREATIVE CIRCUS ASSIGNMENT AND ASSUMPTION
AGREEMENT
EXHIBIT C TRANSITION SERVICES AGREEMENT
EXHIBIT D WIND-DOWN AGREEMENT
EXHIBIT E BUDGET
EXHIBIT F WORKING CAPITAL SCHEDULE

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THIS ASSET PURCHASE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this “Agreement”), dated as of January 18, 2018, by and among
(a) (i) Atlantic Coast Colleges, Inc., a North Carolina corporation; (ii) Berks Technical Institute,
Inc., a Delaware corporation; (iii) Creative Circus, Inc., a Virginia corporation (“Creative
Circus”); (iv) Delta Career Education Corporation, a Delaware corporation (“Delta”); (v)
McCann Education Centers, Inc., a Pennsylvania corporation; (vi) McCann School of Business
and Technology, Inc., a Louisiana corporation; (vii) Miller-Motte Business College, Inc., a North
Carolina Corporation; (viii) Palmetto Technical College, Inc., a Virginia corporation; and (ix)
Piedmont Business Colleges, Inc., a North Carolina corporation (each and collectively, the
“Seller”); and (b) Ancora Intermediate Holdings LLC, a Texas limited liability company (the
“Buyer”), and amends and restates in its entirety that certain Asset Purchase Agreement, dated as
of October 3, 2017 (the “Initial APA”), by and among the Seller and the Buyer. Unless
otherwise set forth herein, capitalized terms used herein shall have the meanings assigned to such
terms in Section 1.1

RECITALS

WHEREAS, the Seller is engaged in the business of owning and operating the Schools
(as such business is conducted by the Seller on the date of this Agreement, the “Business”);

WHEREAS, the Seller desires to sell, and the Buyer desires to purchase, the Purchased
Assets, and in connection therewith the Buyer is willing to assume the Assumed Liabilities, all
upon the terms and subject to the conditions set forth herein; and

WHEREAS, this Agreement amends and restates the Initial APA in its entirety.

NOW, THEREFORE, in consideration of the foregoing, the representations, warranties,
covenants and agreements set forth in this Agreement, and other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereby
agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions.

For purposes of this Agreement, except as otherwise expressly provided herein or unless
the context otherwise requires, the following terms, when used in this Agreement and the
Exhibits, Schedules, and other documents delivered in connection herewith, have the meanings
assigned to them in this Section 1.1.

“AAA” has the meaning given to such term in Section 7.4(a) hereof.

“Accrediting Body” means any non-governmental entity, including institutional and
specialized accrediting agencies, which engage in the granting or withholding of accreditation of
postsecondary educational institutions or educational programs in accordance with standards

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relating to the performance, operations, financial condition or academic standards of such
institutions and schools.

“Action” means any action, claim, complaint, investigation, petition, suit, Compliance
Review, or other proceeding, whether civil or criminal, at law or in equity before any
Governmental Authority.

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under common control
with, such Person, and the term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether through ownership of
voting securities, by Contract or otherwise.

“Agent” means Antares Capital LP or any successor agent, as administrative agent under
that certain Amended and Restated Credit Agreement, dated as of November 22, 2016, by and
among Delta Educational Systems, Inc., as the borrower thereunder, the other persons party
thereto that are designated as credit parties, Antares Capital LP, as agent for all lenders
thereunder, and the other financial institutions party thereto that are designated as lenders, as
amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as
of May 16, 2017, and that certain Second Amendment to Amended and Restated Credit
Agreement, dated as of June 1, 2017, and as may be amended, restated, amended and restated,
supplemented or otherwise modified from time to time.

“Agreed Principles” means the principals set forth on the Working Capital Schedule, as
attached hereto as Exhibit F

“Agreement” has the meaning given to such term in the preamble hereof.

“Ancora Confidentiality Agreement” has the meaning given to such term in Section 5.3
hereof.

“Assignment and Assumption Agreement” has the meaning given to such term in
Section 2.6(b)(i)(2) hereof.

“Assumed Liabilities” has the meaning given to such term in Section 2.3 hereof.

“Bill of Sale” has the meaning given to such term in Section 2.6(b)(i)(1) hereof.

“Brissman Employment Agreement” means that certain Employment Agreement, dated
May 30, 2013, by and between Charles P. Brissman (“Brissman”) and Delta, as amended.

“Budget” means that certain forward-looking budget of the Seller in the form attached
hereto as Exhibit E.

“Business” has the meaning given to such term in the recitals hereof.

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

“Buyer” has the meaning given to such term in the preamble hereof.

“Buyer Parties” has the meaning given to such term in Section 7.17(b)(i) hereof.

a
«
“Buyer Wind Down Funds” means an amount in cash equal to (x minus (y)
, which amount will be deposited by the Buyer in accordance with the
terms of Section 2.10 hereof, together with interest accrued thereon from the Closing Date, as
such amount may be reduced from time to time in accordance with this Agreement, the Main
Closing Escrow Agreement and the Lender Consent. Any reference to the Buyer Wind Down
Funds used in this Agreement shall mean and be a reference to the dollar amount referred to in
the immediately preceding sentence to the extent such amount remains in the Main Closing
Escrow Account.

“Buyer’s Counsel” means each of (i) Stroock & Stroock & Lavan LLP and (ii)
Thompson Coburn LLP, each in their respective capacity as legal counsel to the Buyer.

“Closing” has the meaning given to such term in Section 2.6(a)(i) hereof.

“Closing Date” has the meaning given to such term in Section 2.6(a)(i) hereof.

a i
“Competing Proposal” has the meaning given to such term in Section 5.7 hereof.

“Compliance Date” means July 1, 2014.

“Compliance Review” means any program review, audit (including any Title IV
Program compliance audit by an independent auditor pursuant to 34 C.F.R. § 668.23),
investigation, subpoena or any other compliance-related review conducted by a Governmental
Authority and seeking information concerning any Seller’s, any Institution’s or any School’s
compliance with any Laws.

“Confidentiality Agreements” has the meaning given to such term in Section 5.3 hereof.

“Contract” means any written or oral agreement, arrangement, commitment, indenture,
instrument, lease, purchase order or license.

“Contracting Parties” has the meaning given to such term in Section 7.15 hereof.

“Creative Circus” has the meaning given to such term in the preamble hereof.

“Creative Circus Adjustment Amount”
minus (y)
means an amount _ to 7 a as set
forth in the Final Statement.
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“Creative Circus Assets” has the meaning given to such term in Section 2.1(a) hereof.

“Creative Circus Assignment and Assumption Agreement” has the meaning given to
such term in Section 2.6(b)(ii)(2) hereof.

“Creative Circus Assumed Current Liabilities’ means, as of the Creative Circus
Measurement Time, the Creative Circus Liabilities of Creative Circus, as determined in
accordance with the Agreed Principles.

“Creative Circus Bill of Sale” has the meaning given to such term in Section
2.6(b)(ii)(1) hereof.

“Creative Circus Calculated Amount” has the meaning given to such term in Section
2.8(b)(ii) hereof.

“Creative Circus Closing” has the meaning given to such term in Section 2.6(a)(ii)
hereof.

“Creative Circus Closing Certificate” has the meaning given to such term in Section
2.8(b)(i) hereof.

“Creative Circus Closing Date” has the meaning given to such term in Section 2.6(a)(ii)
hereof.

“Creative Circus Estimated Net Working Capital” has the meaning given to such term
in Section 2.8(b)(i) hereof.

“Creative Circus Final Statement” has the meaning given to such term in Section
2.8(b)(iv) hereof.

“Creative Circus Liabilities” has the meaning given to such term in Section 2.3(a)
hereof.

“Creative Circus Measurement Time” means 11:59 p.m. (prevailing Eastern Time) on
the day immediately prior to the Creative Circus Closing Date.

i
“Creative Circus Net Working Capital” means (a
HE winus ©)
“Creative Circus Purchased Current Assets” means, as of the Creative Circus
Measurement Time, the Creative Circus Assets, as determined in accordance with the Agreed
Principles.

“Creative Circus Statement” has the meaning given to such term in Section 2.8(b)(ii
hereof.

“Creative Circus Target Working Capital” means an amount equal Ti.

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“Curriculum” means the curriculum used in the educational programs of the Business in
the form of computer programs or software, slide shows, texts, films, web site content, videos or
any other form or media, including, without limitation, the following items: (a) course
objectives, (b) lesson plans, (c) exams, (d) class materials (including interactive or computer-
aided materials), (e) faculty notes, (f) course handouts, (g) diagrams, (h) syllabi, (i) sample
externship and placement materials, (j) clinical checklists, (k) course and faculty evaluation
materials, (1) policy and procedure manuals, and (m) other related materials. The Curriculum
shall also include: (i) all copyrights, copyright applications, copyright registrations and trade
secrets relating to the above-listed items, and (ii) all periodic updates or revisions to the
Curriculum as developed.

“Deal Communications” has the meaning given to such term in Section 7.17(a)(ii)
hereof.

“Delta” has the meaning given to such term in the preamble hereof.

“Delta Confidentiality Agreement” has the meaning given to such term in Section 5.3
hereof.

“Demand for Arbitration” has the meaning given to such term in Section 7.4(b) hereof.

“Dispute Notice” has the meaning given to such term in Section 2.8(a)(iii) hereof.

“DOE” means the U.S. Department of Education.

“D&O Tail” has the meaning given to such term in Section 5.8 hereof.

“D&O Tail Payment” has the meaning given to such term in Section 5.8 hereof.

“D&O Tail Payment Terms” has the meaning given to such term in Section 5.8 hereof.

“Educational Agency” means any Person, entity or organization, whether governmental,
government chartered, private, or quasi-private, that engages in granting or withholding
Educational Approvals for, administers financial assistance to or for students of, or otherwise
regulates private postsecondary schools in accordance with standards relating to the
performance, operation, financial condition or academic standards of such schools, including,
without limitation, the DOE, an Accrediting Body, or any state educational agency, as
applicable.

“Educational Approval” means any license, permit, authorization, program
participation agreement, certification, accreditation, or similar approval issued or required to be
issued by an Educational Agency to any Institution or School subject to the oversight of such
Educational Agency, including any such approval for the Institution or School to participate in
any Student Financial Assistance program, including the Title [V Programs.

“Educational Consent” means any approval, authorization or consent by any
Educational Agency or any notification to be made by the parties hereto to an Educational
Agency, with regard to the transactions contemplated herein, whether required to be effectuated
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or obtained before, on or after the Closing Date, which is necessary under applicable laws or
regulations in order to maintain or continue any Educational Approval held by any Institution or
School as of the date of this Agreement.

“Educational Law” means any federal, state, municipal, foreign or other Law,
regulation, order, Accrediting Body standard or other requirement applicable thereto, including
the provisions of the Title IV Programs and any regulations implementing or relating thereto,
issued or administered by, or related to, any Educational Agency or Student Financial Assistance
program.

“Encumbrance” means any claim, charge, lease, covenant, easement, encumbrance,
security interest, lien, option, right of others, mortgage, deed of trust, hypothecation, conditional
ale, or restriction (whether on voting, sale, transfer, disposition, or otherwise), whether imposed
by Contract or Law.

“Escrow Agent” means the party defined as “Escrow Agent” in the Main Closing
Escrow Agreement and the Surety Bond Escrow Agreement.

“Escrow Agreements” means the Main Closing Escrow Agreement and the Surety Bond
Escrow Agreement.

“Excluded Assets” has the meaning given to such term in Section 2.2 hereof.

“Excluded Contracts” has the meaning given to such term in Section 2.2(a) hereof.

“Excluded Insurance Policies” has the meaning given to such term in Section 2.2(g
hereof.

“Excluded Liabilities” has the meaning given to such term in Section 2.4 hereof.

“Executive Payments” has the meaning given to such term in Section 5.12 hereof.

“Flow of Funds Memorandum” means that certain Flow of Funds Memorandum, which
sets forth the wire transfers, together with wire transfer instructions, that are required to occur to
consummate the Closing

“Fraud” by any party means actual and intentional fraud with respect to the specific
representations and warranties in Section 3.1 and Section 3.2, as the case may be, (a) with the
actual knowledge (as opposed to imputed or constructive knowledge, knowledge that could have
been obtained after inquiry, or reckless disregard) that the applicable representation and warranty
was actually untrue when made, and with the express intention that another party rely thereon to
its detriment, (b) the other party did not have actual knowledge (as opposed to imputed or
constructive knowledge, knowledge that could have been obtained after inquiry, or reckless
disregard) that such representation or warranty was untrue as of the execution of this Agreement,
(c) the other party acted or did not act in justifiable reliance on the representation or warranty
made and (d) as a result of such untrue representation or warranty, the other party suffered
damages.

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“GAAP” means generally accepted accounting principles in the United States, as in
effect from time to time, consistently applied.

“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including, without limitation, any Educational Agency, and any
corporation or other entity owned or controlled, through stock or capital ownership or otherwise,
by any of the foregoing

“HEA” means the Higher Education Act of 1965, as amended.

“In Accordance With the Budget” means any expenditure, cost, fee or expense that
deviates from the amounts specified in the Budget by not more than five percent (5%).

“Independent Accounting Firm” has the meaning given to such term in Section
2.8(a)(v) hereof.

“Initial APA” has the meaning given to such term in the preamble hereof.

“Insolvency Proceeding” has the meaning given to such term in the Lender Consent.

“Institution” means a school group including one or more Schools that has been
designated by the DOE as an eligible institution and assigned a unique six-digit Office of
Postsecondary Identification Number by the DOE.

“Knowledge of the Seller” means the actual knowledge of any of John Olsen, Charlie
Brissman, Tim Ryder and/or William Nance, and any knowledge that any such individual should
reasonably be expected to obtain upon a reasonable inquiry

“Law” means, in any jurisdiction, any statute or law (including common law), ordinance,
tule, treaty, code or regulation and any decree, injunction, judgment, order, ruling, assessment or
writ of any applicable Governmental Authority, excluding any Educational Law.

“Lender Consent” means that certain Limited Waiver and Consent, Authorization and
Direction, dated as of October 3, 2017, by and among the Buyer, the Seller, and the other parties
thereto.

“Limited Guarantee” has the meaning given to such term in Section 2.6(c)(i)(6) hereof.

“Main Adjustment Amount” means an amount equal to (x)
minus (y) as set forth in the Final Statement

“Main Assumed Current Liabilities” means, as of the Main Measurement Time, the
Assumed Liabilities (other than the Creative Circus Liabilities) of th

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Exhibit,Appendix: ED MAP INC Vs DELTA CAREER EDUCATION CORPORATION VS.DELTA CAREER EDUCATION CORPORATION ET AL

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