exv10w1






EXECUTION VERSION




 

 








REVOLVING CREDIT AGREEMENT




dated as of January 3, 2011



among



STRAYER EDUCATION, INC.,

as Borrower



THE LENDERS FROM TIME TO TIME PARTY HERETO



and



SUNTRUST BANK

as Administrative Agent



 

 






SUNTRUST ROBINSON HUMPHREY, INC.,

as Arranger and Book Manager








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE 1 DEFINITIONS; CONSTRUCTION	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.1.

	 	Definitions
	 	 	1	 
	Section 1.2.

	 	Classifications of Loans and Borrowings
	 	 	24	 
	Section 1.3.

	 	Accounting Terms and Determination
	 	 	24	 
	Section 1.4.

	 	Terms Generally
	 	 	24	 
	Section 1.5.

	 	Letter of Credit Amounts
	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE 2 AMOUNT AND TERMS OF THE COMMITMENTS	 	 	25	 
	 
	 	 	 	 	 	 
	Section 2.1.

	 	General Description of Facilities
	 	 	25	 
	Section 2.2.

	 	Revolving Loans
	 	 	25	 
	Section 2.3.

	 	Procedure for Revolving Borrowings
	 	 	25	 
	Section 2.4.

	 	Swingline Commitment
	 	 	26	 
	Section 2.5.

	 	Reserved
	 	 	28	 
	Section 2.6.

	 	Reserved
	 	 	28	 
	Section 2.7.

	 	Funding of Borrowings
	 	 	28	 
	Section 2.8.

	 	Interest Elections
	 	 	28	 
	Section 2.9.

	 	Optional Reduction and Termination of Commitments
	 	 	30	 
	Section 2.10.

	 	Repayment of Loans
	 	 	30	 
	Section 2.11.

	 	Evidence of Indebtedness
	 	 	31	 
	Section 2.12.

	 	Optional Prepayments
	 	 	31	 
	Section 2.13.

	 	Mandatory Prepayments
	 	 	32	 
	Section 2.14.

	 	Interest on Loans
	 	 	33	 
	Section 2.15.

	 	Fees
	 	 	34	 
	Section 2.16.

	 	Computation of Interest and Fees
	 	 	35	 
	Section 2.17.

	 	Inability to Determine Interest Rates
	 	 	35	 
	Section 2.18.

	 	Illegality
	 	 	36	 
	Section 2.19.

	 	Increased Costs
	 	 	36	 
	Section 2.20.

	 	Funding Indemnity
	 	 	37	 
	Section 2.21.

	 	Taxes
	 	 	38	 
	Section 2.22.

	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	39	 
	Section 2.23.

	 	Letters of Credit
	 	 	41	 
	Section 2.24.

	 	Intentionally Deleted
	 	 	46	 
	Section 2.25.

	 	Mitigation of Obligations
	 	 	46	 
	Section 2.26.

	 	Replacement of Lenders
	 	 	46	 
	Section 2.27.

	 	Defaulting Lender
	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE 3 CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT	 	 	48	 
	 
	 	 	 	 	 	 
	Section 3.1.

	 	Conditions To Effectiveness
	 	 	48	 
	Section 3.2.

	 	Each Credit Event
	 	 	50	 
	Section 3.3.

	 	Delivery of Documents
	 	 	51	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES	 	 	51	 
	 
	 	 	 	 	 	 
	Section 4.1.

	 	Existence; Power
	 	 	51	 
	Section 4.2.

	 	Organizational Power; Authorization
	 	 	52	 
	Section 4.3.

	 	Governmental Approvals; No Conflicts
	 	 	52	 
	Section 4.4.

	 	Financial Statements
	 	 	52	 
	Section 4.5.

	 	Litigation and Environmental Matters
	 	 	52	 
	Section 4.6.

	 	Compliance with Laws and Agreements
	 	 	53	 
	Section 4.7.

	 	Investment Company Act, Etc.
	 	 	53	 
	Section 4.8.

	 	Taxes
	 	 	53	 
	Section 4.9.

	 	Margin Regulations
	 	 	53	 
	Section 4.10.

	 	ERISA
	 	 	53	 
	Section 4.11.

	 	Ownership of Property
	 	 	54	 
	Section 4 12.

	 	Disclosure
	 	 	54	 
	Section 4.13.

	 	Labor Relations
	 	 	55	 
	Section 4.14.

	 	Subsidiaries
	 	 	55	 
	Section 4.15.

	 	Insolvency
	 	 	55	 
	Section 4 16.

	 	Reserved
	 	 	55	 
	Section 4.17.

	 	OFAC
	 	 	55	 
	Section 4.18.

	 	Patriot Act
	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE 5 AFFIRMATIVE COVENANTS	 	 	56	 
	 
	 	 	 	 	 	 
	Section 5.1.

	 	Financial Statements and Other Information
	 	 	56	 
	Section 5.2.

	 	Notices of Material Events
	 	 	57	 
	Section 5.3.

	 	Existence; Conduct of Business
	 	 	58	 
	Section 5.4.

	 	Compliance with Laws, Etc; Maintenance of Licenses and Accreditations
	 	 	58	 
	Section 5.5.

	 	Payment of Obligations
	 	 	58	 
	Section 5.6.

	 	Books and Records
	 	 	58	 
	Section 5.7.

	 	Visitation, Inspection, Etc.
	 	 	58	 
	Section 5.8.

	 	Maintenance of Properties; Insurance
	 	 	59	 
	Section 5.9.

	 	Use of Proceeds and Letters of Credit
	 	 	59	 
	Section 5.10.

	 	Intentionally Deleted
	 	 	59	 
	Section 5.11.

	 	Additional Subsidiaries
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE 6 FINANCIAL COVENANTS	 	 	60	 
	 
	 	 	 	 	 	 
	Section 6.1.

	 	Minimum EBITDA
	 	 	60	 
	Section 6.2.

	 	Interest Coverage Ratio
	 	 	60	 
	Section 6.3.

	 	Unrestricted Liquidity
	 	 	60	 
	Section 6.4.

	 	Minimum Consolidated Tangible Net Worth
	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE 7 NEGATIVE COVENANTS	 	 	60	 
	 
	 	 	 	 	 	 
	Section 7.1.

	 	Indebtedness and Preferred Stock
	 	 	60	 
	Section 7.2.

	 	Negative Pledge
	 	 	61	 
	Section 7.3.

	 	Fundamental Changes
	 	 	62	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 7.4.

	 	Investments, Loans, Etc.
	 	 	63	 
	Section 7.5.

	 	Restricted Payments
	 	 	64	 
	Section 7.6.

	 	Sale of Assets
	 	 	64	 
	Section 7.7.

	 	Transactions with Affiliates
	 	 	65	 
	Section 7.8.

	 	Restrictive Agreements
	 	 	65	 
	Section 7.9.

	 	Sale and Leaseback Transactions
	 	 	66	 
	Section 7.10.

	 	Hedging Transactions
	 	 	66	 
	Section 7.11.

	 	Amendment to Material Documents
	 	 	66	 
	Section 7.12.

	 	Intentionally Deleted
	 	 	66	 
	Section 7.13.

	 	Accounting Changes
	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE 8 EVENTS OF DEFAULT	 	 	66	 
	 
	 	 	 	 	 	 
	Section 8.1.

	 	Events of Default
	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE 9 THE ADMINISTRATIVE AGENT	 	 	69	 
	 
	 	 	 	 	 	 
	Section 9.1.

	 	Appointment of Administrative Agent
	 	 	69	 
	Section 9.2.

	 	Nature of Duties of Administrative Agent
	 	 	70	 
	Section 9.3.

	 	Lack of Reliance on the Administrative Agent
	 	 	70	 
	Section 9.4.

	 	Certain Rights of the Administrative Agent
	 	 	70	 
	Section 9.5.

	 	Reliance by Administrative Agent
	 	 	71	 
	Section 9.6.

	 	The Administrative Agent in its Individual Capacity
	 	 	71	 
	Section 9.7.

	 	Successor Administrative Agent
	 	 	71	 
	Section 9.8.

	 	Authorization to Execute other Loan Documents
	 	 	72	 
	Section 9.9.

	 	Benefits of Article 9
	 	 	73	 
	Section 9.10.

	 	Titled Agents
	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE 10 MISCELLANEOUS	 	 	73	 
	 
	 	 	 	 	 	 
	Section 10.1.

	 	Notices
	 	 	73	 
	Section 10.2.

	 	Waiver; Amendments
	 	 	75	 
	Section 10.3.

	 	Expenses; Indemnification
	 	 	76	 
	Section 10.4.

	 	Successors and Assigns
	 	 	78	 
	Section 10.5.

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	81	 
	Section 10.6.

	 	WAIVER OF JURY TRIAL
	 	 	82	 
	Section 10.7.

	 	Right of Setoff
	 	 	82	 
	Section 10.8.

	 	Counterparts; Integration
	 	 	84	 
	Section 10.9.

	 	Survival
	 	 	84	 
	Section 10.10.

	 	Severability
	 	 	84	 
	Section 10.11.

	 	Confidentiality
	 	 	84	 
	Section 10.12.

	 	Interest Rate Limitation
	 	 	85	 
	Section 10.13.

	 	Waiver of Effect of Corporate Seal
	 	 	85	 
	Section 10.14.

	 	Patriot Act
	 	 	85	 
	Section 10.15.

	 	Publicity
	 	 	85	 






iii









 






	 	 	 	 	 

	Schedules
	 	 	 	 
	 
	 	 	 	 
	Schedule I
	 	—	 	Applicable Margin and Applicable Percentage
	Schedule II
	 	—	 	Commitment Amounts
	Schedule 4.5
	 	—	 	Environmental Matters
	Schedule 4.14
	 	—	 	Subsidiaries
	Schedule 7.1
	 	—	 	Outstanding Indebtedness
	Schedule 7.2
	 	—	 	Existing Liens
	Schedule 7.4
	 	—	 	Existing Investments
	 
	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A
	 	—	 	Form of Revolving Credit Note
	Exhibit B
	 	—	 	Reserved
	Exhibit C
	 	—	 	Reserved
	Exhibit D
	 	—	 	Form of Swingline Note
	Exhibit E
	 	—	 	Form of Assignment and Assumption
	Exhibit F
	 	—	 	Form of Subsidiary Guaranty Agreement
	 
	Exhibit 2.3
	 	—	 	Form of Notice of Revolving Borrowing
	Exhibit 2.4
	 	—	 	Form of Notice of Swingline Borrowing
	Exhibit 2.8
	 	—	 	Form of Notice of Conversion/Continuation
	Exhibit 5.l(d)
	 	—	 	Form of Compliance Certificate







iv











 





REVOLVING CREDIT AGREEMENT




     THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is made and entered
into as of January 3, 2011, by and among STRAYER EDUCATION, INC., a Maryland
corporation (the “Borrower”), the several banks and other financial institutions
and lenders from
time to time party hereto (the “Lenders”), and SUNTRUST BANK, in its capacity as
administrative agent for the Lenders (the “Administrative Agent”), as issuing bank
(the “Issuing
Bank”) and as swingline lender (the “Swingline Lender”).



WITNESSETH:




     WHEREAS, the Borrower has requested that the Lenders establish a $100,000,000
revolving credit facility in favor of the Borrower;



     WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, the
Issuing Bank and the Swingline Lender to the extent of their respective Commitments as
defined
herein, are willing severally to establish the requested revolving credit facility, letter
of credit
subfacility and the swingline subfacility in favor of the Borrower.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the
Swingline Lender agree as follows:



ARTICLE 1




DEFINITIONS; CONSTRUCTION



     Section 1.1. Definitions. In addition to the other terms defined herein, the
following
terms used herein shall have the meanings herein specified (to be equally applicable to
both the
singular and plural forms of the terms defined):



     “Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a
Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by
(ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.



     “Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent and
submitted to
the Administrative Agent duly completed by such Lender.



     “Affiliate” shall mean, as to any Person, any other Person that directly, or
indirectly
through one or more intermediaries, Controls, is Controlled by, or is under common Control
with, such Person. For the purposes of this definition, “Control” shall mean the power,
directly
or indirectly, either to (i) vote 5% or more of the securities having ordinary voting
power for the
election of directors (or persons performing similar functions) of a Person or (ii) direct
or cause
the direction of the management and policies of a Person, whether through the ability to
exercise
voting power, by control or otherwise. The terms “Controlling”, “Controlled by”, and
“under
common Control with” have the meanings correlative thereto.



 









 





     “Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount
of the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate
Revolving Commitment Amount equals $100,000,000.



     “Aggregate Revolving Commitments” shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.



     “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan,
the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type
of Loan in the Administrative Questionnaire submitted by such Lender or such other office of
such Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office by which its Loans of such Type are to
be made and maintained.



     “Applicable Margin” shall mean, as of any date, with respect to interest on all
Loans outstanding on any date, or the letter of credit fee, as the case may be, a percentage
per annum determined by reference to the applicable Leverage Ratio from time to time in effect
as set forth on Schedule I; provided, that a change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective on the second Business Day
after which the Borrower delivers the financial statements required by Section 5.1(a)
or (b) and the Compliance Certificate required by Section 5.1(d); provided,
further, that if at any time the Borrower shall have failed to deliver such financial
statements and such Compliance Certificate when so required, the Applicable Margin shall be at
Level III as set forth on Schedule I until such time as such financial statements and
Compliance Certificate are delivered, at which time the Applicable Margin shall be determined
as provided above; and provided, further, that in the event that any financial
statement delivered pursuant to Section 5.1(a) or (b) or any Compliance Certificate
delivered pursuant to Section 5.1(d) is shown to be inaccurate (regardless of whether
this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for
any period (an “Applicable Margin Period”) than the Applicable Margin applied for such
Applicable Margin Period, and only in such case, then the Borrower shall immediately (i)
deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable
Margin Period, (ii) determine the Applicable Margin for such Applicable Margin Period based
upon the corrected Compliance Certificate, and (iii) immediately pay to the Administrative
Agent the accrued additional interest owing as a result of such increased Applicable Margin for
such Applicable Margin Period, which payment shall be promptly applied by the Administrative
Agent in accordance with Section 2.22. The provisions of this definition are in
addition to rights of the Administrative Agent and Lenders with respect to Section
2.14(c) and Article 8 and other of their respective rights under this Agreement.
Notwithstanding the foregoing, the Applicable Margin from the Closing Date until the financial
statements and Compliance Certificate for the Fiscal Quarter ending December 31, 2010, are
required to be delivered shall be at Level I as set forth on Schedule I.



     “Applicable Percentage” shall mean, as of any date, with respect to the commitment
fee as of any date, the percentage per annum determined by reference to the applicable Leverage
Ratio in effect on such date as set forth on Schedule I; provided, that a
change in the Applicable Percentage resulting from a change in the Leverage Ratio shall be
effective on the second



2









 




Business Day after which the Borrower delivers the financial statements required by Section
5.1(a) or (b) and the Compliance Certificate required by Section 5.1(d); provided
further, that if at any time the Borrower shall have failed to deliver such financial
statements and such Compliance Certificate, the Applicable Percentage shall be at Level III as set
forth on Schedule I until such time as such financial statements and Compliance
Certificate are delivered, at which time the Applicable Percentage shall be determined as provided
above; and provided, further, that in the event that any financial statement
delivered pursuant to Section 5.1(a) or (b) or any Compliance Certificate delivered
pursuant to Section 5.1(d) is shown to be inaccurate (regardless of whether this Agreement
or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Percentage for any period (an
“Applicable Percentage Period”) than the Applicable Percentage applied for such Applicable
Percentage Period, and only in such case, then the Borrower shall immediately (i) deliver to the
Administrative Agent a corrected Compliance Certificate for such Applicable Percentage Period,
(ii) determine the Applicable Percentage for such Applicable Percentage Period based upon the
corrected Compliance Certificate, and (iii) immediately pay to the Administrative Agent the
accrued additional commitment fees owing as a result of such increased Applicable Percentage for
such Applicable Percentage Period, which payment shall be promptly applied by the Administrative
Agent in accordance with Section 2.22. For purposes of calculating the Applicable
Percentage only, the Loans shall be deemed used to the extent of the then outstanding Revolving
Loans plus the sum of (x) the aggregate undrawn amount of all outstanding Letters of
Credit plus (y) the aggregate amount of all unreimbursed LC Disbursements. The provisions
of this definition are in addition to rights of the Administrative Agent and Lenders with respect
to Section 2.14(c) and Article 8 and other of their respective rights under this
Agreement. Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from
the Closing Date until the financial statements and Compliance Certificate for the Fiscal Quarter
ending December 31, 2010, are required to be delivered shall be at Level I as set forth on
Schedule I.




     “Approved Fund” shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.



     “Arranger” shall mean SunTrust Robinson Humphrey, Inc.



     “Assignment and Assumption” shall mean an Assignment and Assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit E attached
hereto or any other form approved by the Administrative Agent.



     “Availability Period” shall mean the period from the Closing Date to the Revolving
Commitment Termination Date.



     “Balance Sheet Date” shall have the meaning set forth in Section 4.4.



3









 





     “Base Rate” shall mean the highest of (i) the per annum rate which the Administrative
Agent publicly announces from time to time to be its prime lending rate, as in effect from time to
time, (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%) or (iii) the one-month Index Rate. The Administrative Agent’s prime lending rate is a
reference rate and does not necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of interest at, above or
below the Administrative Agent’s prime lending rate. Each change in the Administrative Agent’s
prime lending rate shall be effective from and including the date such change is publicly announced
as being effective.



     “Borrowing” shall mean a borrowing consisting of (i) Loans of the same Class and
Type, made, converted or continued on the same date and in the case of Eurodollar Loans, as to
which a single Interest Period is in effect, or (ii) a Swingline Loan.



     “Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on
which commercial banks in Richmond, Virginia are authorized or required by law to close and (ii) if
such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a
conversion of or into, or an Interest Period for, an Index Rate Loan or Eurodollar Loan or a notice
with respect to any of the foregoing, any day on which dealings in Dollars are carried on in the
London interbank market.



     “Capital Expenditures” shall mean for any period, without duplication, (i) the
additions to property, plant and equipment and other capital expenditures of the Borrower and its
Subsidiaries that are (or would be) set forth on a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP and (ii) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.



     “Capital Lease Obligations” of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Capital Stock” shall mean any capital stock (or in the case of a partnership or
limited liability company, the partners’ or members’ equivalent equity interest) of the Borrower or
any of its Subsidiaries (to the extent issued to a Person other than the Borrower), whether common
or preferred.



     “Cash Management Swingline Loans” shall have the meaning assigned to such term in
Section 2.4(b).



     “Change in Control” shall mean the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower to any Person or “group”
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (ii) the acquisition of ownership,



4









 




directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of 30% or more of the outstanding shares of the voting
stock of the Borrower or (iii) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (a) nominated by the current
board of directors nor (b) appointed by directors so nominated.




     “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or
any change in the interpretation or application thereof, by any Governmental Authority after the
date of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or
the Issuing Bank (or for purposes of Section 2.19(b), by such Lender’s or the Issuing
Bank’s parent corporation, if applicable) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the date of this
Agreement (and for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, guidelines and directions in connection therewith (the “Dodd-Frank Act”) are deemed to have been adopted and gone into effect after the date hereof).



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans and when used
in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a
Swingline Commitment.



     “Closing Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 and, if a Loan or Letter of Credit is requested, Section 3.2(a),
(b) and (f), have been satisfied or waived in accordance with Section 10.2.



     “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.



     “Commitment” shall mean a Revolving Commitment or a Swingline Commitment or any
combination thereof (as the context shall permit or require).



     “Compliance Certificate” shall mean a certificate from the principal executive
officer or the principal financial officer of the Borrower in the form of, and containing the
certifications set forth in, the certificate attached hereto as Exhibit 5.1(d).



     “Consolidated EBIT” shall mean, for the Borrower and its Subsidiaries for any period,
an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) to the extent
deducted in determining Consolidated Net Income for such period, (A) Consolidated Interest
Expense, (B) income tax expense determined on a consolidated basis in accordance with GAAP, (C)
the amount of any charges associated with the grant of any share based payment awards to
employees, officers, directors or consultants and (D) all other non-cash charges acceptable to the
Required Lenders, as all of the foregoing are determined on a consolidated basis in accordance
with GAAP, in each case for such period.



     “Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries for any
period, an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) to



5









 




the extent deducted in determining Consolidated Net Income for such period, (A) Consolidated
Interest Expense, (B) income tax expense determined on a consolidated basis in accordance with
GAAP, (C) depreciation and amortization determined on a consolidated basis in accordance with
GAAP, (D) the amount of any charges associated with the grant of any share based payment awards
to employees, officers, directors or consultants and (E) all other non-cash charges acceptable
to the Required Lenders, as all of the foregoing are determined on a consolidated basis in
accordance with GAAP, in each case for such period.




     “Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries
for any period determined on a consolidated basis in accordance with GAAP, the sum of (i) total
interest expense, including without limitation the interest component of any payments in
respect of Capital Lease Obligations capitalized or expensed during such period (whether or not
actually paid during such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Transactions during such period (whether or not actually paid or
received during such period).



     “Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for
any period, the net income (or loss) of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets, (iii) any equity interest of the Borrower or any
Subsidiary of the Borrower in the unremitted earnings of any Person that is not a Subsidiary
and (iv) any income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary on the date that such
Person’s assets are acquired by the Borrower or any Subsidiary.



     “Consolidated Tangible Net Worth” shall mean, as of any date, (i) the total assets
of the Borrower and its Subsidiaries that would be reflected on the Borrower’s consolidated
balance sheet as of such date prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries,
minus (ii) the sum of (x) the total liabilities of the Borrower and its Subsidiaries
that would be reflected on the Borrower’s consolidated balance sheet as of such date prepared
in accordance with GAAP, (y) the amount of any write-up in the book value of any assets
resulting from a revaluation thereof or any write-up in excess of the cost of such assets
acquired reflected on the consolidated balance sheet of the Borrower as of such date prepared
in accordance with GAAP and (z) the net book amount of all assets of the Borrower and its
Subsidiaries that would be classified as intangible assets on a consolidated balance sheet of
the Borrower as of such date prepared in accordance with GAAP.



     “Consolidated Total Debt” shall mean, as of any date, all Indebtedness of the
Borrower and its Subsidiaries measured on a consolidated basis as of such date, but excluding
Indebtedness of the type described in subsection (xi) thereof.



     “Contractual Obligation” of any Person shall mean any provision of any security
issued by such Person or of any agreement, instrument or undertaking under which such Person is
obligated or by which it or any of the property in which it has an interest is bound.




6












 





     “Default” shall mean any condition or event that, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.



     “Defaulting Lender” shall mean, at any time, a Lender (which the Administrative
Agent shall promptly notify the Borrower thereof) that (i) such Lender has failed for three or
more Business Days to comply with its obligations under this Agreement to make a Loan, make a
payment to the Issuing Bank in respect of a Letter of Credit and/or make a payment to the
Swingline Lender in respect of a Swingline Loan (each, a “funding obligation”), (ii) such Lender
has notified the Administrative Agent or the Borrower in writing, or has stated publicly, that
it will not comply with any such funding obligation hereunder, or has defaulted on its funding
obligations under any other loan agreement or credit agreement or other similar/other financing
agreement, (iii) such Lender has, for three or more Business Days, failed to confirm in writing
to the Administrative Agent, in response to a written request of the Administrative Agent, that
it will comply with its funding obligations hereunder, or (iv) a Lender Insolvency Event has
occurred and is continuing with respect to such Lender. Any determination that a Lender is a
Defaulting Lender under clauses (i) through (iv) above will be made by the Administrative Agent
in its reasonable discretion acting in good faith, but a failure of the Administrative Agent to
make such a determination shall not be determinative of the status of such Lender as not being a
Defaulting Lender for purposes of this Agreement. The Administrative Agent will promptly send to
all parties hereto a copy of any notice to the Borrower provided for in this definition.



     “Default Interest” shall have the meaning set forth in Section 2.14(c).



     “Disposition” shall have the meaning set forth in Section 7.6.



     “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.



     “Domestic Subsidiary” shall mean a direct or indirect Subsidiary of the Borrower
organized under the laws of the United States, one of the fifty states or commonwealths of the
United States or the District of Columbia.



     “ELP” means Education Loan Processing, Inc., a Virginia corporation.



     “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.



     “Environmental Liability” shall mean any liability, contingent or otherwise
(including any liability for damages, costs of environmental investigation and remediation,
costs of administrative oversight, fines, natural resource damages, penalties or indemnities),
of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (i) any
actual or alleged violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii) any actual or
alleged exposure to any Hazardous Materials, (iv) the Release or threatened Release of any
Hazardous Materials or (v) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.



7









 





     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated),
which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.



     “ERISA Event” shall mean (i) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan;
(iv) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (v) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.



     “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to
the Adjusted LIBO Rate.



     “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to which any Lender is subject with respect to the Adjusted LIBO Rate pursuant to
regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to eurocurrency funding
(currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans shall
be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.



     “Event of Default” shall have the meaning provided in Article 8



     “Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured



8









 







by) its net income by the United States of America, or by the jurisdiction under the laws
of
which such recipient is organized or in which its principal office is located or, in the case of
any
Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed
by
the United States of America or any similar tax imposed by any other jurisdiction in which any
Lender is located and (c) in the case of a Foreign Lender, any withholding tax that (i) is
imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to
this Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time that such
Foreign Lender designates a new lending office, other than taxes that have accrued prior to the
designation of such lending office that are otherwise not Excluded Taxes, and (iii) is
attributable
to such Foreign Lender’s failure to comply with Section 2.21(e).



     “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards,
if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next
succeeding Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next
1/100th of 1% of the quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the Administrative
Agent.



     “Fee Letter” shall mean that certain fee letter, dated as of December 28, 2010,
executed by the Arranger and SunTrust Bank and accepted by Borrower.



     “Fiscal Quarter” shall mean any fiscal quarter of the Borrower.



     “Fiscal Year” shall mean any fiscal year of the Borrower.



     “Foreign Lender” shall mean any Lender that is not a United States person under
Section 7701(a)(30) of the Code.



     “Foreign Subsidiary” shall mean any Subsidiary that is organized under the laws of
a jurisdiction other than the United States, one of the fifty states or commonwealths of the
United States or the District of Columbia.



     “GAAP” shall mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3.



     “Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.



     “Guarantee” of or by any Person (the “guarantor”) shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly and including any obligation, direct or indirect, of the
guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such



9









 







Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in
respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or
obligation; provided, that the term “Guarantee” shall not include endorsements for
collection or deposits in the ordinary course of business. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the primary obligation in
respect of which Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has
a corresponding meaning.



     “Hazardous Materials” shall mean all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.



     “Hedging Obligations” of any Person shall mean any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging Transactions and any and all substitutions
for any Hedging Transactions.



     “Hedging Transaction” of any Person shall mean (a) any transaction (including an
agreement with respect to any such transaction) now existing or hereafter entered into by such
Person that is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction, currency option,
spot transaction, credit protection transaction, credit swap, credit default swap, credit
default option, total return swap, credit spread transaction, repurchase transaction, reverse
repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other
similar transaction (including any option with respect to any of these transactions) or any
combination thereof, whether or not any such transaction is governed by or subject to any master
agreement and (b) any and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master agreement published
by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations or liabilities
under any Master Agreement.



     “Indebtedness” of any Person shall mean, without duplication (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures,



10









 







notes or other similar instruments, (iii) all obligations of such Person in respect of the
deferred purchase price of property or services (other than trade payables incurred in the ordinary
course of business; provided, that for purposes of Section 8.1(g), trade payables
overdue by more than
120 days shall be included in this definition except to the extent that any of such trade
payables
are being disputed in good faith and by appropriate measures), (iv) all obligations of such
Person
under any conditional sale or other title retention agreement(s) relating to property acquired
by
such Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent
or
otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of
credit, (vii) all Guarantees of such Person of the type of Indebtedness described in clauses (i)
through (vi) above, (viii) all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such Person,
(ix) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any preferred or common stock of such Person (other than voluntary
repurchases of shares of Capital Stock and the exercise of options to purchase shares of Capital
Stock of the Borrower permitted by Sections 7.4(f) and
7.5(iii)), (x)
Off-Balance Sheet
Liabilities and (xi) all Hedging Obligations. The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness provide that such
Person
is not liable therefor.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Index Rate” means that rate per annum effective on any Index Rate Determination
Date which is equal to the quotient of:



               (i) the rate per annum equal to the offered rate for deposits in U.S. dollars
for a one (1) month period, which rate appears on that page of Bloomberg reporting service, or
such similar service as determined by the Administrative Agent, that displays British Bankers’
Association interest settlement rates for deposits in U.S. Dollars, as of 11:00 A.M. (London,
England time) two (2) Business Days prior to the Index Rate Determination Date; provided, that
if no such offered rate appears on such page, the rate used for such period will be the per annum
rate of interest determined by the Administrative Agent to be the rate at which U.S. dollar
deposits for such period, are offered to the Administrative Agent in the London Inter-Bank
Market as of 11:00 A.M. (London, England time), on the day which is two (2) Business Days
prior to the Index Rate Determination Date, divided by



               (ii) a percentage equal to 1.00 minus the maximum reserve percentages
(including any emergency, supplemental, special or other marginal reserves) expressed as a
decimal (rounded upward to the next l/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to any Index Rate Loan pursuant to regulations
issued by the Board of Governors of the Federal Reserve System with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation D). This
percentage will be adjusted automatically on and as of the effective date of any change in any reserve
percentage.



     “Index Rate Borrowing” and “Index Rate Loan” when used in reference to any
Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest



11









 







at a rate determined by reference to the Index Rate, provided, that “Index Rate
Borrowing” and
“Index Rate Loan” shall not be deemed to refer to any Base Rate Loan or Base Rate
Borrowing
bearing interest at a rate determined by reference to the Index Rate.



     “Index Rate Determination Date” means the Closing Date and the first Business Day of
each calendar month thereafter.


     “Interest Coverage Ratio” shall mean, as of any date, the ratio of (i) the sum of
(A) Consolidated EBIT for the four consecutive Fiscal Quarters ending on or immediately
prior
to such date, less (B) Capital Expenditures made during the four consecutive Fiscal Quarters
ending on or immediately prior to such date, less (C) Restricted Payments made by the
Borrower
in cash during the four consecutive Fiscal Quarters ending on or immediately prior to such
date
to (ii) Consolidated Interest Expense for the four consecutive Fiscal Quarters ending on or
immediately prior to such date.



     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, a period of
one, two, three or six months; provided, that:



               (i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a Borrowing of another
Type), and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;



               (ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless
such Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;



               (iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last Business Day of such calendar
month; and



               (iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.



     “Issuing Bank” shall mean SunTrust Bank or any other Lender that may agree to issue
Letters of Credit, each in its capacity as an issuer of Letters of Credit pursuant to
Section 2.23.



     “LC Commitment” shall mean that portion of the Aggregate Revolving Commitment
Amount that may be used by the Borrower for the issuance of Letters of Credit in an
aggregate
face amount not to exceed $50,000,000.



     “LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.



     “LC Documents” shall mean all applications, agreements and instruments relating to
the Letters of Credit (but excluding the Letters of Credit).




12












 





     “LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn
amount of all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all
LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The
LC Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.



     “Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or makes a general
assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the
subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a
receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for
such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in
furtherance of or indicating its consent to or acquiescence in any such proceeding or
appointment.



     “Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline Lender.



     “Letter of Credit” shall mean any stand-by letter of credit issued pursuant to
Section 2.23 by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment. For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.5. For all purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason of the operation
of Rule 3.14 of the “International Standby Practices 1998” (ISP98) (or such later revision as may
be published by the Institute of International Banking Law & Practice on any date any Letter of
Credit may be issued), such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.



     “Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total
Debt as of such date to (ii) Consolidated EBITDA for the four consecutive Fiscal Quarters ending
on or immediately prior to such date.



     “LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR0l Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period. If for any reason such rate
is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably
determined by the Agent as the rate of interest at which Dollar deposits in the approximate
amount of the Eurodollar Loan comprising part of such borrowing would be offered by the Agent to
major banks in the London interbank Eurodollar market at their request at or about 10:00 a.m.
(Richmond, Virginia time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period.



     “Lien” shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, cash collateral arrangement, or other
arrangement having the practical effect of the foregoing or any preference, priority or other



13









 




security agreement or preferential arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement and any capital lease having the same
economic effect as any of the foregoing).




     “Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), the LC
Documents, the Subsidiary Guaranty Agreement, all Notices of Borrowing, all Notices of
Conversion/Continuation, all Compliance Certificates and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing (other than any agreement
delivered in connection with Hedging Obligations or Treasury Management Obligations).



     “Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.



     “Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of
them, as the context shall require.



     “Material Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration,
or governmental investigation or proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the business, results
of operations, financial condition, assets or liabilities of the Borrower and its Subsidiaries
taken as a whole (it being understood that fluctuations in the stock price of the Borrower, alone,
shall not be the determinant of the existence of a Material Adverse Effect under this clause (i)),
(ii) the ability of the Loan Parties to perform any of their respective obligations under the Loan
Documents, (iii) the rights and remedies of the Administrative Agent, the Issuing Bank, Swingline
Lender, and the Lenders under any of the Loan Documents, or (iv) the legality, validity or
enforceability of any of the Loan Documents.



     “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of
Credit) and Hedging Obligations of the Borrower or any of its Subsidiaries, individually or in an
aggregate principal amount exceeding $5,000,000. For purposes of determining the amount of
attributed Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations
at any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.



     “Moody’s” shall mean Moody’s Investors Service, Inc., and, if such corporation shall
be dissolved or liquidated or shall no longer perform the functions of a securities rating agency,
“Moody’s” shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Borrower with the consent of the Administrative Agent.



     “Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.



     “Net Mark-to-Market Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses
over all unrealized profits of such Person arising from such Hedging Obligation. “Unrealized
losses” shall mean the fair market value of the cost to such Person of replacing the Hedging
Transaction giving rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and “unrealized profits” means the



14









 




fair market value of the gain to such Person of replacing such Hedging Transaction as of
the date of determination (assuming such Hedging Transaction were to be terminated as of that date).




     “Non-Defaulting Lender” shall mean, at any time, a Lender that is not a
Defaulting Lender or a Potential Defaulting Lender.



     “Notes” shall mean, collectively, the Revolving Credit Notes and the Swingline Note.



     “Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing
and the Notices of Swingline Borrowing.



     “Notice of Conversion/Continuation” shall mean the notice given by the Borrower to
the Administrative Agent in respect of the conversion or continuation of an outstanding
Borrowing as provided in Section 2.8(b).



     “Notice of Revolving Borrowing” shall have the meaning as set forth in Section
2.3.



     “Notice of Swingline Borrowing” shall have the meaning as set forth in Section
2.4.



     “Obligations” shall mean (a) all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline Lender) pursuant to or in
connection with this Agreement or any other Loan Document or otherwise with respect to any
Loan or Letter of Credit, including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceeding relating to the Borrower, whether or not a
claim for
post-filing or post-petition interest is allowed in such proceeding), all reimbursement
obligations,
fees, expenses, indemnification and reimbursement payments, costs and expenses (including
all
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender
(including the Swingline Lender) incurred, or required to be reimbursed, pursuant to this
Agreement or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, (b)
all
Hedging Obligations owed by any Loan Party to any Lender or Affiliate of any Lender or to
any
Person that was a Lender or an Affiliate of a Lender at the time the applicable Hedging
Transaction was entered into and (c) all Treasury Management Obligations owed by any Loan
Party to any Lender or Affiliate of any Lender or to any Person that was a Lender or an
Affiliate
of a Lender at the time the applicable agreement giving rise to such Treasury Management
Obligations was entered into, together with all renewals, extensions, modifications or
refinancings of any of the foregoing.



     “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase
obligation or liability of such Person with respect to accounts or notes receivable sold by such Person,
(ii) any
liability of such Person under any sale and leaseback transactions that do not create a
liability on
the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation
arising with respect to any other transaction which is the functional equivalent of or
takes the
place of borrowing but which does not constitute a liability on the balance sheet of such
Person.



     “OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from
time to time, and any successor statute.



15









 





     “Other Taxes” shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising from any payment
made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.



     “Parent Company” shall mean, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender.



     “Participant” shall have the meaning set forth in Section 10.4(d).



     “Payment Office” shall mean the office of the Administrative Agent located at 303
Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as to which the
Administrative Agent shall have given written notice to the Borrower and the other Lenders.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined
in ERISA, and any successor entity performing similar functions.



     “PEI” shall mean Professional Education, Inc., a Maryland corporation and a Subsidiary of
the Borrower.



     “Permitted Acquisition” means any transaction consummated after the date hereof, in
which the Borrower or a Subsidiary acquires all or substantially all of the assets or
outstanding Capital Stock of any Person or any division or business line of any Person, or
merges or consolidates with any Person (with any such acquisition being referred to as an
“Acquired Business” and any such Person, division or line of business being the
“Target”), provided that, with respect to such transaction: (a) at the closing of such
transaction, after giving effect thereto, no Default or Event of Default shall have occurred and
be continuing, (b) the Target has Target Consolidated EBITDA for the period of twelve
consecutive fiscal months ending as of the end of the most recent Fiscal Quarter prior to the
consummation of the Target transaction in an amount of not less than $0, (c) such acquisition is
not a “hostile” acquisition and has been approved by the Board of Directors and/or shareholders
of the Borrower, the applicable Subsidiary and the Target, (d) the Target is not subject to
pending insolvency proceedings, nor has it expressed in writing its intention to commence a
voluntary case or other proceeding, to file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other similar law or
to seek the appointment of a custodian, trustee, receiver, liquidator or other similar official
of it or any substantial part of its property, or to consent to the institution of, or fail to
contest in a timely and appropriate manner, any insolvency proceeding or petition; (e) at least
10 Business Days prior to the closing of such transaction, the Borrower shall give written
notice of such transaction to the Administrative Agent (which shall promptly deliver a copy to
the Lenders) (the “Acquisition Notice”), which shall include (i) either (A) the final
acquisition agreement or the then current draft of the acquisition agreement or (B) a reasonably
detailed description of the material terms of such Permitted Acquisition (including, without
limitation, the purchase price and method and structure of payment) and (ii) all available
financial statements of the Target and its Subsidiaries covering the prior three years (or such
lesser period for which such financial statements are available), (f) if the Borrower is a party
to such merger, then the Borrower shall be the surviving entity of such merger, or a Subsidiary
shall



16









 




be the surviving entity of any merger or such surviving entity shall become a Subsidiary
Loan
Party, and the surviving entity shall not be a Foreign Subsidiary, (g) the Acquired Business
shall
be in substantially the same line of business as the Borrower and its Subsidiaries or in a line
of
business reasonably related to the line of business of the Borrower and its Subsidiaries, (h)
the
Transaction Value of all such transactions shall not exceed $7,500,000 in the aggregate during
any Fiscal Year of the Borrower or $22,500,000 in the aggregate during the term of this
Agreement, (i) at the time it gives the Acquisition Notice, the Borrower shall deliver to the
Administrative Agent pro forma financial statements for next succeeding two-year period giving
effect to the acquisition, which shall reflect to the Administrative Agent’s reasonable
satisfaction
that the Borrower and its Subsidiaries will continue to be in compliance with all of the
financial
covenants set forth in this Agreement, (j) the Administrative Agent shall receive and approve
(such approval not to be unreasonably withheld or delayed) all documents relating to the
acquisition and such additional documentation regarding the acquisition as it shall reasonably
require, including, to the extent available, audited financial statements, compiled financial
statements or a financial review of such Target, as applicable, for its two most recent fiscal
years
prepared by independent certified public accountants reasonably acceptable to the Administrative
Agent and unaudited fiscal year-to-date statements for the two most recent interim periods, and
(k) at the time it gives the Acquisition Notice, the Borrower shall deliver to the
Administrative
Agent (which shall promptly deliver a copy to the Lenders) a certificate, executed by a
Responsible Officer of the Borrower, demonstrating in sufficient detail compliance with the
financial covenants contained in Article 6 on a pro forma basis after giving effect to such
acquisition and, further, certifying that, after giving effect to the consummation of such
acquisition, the representations and warranties of the Borrower contained herein will be true
and
correct in all material respects and as of the date of such consummation (unless qualified by
materiality, in which case, the same shall be true and correct in all respects), except to the
extent
such representations or warranties expressly relate to an earlier date, and that the Borrower,
as of
the date of such consummation, will be in compliance with all other terms and conditions
contained herein.




     “Permitted Encumbrances” shall mean:



               (i) Liens imposed by law for taxes or other governmental charges not
at the time delinquent or thereafter payable without penalty or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;




               (ii) statutory Liens of landlords, suppliers, carriers, warehousemen,
mechanics, materialmen, and similar Liens arising by operation of law in the ordinary course of
business for amounts not at the time delinquent or thereafter payable without penalty or which
are being contested in good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;




               (iii) pledges and deposits made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social security
laws or regulations;





17









 







               (iv) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;




               (v) judgment and attachment liens not giving rise to an Event of Default or Liens created
by or existing from any litigation or legal proceeding that are currently being contested in
good faith by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;




               (vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the Borrower and its Subsidiaries
taken as a whole;




               (vii) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary
course of business which do not (x) interfere in any material respect with the business of the
Borrower and its Subsidiaries taken as a whole or (y) secure any Indebtedness for borrowed
money;




               (viii) any interest or title of (x) a lessor or sublessor under any lease or sublease or
(y) a licensor or sublicensor under any license or sublicense, in each case entered into in the
ordinary course of business, so long as such interest or title relate solely to the assets
subject thereto;




               (ix) banker’s liens, rights of setoff and other similar Liens that are customary in the
banking industry and existing solely with respect to cash and other amounts on deposit in one or
more accounts (including securities accounts) maintained by the Borrower or its Subsidiaries;




               (x) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;




               (xi) Liens of a collection bank arising under Section 4-210 of the Uniform Commerical
Code on items in the course of collection;




               (xii) Liens arising from precautionary UCC financing statement filings (or similar filings
under other applicable Law) regarding operating leases entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business;




               (xiii) licenses of patents, trademarks, copyrights and other intellectual property rights
reasonably entered into in the ordinary course of business which do not secure any Indebtedness
for borrowed money;




               (xiv) good faith deposits required in connection with any investment transaction permitted
under Section 7.4;








18









 








               (xv) to the extent constituting a Lien, escrow arrangements securing indemnification obligations associated any investment transaction permitted under Section 7.4;
and




               (xvi) Liens (x) on advances of cash or Permitted Investments in favor of
the seller of any property to be acquired by the Borrower or any of its Subsidiaries in an
Investment permitted pursuant to Section 7.4 to be applied against the purchase
price for such
Investment; provided, that (I) the aggregate amount of such advances of cash or
Permitted
Investments shall not exceed the purchase price of such Investment and (II) the property is
acquired within 180 days following the date of the first such advance so made; and (y)
consisting
of an agreement to dispose of any property in a Disposition permitted under Section
7.6, in each
case, solely to the extent such Investment or disposition, as the case may be, would have
been
permitted on the date of the creation of such Lien;



provided, that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness (other than clauses (i), (ii), (ix), (x) and (xi), but, with respect to clauses (i)
and (ii),
only to the extent being contested in good faith and by appropriate proceedings, and provided
that the Borrower maintains adequate reserves for such contest in accordance with GAAP, and,
with respect to all such clauses, only to the extent such Indebtedness is otherwise permitted by
this Agreement).




     “Permitted Investments” shall mean:



               (i) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;




               (ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody’s and in either case maturing within six months from the
date of acquisition thereof;




               (iii) certificates of deposit, bankers’ acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or any state thereof which has a
combined capital and surplus and undivided profits of not less than $500,000,000;




               (iv) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (i) above and entered into with a financial
institution satisfying the criteria described in clause (iii) above; and




               (v) Investments, classified in accordance with GAAP as current assets
of the Borrower or any of its Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, which are administered by reputable financial
institutions, and the portfolios of which are limited to Investments of the character,
quality and
maturity described in clauses (i) through (iv) above.







19









 








     “Person” shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or any
Governmental Authority.



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.



     “Potential Defaulting Lender” shall mean, at any time, a Lender that has, or whose
Parent Company has, a non-investment grade rating from Moody’s or S&P or another nationally
recognized rating agency. Any determination that a Lender is a Potential Defaulting Lender will
be made by the Administrative Agent in its reasonable discretion acting in good faith. The
Administrative Agent will promptly send to all parties hereto a copy of any notice to the
Borrower provided for in this definition.



     “Pro Rata Share” shall mean (i) with respect to any Commitment of any Lender at any
time, a percentage, the numerator of which shall be such Lender’s Commitment (or if such
Commitments have been terminated or expired or the Loans have been declared to be due and
payable, such Lender’s Revolving Credit Exposure), and the denominator of which shall be the sum
of such Commitments of all Lenders (or if such Commitments have been terminated or expired or
the Loans have been declared to be due and payable, all Revolving Credit Exposure of all
Lenders), and (ii) with respect to all Commitments of any Lender at any time, the numerator of
which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving Commitments
have been terminated or expired or the Loans have been declared to be due and payable, such
Lender’s Revolving Credit Exposure) and the denominator of which shall be the sum of all
Lenders’ Revolving Commitments (or if such Revolving Commitments have been terminated or expired
or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all
Lenders funded under such Commitments).



     “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.



     “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.



     “Release” shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.



     “Required Lenders” shall mean, (a) at any time that there are two Lenders or fewer,
Lenders holding more than 100% of the aggregate outstanding Revolving Commitments at such time
or if the Lenders have no Commitments outstanding, then Lenders holding more than 100% of the
Revolving Credit Exposure; and (b) at any other time, Lenders holding more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have no



20









 




Commitments outstanding, then Lenders holding more than 50% of the Revolving Credit
Exposure; provided, however, that to the extent that any Lender is a Defaulting
Lender, such
Defaulting Lender and all of its Commitments and Revolving Credit Exposure shall be excluded
for purposes of determining Required Lenders.




     “Requirement of Law” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of
a Governmental Authority, in each case applicable to or binding upon such Person or any of
its
property or to which such Person or any of its property is subject.



     “Responsible Officer” shall mean any of the president, the chief executive officer,
the
chief operating officer, the chief financial officer or the treasurer of the Borrower or
such other
representative of the Borrower as may be designated in writing by any one of the foregoing
with
the consent of the Administrative Agent; and, with respect to the financial covenants only,
the
chief financial officer or the treasurer of the Borrower.



     “Restricted Payment” shall have the meaning set forth in Section 7.5.



     “Revolving Commitment” shall mean, with respect to each Lender, the obligation of
such
Lender to make Revolving Loans to the Borrower and to participate in Letters of Credit and
Swingline Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule II, or in the case of a Person becoming a Lender
after the
Closing Date through an assignment of an existing Revolving Commitment, the amount of the
assigned “Revolving Commitment” as provided in the Assignment and Assumption executed by
such Person as an assignee, as the same may be increased or decreased pursuant to terms
hereof.



     “Revolving Commitment Termination Date” shall mean the earliest of (i) December 31,
2013, (ii) the date on which all Revolving Commitments are terminated pursuant to
Section 2.9
and (iii) the date on which all amounts outstanding under this Agreement have been declared
or
have automatically become due and payable (whether by acceleration or otherwise).



     “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the
sum
of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure and
Swingline Exposure.



     “Revolving Credit Note” shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such Lender’s Revolving Commitment,
in substantially the form of Exhibit A.



     “Revolving Loan” shall mean a loan made by a Lender (other than the Swingline
Lender)
to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan, an
Index Rate Loan or a Eurodollar Loan.



     “Sale and Leaseback Transaction” shall have the meaning set forth in Section
7.9.




21












 





     “S&P” shall mean Standard & Poor’s, a division of McGraw-Hill, Inc., a
corporation organized and existing under the laws of the State of New York, its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Borrower with the consent of the
Administrative Agent.



     “Subsidiary” shall mean, with respect to any Person (the “parent”), any
corporation, partnership, joint venture, limited liability company, association or other entity
the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of
such date, as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the
case of a partnership, more than 50% of the general partnership interests are, as of such date,
owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a
Subsidiary of the Borrower.



     “Subsidiary Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated
as of the date hereof and substantially in the form of Exhibit F, made by all Domestic
Subsidiaries of the Borrower in favor of the Administrative Agent for the benefit of the Lenders.



     “Subsidiary Guaranty Supplement” shall mean each supplement substantially in the
form of Schedule II to the Subsidiary Guaranty Agreement executed and delivered by a
Domestic Subsidiary of the Borrower pursuant to Section 5.11.



     “Subsidiary Loan Party” shall mean any Subsidiary that executes or becomes a party
to the Subsidiary Guaranty Agreement.



     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding not to exceed
$10,000,000.



     “Swingline Exposure” shall mean, with respect to each Lender, the principal
amount of the Swingline Loans in which such Lender is legally obligated either to make an Index
Rate Loan or to purchase a participation in accordance with Section 2.4, which shall
equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.



     “Swingline Lender” shall mean SunTrust Bank, or any other Lender that may agree
to make Swingline Loans hereunder.



     “Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender
under the Swingline Commitment.



     “Swingline Note” shall mean the promissory note of the Borrower payable to the order
of the Swingline Lender in the principal amount of the Swingline Commitment, substantially the
form of Exhibit D.



22









 





     “Swingline Rate” shall mean the Index Rate plus the Applicable Margin.



     “Synthetic Lease” shall mean a lease transaction under which the parties intend
that (i) the lease will be treated as an “operating lease” by the lessee pursuant to Statement
of Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to
various tax and other benefits ordinarily available to owners (as opposed to lessees) of like
property.



     “Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of
(i) all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication and (ii) all rental and purchase price
payment obligations of such Person under such Synthetic Leases assuming such Person exercises the
option to purchase the lease property at the end of the lease term.



     “Target Consolidated EBITDA” shall mean, for the Target and its Subsidiaries for
any period, an amount equal to the sum of (i) the consolidated net income for such period plus
(ii) to the extent deducted in determining consolidated net income for such period, (A)
consolidated interest expense, (B) income tax expense, (C) depreciation and amortization, all of the
foregoing as determined on a consolidated basis in accordance with GAAP, (D) the amount of any
charges associated with the grant of any share based payment awards to employees, officers,
directors or consultants and (E) all other non-cash charges acceptable to the Required Lenders, in each
case for such period.



     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



     “Title IV, HEA Programs” shall mean the programs of federal student financial
assistance authorized by Title IV of the Higher Education Act of 1965, as amended, 20
U.S.C. 1079 et seq., and any amendments or successor statutes thereto after the Closing Date.



     “Transaction Value” shall mean the aggregate value of the sum of all current and
deferred cash and securities to be paid and issued, plus Indebtedness paid or assumed, in connection
with a Permitted Acquisition (provided, however, that any consideration paid in Capital Stock of
the Borrower shall not be included in the calculation of Transaction Value). The Borrower shall
make an estimate in good faith as of the time of the closing of a Permitted Acquisition of
all deferred payments (including, without limitation, earnout payments) to be paid in
connection with such Permitted Acquisition.



     “Treasury Management Obligations” shall mean, collectively, all obligations and
other liabilities of any Loan Parties pursuant to any agreements governing the provision to such
Loan Parties of treasury or cash management services, including deposit accounts, funds
transfer, automated clearing house, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation, reporting and trade finance services,
overnight draft, credit cards, purchasing cards and commercial cards and other cash management
services.



     “Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate, the Index Rate or the Base Rate.



23









 





     “Unrestricted Liquidity” shall mean, at any time, the sum of (a) cash and Permitted
Investments of the Loan Parties that are not subject to any Lien, other than Liens in favor of
the Administrative Agent, or any restriction on use, (b) 90% of the fair market value of the
Borrower’s Investment in shares of Vanguard Short-term Tax-exempt Bond Fund (Admiral Shares), as
described in Schedule 7.4 and (c) the aggregate unused Revolving Commitments of all
Lenders.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.



     Section 1.2. Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a “Revolving Loan”) or by Type
(e.g. a “Eurodollar Loan,” “Index Rate Loan” or “Base Rate Loan”) or by Class and Type (e.g.
“Revolving Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g.
“Revolving Borrowing”) or by Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g.
“Revolving Eurodollar Borrowing”).



     Section 1.3. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article 6 to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article
6 for such purpose), then the Borrower’s compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.



     Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context
requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended, restated, supplemented
or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns, (iii) the words “hereof’, “herein” and
“hereunder” and words of similar import shall be construed to refer to this Agreement as a whole
and not to any particular provision hereof, (iv) all references to Articles,



24









 




Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent’s principal office, unless otherwise
indicated.




     Section 1.5. Letter of Credit Amounts. Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit
in effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any LC Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE 2




AMOUNT AND TERMS OF THE COMMITMENTS



     Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving
credit facility pursuant to which each Lender severally agrees (to the extent of such Lender’s
Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with Section
2.23, (iii) the Swingline Lender agrees to make Swingline Loans
in accordance with Section 2.4, and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit and the
Swingline Loans pursuant to the terms and conditions hereof; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and
outstanding LC Exposure exceed at any time the Aggregate Revolving Commitment Amount from time to
time in effect.



     Section 2.2. Revolving Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share,
to the Borrower, from time to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure
exceeding such Lender’s Revolving Commitment or (b) the sum of the aggregate Revolving Credit
Exposures of all Lenders exceeding the Aggregate Revolving Commitment Amount. During the
Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans
in accordance with the terms and conditions of this Agreement; provided, that the Borrower
may not borrow or reborrow should there exist a Default or Event of Default or should any of the
conditions set forth in Section 3.2 not be satisfied or waived as provided in this
Agreement.



     Section 2.3. Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Notice of Revolving
Borrowing”) (x) prior to 11:00 a.m. (Richmond, Virginia time) on the same Business Day as the
requested date of each Base Rate Borrowing or Index Rate Borrowing and (y) prior to 11:00 a.m.
(Richmond, Virginia time) three (3) Business Days prior to the requested date of each Eurodollar



25









 




Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the
case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto
(subject to the provisions of the definition of “Interest Period”). Each Revolving Borrowing
shall consist entirely of Base Rate Loans, Index Rate Loans or Eurodollar Loans, as the Borrower
may request, provided, that any Revolving Loans funded on the Closing Date shall be
Index Rate Loans. The aggregate principal amount of each Eurodollar Borrowing shall be not less
than $1,000,000 or a larger multiple of $1,000,000, and the aggregate principal amount of each
Base Rate Borrowing and Index Rate Borrowing shall not be less than $1,000,000 or a larger
multiple of $500,000; provided, that Index Rate Loans or Base Rate Loans, respectively,
made pursuant to Section 2.4 or Section 2.23(d) may be made in lesser amounts as
provided therein. At no time shall the total number of Eurodollar Borrowings outstanding at any
time exceed six. Promptly following the receipt of a Notice of Revolving Borrowing in accordance
herewith, the Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.




     Section 2.4. Swingline Commitment.



          (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect and (ii) the difference between the Aggregate
Revolving Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided, that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.




          (b) The Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
in accordance with the treasury and cash management services and products provided to the
Borrower by the Swingline Lender (the “Cash Management Swingline Loans”). For other
Swingline Loans, the Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing substantially in the form of
Exhibit 2.4 attached hereto (“Notice of Swingline Borrowing”) prior to 1:00 p.m.
(Richmond, Virginia time) on the requested date of each Swingline Borrowing. Each Notice of
Swingline Borrowing shall be irrevocable and shall specify: (i) the principal amount of such
Swingline Loan, (ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of Swingline
Borrowing. Each Swingline Loan shall accrue interest at the Swingline Rate. The aggregate
principal amount of each Swingline Loan shall be not less than $100,000 or a larger multiple of
$50,000, or such other minimum amounts agreed to by the Swingline Lender and the Borrower.
Unless the Swingline Lender has received notice from the Administrative Agent or any Lender on
or before the Business Day immediately preceding the date the Swingline Lender is to make the
requested Swingline Loan directing the Swingline Lender not to make the Swingline Loan because
such Swingline Loan is not then permitted hereunder because of the








26









 







limitations set forth in Section 2.4(a) or that one or more conditions specified in
Article 3 are not then satisfied, then, subject to the terms and conditions hereof, the
Swingline Lender will make the proceeds of each Swingline Loan available to the Borrower in
Dollars in immediately available funds at the account specified by the Borrower in the applicable
Notice of Swingline Borrowing not later than the later of 1:00 p.m. (Richmond, Virginia time) or
two hours following the delivery of the Notice of Swingline Borrowing on the requested date of
such Swingline Loan.




          (c) The Swingline Lender, at any time and from time to time in its sole discretion, may, on
behalf of the Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to
act on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting
the Lenders (including the Swingline Lender) to make Index Rate Loans in an amount equal to the
unpaid principal amount of any Swingline Loan. Each Lender will make the proceeds of its Index
Rate Loan included in such Borrowing available to the Administrative Agent for the account of the
Swingline Lender in accordance with Section 2.7, which will be used solely for the
repayment of such Swingline Loan. The Swingline Lender agrees that it shall give such Notice of
Revolving Borrowing on the last Business Day of each calendar week if any Swingline Loans are then
outstanding.




          (d) If for any reason an Index Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the foregoing
provisions, then each Lender (other than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on
the date that such Index Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its
participating interest to the Administrative Agent for the account of the Swingline Lender. If
such Swingline Loan bears interest at a rate other than the Index Rate, such Swingline Loan shall
automatically become an Index Rate Loan on the effective date of any such participation and
interest shall become payable on demand.




          (e) Each Lender’s obligation to make an Index Rate Loan pursuant to Section 2.4(c) or
to purchase the participating interests pursuant to Section 2.4(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any
Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of any event or
condition which has had or could reasonably be expected to have a Material Adverse Effect,
(iv) any breach of this Agreement or any other Loan Document by the Borrower, the Administrative
Agent or any Lender or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such amount on demand from
such Lender, together with accrued interest thereon for each day from the date of demand thereof
(i) at the Federal Funds Rate until the second Business Day after such demand and (ii) at the Base
Rate at all times thereafter. Until such time as such Lender makes its required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of
the unpaid participation for all purposes of the Loan Documents. In addition, such Lender shall be
deemed to have assigned any and all





27









 







payments made of principal and interest on its Revolving Loans and any other amounts due to it
hereunder, to the Swingline Lender to fund the amount of such Lender’s participation interest in
such Swingline Loans that such Lender failed to fund pursuant to this Section 2.4, until
such amount has been purchased in full.




     Section 2.5. Reserved.



     Section 2.6. Reserved.



     Section 2.7. Funding of Borrowings.



          (a) Each Lender will make available each Loan to be made by it hereunder on the proposed date
thereof by wire transfer in immediately available funds by 1:00 p.m. (Richmond, Virginia time) to
the Administrative Agent at the Payment Office; provided, that the Swingline Loans will be
made as set forth in Section 2.4. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with the Administrative
Agent or at the Borrower’s option, by effecting a wire transfer of such amounts to an account
designated by the Borrower to the Administrative Agent.




          (b) Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m.
(Richmond, Virginia time) one (1) Business Day prior to the date of a Borrowing in which such
Lender is to participate that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender on the date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at the Federal Funds
Rate until the second Business Day after such demand and thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent together with interest at
the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice
any rights which the Borrower may have against any Lender as a result of any default by such
Lender hereunder.




          (c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective
Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by
it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.




     Section 2.8. Interest Elections.



          (a) On the Closing Date, each Revolving Loan funded on such date shall be an Index Rate Loan
and each Swingline Loan shall be an Index Rate Loan. After the Closing







28









 







Date, each Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing, provided that only Revolving Loans and Swingline Loans may
be borrowed as Index Rate Loans. Thereafter, the Borrower may elect to convert such Borrowing into
a different Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section 2.8. The Borrower may
elect different options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Swingline Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section 2.8, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing that is to be converted or continued, as the case may be, substantially in the form
of Exhibit 2.8 attached hereto (a “Notice of Conversion/Continuation”), (x) prior
to 11:00 a.m. (Richmond, Virginia time) on the same Business Day as the requested date of a
conversion into a Base Rate Borrowing or an Index Rate Borrowing and (y) prior to 11:00 a.m.
(Richmond, Virginia time) three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing or of a Eurodollar Borrowing into a Borrowing of another Type. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to
which such Notice of Conversion/Continuation applies and if different options are being elected
with respect to different portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and
(iv) shall be specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing, an Index Rate Borrowing or a
Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of “Interest Period.” If any such Notice of Conversion/Continuation
requests a Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall be
deemed to have selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings, Index Rate
Borrowings and Base Rate Borrowings set forth in Section 2.3.




          (c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the
Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent
and each of the Lenders shall have otherwise consented in writing. No conversion of any Eurodollar
Loans shall be permitted except on the last day of the Interest Period in respect thereof.








29









 








          (d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent
shall promptly notify each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.




          (e) If a Notice of Borrowing or a Notice of Conversion/Continuation does not specify a
Type, the Borrower shall be deemed to have requested an Index Rate Borrowing with respect to the
Revolving Loans.




     Section 2.9. Optional Reduction and Termination of Commitments.



          (a) Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC
Commitments shall terminate on the Revolving Commitment Termination Date.




          (b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent (which notice shall be irrevocable
unless contingent on the consummation of an anticipated refinancing and the Borrower shall, as
promptly as practicable, notify the Administrative Agent that such refinancing will not occur as
scheduled), the Borrower may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.9 shall be in an amount of at least
$5,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted
which would reduce the Aggregate Revolving Commitment Amount to an amount less than the
outstanding Revolving Credit Exposures of all Lenders. Any such reduction in the Aggregate
Revolving Commitment Amount below the sum of the principal amount of the Swingline Commitment
and the LC Commitment shall result in a proportionate reduction (rounded to the next lowest
integral multiple of $100,000) in the Swingline Commitment and the LC Commitment.




          (c) The Borrower may terminate the unused amount of the Revolving Commitment of a
Defaulting Lender upon not less than two Business Days’ prior notice to the Administrative Agent
(which will promptly notify the Lenders thereof), and in such event the provisions of Section
2.22 will apply to all amounts thereafter paid by the Borrower for the account of such
Defaulting Lender under this Agreement (whether on account of principal, interest, fees,
indemnity or other amounts), provided that such termination will not be deemed to be a waiver or
release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline
Lender or any Lender may have against such Defaulting Lender.




     Section 2.10. Repayment of Loans.



          (a) The outstanding principal amount of all Revolving Loans shall be due and payable
(together with accrued and unpaid interest thereon) on the Revolving Commitment Termination
Date.




          (b) The principal amount of each Swingline Borrowing shall be due and payable (together
with accrued and unpaid interest thereon) on the Revolving Commitment Termination Date.





30












 





     Section 2.11. Evidence of Indebtedness.



          (a) Each Lender shall maintain in accordance with its usual practice appropriate records
evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable thereon and paid
to such Lender from time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of each Lender, (ii)
the amount of each Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant to Section
2.8, (iv) the date of each conversion of all or a portion thereof to another Type pursuant to
Section 2.8, (v) the date and amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder in respect of such Loans and
(vi) both the date and amount of any sum received by the Administrative Agent hereunder from the
Borrower in respect of the Loans and each Lender’s Pro Rata Share thereof. The entries made in
such records shall be prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded, absent manifest error; provided, that the failure or delay of
any Lender or the Administrative Agent in maintaining or making entries into any such record or
any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans
(both principal and unpaid accrued interest) of such Lender in accordance with the terms of this
Agreement.




          (b) At the request of any Lender (including the Swingline Lender) at any time, the Borrower
agrees that it will execute and deliver to such Lender, as applicable, a Revolving Credit Note
and, in the case of the Swingline Lender only, a Swingline Note, payable to the order of such
Lender.




     Section 2.12. Optional Prepayments. The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by
giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing,
11:00 a.m. (Richmond, Virginia time) not less than three (3) Business Days prior to any such
prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing or an Index Rate
Borrowing, 11:00 a.m. (Richmond, Virginia time) on the Business Day of such prepayment, and (iii)
in the case of Swingline Borrowings, 11:00 a.m. (Richmond, Virginia time) on the date of such
prepayment, provided that no notice shall be required for the prepayment of any Cash Management
Swingline Loans. Each such notice shall be irrevocable and shall specify the proposed date of such
prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each affected Lender of
the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.14(d); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to Section 2.20. Each partial prepayment of
any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or in the








31









 










case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a Borrowing
shall be applied ratably to the Loans comprising such Borrowing.




     Section 2.13. Mandatory Prepayments.



          (a) Immediately upon receipt by the Borrower or any of its Subsidiaries of proceeds of any
sale or disposition by the Borrower or such Subsidiary of any of its assets (excluding (i) sales
of inventory in the ordinary course of business, (ii) sales of worn-out, obsolete equipment,
(iii) sales of assets the proceeds of which are invested into the businesses of the Borrower and
its Subsidiaries within 180 days after such assets are sold and (iv) so long as no Event of
Default has occurred and is continuing, other sales of assets of the Borrower or any of its
Subsidiaries with an aggregate book value not to exceed $1,000,000 in any Fiscal Year) the
Borrower shall prepay the Loans (without any associated permanent reduction of the Commitments)
in an amount equal to all such proceeds, net of commissions and other reasonable and customary
transaction costs, fees and expenses properly attributable to such transaction and payable by
the Borrower in connection therewith (in each case, paid to non-Affiliates). Any such prepayment
shall be applied in accordance with Section 2.13(d) below.




          (b) If the Borrower or any of its Subsidiaries issues any debt or equity securities (other
than Indebtedness permitted under Section 7.1 and equity securities issued (x) by a
Subsidiary of the Borrower to the Borrower or another Subsidiary or (y) by the Borrower to its
officers or employees in connection with its employee award programs) then no later than the
Business Day following the date of receipt of the proceeds thereof, Borrower shall prepay the
Loans (without any associated permanent reduction of the Commitments) in an amount equal to all
such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to
non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with
Section 2.13(d).




          (c) Intentionally Deleted.




          (d) Any prepayments made by the Borrower pursuant to Sections 2.13(a) or
(b) above shall be applied as follows: first, to Administrative Agent’s fees and
reimbursable expenses then due and payable pursuant to any of the Loan Documents;
second, to all other fees and reimbursable expenses of the Lenders and the Issuing Bank
then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the
Issuing Bank based on their respective Pro Rata Shares of such fees and expenses; third,
to interest then due and payable on the Loans made to Borrower, pro rata to the Lenders based on
their respective Revolving Commitments; fourth, to the principal balance of the
Swingline Loans, until the same shall have been paid in full, to the Swingline Lender;
fifth, to the principal balance of the Revolving Loans, until the same shall have been
paid in full, pro rata to the Lenders based on their respective Revolving Commitments and
sixth, to the extent that an Event of Default has occurred and is continuing, to cash
collateralize the Letters of Credit in accordance with Section 2.23(g) in an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon.




          (e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate
Revolving Commitment Amount, as reduced pursuant to Section 2.9 or otherwise, the









32









 










Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such excess amount and any
amounts due under Section 2.20. Each prepayment shall be applied first to the Swingline
Loans
to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally
to
Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all
Swingline
Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the
Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing
Bank and the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees
thereon to be held as collateral for the LC Exposure. Such account shall be administered in
accordance with Section 2.23(g) hereof.




     Section 2.14. Interest on Loans.



          (a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate
in effect from time to time and on each Eurodollar Loan at the Adjusted LIBO Rate for the
applicable Interest Period in effect for such Loan, plus, in each case, the Applicable
Margin in
effect from time to time. The Borrower shall pay interest on each Index Rate Loan at the
Index
Rate plus the Applicable Margin in effect from time to time. The interest rate on Index Rate
Loans shall be established based on the Index Rate in effect on the first Index Rate
Determination Date, and shall be adjusted on each Index Rate Determination Date thereafter
to
reflect the Index Rate then in effect.




          (b) The Borrower shall pay interest on each Swingline Loan at the Swingline
Rate in effect from time to time.




          (c) While an Event of Default exists or after acceleration, at the option of the
Required Lenders, the Borrower shall pay interest (“Default Interest”) with respect
to all
Eurodollar Loans and at the rate otherwise applicable for the then-current Interest Period
plus an
additional 2% per annum until the last day of such Interest Period, and thereafter, and with
respect to all Index Rate Loans (including all Swingline Loans) and Base Rate Loans and all
other Obligations hereunder (other than Loans), at an all-in rate in effect for Base Rate
Loans,
plus an additional 2% per annum.




          (d) Interest on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of any repayment thereof.
Interest on all outstanding Base Rate Revolving Loans shall be payable monthly in arrears on
the
last day of each calendar month, and on the Revolving Commitment Termination Date. Interest
on all outstanding Index Rate Revolving Loans and Swingline Loans shall be payable monthly
in
arrears on the last day of each calendar month and on the Revolving Commitment Termination
Date. Interest on all outstanding Eurodollar Loans shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of any Eurodollar Loans having an
Interest
Period in excess of three months, on each day which occurs every three months after the
initial
date of such Interest Period, and on the Revolving Commitment Termination Date. Interest on
any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall
be
payable on the date of such conversion or on the date of any such repayment or prepayment
(on
the amount repaid or prepaid) thereof. All Default Interest shall be payable on demand.









33









 











          (e) The Administrative Agent shall determine each interest rate applicable to the
Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing
(or by telephone, promptly confirmed in writing). Any such determination shall be conclusive and
binding for all purposes, absent manifest error.




     Section 2.15. Fees.



          (a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts
and at the times previously agreed upon in writing by the Borrower and the Administrative
Agent.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Percentage per annum (determined daily in
accordance with Schedule I) on the daily amount of the unused Revolving Commitment of
such Lender during the Availability Period. For purposes of computing commitment fees with
respect to the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed
used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline
Exposure, of such Lender.




          (c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of each Lender,
a letter of credit fee with respect to its participation in each Letter of Credit, which shall
accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect on
the average daily amount of such Lender’s LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter of Credit expires or is drawn in full (including without
limitation any LC Exposure that remains outstanding after the Revolving Commitment Termination
Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the
rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or until
the date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as
the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Notwithstanding the foregoing, if the
Required Lenders elect to increase the interest rate on the Loans to the Default Interest
pursuant to Section 2.14(c), the rate per annum used to calculate the letter of credit
fee pursuant to clause (i) above shall automatically be increased by an additional 2% per annum.




          (d) The Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the upfront fee previously agreed upon by the Borrower and the Administrative
Agent, which shall be due and payable on the Closing Date.




          (e) Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on March 31, 2011, and on
the Revolving Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety); provided further, that any such fees accruing after
the Revolving Commitment Termination Date shall be payable on demand.









34









 











          (f) Anything herein to the contrary notwithstanding, during such period as a Lender is
a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during
such period pursuant to paragraphs (b) and (c) above (without prejudice to the rights of the
Lenders other than Defaulting Lenders in respect of such fees) and the pro rata payment
provisions of Section 2.22 will automatically be deemed adjusted to reflect the provisions of
this Section. Such fees shall accrue, but shall only be payable pursuant to Section 2.27(b).




     Section 2.16. Computation of Interest and Fees. Subject to the following sentence,
all computations of interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last day) occurring in
the period for which such interest or fees are payable (to the extent computed on the basis of
days elapsed). Interest hereunder based on the Administrative Agent’s prime lending rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the
actual number of days elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest amount or fee hereunder shall be made
in good faith and, except for manifest error, shall be final, conclusive and binding for all
purposes.



     Section 2.17. Inability to Determine Interest Rates. If prior to the commencement
of any Interest Period for any Eurodollar Borrowing or on the Index Rate Determination Date for
any Index Rate Borrowing or a Base Rate Borrowing bearing interest at a rate determined by
reference to the Index Rate,



               (i) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for such Interest Period or the Index
Rate on such Index Rate Determination Date, or



               (ii) the Administrative Agent shall have received notice from the Required Lenders that the
Adjusted LIBO Rate or the Index Rate does not adequately and fairly reflect the cost to such
Lenders (or Lender, as the case may be) of making, funding or maintaining their (or its, as the
case may be) Eurodollar Loans for such Interest Period or its Index Rate Loans or its Base Rate
Loans bearing interest at a rate determined by reference to the Index Rate, as applicable,



     the Administrative Agent shall give written notice (or telephonic notice, promptly
confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter.
Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) the obligations of the Lenders to make
Eurodollar Revolving Loans or Index Rate Loans or Base Rate Loans bearing interest at a rate
determined by reference to the Index Rate or to continue or convert outstanding Loans as or into
Eurodollar Loans or Index Rate Loans or Base Rate Loans bearing interest at a rate determined by
reference to the Index Rate shall be suspended and (ii) all such affected Loans shall be
converted into Base Rate Loans on the last day of the then current Interest Period applicable
thereto and all Index Rate Loans shall automatically be converted to Base Rate Loans, unless, in
either case, the Borrower prepays such Loans in accordance with this Agreement. Unless the
Borrower notifies the Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving








35









 










Borrowing or Index Rate Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such Revolving Borrowing
shall be made as a Base Rate Borrowing.




     Section 2.18. Illegality. If any Change in Law shall make it unlawful or impossible
for
any Lender to make, maintain or fund any Eurodollar Loan or Index Rate Loan or Base Rate
Loan bearing interest at a rate determined by reference to the Index Rate and such Lender
shall
so notify the Administrative Agent, the Administrative Agent shall promptly give notice
thereof
to the Borrower and the other Lenders, whereupon until such Lender notifies the
Administrative
Agent and the Borrower that the circumstances giving rise to such suspension no longer
exist, the
obligation of such Lender to make Eurodollar Revolving Loans or Index Rate Loans or Base
Rate Loans bearing interest at a rate determined by reference to the Index Rate, or to
continue or
convert outstanding Loans as or into Eurodollar Loans or Index Rate Loans or Base Rate Loans
bearing interest at a rate determined by reference to the Index Rate, shall be suspended. In
the
case of the making of a Eurodollar Revolving Borrowing or an Index Rate Borrowing or a Base
Rate Borrowing bearing interest at a rate determined by reference to the Index Rate, such
Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving
Borrowing for the same Interest Period and if the affected Eurodollar Loan is then
outstanding,
such Loan shall be converted to a Base Rate Loan either (i) on the last day of the then
current
Interest Period applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall determine that it
may
not lawfully continue to maintain such Eurodollar Loan to such date, and immediately in the
case
of an Index Rate Loan or a Base Rate Loan bearing interest at a rate determined by reference
to
the Index Rate. Notwithstanding the foregoing, the affected Lender shall, prior to giving
such
notice to the Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation would not
otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.



     Section 2.19. Increased Costs.



          (a) If any Change in Law shall:




               (i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of the Adjusted LIBO
Rate or the Index Rate hereunder against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate or the Index Rate) or the Issuing Bank; or



               (ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any Eurodollar Loans or
Index
Rate Loans or Base Rate Loans bearing interest at a rate determined by reference to the
Index
Rate made by such Lender or any Letter of Credit or any participation therein;



     and the result of either of the foregoing is to increase the cost to such Lender of making,
converting into, continuing or maintaining a Eurodollar Loan or Index Rate Loan or Base Rate
Loan bearing interest at a rate determined by reference to the Index Rate or to increase the
cost to
such Lender or the Issuing Bank of participating in or issuing any Letter of Credit or to
reduce








36









 










the amount received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay, upon written
notice (which shall include a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail) from and demand by such Lender on the
Borrower (with a copy of such notice and demand to the Administrative Agent), to the
Administrative Agent for the account of such Lender, within ten days after the date of such
notice and demand, the additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank shall have determined that on or after the date of
this Agreement any Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of
such Lender’s or the Issuing Bank’s parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that which such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation could have
achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing
Bank’s policies or the policies of such Lender’s or the Issuing Bank’s parent corporation with
respect to capital adequacy), from time to time, within ten days after receipt by the Borrower
of written demand (which shall include a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail) by such Lender (with a copy thereof to
the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent
corporation for any such reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth the basis for such demand
and a calculation of the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender’s or the Issuing Bank’s parent corporation, as the case may be, specified in
paragraph (a) or (b) of this Section 2.19 shall be delivered to the Borrower (with a
copy to the Administrative Agent) and shall be conclusive, absent manifest error. The Borrower
shall pay any such Lender or the Issuing Bank, as the case may be, such amount or amounts within
10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section 2.19 shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not
be required to compensate a Lender or the Issuing Bank under this Section 2.19 for any
increased costs or reductions incurred more than six (6) months prior to the date that such
Lender or the Issuing Bank notifies the Borrower of such increased costs or reductions and of
such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided
further, that if the Change in Law giving rise to such increased costs or reductions is
retroactive, then such six-month period shall be extended to include the period of such
retroactive effect.




     Section 2.20. Funding Indemnity. In the event of (a) the payment of any principal
of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion or continuation of a
Eurodollar Loan other than on the last day of the Interest Period applicable thereto, or (c) the
failure by the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date
specified in any applicable








37









 










notice (regardless of whether such notice is withdrawn or revoked), then, in any such event,
the Borrower shall compensate each Lender, within five (5) Business Days after written demand from
such Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount
of interest that would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.20 submitted to the
Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent
manifest error. The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.




     Section 2.21. Taxes.



          (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall
be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.21) the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5) Business Days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.21) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto that may become payable by the
Administrative Agent, such Lender or the Issuing Bank, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability setting forth in reasonable detail the
calculation thereof and delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.













38









 











          (d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such
Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the Code or any treaty to which the United States is a party, with
respect
to payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested
by
the Borrower as will permit such payments to be made without withholding or at a reduced
rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees that it will
deliver
to the Administrative Agent and the Borrower (or in the case of a Participant, to the
Lender from
which the related participation shall have been purchased), as appropriate, two (2) duly
completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor form
thereto,
certifying that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender’s conduct of a trade or business in the United States; or (ii)
Internal
Revenue Service Form W-8 BEN, or any successor form thereto, certifying that such Foreign
Lender is entitled to benefits under an income tax treaty to which the United States is a
party
which reduces the rate of withholding tax on payments of interest; or (iii) Internal
Revenue
Service Form W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign Lender
qualifies as
“portfolio interest” exempt from U.S. withholding tax under Code section 871(h) or 881(c),
and
(B) stating that (1) the Foreign Lender is not a bank for purposes of Code section
881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such Foreign Lender, a
loan
agreement entered into in the ordinary course of its trade or business, within the meaning
of that
section; (2) the Foreign Lender is not a 10% shareholder of the Borrower within the meaning
of
Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign
corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or
(iv) such other Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the
Borrower and the Administrative Agent such forms on or before the date that it becomes a
party
to this Agreement (or in the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each such Foreign Lender shall deliver
such
forms promptly upon the obsolescence or invalidity of any form previously delivered by such
Foreign Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a position to
provide
any previously delivered certificate to the Borrower (or any other form of certification
adopted
by the Internal Revenue Service for such purpose).




     Section 2.22. Payments Generally; Pro Rata Treatment: Sharing of Set-offs.



          (a) Each Borrowing hereunder, each payment by the Borrower on account of
any commitment fee or Letter of Credit fee (other than the fronting fee payable solely to
the
Issuing Bank) and any reduction of the Revolving Commitments of the Lenders shall be made
pro rata according to the respective Pro Rata Shares of the relevant Lenders. Each
payment





39












 




(other than prepayments) in respect of principal or interest in respect of the Loans and each
payment in respect of fees payable hereunder shall be applied to the amounts of such obligations
owing to the Lenders pro rata according to the respective amounts then due and owing to
the Lenders.




          (b) Reserved.




          (c) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Lenders. Each payment in
respect of LC Disbursements in respect of any Letter of Credit shall be made to the Issuing Bank
that issued such Letters of Credit.




          (d) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Sections 2.19, 2.20 or 2.21, or otherwise) prior to 12:00 noon (Richmond,
Virginia time) on the date when due, in immediately available funds, free and clear of any
defenses, rights of set-off, counterclaim, or withholding or deduction of taxes. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except
payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein
and except that payments pursuant to Sections 2.19, 2.20 and 2.21 and
10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on
a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be made
payable for the period of such extension. All payments hereunder shall be made in Dollars.




          (e) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties and (iii) last, towards payment of all other Obligations then due, ratably among the
parties entitled thereto in accordance with the amounts of such Obligations then due to such
parties.




          (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall



40









 






purchase (for cash at face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.




          (g) Unless the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account of the Lenders
or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case
may be, the amount or amounts due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.




          (h) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.4(c), 2.4(d), 2.7(b), 2.22(d), 2.23(d) or (e)
or 10.3(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lender’s obligations under such Sections until all
such unsatisfied obligations are fully paid.




     Section 2.23. Letters of Credit.



          (a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.23(d), agrees to issue, at the request of the
Borrower, Letters of Credit for the account of the Borrower on the terms and conditions
hereinafter set forth; provided, that (i) each Letter of Credit shall expire on the
earlier of (A) the date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or extension) and (B) the
date that is five (5)



41









 






Business Days prior to the Revolving Commitment Termination Date; (ii) each Letter of Credit
shall be in a stated amount of at least $100,000 (or such other amount as may be agreed to by
the Issuing Bank); (iii) the Borrower may not request any Letter of Credit, if, after giving
effect to such issuance (A) the aggregate LC Exposure would exceed the LC Commitment or (B) the
aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate Revolving
Commitment Amount and (iv) except as provided in Section 3.2(f), the Issuing Bank shall
not be required to issue any Letter of Credit if there is any Defaulting Lender or Potential
Defaulting Lender at the time of such request or issuance. Each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank without
recourse a participation in each Letter of Credit equal to such Lender’s Pro Rata Share of the
aggregate amount available to be drawn under such Letter of Credit on the date of issuance
thereof. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving
Commitment of each Lender by an amount equal to the amount of such participation.




          (b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension
of an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three (3) Business Days (or such
earlier date as may be agreed to by the Issuing Bank and the Administrative Agent) prior to the
requested date of such issuance specifying the date (which shall be a Business Day) such Letter
of Credit is to be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. In addition to the satisfaction of the conditions in
Article 3 the issuance of such Letter of Credit (or any amendment which increases the
amount of such Letter of Credit) will be subject to the further conditions that such Letter of
Credit shall be in such form and contain such terms as the Issuing Bank shall approve and that
the Borrower shall have executed and delivered any additional applications, agreements and
instruments relating to such Letter of Credit as the Issuing Bank shall reasonably require;
provided, that in the event of any conflict between such applications, agreements or
instruments and this Agreement, the terms of this Agreement shall control; provided,
further that the following are specific conditions under which the Issuing Bank may
refuse to issue Letters of Credit:




               (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any
Law applicable to the Issuing Bank or any request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit,
or request that the Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is
not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Bank in good faith deems material to it (for which the Issuing Bank
is not otherwise compensated hereunder); or



               (ii) the issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank applicable to letters of credit generally; or



42









 





               (iii) such Letter of Credit is to be denominated in a currency other than
Dollars.



          (c) At least two Business Days (or such earlier date as may be agreed to by the Issuing Bank
and the Administrative Agent) prior to the issuance of any Letter of Credit, the Issuing Bank will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received such notice and if not, the Issuing Bank will provide the Administrative Agent with a
copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent or any
Lender on or before the Business Day immediately preceding the date the Issuing Bank is to issue
the requested Letter of Credit directing the Issuing Bank not to issue the Letter of Credit
because such issuance is not then permitted hereunder because of the limitations set forth in
Section 2.23(a), or that one or more conditions specified in Article 3 are not
then satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing Bank’s usual and
customary business practices.




          (d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements
paid by the Issuing Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. (Richmond, Virginia time) on the Business Day immediately
prior to the date on which such drawing is honored that the Borrower intends to reimburse the
Issuing Bank for the amount of such drawing in funds other than from the proceeds of Revolving
Loans, the Borrower shall be deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the date on which
such drawing is honored in an exact amount due to the Issuing Bank; provided, that for
purposes solely of such Borrowing, the conditions precedent set forth in Section 3.2
hereof shall not be applicable. The Administrative Agent shall notify the Lenders of such
Borrowing in accordance with Section 2.3, and each Lender shall make the proceeds of its
Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of
the Issuing Bank in accordance with Section 2.7. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.




          (e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such
Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each
Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person



43









 






may have against the Issuing Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or
any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Lender,
(v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing. On the date that
such participation is required to be funded, each Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the Administrative Agent for the account of
the Issuing Bank. Whenever, at any time after the Issuing Bank has received from any such Lender
the funds for its participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the
Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of such
payment; provided, that if such payment is required to be returned for any reason to the
Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank to it.




          (f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant
to paragraphs (d) or (e) above on the due date therefor, such Lender shall pay interest to the
Issuing Bank (through the Administrative Agent) on such amount from such due date to the date such
payment is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3) Business Days of
such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest
on such amount at the rate set forth in Section 2.14(c).




          (g) If any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid fees thereon; provided, that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Borrower
agrees to execute any documents and/or certificates to effectuate the intent of this paragraph.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. Interest and profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent so applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, with the consent of the Required Lenders, be applied to satisfy other obligations of
the Borrower under this Agreement and the other Loan Documents. If the



44









 






Borrower is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not so applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of Default have been
cured or waived.




          (h) Promptly following the end of each calendar quarter, the Issuing Bank shall deliver
(through the Administrative Agent) to each Lender and the Borrower a report describing the
aggregate Letters of Credit outstanding at the end of such Fiscal Quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then outstanding.




          (i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:




               (i) Any lack of validity or enforceability of any Letter of Credit or this
Agreement;



               (ii) The existence of any claim, set-off, defense or other right which the Borrower or any
Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any document related hereto or thereto
or any unrelated transaction;



               (iii) Any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any
respect;



               (iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a draft or
other document to the Issuing Bank that does not comply with the terms of such Letter of Credit;



               (v) Any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.23, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations
hereunder; or



               (vi) The existence of a Default or an Event of Default.



     Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any
of the foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document required to make a
drawing



45









 




thereunder), any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse (i) the Issuing Bank from liability to the Borrower to the extent of any
actual direct damages (as opposed to special, indirect (including claims for lost profits or
other consequential damages), or punitive damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank’s failure to exercise due care when determining whether drafts or
other documents presented under a Letter of Credit comply with the terms thereof or (ii) the
Issuing Bank or any Related Party of any of the foregoing from the Issuing Bank’s gross
negligence or willful misconduct as determined in a final, nonappealable judgment of a court of
competent jurisdiction. The parties hereto expressly agree, that in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented that appear on their face
to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in
its sole discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit.




          (j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter
of Credit is issued and subject to applicable laws, performance under Letters of Credit by the
Issuing Bank, its correspondents, and the beneficiaries thereof will be governed by the rules
of the “International Standby Practices 1998” (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any Letter of
Credit may be issued) and to the extent not inconsistent therewith, the governing law of this
Agreement set forth in Section 10.5.




     Section 2.24. Intentionally Deleted.



     Section 2.25. Mitigation of Obligations. If any Lender requests compensation under
Section 2.19, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.21,
then such Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under Section
2.19 or Section 2.21, as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any Lender in
connection with such designation or assignment.



     Section 2.26. Replacement of Lenders. If any Lender is unable to fund any
Eurodollar Loan or Index Rate Loan pursuant to Section 2.17(ii) or Section 2.18
or if any Lender requests compensation under Section 2.19, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority of the account
of any Lender pursuant to Section 2.21, or if any Lender is a Defaulting Lender or
defaults in its obligation to fund Loans



46









 




hereunder or comply with the provisions of Section 2.21(e) or if any Lender does not
provide its consent to any proposed waiver or amendment which is not effective unless consented
to by the Required Lenders (or such higher percentage or proportion of the Lenders as herein
provided), then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions set forth in Section 10.4(b)) all its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender); provided, that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which consent shall
not be unreasonably withheld (provided that such consent shall not be required to the extent an
assignment pursuant to Section 10.4 to such assignee would not require the consent of
the Administrative Agent), (ii) such Lender shall have received payment of an amount equal to
the outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (in the case of such
outstanding principal and accrued interest) and from the Borrower (in the case of all other
amounts) and (iii) in the case of a claim for compensation under Section 2.19 or
payments required to be made pursuant to Section 2.21, such assignment will result in a
reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation
cease to apply.




     Section 2.27. Defaulting Lender. If a Lender becomes, and during the period it
remains, a Defaulting Lender, the following provisions shall apply with respect to any
outstanding LC Exposure and any outstanding Swingline Exposure of such Defaulting Lender:



          (a) the Borrower will, not less than one Business Day after demand by the Administrative Agent
(at the direction of the Issuing Bank and/or the Swingline Lender, as the case may be), (i) to
the extent not otherwise reallocated among all other Lenders that are Non-Defaulting Lenders
in accordance with Section 3.2(f), cash collateralize (in accordance with Section
2.23(g)) a portion of the obligations of the Borrower owed to the Issuing Bank and the
Swingline Lender equal to such Defaulting Lender’s LC Exposure or Swingline Exposure, as the
case may be, (ii) in the case of such Swingline Exposure, prepay all Swingline Loans or (iii)
make other arrangements reasonably satisfactory to the Administrative Agent, and to the Issuing
Bank and the Swingline Lender, as the case may be, in their reasonable discretion to protect
them against the risk of non-payment by such Defaulting Lender; and




          (b) any amount paid by the Borrower for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other
amounts) will not be paid or distributed to such Defaulting Lender, but will instead be
retained by the Administrative Agent in a segregated non-interest-bearing account until the
termination of the Commitments and payment in full of all obligations of the Borrower hereunder
and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the
making of payments from time to time in the following order of priority: first to the payment
of any amounts owing by such Defaulting Lender to the Administrative Agent under this
Agreement, second to the payments of any amounts owing by such Defaulting Lender to the Issuing
Bank or the Swingline Lender (pro rata as to the respective amounts owing to each of them)
under this Agreement, third to the payment of post-default interest and then current



47









 






interest due and payable to Lenders other than Defaulting Lenders, ratably among them in
accordance with the amounts of such interest then due and payable to them, fourth to the
payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among
them in accordance with the amount of such fees then due and payable to them, fifth to pay
principal and unreimbursed LC Disbursements then due and payable to the Non-Defaulting Lenders
hereunder ratably in accordance with the amounts then due and payable to them, sixth to the
ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and
seventh after the termination of the Commitments and payment in full of all obligations of the
Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a
court of competent jurisdiction may otherwise direct.




ARTICLE 3




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT



     Section 3.1. Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue
any Letter of Credit hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.2).



          (a) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket
expenses (including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any
other Loan Document and under any agreement with the Administrative Agent or the Arranger
(including the Fee Letter).




          (b) The Administrative Agent (or its counsel) shall have received the
following:




               (i) a counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;



               (ii) duly executed Notes payable to each Lender requesting a note;



               (iii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary that is a
Domestic Subsidiary;



               (iv) copies of duly executed payoff letters, in form and substance satisfactory to
Administrative Agent, executed by each holder of existing Indebtedness or the agent thereof;
together with (a) the results of a search of the Uniform Commercial Code filings (or
equivalent filings) made with respect to the Loan Parties in the states (or other
jurisdictions) of formation of such Persons, together with copies of the financing statements
(or similar documents) disclosed by such search, (b) UCC-3 or other appropriate termination
statements, in form and substance satisfactory to Administrative Agent, releasing all liens of
such holders or agent upon any of the personal property of the Borrower and its Subsidiaries
and (c) any other




48












 




releases, terminations or other documents reasonably required by the Administrative Agent
to evidence the payoff of such Indebtedness;




               (v) Reserved;



               (vi) a certificate of the Secretary or Assistant Secretary of each Loan Party in form and
substance acceptable to the Administrative Agent, attaching and certifying copies of its bylaws
and of the resolutions of its boards of directors, or partnership agreement or limited liability
company agreement, or comparable organizational documents and authorizations, authorizing the
execution, delivery and performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such Loan Party executing the Loan Documents
to which it is a party;



               (vii) certified copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational documents of each Loan
Party, together with certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of organization of such Loan Party;



               (viii) Reserved;



               (ix) favorable written opinion of Hogan Lovells US LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each of the Lenders, and covering such matters relating
to the Loan Parties, the Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;



               (x) a certificate, in form and substance acceptable to the Administrative Agent, dated the
Closing Date and signed by a Responsible Officer, certifying that (x) no Default or Event of
Default exists, (y) all representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects (or, if qualified by materiality, in all
respects) and (z) since the Balance Sheet Date, and except as disclosed to the Lenders in writing
prior to the Closing Date, there shall have been no change which has had or could reasonably be
expected to have a Material Adverse Effect;



               (xi) with respect to any Loan to be funded on the Closing Date, if any, a duly executed
Notice of Borrowing;



               (xii) with respect to any Loan to be funded on the Closing Date, if any, a duly executed
funds disbursement agreement, together with a report setting forth the sources and uses of the
proceeds of the Loans to be disbursed on the Closing Date;



               (xiii) certified copies of all consents, approvals, authorizations, registrations and filings
and orders required to be made or obtained under any Requirement of Law, or by any Contractual
Obligation of each Loan Party, in connection with the execution, delivery and performance of the
Loan Documents by each Loan Party, and the validity and enforceability of the Loan Documents
against each Loan Party or any of the transactions contemplated thereby, and such consents,
approvals, authorizations, registrations, filings and orders shall be in full force and effect and
all applicable waiting periods shall have expired, and



49









 




no investigation or inquiry by any Governmental Authority regarding the Loans or any
transaction being financed with the proceeds thereof shall be ongoing;




               (xiv) Reserved;



               (xv) Reserved;



               (xvi) copies of (A) the internally prepared quarterly financial statements of Borrower and
its Subsidiaries on a consolidated basis for the Fiscal Quarter ending on September 30, 2010, and
(B) the audited consolidated financial statements for Borrower and its Subsidiaries for the Fiscal
Years ending December 31, 2007, December 31, 2008 and
December 31, 2009;



               (xvii) a duly completed and executed Compliance Certificate of the Borrower, including
pro forma calculations of the financial covenants set forth in Article 6 hereof as
of September 30, 2010;



               (xviii) Reserved;



               (xix) Reserved; and



               (xx) such other documents, certificates or information as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent or the Required Lenders.



     Section 3.2. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:



          (a) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall exist;




          (b) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all representations and
warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all
material respects (or, if qualified by materiality, in all respects) on and as of the date of such
Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit
(except to the extent stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date), in each case before and after giving effect thereto;




          (c) Reserved;




          (d) the Borrower shall have delivered the required Notice of Borrowing, or, in the case of
any Letter of Credit, any other notice required pursuant to Section 2.23;




          (e) Reserved; and










50









 








          (f) to the extent any Lender is a Defaulting Lender or a Potential Defaulting Lender, at the
time of such Loan or issuance of such Letter of Credit, the cost or loss to the Issuing Bank or
the Swingline Lender, as the case may be, that would result therefrom is fully covered or
eliminated by (i) with respect to such Letter of Credit, (x) the LC Exposure of such Defaulting
Lender or Potential Defaulting Lender being reallocated among all other Lenders that are
Non-Defaulting Lenders in proportion with their Pro Rata Share, but only to the extent that, after
giving effect to such reallocation, the Revolving Credit Exposure of each Non-Defaulting Lender
does not exceed such Non-Defaulting Lender’s Pro Rata Share of the Aggregate Revolving Commitment
Amount; and (y) to the extent that such LC Exposure of such Defaulting Lender or Potential
Defaulting Lender exceeds the amount that is permitted to be reallocated pursuant to the
immediately preceding clause (x), the Borrower having provided cash collateral to the
Administrative Agent to hold on behalf of the Borrower, on terms and conditions reasonably
satisfactory to the Issuing Bank and the Administrative Agent, in an amount equal to such excess,
(ii) with respect to any Swingline Loan, the Borrower having provided cash collateral to the
Administrative Agent to hold on behalf of the Borrower, on terms and conditions reasonably
satisfactory to the Swingline Lender and the Administrative Agent, in an amount equal to the
Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender, or (iii) the Borrower
making other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank
or the Swingline Lender, as applicable, in their reasonable discretion to protect them against the
risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that none
of the foregoing will constitute a waiver or release of any claim the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting
Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting
Lender.




     Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (a) and (b) of this Section 3.2.



     Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this Article 3, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of each of the Lenders.



ARTICLE 4




REPRESENTATIONS AND WARRANTIES



     The Borrower represents and warrants to the Administrative Agent and each Lender as
follows:



     Section 4.1. Existence; Power. Each of the Loan Parties (i) is duly organized,
validly existing and in good standing as a corporation, partnership or limited liability company
under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority
to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is required, except in a case where a
failure to be so qualified could not reasonably be expected to result in a Material Adverse
Effect.




51












 





     Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party are within such Loan
Party’s organizational powers and have been duly authorized by all necessary organizational, and
if required, shareholder, partner or member, action. This Agreement has been duly executed and
delivered by the Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will be duly executed and delivered by
such Loan Party, and will constitute, valid and binding obligations of the Borrower or such Loan
Party (as the case may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors’ rights generally and by general principles of
equity.



     Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Loan Documents
to which it is a party (a) do not require any consent or approval of, registration or filing with,
or any action by, any Governmental Authority, except those as have been obtained or made and are
in full force and effect, (b) will not violate any Requirements of Law applicable to the Borrower
or any of its Subsidiaries or any judgment, order or ruling of any Governmental Authority, (c)
will not violate or result in a default under any indenture, material agreement or other material
instrument binding on the Borrower or any of its Subsidiaries or any of its assets or give rise to
a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries
and (d) will not result in the creation or imposition of any Lien (other than Liens permitted by
Section 7.2) on any asset of the Borrower or any of its Subsidiaries.



     Section 4.4. Financial Statements. The Borrower has furnished to each Lender (i) the
audited consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2009,
and the related consolidated statements of income, shareholders’ equity and cash flows for the
Fiscal Year then ended with a written report thereon prepared by PriceWaterhouse Coopers and (ii)
the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of September 30,
2010 (the “Balance Sheet Date”), and the related unaudited consolidated statements of
income and cash flows for the Fiscal Quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP consistently applied,
subject to year end audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii). Since the Balance Sheet Date, and except as otherwise disclosed to the
Lenders in writing prior to the Closing Date, there has been no event, circumstance or condition
which has had or would reasonably be expected to have, singly or in the aggregate, a Material
Adverse Effect.



     Section 4.5. Litigation and Environmental Matters.



          (a) No litigation, investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of any Responsible Officer of the Borrower or
any other officer of the Borrower having primary responsibility therefor, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination that could reasonably be expected to have,






52









 







either individually or in the aggregate, a Material Adverse Effect or (ii) which in any
manner draws into question the validity or enforceability of this Agreement or any other Loan
Document.




          (b) Except for the matters set forth on Schedule 4.5 or as could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.




     Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any
Governmental Authority and (b) all indentures, agreements or other instruments binding upon it or
its properties, except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is an “investment company” or is “controlled” by an “investment company”, as such
terms are defined in, or is required to register under, the Investment Company Act of 1940, as
amended.



     Section 4.8. Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Federal income tax returns and all other material tax returns that are required to be
filed by them, and have paid all Federal and other material taxes shown to be due and payable on
such returns or on any assessments made against it or its property and all other material taxes,
fees or other charges imposed on it or any of its property by any Governmental Authority, except
where the same are currently being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as the case may be, has set aside on its books adequate
reserves in accordance with GAAP. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of such taxes are adequate, and no tax liabilities that could be
materially in excess of the amount so provided are anticipated.



     Section 4.9. Margin Regulations. None of the proceeds of any of the Loans or Letters
of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock”
with the respective meanings of each of such terms under Regulation U of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the Regulation U. Neither the Borrower nor its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying “margin stock.”



     Section 4.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most



53









 




recent financial statements reflecting such amounts, exceed the fair market value of the
assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of all such underfunded Plans.




     Section 4.11. Ownership of Property.



          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and personal property material to the operation of its business, including all
such properties reflected in the most recent audited consolidated balance sheet of the Borrower
referred to in Section 4.4 or purported to have been acquired by the Borrower or any
Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens other than Liens permitted by this Agreement.
Except as could not reasonably be expected to result in a Material Adverse Effect, all leases that
individually or in the aggregate are material to the business or operations of the Borrower and
its Subsidiaries are valid and subsisting and are in full force.




          (b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, trade names, copyrights and other
intellectual property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe in any material respect on the rights of any other Person.




          (c) The properties of the Borrower and its Subsidiaries are insured with financially sound
and reputable insurance companies which are not Affiliates of the Borrower, in such amounts with
such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Borrower or any
applicable Subsidiary operates.




     Section 4.12. Disclosure. None of the reports (including, without limitation, all
reports that the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender in connection with the negotiation or syndication of
this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished, including, without limitation, all reports
that the Borrower is required to file with the Securities and Exchange Commission) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
herein or in any of the reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower, taken as a whole, in light of the circumstances under which they
were made, not materially misleading; provided, that with respect to projected financial
information, the Borrower represents only that such information was prepared in good faith based
upon assumptions that management of the Borrower believed to be reasonable at the time such
projected financial information was prepared (it being recognized by the Administrative Agent and
each Lender that projections as to future events are not to be viewed as facts or guaranties of
future performance, that actual results during the period or periods covered by such projections
may differ from the projected results and that such differences may be material and that the
Borrower makes no representation that such projections will be in fact realized).



54









 





     Section 4.13. Labor Relations. There are no strikes, lockouts or other material
labor disputes or grievances against the Borrower or any of its Subsidiaries, or, to the knowledge
of any Responsible Officer of the Borrower or any other officer of the Borrower having primary
responsibility therefor, threatened against or affecting the Borrower or any of its Subsidiaries,
and no significant unfair labor practice, charges or grievances are pending against the Borrower
or any of its Subsidiaries, or to the knowledge of any Responsible Officer of the Borrower or any
other officer of the Borrower having primary responsibility therefor, threatened against any of
them before any Governmental Authority. All payments due from the Borrower or any of its
Subsidiaries pursuant to the provisions of any collective bargaining agreement have been paid or
accrued as a liability on the books of the Borrower or any such Subsidiary, except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.



     Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower or any Subsidiary in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Closing Date.



     Section 4.15. Insolvency. After giving effect to the execution and delivery of the
Loan Documents and the making of the Loans under this Agreement, the Borrower and the Loan
Parties, taken as a whole on a consolidated basis, (a) will not be “insolvent,” within the meaning
of such term as defined in § 101 of Title 11 of the United States Code, as amended from time to
time, (b) will not be unable to pay its debts generally as such debts become due, or (c) will not
have an unreasonably small capital to engage in any business or transaction, whether current or
contemplated.



     Section 4.16. Reserved.



     Section 4.17. OFAC. No Loan Party (i) is a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings
or transactions prohibited by Section 2 of such executive order, or is otherwise associated with
any such person in any manner violative of Section 2, or (iii) is a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions
under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or
executive order.



     Section 4.18. Patriot Act. Each Loan Party is in compliance, in all material
respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order relating thereto, and (ii) the
Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans will be used,
directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any improper advantage,
in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.



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ARTICLE 5




AFFIRMATIVE COVENANTS



     The Borrower covenants and agrees that so long as any Lender has a Commitment
hereunder or any Obligation remains unpaid or outstanding (other than indemnities and
other
similar contingent obligations surviving the termination of this Agreement for which no
claim
has been made and which are unknown and not calculable at the time of termination):



     Section 5.1. Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent (which the Administrative Agent shall forward to
each Lender):



          (a) as soon as available and in any event, in the case of the consolidated
statements required hereunder only, within 120 days after the end of each Fiscal Year of
Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its
Subsidiaries, containing a consolidated and, when available and to the extent prepared for
Strayer University, Inc., consolidating balance sheet of the Borrower and its Subsidiaries
as of
the end of such Fiscal Year and the related consolidated and, when available and to the
extent
prepared for Strayer University, Inc., consolidating statements of income, stockholders’
equity
and cash flows (together with, in the case of consolidated financial statements, all
footnotes
thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each
case in
comparative form the figures for the previous Fiscal Year, all in reasonable detail and, in
the case
of the consolidated financial statements only, reported on by PriceWaterhouse Coopers or
other
independent public accountants of nationally recognized standing (without a “going concern”
or
like qualification, exception or explanation and without any qualification or exception as
to
scope of such audit) to the effect that such financial statements present fairly in all
material
respects the financial condition and the results of operations of the Borrower and its
Subsidiaries
for such Fiscal Year on a consolidated basis in accordance with GAAP and that the
examination
by such accountants in connection with such consolidated financial statements has been made
in
accordance with generally accepted auditing standards;




          (b) as soon as available and in any event within 45 days after the end of each
Fiscal Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and
its
Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated
statement of income and consolidated statement of cash flows of the Borrower and its
Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year,
setting
forth in each case in comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower’s previous Fiscal Year (it being understood that quarterly
financial statements are not required to have footnote disclosures and are subject to normal
year-end adjustments);




          (c) as soon as available and in any event within 30 days after the end of each
calendar month, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries
as
of the end of such calendar month (it being understood that monthly financial statements are
not
required to have footnote disclosures and are subject to normal year-end adjustments and
will
generally be in a form prepared by the Borrower for internal use);










56









 








          (d) concurrently with the delivery of the financial statements referred to in clauses
(a) and (b) above, a Compliance Certificate signed by the principal executive officer and the
principal financial officer of the Borrower;




          (e) within 60 days after the end of each Fiscal Year, a budget and projection of the Borrower
and its Subsidiaries for the next succeeding Fiscal Year;




          (f) promptly after the same become publicly available, notice of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be;





          (g) not less than ten days
following such change, written notice of any change (i) in any Loan
Party’s corporate name, (ii) in the jurisdiction of organization or formation of any
Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan
Party’s Federal Taxpayer Identification Number; and




          (h) promptly following any request therefor by the Administrative Agent, such other
information regarding the results of operations, business affairs and financial condition of the
Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request.




     Section 5.2. Notices of Material Events.



          (a) The Borrower will furnish to the Administrative Agent prompt written notice of the
following (which the Administrative Agent shall forward to each Lender):




               (i) the occurrence of any Default or Event of Default;



               (ii) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of any Responsible Officer of the Borrower
or any other officer of the Borrower having primary responsibility therefor, affecting the
Borrower or any Subsidiary which could reasonably be expected to result in a Material Adverse
Effect;



               (iii) the occurrence of any event or any other development by which the Borrower or any of
its Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) becomes
subject to any Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability and in
each of the preceding clauses, which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;



               (iv) the occurrence of any ERISA Event that alone, or together with any other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $500,000;



57









 





               (v) the occurrence of any default or event of default, or the receipt by Borrower or any
of its Subsidiaries of any written notice of an alleged default or event of default, respect of any
Material Indebtedness of the Borrower or any of its Subsidiaries; and



               (vi) any other development that results in a Material Adverse Effect.



          (b) Each notice delivered under this Section 5.2 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




     Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
other Loan Party to, do or cause to be done all things necessary to preserve, renew and maintain in
full force and effect (a) its legal existence and (b) its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names, the loss of which could
reasonably be expected to result in a Material Adverse Effect, and will continue to engage in the
same business as presently conducted or such other businesses that are reasonably related thereto;
provided, that nothing in this Section 5.3 shall prohibit any merger,
consolidation, liquidation, dissolution or disposition permitted under Section 7.3 or
Section 7.6.



     Section 5.4. Compliance with Laws, Etc; Maintenance of Licenses and Accreditations.
The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA, OSHA and rules,
regulations and requirements of the U.S. Department of Education (including any regulatory test of
financial responsibility), except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower
will, and will cause each of its Subsidiaries to, maintain all licenses and accreditations required
for the operation of its business and properties, the loss of which could not reasonably be
expected to result in a Material Adverse Effect.



     Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge at or before maturity, all of Federal and other material tax
liabilities, assessments and governmental charges (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse Effect.



     Section 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in conformity with
GAAP.



     Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, to visit
and



58









 




inspect its properties, to examine its books and records and to make copies and take extracts
therefrom, to discuss its affairs, finances and accounts with any of its officers and with its
independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is
continuing, no prior notice shall be required. All such inspections and examinations by the
Administrative Agent or any Lender shall be at the Borrower’s expense; provided, that so
long as no Event of Default exists, the Borrower shall only be required to reimburse for one such
inspection or examination each Fiscal Year.




     Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear and casualty events excepted
and (b) maintain with financially sound and reputable insurance companies, insurance with respect
to its properties and business, and the properties and business of its Subsidiaries, against loss
or damage of the kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations.



     Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the
proceeds of all Loans to finance the repurchase of shares of the Capital Stock of the Borrower,
finance working capital needs and Permitted Acquisitions and pay transactional expenses related
thereto and for other general corporate purposes of the Borrower and its Subsidiaries. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would
violate any rule or regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X. Specifically, no part of the proceeds of any Loan will be used to purchase
or carry “margin stock” or to extend credit to others for the purpose of purchasing or carrying
“margin stock.” All Letters of Credit will be used for general corporate purposes.



     Section 5.10. Intentionally Deleted.



     Section 5.11. Additional Subsidiaries. If any Domestic Subsidiary is acquired or
formed after the Closing Date, the Borrower will promptly notify the Administrative Agent thereof
and, within ten (10) Business Days after any such Domestic Subsidiary is acquired or formed, will
cause such Domestic Subsidiary to become a Subsidiary Loan Party. A Domestic Subsidiary shall
become an additional Subsidiary Loan Party by executing and delivering to the Administrative Agent
a Subsidiary Guaranty Supplement, accompanied by (i) all other Loan Documents related thereto,
(ii) certified copies of certificates or articles of incorporation or organization, by-laws,
membership operating agreements, and other organizational documents, appropriate authorizing
resolutions of the board of directors of such Subsidiaries, and, to the extent requested by the
Administrative Agent, opinions of counsel comparable to those delivered pursuant to Section
3.1, and (iii) such other documents as the Administrative Agent may reasonably request. No
Subsidiary that becomes a Subsidiary Loan Party shall thereafter cease to be a Subsidiary Loan
Party or be entitled to be released or discharged from its obligation under the Subsidiary
Guaranty Agreement except as otherwise provided in this Agreement. No Loan Party shall form or
acquire a Foreign Subsidiary after the date hereof without the prior written consent of the
Required Lenders. PEI shall not be required to become a Subsidiary Loan Party so long as no
further Investments are made therein by the Borrower or any Subsidiary.



59









 





ARTICLE 6




FINANCIAL COVENANTS



     The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or
any Obligation remains unpaid or outstanding (other than indemnities and other similar
contingent obligations surviving the termination of this Agreement for which no claim has been
made and which are unknown and not calculable at the time of termination):



     Section 6.1. Minimum EBITDAError! Bookmark not defined.. The Borrower will
maintain, as of the last day of each Fiscal Quarter, commencing with the Fiscal Quarter ending
December 31, 2010, Consolidated EBITDA for the period of two consecutive Fiscal Quarters then
ended of not less than $60,000,000.



     Section 6.2. Interest Coverage Ratio. The Borrower will maintain, as of the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31, 2010, an Interest
Coverage Ratio of not less than 3.00 to 1.



     Section 6.3. Unrestricted Liquidity. The Borrower will maintain, at all times,
Unrestricted Liquidity of not less than $35,000,000.



     Section 6.4. Minimum Consolidated Tangible Net Worth. The Borrower will maintain,
as of the end of each calendar month, commencing with the calendar month ending December 31,
2010, Consolidated Tangible Net Worth of not less than $50,000,000.



ARTICLE 7




NEGATIVE COVENANTS



     The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or
any Obligation remains outstanding (other than indemnities and other similar contingent
obligations surviving the termination of this Agreement for which no claim has been made and
which are unknown and not calculable at the time of termination):



     Section 7.1. Indebtedness and Preferred Stock. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:



          (a) Indebtedness created pursuant to the Loan Documents;




          (b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set
forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof;




          (c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease





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Obligations, and any Indebtedness assumed in connection with the acquisition of any such
assets
or secured by a Lien on any such assets prior to the acquisition thereof; provided, that such
Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of
such construction or improvements or extensions, renewals, and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided further, that the aggregate principal amount of such Indebtedness
does not exceed $10,000,000 at any time outstanding;




          (d) Indebtedness of the Borrower owing to any Subsidiary Loan Party and of
any Subsidiary owing to the Borrower or any other Subsidiary Loan Party;



          (e) Guarantees (i) by the Borrower or any Subsidiary Loan Party of
Indebtedness of any other Loan Party and by any Subsidiary of Indebtedness of the Borrower
or any Subsidiary Loan Party and (ii) by any Loan Party of Indebtedness of any Subsidiary that
is
not a Loan Party to the extent constituting an Investment permitted pursuant to Section
7.4;



          (f) Indebtedness of any Person which becomes a Subsidiary after the date of
this Agreement; provided, that such Indebtedness exists at the time that such
Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person
becoming a
Subsidiary and the aggregate principal amount of such Indebtedness permitted under this
Section
7.1(f) shall not exceed $5,000,000 outstanding at any time;



          (g) Indebtedness in respect of Hedging Obligations permitted by Section 7.10;

and



          (h) other unsecured Indebtedness of the Borrower or its Subsidiaries in an
aggregate principal amount not to exceed $5,000,000 at any time outstanding.



          The Borrower will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (i) matures or is mandatorily redeemable
pursuant to
a sinking fund obligation or otherwise, (ii) is or may become redeemable or repurchaseable
by
the Borrower or such Subsidiary at the option of the holder thereof, in whole or in part or
(iii) is
convertible or exchangeable at the option of the holder thereof for Indebtedness or
preferred
stock or any other preferred equity interests described in this paragraph, on or prior to,
in the
case of clause (i), (ii) or (iii), the 91st day following the Revolving
Commitment Termination
Date.



     Section 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or
property
now owned or hereafter acquired or, except:



          (a) Liens securing the Obligations, provided, however, that no Liens may
secure Hedging Obligations without securing all other Obligations on a basis at least pari
passu
with such Hedging Obligations and subject to the priority of payments set forth in
Section 2.22
of this Agreement;



          (b) Permitted Encumbrances;



61









 





          (c) any Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date set forth on Schedule 7.2; provided, that such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary;



          (d) purchase money Liens upon or in any fixed or capital assets to secure the purchase
price or the cost of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by
Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 180 days after the acquisition,
improvement or completion of the construction thereof; (iii) such Lien does not extend to any
other asset; and (iv) the principal amount of the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such fixed or capital assets;



          (e) Liens securing Indebtedness permitted pursuant to Section 7.1(f);
provided, that such Lien does not extend to any assets other than the assets of the
Person which becomes a Subsidiary after the date of this Agreement; and



          (f) extensions, renewals, or replacements of any Lien referred to in paragraphs (a)
through (e) of this Section 7.2; provided, that the principal amount of
the Indebtedness secured thereby is not increased and that any such extension, renewal or
replacement is limited to the assets originally encumbered thereby.



     Section 7.3. Fundamental Changes. The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single
transaction or a series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve;
provided, that if at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if (x) the Borrower is the surviving Person or (y) if the
Borrower is not a party to such merger, such Subsidiary is the surviving Person or the surviving
Person shall become a Subsidiary Loan Party pursuant to Section 5.11, (ii) any Subsidiary
may merge into another Subsidiary; provided, that if any party to such merger is a
Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person or the surviving
Person shall become a Subsidiary Loan Party pursuant to Section 5.11, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to a Subsidiary Loan Party or in connection with a Disposition
permitted pursuant to Section 7.6 and (iv) PEI (subject to the provisions of Section
5.11 regarding Investments) and any other Subsidiary (other than a Subsidiary Loan Party,
subject to the following proviso) may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, that ELP may liquidate or dissolve if (x)
the Borrower determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders, (y) the Borrower
determines in good faith that ELP is no longer required or necessary for the conduct of the
business of the Borrower and (z) either (I) upon dissolution, the assets of



62









 







ELP become those of a Loan Party or (II) prior to dissolution, the assets of ELP are subject to a
Disposition permitted by Section 7.6; and provided, further, that any
merger permitted pursuant to this Section 7.3 involving a Person that is not a
wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 7.4.



     Section 7.4. Investments, Loans, Etc. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any
Person that was not a wholly-owned Subsidiary prior to such merger), any Capital Stock, evidence
of indebtedness or other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any other Person (all of
the foregoing being collectively called “Investments”), or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:



          (a) Investments (other than Permitted Investments) existing on the date hereof and set forth
on Schedule 7.4 (including Investments in Subsidiaries); and provided that,
notwithstanding anything to the contrary contained in this Agreement, the Borrower shall not, and
shall not permit any Subsidiary Loan Party to, make any further Investments in PEI;



          (b) Permitted Investments;



          (c) Guarantees constituting Indebtedness permitted by Section 7.1;



          (d) Investments made by the Borrower in or to any Subsidiary Loan Party and by any Subsidiary
to the Borrower or in or to a Subsidiary Loan Party;



          (e) loans or advances to employees, officers or directors of the Borrower or any Subsidiary
in the ordinary course of business for travel, relocation and related expenses; provided,
however, that the aggregate amount of all such loans and advances does not exceed
$1,000,000 at any time;



          (f) repurchases of shares of Capital Stock and options to purchase shares of Capital Stock
of the Borrower, and provided, that for the purpose of this clause (f) at the time such
repurchase is made and after giving effect thereto (i) no Default or Event of Default has
occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the
financial covenants contained in Article 6 (other than that contained in Section 6.4
with respect to Consolidated Tangible Net Worth) on a pro forma basis;



          (g) Permitted Acquisitions;



          (h) Hedging Transactions permitted by Section 7.10;



          (i) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



63









 





          (j) Investments consisting of receivables and notes received from students in the ordinary
course of business; and



          (k) Other Investments which in the aggregate do not exceed $5,000,000 in any
Fiscal Year.



     Section 7.5. Restricted Payments. The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend on
any class of its Capital Stock, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of Capital Stock or Indebtedness subordinated to the Obligations of the
Borrower or any Guarantee thereof or any options, warrants, or other rights to purchase such
Capital Stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted
Payment”), except for (i) dividends payable by the Borrower solely in shares of any class of
its common stock, (ii) Restricted Payments made by any Subsidiary to the Borrower or to another
Subsidiary, on at least a pro rata basis with any other shareholders if such Subsidiary is not
wholly owned by the Borrower and other wholly owned Subsidiaries, (iii) repurchases of shares of
Capital Stock and options to purchase shares of Capital Stock permitted by Section 7.4(f);
provided, for the purpose of this clause (iii) that no Default or Event of Default has
occurred and is continuing at the time such repurchase is made and the Borrower would be in
compliance with the financial covenants contained in Article 6 on a pro forma basis after giving
effect thereto; and (iv) cash dividends and distributions paid on the Capital Stock of the
Borrower; provided, for the purpose of this clause (iv) that at the time such dividend or
distribution is paid and after giving effect thereto (x) no Default or Event of Default has
occurred and is continuing nor would occur and (y) the Borrower would be in compliance with the
financial covenants contained in Article 6 (other than that contained in Section 6.4 with
respect to Consolidated Tangible Net Worth) on a pro forma basis.



     Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than the Borrower
or a Subsidiary Loan Party (or to qualify directors if required by applicable law) (each, a
“Disposition”), except:



          (a) the sale or other disposition for fair market value of obsolete or worn out property or
other property not necessary for operations disposed of in the ordinary course of business;



          (b) the sale of inventory and Permitted Investments in the ordinary course of
business;



          (c) Dispositions permitted by Sections 7.3, 7.4 and 7.5;



          (d) leases, subleases, licenses or sublicenses of real or personal property in the ordinary
course of business, in each case that do not materially interfere with the business of the Borrower
and its Subsidiaries taken as a whole;



64









 





          (e) Dispositions of Permitted Investments for fair market value or otherwise in connection
with transactions not otherwise prohibited by this Agreement;



          (f) so long as no Event of Default has occurred and is continuing or would occur after
giving effect thereto, the Disposition of delinquent notes or accounts receivable in the
ordinary course of business of purposes of collection only (and not for the purpose of any bulk
sale, financing or securitization transaction); and



          (g) any other Disposition in an aggregate amount not to exceed $10,000,000 in any Fiscal
Year.



     Section 7.7. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions
between or among the Borrower and any Subsidiary Loan Party not involving any other Affiliates,
(c) any Restricted Payments permitted by Section 7.5 and any Investments permitted by
Section 7.4, (d) customary directors’ fees and expenses to Persons who are not otherwise
employees of the Borrower or any of its Subsidiaries, (e) employment agreements, employee
benefit and compensation plans, as determined in good faith by the board of directors or senior
management of the Borrower and (f) the payment of customary fees and reimbursement of reasonable
out-of- pocket costs of, and customary indemnities provided to or on behalf of, directors,
officers and employees of the Borrower and its Subsidiaries in the ordinary course of business.



     Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its Capital Stock, to make or repay loans or advances to the
Borrower or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other
Subsidiary or to transfer any of its property or assets to the Borrower or any Subsidiary of the
Borrower; provided, that (i) the foregoing shall not apply to restrictions or conditions
imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is sold and such sale is permitted hereunder, (iii) clause (a) shall not apply
to restrictions or conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness, (iv) clause (a) shall not apply to customary provisions in
leases, licenses and other similar agreements restricting the assignment thereof and (v) clause
(a) shall not apply to negative pledge covenants contained in any agreements relating to
Indebtedness permitted to be incurred pursuant to the provisions of this Agreement that (i) are
not in any respect more restrictive than the restrictions contained in this Agreement and (ii)
do not prohibit the granting of Liens to secure the Obligations.



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     Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
it shall sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes as the property
sold or transferred (each such transaction, a “Sale and Leaseback Transaction”), unless
such Sale and Leaseback Transaction is otherwise permitted by Sections 7.1 and
7.6.



     Section 7.10. Hedging Transactions. The Borrower will not, and will not permit any
of the Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions
entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging
Transaction entered into for speculative purposes or of a speculative nature (which shall be
deemed to include any Hedging Transaction under which the Borrower or any of the Subsidiaries is
or may become obliged to make any payment (i) in connection with the purchase by any third party
of any Capital Stock or any Indebtedness or (ii) as a result of changes in the market value of
any Capital Stock or any Indebtedness (excluding Indebtedness of the Borrower or its
Subsidiaries under this Agreement and the other Loan Documents or as permitted to be incurred
pursuant to this Agreement) is not a Hedging Transaction entered into in the ordinary course of
business to hedge or mitigate risks.



     Section 7.11. Amendment to Material Documents. The Borrower will not, and will not
permit any of its Subsidiaries to, amend, modify or waive any of its rights in a manner
materially adverse to the Lenders under (a) its certificate of incorporation, bylaws or other
organizational documents or (b) Contractual Obligations evidencing, governing, securing or
otherwise related to Material Indebtedness.



     Section 7.12. Intentionally Deleted.



     Section 7.13. Accounting Changes. The Borrower will not, and will not permit any of
its Subsidiaries to, make any significant change in accounting treatment or reporting practices,
except as required by GAAP, or change the Fiscal Year of the Borrower or of any of its
Subsidiaries, except to change the fiscal year of a Subsidiary to conform its fiscal year to
that of the Borrower.



ARTICLE 8




EVENTS OF DEFAULT



     Section 8.1. Events of Default. If any of the following events (each an
“Event of Default”) shall occur:



          (a) the Borrower shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or otherwise; or







66









 








          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a) of this Section 8.1) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three (3) Business Days; or




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document (including the
Schedules attached thereto) and any amendments or modifications hereof or waivers hereunder, or in
any certificate, report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document (including any Compliance Certificate)
shall prove to be incorrect in any material respect (or, if qualified by materiality, then in all
respects) when made or deemed made or submitted; or




          (d) the Borrower shall fail to observe or perform any covenant or agreement contained in
Section 5.1(a), 5.1(b), 5.1(c) (and, in the case of Section 5.1(c)
only, such failure remains unremedied for 5 days after the date when the applicable statements are
due), 5.2(a)(i), or 5.3(a) (with respect to the Borrower’s or any Loan Party’s
existence) or Articles 6 or 7; or




          (e) any Loan Party shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those referred to in clauses (a), (b) and (d) above) or any other Loan
Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii) notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or




          (f) intentionally deleted; or




          (g) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument evidencing or
governing such Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or
any such Indebtedness shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof (other than customary non-default
mandatory prepayment requirements associated with asset sales, casualty events or equity
issuances); or




          (h) the Borrower or any Subsidiary Loan Party shall (i) commence a voluntary case or other
proceeding or file any petition seeking liquidation, reorganization or other relief under any
federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a custodian, trustee, receiver, liquidator or other similar








67









 







official of it or any substantial part of its property, (ii) consent to the institution of, or
fail to
contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of
this Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee,
receiver,
liquidator or other similar official for the Borrower or any such Subsidiary Loan Party or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition
filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors,
or (vi) take any action for the purpose of effecting any of the foregoing; or




          (i) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in respect of the
Borrower or
any Subsidiary Loan Party or its debts, or any substantial part of its assets, under any
federal,
state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or
(ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar official for the
Borrower
or any Subsidiary Loan Party or for a substantial part of its assets, and in any such case,
such
proceeding or petition shall remain undismissed for a period of 60 days or an order or
decree
approving or ordering any of the foregoing shall be entered; or




          (j) the Borrower or any Subsidiary shall become unable to pay, shall admit in
writing its inability to pay, or shall fail generally to pay, its debts as they become due;
or




          (k) an ERISA Event shall have occurred that, when taken together with other
ERISA Events that have occurred, would reasonably be expected to result in a Material
Adverse
Effect; or




          (1) any judgment or order for the payment of money in excess of $5,000,000
in the aggregate shall be rendered against the Borrower or any Subsidiary, and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be a period of 30 consecutive days during which a stay of
enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
or




          (m) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that would reasonably be expected to have a Material Adverse
Effect, and there shall be a period of 30 consecutive days during which a stay of
enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
or




          (n) a Change in Control shall occur or exist; or




          (o) any provision of any Subsidiary Guaranty Agreement shall for any reason
cease to be valid and binding on, or enforceable against, any Subsidiary Loan Party, or any
Subsidiary Loan Party shall so state in writing, or any Subsidiary Loan Party shall seek to
terminate its Subsidiary Guaranty Agreement; or




          (p) intentionally deleted; or




          (q) any “Event of Default” shall have occurred and be continuing under any
other Loan Document;








68









 








     then, and in every such event (other than an event with respect to the Borrower described
in clause (h) or (i) of this Section 8.1) and at any time thereafter during the
continuance of such event, the Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate the Commitments, whereupon the Commitment of each
Lender shall terminate immediately, (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same shall become,
due and payable immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower, (iii) exercise all remedies contained in any
other Loan Document, and (iv) exercise any other remedies available at law or in equity; and
that, if an Event of Default specified in either clause (h) or (i) shall occur, the Commitments
shall automatically terminate and the principal of the Loans then outstanding, together with
accrued interest thereon, and all fees, and all other Obligations shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.



ARTICLE 9




THE ADMINISTRATIVE AGENT



     Section 9.1. Appointment
of Administrative Agent.



          (a) Each Lender irrevocably appoints SunTrust Bank as the Administrative Agent and
authorizes it to take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent under this Agreement and the other Loan Documents, together with all
such actions and powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or through any one or
more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties and
exercise its rights and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent or attorney-in-fact and
the Related Parties of the Administrative Agent, any such sub-agent and any such
attorney-in-fact and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.




          (b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith until such time and except for so
long as the Administrative Agent may agree at the request of the Required Lenders to act for the
Issuing Bank with respect thereto; provided, that the Issuing Bank shall have all the benefits
and immunities (i) provided to the Administrative Agent in this Article with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued by
it or proposed to be issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as used in
this Article included the Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing Bank.





69












 





     Section 9.2. Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth in this
Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a)
the Administrative Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.2), and (c) except as expressly set forth
in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the Borrower or any of
its Subsidiaries that is communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.2) or in the absence of its own gross
negligence or willful misconduct as determined by a final, non-appealable judgment of a court
of competent jurisdiction. The Administrative Agent shall not be responsible for the negligence
or misconduct of any sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default
unless and until written notice thereof (which notice shall include an express reference to
such event being a “Default” or “Event of Default” hereunder) is given to the Administrative
Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements, or other terms and
conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 3 or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent. The Administrative Agent may consult with legal counsel (including counsel for the
Borrower) concerning all matters pertaining to such duties.



     Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders,
the Swingline Lender and the Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed appropriate,
continue to make its own decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or thereunder.



     Section 9.4. Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, the Administrative
Agent shall



70









 




be entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders, and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.




     Section 9.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed in good faith by
it to be genuine and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and believed in good
faith by it to be made by the proper Person and shall not incur any liability for relying thereon.
The Administrative Agent may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel, accountants or
experts.



     Section 9.6. The Administrative Agent in its Individual Capacity. The bank serving as
the Administrative Agent shall have the same rights and powers under this Agreement and any other
Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity. The bank acting
as the Administrative Agent and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.



     Section 9.7. Successor Administrative Agent.



          (a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to the approval by the Borrower provided that no Event of
Default shall exist at such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.




          (b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor,
such successor Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under this Agreement and
the other Loan Documents. If within 45 days after written notice is given of the retiring
Administrative Agent’s resignation under this Section 9.7 no successor







71









 







Administrative Agent shall have been appointed and shall have accepted such appointment,
then on such 45th day (i) the retiring Administrative Agent’s resignation shall
become effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents and (iii) the Required Lenders shall thereafter
perform all duties of the retiring Administrative Agent under the Loan Documents until such time
as the Required Lenders appoint a successor Administrative Agent as provided above. After any
retiring Administrative Agent’s resignation hereunder, the provisions of this Article shall
continue in effect for the benefit of such retiring Administrative Agent and its representatives
and agents in respect of any actions taken or not taken by any of them while it was serving as
the Administrative Agent.




     Section 9.8. Authorization to Execute other Loan Documents.



          (a) Each Lender authorizes the Administrative Agent to enter into each of the Loan
Documents to which it is a party and to take all action contemplated by such Loan Documents.
Each Lender agrees (except to the extent provided in Section 9.7(b) following the
resignation of the Administrative Agent) that no Lender, other than the Administrative Agent
acting on behalf of all Lenders, shall have the right individually to seek to realize upon the
security granted by any Loan Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Administrative Agent for the benefit of the Lenders,
upon the terms of the Loan Documents. Each Lender further authorizes the Administrative Agent,
and, at the request of the Borrower, the Administrative Agent shall, release any Subsidiary Loan
Party from its obligations under the Subsidiary Guaranty Agreement in connection with any sale,
liquidation or dissolution of such Subsidiary Loan Party; provided, that such sale,
liquidation or dissolution is otherwise permitted under the Loan Documents.




          (b) In the event that any collateral is pledged by any Person as collateral security for
the Obligations, the Administrative Agent is hereby authorized to execute and deliver on
behalf of the Lenders any Loan Documents necessary or appropriate to grant and perfect a
Lien on such collateral in favor of the Administrative Agent on behalf of the
Lenders.





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     Section 9.9. Benefits of Article 9. None of the provisions of this Article
9 (other than the Borrower consent rights provided in Section 9.7(a) or the Borrower
rights to guaranty release as provided in Section 9.8) shall inure to the benefit of the
Borrower or of any Person other than Administrative Agent and each of the Lenders and their
respective successors and permitted assigns. Accordingly, neither the Borrower nor any Person
other than Administrative Agent and the Lenders (and their respective successors and permitted
assigns) shall be entitled to rely upon, or to raise as a defense, the failure of the
Administrative Agent or any Lenders to comply with the provisions of this Article 9.



     Section 9.10. Titled Agents. Each Lender and each Loan Party agrees that any
documentation agent or syndication agent or any other titled agent, in such capacity, shall have
no duties or obligations under any Loan Documents to any Lender or any Loan Party. Anything
herein to the contrary notwithstanding, none of the Bookrunners, Book Managers or Arrangers or
other titled agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the Issuing Bank hereunder.



ARTICLE 10




MISCELLANEOUS



     Section 10.1. Notices.



          (a) Except in the case of notices and other communications expressly permitted to be given
by telephone, all notices and other communications to any party herein to be effective shall be
in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail, return receipt requested, or sent by telecopy, as follows:




	 	 	 

	          To the Borrower:

	 	Strayer Education, Inc.

1100 Wilson Boulevard

Suite 2500

Arlington, Virginia 22209

Attention: Mark Brown, Executive Vice

President and Chief Financial Officer

Telecopy Number: (703) 527-0112
	 
	 	 
	          With a copy to:

	 	Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Gordon Wilson, Esquire

Telecopy Number: (202) 637-5910






73









 






	 	 	 

	          To the
Administrative Agent
or Swingline Lender:

	 	SunTrust Bank

120 E. Baltimore Street

25th Floor

Baltimore, Maryland 21202

Attention: Paul Deerin, Vice President

Telecopy Number: (410) 986-1927
	 
	 	 
	          With a copy to:

	 	Hunton & Williams LLP

1751 Pinnacle Drive

Suite 1700

McLean, Virginia 22102

Attention: Kevin F. Hull, Esquire

Telecopy Number: (703) 714-7410
	 
	 	 
	          With a copy to:

	 	SunTrust Bank

Agency Services

303 Peachtree Street, N. E./ 25th Floor

Atlanta, Georgia 30308

Attention: Mr. Douglas Weltz

Telecopy Number: (404) 221-2001
	 
	 	 
	          To the Issuing Bank:

	 	SunTrust Bank

25 Park Place, N. E./Mail Code 3706

Atlanta, Georgia 30303

Attention: Phil Acuff

Telecopy Number: (404) 588-8129
	 
	 	 
	          To the Swingline Lender:

	 	SunTrust Bank

Agency Services

303 Peachtree Street, N.E./25th Floor

Atlanta, Georgia 30308

Attention: Mr. Douglas Weltz

Telecopy Number: (404) 221-2001
	 
	 	 
	          To any other Lender:

	 	the address set forth in the Administrative
Questionnaire or the Assignment and Assumption
Agreement executed by such Lender






          (b) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and other
communications shall, when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited into the mail or
if delivered, upon delivery; provided, that notices delivered to the Administrative Agent, the
Issuing Bank or the Swingline Bank shall not be effective until actually received by such party
at its address specified in this Section 10.1.








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          (c) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience and at the
request
of the Borrower. The Administrative Agent and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Borrower to give such
notice
and the Administrative Agent and Lenders shall not have any liability to the Borrower or
other
Person on account of any action taken or not taken by the Administrative Agent or the
Lenders in
reliance upon such telephonic or facsimile notice. The obligation of the Borrower to repay
the
Loans and all other Obligations hereunder shall not be affected in any way or to any extent
by
any failure of the Administrative Agent and the Lenders to receive written confirmation of
any
telephonic or facsimile notice or the receipt by the Administrative Agent and the Lenders
of a
confirmation which is at variance with the terms understood by the Administrative Agent and
the
Lenders to be contained in any such telephonic or facsimile notice.




     Section 10.2. Waiver; Amendments.



          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder or any other Loan Document, and no course
of dealing between the Borrower and the Administrative Agent or any Lender, shall operate
as a
waiver thereof, nor shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude any other
or
further exercise thereof or the exercise of any other right or power hereunder or
thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies provided by law. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower therefrom shall in any event be
effective
unless the same shall be permitted by paragraph (b) of this Section 10.2, and then
such waiver or
consent shall be effective only in the specific instance and for the purpose for which
given.
Without limiting the generality of the foregoing, the making of a Loan or the issuance of a
Letter
of Credit shall not be construed as a waiver of any Default or Event of Default, regardless
of
whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default or Event of Default at the time.




          (b) No amendment or waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by the Borrower or any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed by the
Borrower or
the applicable Loan Party and the Required Lenders or the Borrower or the applicable Loan
Party and the Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the specific
purpose for
which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal amount of any
Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder,
without the written consent of each Lender affected thereby (provided,
however, that only the
consent of the Required Lenders shall be necessary to (A) amend the definition of “Default
Interest” or waive any obligation of the Borrower to pay (1) Default Interest or (2) Letter
of
Credit fees by an additional 2% per annum pursuant to the last sentence of Section
2.15(c) or (B)
to amend any financial covenant hereunder (or any defined term used therein) even if the
effect
of such amendment would be to reduce the rate of interest on any Loan or LC Disbursement or
to




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reduce any fee payable hereunder), (iii) postpone the date fixed for any payment of any
principal
of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any such payment or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.22(b) or (c) in a manner that would alter the
pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) change
any of the provisions of this Section 10.2 or the definition of “Required Lenders” or
any other
provision hereof specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the consent of each Lender; (vi) release the Borrower or any guarantor
(subject to the provisions of Section 9.8(a)) or limit the liability of the Borrower
under the Loan
Documents or any such guarantor under any guaranty agreement, without the written consent of
each Lender, (vii) release all or substantially all collateral (if any) securing any of the
Obligations, without the written consent of each Lender, (viii) subordinate the Loans to any
other
Indebtedness without the consent of all Lenders, or (ix) increase the aggregate of all
Commitments without the consent of all of the Lenders; provided further, that no such
agreement
shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative
Agent, the Swingline Bank or the Issuing Bank without the prior written consent of such Person.
Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such
Lender, and provided that a Defaulting Lender shall have the right to approve or disapprove any
waiver, amendment or modification requiring the consent of all Lenders or each affected Lender
that by its terms affects such Defaulting Lender more adversely than other affected Lenders.
Notwithstanding anything contained herein to the contrary, this Agreement may be amended and
restated without the consent of any Lender (but with the consent of the Borrower and the
Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender
shall no longer be a party to this Agreement (as so amended and restated), the Commitments of
such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits
of Sections 2.19, 2.20, 2.21 and 10.3), such Lender shall no
other commitment or other
obligation hereunder and shall have been paid in full all principal, interest and other amounts
owing to it or accrued for its account under this Agreement.




     Section 10.3. Expenses: Indemnification.



          (a) The Borrower shall pay (i) all reasonable documented out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the reasonable
documented fees, charges and disbursements of counsel for the Administrative Agent and its
Affiliates, in connection with the syndication of the credit facilities provided for
herein, the
preparation and administration of the Loan Documents and any amendments, modifications or
waivers thereof (whether or not the transactions contemplated in this Agreement or any
other
Loan Document shall be consummated), (ii) all reasonable documented out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal or
extension
of any Letter of Credit or any demand for payment thereunder and (iii) all documented
out-of-
pocket costs and expenses (including, without limitation, the reasonable documented fees,
charges and disbursements of outside counsel) incurred by the Administrative Agent, the
Issuing
Bank or any Lender in connection with the enforcement or protection of its rights in
connection











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with this Agreement, including its rights under this
Section 10.3, or in connection
with the Loans made or any Letters of Credit issued hereunder, including all such documented
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit. The Borrower shall pay to the Administrative Agent or the
Arranger, as applicable, all fees due from time to time under the Fee Letter.




          (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities, penalties and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or thereunder or the consummation
of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use
or proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or Release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any actual or alleged Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory, whether brought by a third party or by the Borrower or
any other Loan Party, and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities, penalties or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought
by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction or (z) constitute amounts in respect of Excluded
Taxes.




          (c) The Borrower shall pay, and hold the Administrative Agent and each of the Lenders
harmless from and against, any and all present and future stamp, documentary, and other similar
taxes (other than Excluded Taxes) with respect to this Agreement and any other Loan Documents,
any collateral described therein, or any payments due thereunder, and save the Administrative
Agent and each Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.




          (d) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or











77









 







the Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined as of
the time that the unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.




          (e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.




          (f) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor.




     Section 10.4. Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (g) of this Section
(and any other attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Any Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Commitment and
the Loans at the time owing to it); provided that any such assignment shall be subject
to the following conditions:




               (i) Minimum Amounts.



                    (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and



                    (B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount
of the Commitment (which for this purpose includes Loans and Revolving Credit Exposure
outstanding thereunder) or, if the applicable Commitment is not then in effect,



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the principal outstanding balance of the Loans and Revolving Credit Exposure of the
assigning Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be
less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed).




               (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement
with respect to the Loans, Revolving Credit Exposure or the Commitment assigned, except that this
clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Commitments on a non-pro rata basis.



               (iii) Required Consents. No consent shall be required for any assignment except to
the extent required by paragraph (b)(i)(B) of this Section and, in addition:



                    (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless (x) an Event of Default has occurred and is continuing at the time of
such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless
it shall object thereto by written notice to the Administrative Agent within five (5) Business
Days after having received notice thereof;



                    (B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required (x) for assignments to a Person that is not a Lender with a Commitment
or an Affiliate of a Lender or an Approved Fund and (y) for assignments by Defaulting Lenders;
and



                    (C) the consent of the Issuing Bank (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not then outstanding),
and the consent of the Swingline Lender (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment in respect of the Revolving Credit Commitments.



               (iv) Assignment and Assumption. The parties to each assignment shall deliver to the
Administrative Agent (A) a duly executed Assignment and Assumption, (B) a processing and
recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is already a
Lender and (D) the documents required under Section 2.21(e) if such assignee is a Foreign
Lender.



               (v) No Assignment to Borrower. No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.



               (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural
person.



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     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section 10.4, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 2.19, 2.20, 2.21
and 10.3 with respect to facts and circumstances occurring prior to the effective date of
such assignment. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section 10.4. If the consent of the Borrower to an assignment is
required hereunder (including a consent to an assignment which does not meet the minimum
assignment thresholds specified above), the Borrower shall be deemed to have given its consent
five Business Days after the date notice thereof has actually been delivered by the assigning
Lender (through the Administrative Agent) to the Borrower, unless such consent is expressly
refused by the Borrower prior to such fifth Business Day.



          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.




          (d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Swingline Bank or the Issuing Bank sell participations to any Person
(other than a natural person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders, Issuing Bank
and Swingline Lender shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.




          (e) Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the











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following to the extent affecting such Participant: (i) increase the Commitment of any
Lender
without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the date fixed for
any
payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon or
any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the written consent
of each Lender affected thereby, (iv) change Section 2.22(b) or (c) in a manner that
would alter
the pro rata sharing of payments required thereby, without the written consent of each Lender,
(v) change any of the provisions of this Section 10.4 or the definition of “Required
Lenders” or
any other provision hereof specifying the number or percentage of Lenders which are required to
waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the consent of each Lender; (vi) release any guarantor (subject to the
provisions of Section 9.8(a)) or limit the liability of any such guarantor under any
guaranty
agreement without the written consent of each Lender except to the extent such release is
expressly provided under the terms of the Guaranty Agreement; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations. Subject to paragraph (e)
of
this Section 10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of
Sections 2.19, 2.20, and 2.21 to the same extent as if it were a Lender
and had acquired its
interest by assignment pursuant to paragraph (b) of this Section 10.4. To the extent
permitted by
law, each Participant also shall be entitled to the benefits of Section 10.7 as though
it were a
Lender, provided such Participant agrees to be subject to Section 2.19 as though it were
a
Lender.




          (f) A Participant shall not be entitled to receive any greater payment under
Section 2.19 and Section 2.21 than the applicable Lender would have been
entitled to receive
with respect to the participation sold to such Participant, unless the sale of the
participation to
such Participant is made with the Borrower’s prior written consent. A Participant that
would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section
2.21 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees,
for the benefit of the Borrower, to comply with Section 2.21(e) as though it were
a Lender.




          (g) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such Lender,
including
without limitation any pledge or assignment to secure obligations to a Federal Reserve
Bank;
provided that no such pledge or assignment shall release such Lender from any of
its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




     Section 10.5. Governing Law: Jurisdiction; Consent to Service of Process.



          (a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the conflict of law
principles thereof) of the Commonwealth of Virginia. EACH LOAN DOCUMENT (OTHER
THAN AS OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF
THE COMMONWEALTH OF VIRGINIA.





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          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the non-exclusive jurisdiction of the United States District Court of the Eastern
District of Virginia, Alexandria Division, and of any state court of the Commonwealth of Virginia
sitting in Fairfax County, Virginia, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such Virginia state court
or, to the extent permitted by applicable law, such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the Borrower or its
properties in the courts of any jurisdiction.




          (c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in
paragraph (b) of this Section 10.5 and brought in any court referred to in paragraph (b)
of this Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.




          (d) Each patty to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.




     Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 10.7. Right of Setoff.



          (a) In addition to any rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, each Lender and the Issuing Bank and any Affiliate











82









 







thereof shall have the right, at any time or from time to time upon the occurrence and during
the continuance of an Event of Default, without prior notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or final) owned by the
Borrower at any time held or other obligations at any time owing by such Lender and the Issuing
Bank or such Affiliate to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender or the Issuing Bank or such Affiliate, as the case may be,
irrespective of whether such Lender or the Issuing Bank or such Affiliate shall have made demand
hereunder and although such Obligations may be unmatured. The setoff rights provided in this
Section 10.7 shall not apply to funds held by or on behalf of the Borrower and its
Subsidiaries in trust for other persons, including, without limitation, funds received under the
Title IV, HEA Programs that are held in trust for the beneficiaries provided under 34 C.F.R.
668.161(b). Each Lender and the Issuing Bank agree promptly to notify the Administrative Agent and
the Borrower after any such set-off and any application made by such Lender and the Issuing Bank
or any Affiliate thereof, as the case may be; provided, that the failure to give such
notice shall not affect the validity of such set-off and application.




          (b) To the extent that any payment by or on behalf of any Loan Party is made to the
Administrative Agent, the Issuing Bank or any Lender, or the Administrative Agent, the Issuing
Bank or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the Administrative Agent,
the Issuing Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any bankruptcy, insolvency or similar debtor
relief laws or otherwise, then (i) to the extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (ii) each Lender and the
Issuing Bank severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and
the Issuing Bank under clause (ii) of the preceding sentence shall survive the payment in full of
the Obligations and the termination of this Agreement.










83









 








     Section 10.8. Counterparts; Integration. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts (including by
telecopy or by email, in pdf format), and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. This Agreement, the Fee Letter, the other Loan
Documents, and any separate letter agreement(s) relating to any fees payable to the
Administrative Agent constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters. Delivery of an executed
counterpart of a signature page of this Agreement and any other Loan Document by telecopy or by
email, in pdf format, shall be effective as delivery of a manually executed counterpart of this
Agreement or such other Loan Document.



     Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein, in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.19, 2.20, 2.21. and 10.3
and Article 9 shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination of this Agreement
or any provision hereof. All representations and warranties made herein, in the Loan Documents,
in the certificates, reports, notices, and other documents delivered pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the other Loan Documents, and the
making of the Loans and the issuance of the Letters of Credit.



     Section 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.



     Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and each Lender agrees to maintain the confidentiality of any information provided to it by the
Borrower or any Subsidiary, except that such information may be disclosed (i) to any Related
Party of the Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent
requested by any regulatory agency or authority, (iv) to the extent that such information becomes
publicly available other than as a result of a breach of this Section 10.11, or which
becomes available to



84









 




the Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the
foregoing on a non-confidential basis from a source other than the Borrower, (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (vi) subject to provisions substantially similar
to this Section 10.11, to any actual or prospective assignee or Participant or any actual
or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a
Loan Party and its obligations, or (vii) with the consent of the Borrower. Any Person required to
maintain the confidentiality of any information as provided for in this Section 10.11
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such information as such Person would
accord its own confidential information.




     Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which may be treated as interest on such Loan under applicable law
(collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by a
Lender holding such Loan in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the operation of this
Section 10.12 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor)
until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date
of repayment, shall have been received by such Lender.



     Section 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and
warrants that neither it nor any other Loan Party is required to affix its corporate seal to this
Agreement or any other Loan Document pursuant to any requirement of law or regulation, agrees that
this Agreement is delivered by Borrower under seal and waives any shortening of the statute of
limitations that may result from not affixing the corporate seal to this Agreement or such other
Loan Documents.



     Section 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify
and record information that identifies each Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. Each Loan
Party shall, and shall cause each of its Subsidiaries to, provide to the extent commercially
reasonable, such information and take such other actions as are reasonably requested by the
Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in
maintaining compliance with the Patriot Act.



     Section 10.15. Publicity. With the prior written consent of the Borrower, the
Administrative Agent or any Lender may publish customary advertising material relating to the



85









 




transactions contemplated by this Agreement and the Loan Documents using the Borrower’s
name, logos or trademarks.




(remainder of page left intentionally blank)







86









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	BORROWER:



STRAYER EDUCATION, INC., a

Maryland corporation

 	 
	 	By:  	/s/ Mark C. Brown
 	 
	 	 	Name:  	Mark C. Brown 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[SIGNATURES CONTINUE ON FOLLOWING PAGE]




[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]



 









 





	 	 	 	 	 
	 	ADMINISTRATIVE AGENT: 



SUNTRUST BANK

as Administrative Agent, as Issuing Bank and as Swingline Lender

 	 
	 	By  	/s/ Paul Deerin
 	 
	 	 	Name:  	Paul Deerin  	 
	 	 	Title:  	Vice President 	 
	 



[SIGNATURES CONTINUE ON FOLLOWING PAGE]




[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]




 











 





	 	 	 	 	 
	 	LENDERS:



SUNTRUST BANK

as Lender

 	 
	 	By  	/s/ Paul Deerin
 	 
	 	 	Name:  	Paul Deerin  	 
	 	 	Title:  	Vice President 	 



[SIGNATURES CONTINUE ON FOLLOWING PAGE]




[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]



 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

as Lender

 	 
	 	By  	/s/ Michael D. Brannan
 	 
	 	 	Name:  	Michael D. Brannan 	 
	 	 	Title:  	Senior Vice President 	 



[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]





 









 








Schedule I




APPLICABLE MARGIN FOR THE LOANS AND

APPLICABLE PERCENTAGE




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable Margin	 	 	 	 
	 	 	 	 	for Eurodollar Loans	 	Applicable	 	Applicable
	Pricing	 	 	 	and Index Rate	 	Margin for Base	 	Percentage for
	Level	 	Leverage Ratio	 	Loans	 	Rate Loans	 	Commitment Fee
	I

	 	Less than 1.00:1
	 	1.750% per annum
	 	1.750% per annum
	 	0.300% per annum
	II

	 	Greater than or
equal to 1.00:1.00
but less than
1.50:1.00
	 	2.000% per annum
	 	2.000% per annum
	 	0.350% per annum
	III

	 	Greater than or
equal to 1.50:1.00
	 	2.250% per annum
	 	2.250% per annum
	 	0.400% per annum






Schedule I




 









 








Schedule II




COMMITMENT AMOUNTS



	 	 	 	 	 
	Lender	   	Revolving Commitment Amount	 
	SunTrust Bank
	 	$	50,000,000	 
	Bank of America, N.A.
	 	$	50,000,000	 
	 
	 	 	 
	Total
	 	$	100,000,000	 
	 
	 	 	 






Schedule II





 











 





SCHEDULE 4.5




ENVIRONMENTAL MATTERS




None.




Schedule 4.5




 









 








SCHEDULE 4.14




SUBSIDIARIES




	 	 	 	 	 	 	 
	 	 	Jurisdiction of	 	Type of	 	 
	Name of Subsidiary	 	Organization	 	Organization	 	Ownership
	Strayer University, Inc.*

	 	MD
	 	Corporation
	 	100% of the equity
interest held by
Strayer Education,
Inc.
	Education Loan Processing,
Inc.*

	 	VA
	 	Corporation
	 	100% of the equity
interest held by
Strayer Education,
Inc.
	Professional Education, Inc.

	 	MD
	 	Corporation
	 	100% of the equity
interest held by
Strayer Education,
Inc.





Note: Asterisk (“*”) indicates each Subsidiary that is a Subsidiary Loan Party.




Schedule 4.14







 









 








SCHEDULE 7.1




OUTSTANDING INDEBTEDNESS




None.




Schedule 7.1







 









 








SCHEDULE 7.2




EXISTING LIENS




None.




Schedule 7.2







 









 








SCHEDULE 7.4




EXISTING INVESTMENTS



1. Vanguard Short-Term Tax Exempt Fund Admiral Shares valued at approximately $12.4 million.



2. See Schedule 4.14.




Schedule 7.4





 












 





Exhibit A






REVOLVING CREDIT NOTE




			
	 
	$50,000,000
	 	Arlington, Virginia
	 
	 	January 3, 2011






     FOR VALUE RECEIVED, the undersigned, STRAYER EDUCATION, INC., a Maryland corporation (the
“Borrower”), hereby promises to pay to BANK OF AMERICA, N.A., a national banking association
(the “Lender”) or its registered assigns, at the Payment Office (as defined in the Revolving
Credit Agreement, dated as of January 3, 2011, among the Borrower, the Lenders from time to time
party thereto and SunTrust Bank, as Administrative Agent for the Lenders, as Issuing Bank and as
Swingline Lender, as the same may be amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings given to such terms in the Credit Agreement) on the Revolving Commitment
Termination Date, the lesser of the principal sum of FIFTY MILLION AND NO/100 DOLLARS
($50,000,000) or the aggregate unpaid principal amount of all Revolving Loans made by the Lender
to the Borrower pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date hereof on the
principal amount thereof from time to time outstanding, in like funds, at said office, at the
rate or rates per annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay the documented, out-of-pocket costs of
collection of the Lender, in accordance with Section 10.3 of the Credit Agreement.



     The Borrower promises to pay interest, on demand, on any overdue principal and, to the
extent permitted by law, overdue interest from their due dates at a rate or rates provided in
the Credit Agreement.



     All borrowings evidenced by this Revolving Credit Note and all payments and prepayments of
the principal hereof and the date thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its internal records;
provided, that the failure of the holder hereof to make such a notation or any error in
such notation shall not affect the obligations of the Borrower to make the payments of principal
and interest in accordance with the terms of this Revolving Credit Note and the Credit
Agreement.



     This Revolving Credit Note is issued in connection with, and is entitled to the benefits
of, the Credit Agreement which, among other things, contains provisions for the acceleration of
the maturity hereof upon the happening of certain events, for prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING CREDIT NOTE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAW PRINCIPLES



 









 







THEREOF) OF THE COMMONWEALTH OF VIRGINIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.



[SIGNATURE ON FOLLOWING PAGE]





 









 








     IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be signed by its
duly authorized representative all as of the day and year first above written.



	 	 	 	 	 
	 	STRAYER EDUCATION, INC., a
Maryland corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Mark C. Brown 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



Signature Page to Revolving Note





 











 






Exhibit D




SWINGLINE NOTE




			
	 	 	 
	$10,000,000
	 	Arlington, Virginia

January 3, 2011






     FOR VALUE RECEIVED, the undersigned, STRAYER EDUCATION, INC., a
Maryland corporation (the “Borrower”), hereby promises to pay to SUNTRUST BANK, a Georgia banking
corporation (the “Swingline Lender”) or its registered assigns, at the Payment Office (as defined
in the Revolving Credit Agreement, dated as of January 3, 2011, among the Borrower, the Lenders
from time to time party thereto and SunTrust Bank, as Administrative Agent for the Lenders, as
Issuing Bank and as Swingline Lender, as the same may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise
defined shall have the meanings given to such terms in the Credit Agreement), on the Revolving
Commitment Termination Date, the lesser of the principal sum of TEN MILLION DOLLARS AND NO/100
($10,000,000) or the aggregate unpaid principal amount of all Swingline Loans made by the Swingline
Lender to the Borrower pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at the rate or rates
per annum and payable on such dates as provided in the Credit Agreement. In addition, should legal
action or an attorney-at-law be utilized to collect any amount due hereunder, the Borrower further
promises to pay the documented, out-of-pocket costs of collection of the Lender, in accordance with
Section 10.3 of the Credit Agreement.



     The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent
permitted by law, overdue interest from their due dates at a rate or rates provided in the Credit
Agreement.



     All borrowings evidenced by this Swingline Note and all payments and prepayments of the
principal hereof and the date thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto
and made a part hereof, or otherwise recorded by such holder in its internal records;
provided, that the failure of the holder hereof to make such a notation or any error in
such notation shall not affect the obligations of the Borrower to make the payments of principal
and interest in accordance with the terms of this Swingline Note and the Credit Agreement.



     This Swingline Note is issued in connection with, and is entitled to the benefits of, the
Credit Agreement which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the
principal hereof prior to the maturity hereof and for the amendment or waiver of certain provisions
of the Credit Agreement, all upon the terms and conditions therein specified. THIS SWINGLINE NOTE
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF) OF THE COMMONWEALTH OF VIRGINIA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.



 









 





[SIGNATURE ON FOLLOWING PAGE]








 









 








     IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be signed by its duly
authorized representative all as of the day and year first above written.



	 	 	 	 	 
	 	STRAYER EDUCATION, INC., a

Maryland corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Mark C. Brown 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



Signature Page to Swingline Note





 












 





Exhibit E




FORM OF ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Revolving Credit Agreement
identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and Swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 

	1.

	 	Assignor:
	 	                                                                                
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                                                                
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	Strayer Education, Inc.
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	SunTrust Bank., as the administrative agent under the Credit Agreement








 




			
	1	 	Select as applicable.





 









 





	 	 	 	 	 

	5.

	 	Credit Agreement:
	 	Revolving Credit Agreement dated as of January 3, 2011 among Strayer Education, Inc., a Maryland corporation, the Lender parties thereto, and SunTrust Bank, as Administrative Agent, Issuing Bank and Swingline Lender.
	 
	 	 	 	 
	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	 	 	 
	Commitment/Loans for all	 	Amount of Commitment/	 	Percentage Assigned of
	Lenders	 	Loans Assigned	 	Commitment/Loans2
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 





Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	2	 	Set forth, so at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.






 









 





	 	 	 	 	 
	[Consented to and]3 Accepted:



SUNTRUST BANK., as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 
	[Consented to:]4



STRAYER EDUCATION, INC.

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 
	 





 




			
	3	 	To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
	 
	4	 	To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.






 









 





ANNEX 1




STRAYER EDUCATION, INC. CREDIT AGREEMENT




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION



     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Domestic Subsidiaries or Affiliates or any other Person of any of their respective obligations
under any Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.1(a) and (b)
thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent, the Assignor or any other Lender,
and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and
executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest,



 









 




fees and other amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.




     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the Commonwealth of Virginia.




 












 





Exhibit F




SUBSIDIARY GUARANTY AGREEMENT




     THIS SUBSIDIARY GUARANTY AGREEMENT dated as of January 3, 2011, among each of the Subsidiaries
listed on Schedule I hereto (each such Subsidiary individually, a “Guarantor,” and
collectively, the “Guarantors”) of STRAYER EDUCATION, INC., a Maryland corporation (the
“Borrower”) and SUNTRUST BANK, a Georgia banking corporation, as administrative agent (the
“Administrative Agent”) for the Lenders (as defined in the Credit Agreement referred to
below).



     Reference is made to the Revolving Credit Agreement dated as of January 3, 2011 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the lenders from time to time party thereto (the “Lenders”) and SunTrust Bank, as
Administrative Agent, as Issuing Bank and as Swingline Lender. Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit Agreement.



     The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank has agreed to
issue Letters of Credit for the account of the Borrower, pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement. Each of the Guarantors is a Domestic
Subsidiary of the Borrower and acknowledges that it will derive substantial benefit from the making
of the Loans by the Lenders, and the issuance of the Letters of Credit by the Issuing Bank. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the Guarantors of a Subsidiary
Guaranty Agreement in the form hereof. As consideration therefor and in order to induce the Lenders
to make Loans and the Issuing Bank to issue Letters of Credit, the Guarantors are willing to
execute this Subsidiary Guaranty Agreement (as amended, modified or supplemented from time to time,
this “Agreement”).



     Accordingly, the parties hereto agree as follows:



     Section 1. Guarantee. Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety, (i) the due and
punctual payment of all Obligations, including without limitation, (A) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable
in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one
or more dates set for prepayment or otherwise, (B) each payment required to be made by the
Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and obligations to provide
cash collateral, and (C) all other monetary obligations, including reasonable, documented,
out-of-pocket fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding), of the Loan Parties to the
Administrative Agent and the Lenders under the Credit Agreement and the


1









 






other Loan Documents; (ii) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Loan Parties under or pursuant to the Credit Agreement and the
other Loan Documents; (iii) the due and punctual payment and performance of all Hedging Obligations
of any Loan Party entered into with a counterparty that is a Lender or an Affiliate of a Lender or
was a Lender or an Affiliate of a Lender at the time the applicable Hedging Transaction was entered
into (each such person, a “Specified Hedge Provider”); and (iv) the due and punctual
payment and performance of all Treasury Management Obligations entered into with a counterparty
that is a Lender or an Affiliate of a Lender or was a Lender or an Affiliate of a Lender at the
time such Treasury Management Obligation was entered into (each such person, a “Specified
Treasury Management Provider”; the Administrative Agent, the Lenders, the Issuing Bank, each
Specified Hedge Provider, and each Specified Treasury Management Provider, collectively, the
“Guaranteed Parties,” and each individually a “Guaranteed Party”) (all the monetary
and other obligations referred to in the preceding clauses (i) through (iv) being collectively
called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice to or further assent
from such Guarantor, and that such Guarantor will remain bound upon its guarantee notwithstanding
any extension or renewal of any Guaranteed Obligations.



     Section 2. Obligations Not Waived. To the fullest extent permitted by applicable law,
each Guarantor waives presentment or protest to, demand of or payment from the other Loan Parties
of any of the Guaranteed Obligations, and also waives notice of acceptance of its guarantee and
notice of protest for nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by (i) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce or exercise any
right or remedy against the Borrower or any other Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise, (ii) the failure of any Guaranteed Party to
assert any claim or demand or to enforce or exercise any right or remedy against the Borrower or
any other Guarantor under the provisions of any instruments, agreements or documents executed in
connection with any Hedging Transaction incurred to limit interest rate or fee fluctuation with
respect to the Loans and Letters of Credit entered into with a Specified Hedge Provider (each such
document, a “Hedging Document”), (iii) the failure of any Guaranteed Party to assert any
claim or demand or to enforce or exercise any right or remedy against the Borrower or any other
Guarantor under the provisions of any instruments, agreements or documents executed in connection
with a Treasury Management Obligation entered into with a Specified Treasury Management Provider
(each such document, a “Treasury Document”), (iv) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, this Agreement, any other
Loan Document, Hedging Document, Treasury Document or any guarantee or any other agreement,
including with respect to any other Guarantor under this Agreement, or (v) the failure to perfect
any security interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.



     Section 3. Reserved.



     Section 4. Guaranty of Payment. Each Guarantor further agrees that its guaranty
constitutes a guaranty of payment when due and not of collection, and waives any right to require
that any resort be had by the Administrative Agent or any Guaranteed Party to any of the



2









 







security held for payment of the Guaranteed Obligations or to any balance of any deposit
account or credit on the books of the Administrative Agent or any Guaranteed Party in favor of the
Borrower or any other Person.



     Section 5. No Discharge or Diminishment of Guaranty. The obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason (other than the indefeasible payment in full in cash of the Guaranteed Obligations or
pursuant to Section 13 hereof), including any claim of waiver, release, surrender, alteration or
compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Guaranteed Party to assert any
claim or demand or to enforce any remedy under the Credit Agreement except to the extent otherwise
provided by applicable law, any other Loan Document, Hedging Document, Treasury Document or any
other agreement, by any waiver or modification of any provision of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any
other act or omission that may or might in any manner or to the extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of each Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all the Obligations or pursuant to
Section 13 hereof).



     Section 6. Defenses of Borrower Waived. To the fullest extent permitted by applicable
law, each Guarantor waives any defense based on or arising out of any defense of any Loan Party or
the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Loan Party, other than the indefeasible payment in
full in cash of the Guaranteed Obligations. The Administrative Agent and the Guaranteed Parties
may, at their election, foreclose on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any
other Loan Party or any other guarantor, without affecting or impairing in any way the liability of
any Guarantor hereunder except to the extent the Guaranteed Obligations have been fully, finally
and indefeasibly paid in cash. Pursuant to applicable law, each Guarantor waives any defense
arising out of any such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Guarantor or guarantor, as the case may be, or any
security. Each Guarantor hereby waives all rights afforded such Guarantor under Sections 49-25 and
49-26 of the Code of Virginia (1950), as amended.



     Section 7. Agreement to Pay; Subordination. In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or any Guaranteed Party has at law
or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other
Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Administrative Agent for the benefit of the



3









 







Guaranteed Parties in cash the amount of such unpaid and overdue Obligation. Upon payment by
any Guarantor of any sums to the Administrative Agent, all rights of such Guarantor against any
Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Guaranteed Obligations. In addition, any
indebtedness of any Loan Party now or hereafter held by any Guarantor is hereby subordinated in
right of payment to the prior payment in full in cash of the Guaranteed Obligations; provided,
however, that so long as no Event of Default shall exist, any Guarantor may seek, accept and retain
payments by any other Loan Party of principal and interest in connection with such indebtedness. If
any amount shall erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan
Party, such amount shall be held in trust for the benefit of the Administrative Agent and the
Guaranteed Parties and shall forthwith be paid to the Administrative Agent to be credited against
the payment of the Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.



     Section 8. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of other Loan Parties’ financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the Guaranteed Parties will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such circumstances or risks.



     Section 9. Indemnity and Subrogation. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but subject to Section 7),
the Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this
Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be
sold to satisfy a claim of any Guaranteed Party under this Agreement, the Borrower shall indemnify
such Guarantor in an amount equal to the greater of the book value or the fair market value of the
assets so sold.



     Section 10. Contribution and Subrogation. Each Guarantor (a “Contributing
Guarantor”) agrees (subject to Section 7) that, in the event a payment shall be made
by any other Guarantor under this Agreement or assets of any other Guarantor shall be sold to
satisfy a claim of any Guaranteed Party and such other Guarantor (the “Claiming
Guarantor”) shall not have been fully indemnified by the Borrower as provided in Section
9, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the
amount of such payment or the greater of the book value or the fair market value of such assets,
as the case may be, in each case multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate
net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 23, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this



4









 







Section 10 shall be subrogated to the rights of such Claiming Guarantor under
Section 9 to the extent of such payment.



     Section 11. Subordination. Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors under Section 9 and Section 10 and all
other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be
fully subordinated to the indefeasible payment in full in cash of the Guaranteed Obligations. No
failure on the part of the Borrower or any Guarantor to make the payments required under
applicable law or otherwise shall in any respect limit the obligations and liabilities of any
Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.



     Section 12. Representations and Warranties. Each Guarantor represents and warrants as
to itself that all representations and warranties relating to it (as a Subsidiary of the Borrower)
contained in the Credit Agreement are true and correct.



     Section 13. Termination. The guarantees made hereunder (i) shall terminate without the
necessity of any further action by any party hereto when all the Guaranteed Obligations (other than
those Guaranteed Obligations relating to the Hedging Obligations or the Treasury Management
Obligations and those indemnities and other similar contingent obligations for which no claim has
been made and which are unknown and not calculable at the time of termination) have been paid in
full in cash and the Guaranteed Parties have no further commitment to lend under the Credit
Agreement, the LC Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (ii) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise. Furthermore, upon release of any
Guarantor in accordance with Section 9.8(a) of the Credit Agreement, such Guarantor shall be
released automatically from its obligations under this Agreement without the necessity of any
further action by any party hereto. In connection with the foregoing, the Administrative Agent
shall execute and deliver to such Guarantor or Guarantor’s designee, at such Guarantor’s expense,
any documents or instruments which such Guarantor shall reasonably request from time to time to
evidence such termination and release.



     Section 14. Binding Effect; Several Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements by or on behalf
of the Guarantors that are contained in this Agreement shall bind and inure to the benefit of each
party hereto and their respective permitted successors and assigns. This Agreement shall become
effective as to any Guarantor when a counterpart hereof executed on behalf of such Guarantor shall
have been delivered to the Administrative Agent, and a counterpart hereof shall have been executed
on behalf of the Administrative Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall inure to the benefit
of such Guarantor, the Administrative Agent and the Guaranteed Parties, and their respective
permitted successors and assigns, except that no Guarantor shall have the right to assign its
rights or obligations hereunder or any interest herein (and any such attempted assignment shall be
void). This Agreement shall be construed as a separate agreement with



5









 







respect to each Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.



     Section 15. Waivers; Amendment.



     (a) No failure or delay of the Administrative Agent of any kind in exercising any
power, right or remedy hereunder and no course of dealing between any Guarantor on the one
hand and the Administrative Agent or any holder of any Note on the other hand shall operate as
a
waiver thereof, nor shall any single or partial exercise of any such power, right or remedy
hereunder, or under any Loan Document, Hedging Document, or Treasury Document, or any
abandonment or discontinuance of steps to enforce such a power, right or remedy, preclude any
other or further exercise thereof or the exercise of any other power, right or remedy. The
rights
of the Administrative Agent hereunder and of the Guaranteed Parties under the other Loan
Documents, the Hedging Documents and the Treasury Document, as applicable, are cumulative
and are not exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Guarantor therefrom shall
in
any event be effective unless the same shall be permitted by subsection (b) below, and then
such
waiver and consent shall be effective only in the specific instance and for the purpose for
which
given. No notice or demand on any Guarantor in any case shall entitle such Guarantor to any
other or further notice in similar or other circumstances.



     (b) Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the Guarantors with
respect to which such waiver, amendment or modification relates and the Administrative Agent,
with the prior written consent of the Required Lenders (except as otherwise provided in the
Credit Agreement).



     Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA.



     Section 17. Notices. All communications and notices hereunder shall be in writing and
given as provided in Section 10.1 of the Credit Agreement. All communications and notices
hereunder to each Guarantor shall be given to it at its address set forth on Schedule I attached
hereto or any subsequent address described in a written notice given as provided in Section 10.1
of the Credit Agreement.



     Section 18. Survival of Agreement; Severability.



     (a) All covenants, agreements representations and warranties made by the Guarantors herein
and in the certificates or other instruments prepared or delivered in connection with or pursuant
to this Agreement or the other Loan Document shall be considered to have been relied upon by the
Administrative Agent and the Lenders and shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit by the Issuing Bank regardless of any investigation made by
any of them or on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount



6









 







payable under this Agreement or any other Loan Document is outstanding and unpaid or the LC
Exposure does not equal zero and as long as the Commitments have not been terminated.



     (b) In the event one or more of the provisions contained in this Agreement or in any other
Loan Document should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.



     Section 19. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute a single
contract (subject to Section 14), and shall become effective as provided in Section 14. Delivery of
an executed signature page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.



     Section 20. Rules of Interpretation. The rules of interpretation specified in Section
1.4 of the Credit Agreement shall be applicable to this Agreement.



     Section 21. Jurisdiction; Consent to Service of Process.



     (a) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any of the United States District Court of the
Eastern
District of Virginia, Alexandria Division, and of any state court of the Commonwealth of
Virginia sitting in Fairfax County, Virginia, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, any other Loan Document or
any Hedging Document or any Treasury Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding
may be heard and determined in such Virginia state court or, to the extent permitted by law,
in
such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Guaranteed Party may otherwise
have to bring any action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.



     (b) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or hereafter have
to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or
the other Loan Documents in any Virginia state or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient
forum to the maintenance of such action or proceeding in any such court.



7









 





     (c) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 17. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.



     Section 22. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR
ANY OTHER LOAN DOCUMENT, HEDGING DOCUMENT OR TREASURY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE HEDGING DOCUMENTS OR THE TREASURY
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 22.



     Section 23. Additional Guarantors. Upon the occurrence of certain events and on the
terms and conditions set forth and described in Section 5.11 of the Credit Agreement, certain other
Domestic Subsidiaries of the Borrower may become Guarantors for purposes hereof and become a party
hereto by executing and delivering to the Administrative Agent an instrument in the form of Annex I
(each, a “Joinder Agreement”). Upon execution and delivery after the date hereof by the
Administrative Agent and such Domestic Subsidiary of a Joinder Agreement, such Domestic Subsidiary
shall become a Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any other Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding
the addition of any new Guarantor as a party to this Agreement.



     Section 24. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Guaranteed Party and the Issuing Bank are hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other Indebtedness
at any time owing by such Guaranteed Party or the Issuing Bank to or for the credit or the account
of any Guarantor against any or all the obligations of such Guarantor now or hereafter existing
under this Agreement, the other Loan Documents, the Hedging Documents or the Treasury Documents
held by such Guaranteed Party or the Issuing Bank, irrespective of whether or not such Person
shall have made any demand under this Agreement or any other Loan Document, Hedging Document or
Treasury Document, and although such obligations may be unmatured. The setoff rights provided in
this Section 24 shall not apply to funds held by or on behalf of any Guarantor in trust
for other persons, including, without limitation, funds received



8









 







under the Title IV, HEA Programs that are held in trust for the beneficiaries provided under
34 C.F.R. 668.161(b). The rights of each Guaranteed Party and the Issuing Bank under this
Section 24 are in addition to other rights and remedies (including other rights of setoff)
which such Guaranteed Party or the Issuing Bank, as the case may be, may have.



     Section 25. Savings Clause.



     (a) It is the intent of each Guarantor and the Administrative Agent that each
Guarantor’s maximum obligations hereunder shall be, but not in excess of:




     (i) in a case or proceeding commenced by or against any Guarantor under the provisions
of Title 11 of the United States Code, 11 U.S.C. §§101
et seq. (the
“Bankruptcy Code”) on or within one year from the date on which any of the
Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the
Guaranteed Obligations (or any other obligations of such Guarantor owed to the
Administrative Agent or the Guaranteed Parties) to be avoidable or unenforceable against
such Guarantor under (i) Section 548 of the Bankruptcy Code or (ii) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or




     (ii) in a case or proceeding commenced by or against any Guarantor under the
Bankruptcy Code subsequent to one year from the date on which any of the Guaranteed
Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Administrative Agent or the
Guaranteed Parties) to be avoidable or unenforceable against such Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or




     (iii) in a case or proceeding commenced by or against any Guarantor under any law,
statute or regulation other than the Bankruptcy Code (including, without limitation, any
other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to
the Administrative Agent or the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including, without limitation,
any state fraudulent transfer or fraudulent conveyance act or statute applied in any such
case or proceeding.



     (b) The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative
Agent or the Guaranteed Parties) as may be determined in any case or proceeding shall
hereinafter be referred to as the “Avoidance Provisions”. To the extent set forth in
Section 25(a)
(i), (ii), and (iii), but only to the extent that the Guaranteed Obligations would
otherwise be
subject to avoidance or found unenforceable under the Avoidance Provisions, if any Guarantor
is
not deemed to have received valuable consideration, fair value or reasonably equivalent value
for
the Guaranteed Obligations, or if the Guaranteed Obligations would render such Guarantor
insolvent, or leave such Guarantor with an unreasonably small capital to conduct its business,
or



9









 







cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond
its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed
Obligations are deemed to have been incurred under the Avoidance Provisions and after giving
effect to the contribution by such Guarantor, the maximum Guaranteed Obligations for which such
Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect
thereto, would not cause the Guaranteed Obligations (or any other obligations of such Guarantor to
the Administrative Agent or the Guaranteed Parties), as so reduced, to be subject to avoidance or
unenforceability under the Avoidance Provisions.



     (c) This Section 25 is intended solely to preserve the rights of the Administrative
Agent and the Guaranteed Parties hereunder to the maximum extent that would not cause the
Guaranteed Obligations of such Guarantor to be subject to avoidance or unenforceability under the
Avoidance Provisions, and neither the Guarantors nor any other Person shall have any right or claim
under this Section 25 as against the Administrative Agent or Guaranteed Parties that would
not otherwise be available to such Person under the Avoidance Provisions.



(Signatures on following page)





10









 









	 	 	IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first above written.





	 	 	 	 	 
	 	STRAYER UNIVERSITY, INC.,

a Maryland corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Mark C. Brown 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	EDUCATION LOAN PROCESSING, INC.,

a Virginia corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Mark C. Brown 	 
	 	 	Title:  	Treasurer 	 
	 
	 	SUNTRUST BANK, as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	Paul Deerin	 
	 	 	Title:  	Vice President	 
	 



	 	 	 	 	 
	Acknowledged and agreed to:



STRAYER EDUCATION, INC., a Maryland corporation

 	 	 
	By:  	 	 	 
	 	Name:  	Mark C. Brown 	 	 
	 	Title:  	Chief Financial Officer 	 	 
	 



Signature Page to Subsidiary Guaranty







 









 








SCHEDULE I TO THE




SUBSIDIARY GUARANTY AGREEMENT



Guarantor(s)



	 	 	 
	Guarantors	 	Address
	 
	 	 
	STRAYER UNIVERSITY, INC.,
 a
Maryland corporation

	 	Strayer University, Inc.
 1100 Wilson
Boulevard 
Suite 2500 
Arlington,
Virginia 22209 
Attention: Mark
Brown, Executive Vice President 
and
Chief Financial Officer 
Telecopy
Number: (703) 527-0112
	 
	 	 
	EDUCATION LOAN PROCESSING,
INC., 
a Virginia corporation

	 	Education Loan Processing, Inc. 
1100
Wilson Boulevard 
Suite 2500

Arlington, Virginia 22209

Attention: Mark Brown, Executive
Vice President 
and Chief Financial
Officer 
Telecopy Number: (703)
527-0112






Schedule I








 









 








ANNEX 1 TO THE




SUBSIDIARY GUARANTY AGREEMENT



     SUPPLEMENT NO.
[      ] dated as of [                         ], to the Subsidiary Guaranty
Agreement (the “Guaranty Agreement”) dated as of January 3, 2011, among each of the
Subsidiaries listed on Schedule I thereto (each such Subsidiary individually, a “Guarantor”
and collectively, the “Guarantors”) of STRAYER EDUCATION, INC., a Maryland corporation (the
“Borrower”) and SUNTRUST BANK, a Georgia banking corporation, as Administrative Agent (the
“Administrative Agent”) for the Lenders (as defined in the Credit Agreement referred to
below).



     A. Reference is made to the Revolving Credit Agreement dated as of January 3, 2011
(as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among the Borrower, the lenders from time to time party thereto (the “Lenders”) and
SunTrust
Bank, as Administrative Agent, as Issuing Bank and as Swingline Lender.



     B. Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Guaranty Agreement and the Credit Agreement.



     C. The Guarantors have entered into the Guaranty Agreement in order to induce the
Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section
5.11
of the Credit Agreement, certain Domestic Subsidiaries of the Borrower required to enter into
the
Guaranty Agreement as a Guarantor after the Closing Date. Section 23 of the Guaranty
Agreement provides that such Domestic Subsidiaries of the Borrower may become Guarantors
under the Guaranty Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Domestic Subsidiary of the Borrower (the “New
Guarantor”), is
executing this Supplement in accordance with the requirements of the Credit Agreement to
become a Guarantor under the Guaranty Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit and as
consideration
for Loans previously made and Letters of Credit previously issued.



     Accordingly, the Administrative Agent and the New Guarantor agree as follows:



     Section 1. In accordance with Section 23 of the Guaranty Agreement, the New Guarantor by its
signature below becomes a Guarantor under the Guaranty Agreement with the same force and effect as
if originally named therein as a Guarantor and the New Guarantor hereby (a) agrees to all the terms
and provisions of the Guaranty Agreement applicable to it as Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it (but not the other
Guarantors) as a Guarantor thereunder are true and correct in all material respects (or, if
qualified by materiality, in all respects) on and as of the date hereof. Each reference to a
Guarantor in the Guaranty Agreement shall be deemed to include the New Guarantor. The Guaranty
Agreement is hereby incorporated herein by reference.



 









 





     Section 2. The New Guarantor represents and warrants to the Administrative Agent and the
Guaranteed Parties that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors’ rights generally and by general principles
of equity.



     Section 3. This Supplement may be executed in counterparts each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Supplement
shall become effective when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this
Supplement.



     Section 4. Except as expressly supplemented hereby, the Guaranty Agreement shall remain in
full force and effect.



     Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF VIRGINIA.



     Section 6. In case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and in the Guaranty Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision
hereof in a particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.



     Section 7. All communications and notices hereunder shall be in writing and given as provided
in Section 17 of the Guaranty Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature below, with a copy to
the Borrower.



     Section 8. The New Guarantor agrees to reimburse the Administrative Agent for its reasonable
and documented out-of-pocket expenses in connection with this Supplement, including the
reasonable, documented, disbursements and other charges of outside counsel for the Administrative
Agent, in accordance with Section 10.3(a) of the Credit Agreement.



(Signatures on following page)







 









 








     IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this
Supplement to the Guaranty Agreement as of the day and year first above written.



	 	 	 	 	 
	 	[NAME OF NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address:  	 	 
	 



	 	 	 	 	 
	 	SUNTRUST BANK, as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 










 





Exhibit 2.3




FORM OF NOTICE OF REVOLVING BORROWING




[Date]




SunTrust Bank,

as Administrative Agent

for the Lenders referred to below

303 Peachtree Street, N. E./ 25th Floor


Atlanta, GA 30308

Attention: Ms. Doris Folsom
Telecopy Number: (404) 658-4906



To Whom It May Concern:




     Reference is made to the Revolving Credit Agreement dated as of January 3, 2011 (as amended,
modified or supplemented and in effect on the date hereof, the “Credit Agreement”), among the
undersigned, as Borrower, the Lenders named therein, and SunTrust Bank, as Administrative Agent,
Issuing Bank and Swingline Lender. Terms defined in the Credit Agreement are used herein with the
same meanings. This notice constitutes a Notice of Revolving Borrowing, and the Borrower hereby
requests a Revolving Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing requested hereby:



          (A) Aggregate principal amount of Revolving Borrowing1:




          (B) Date of Revolving Borrowing (which is a Business Day):




          (C) Type of Revolving Loans comprising such Borrowing2:




          (D) Interest Period3:




          (E) Location and number of Borrower’s account to which proceeds of Revolving Borrowing are to
be disbursed:






 




			
	1	 	In the case of a Eurodollar Borrowing, not less
than $1,000,000 or a larger multiple of $1,000,000; in the case of a Base Rate
Borrowing or an Index Rate Borrowing, not less than $1,000,000 or a larger
multiple of $500,000.
	 
	2	 	Eurodollar Borrowing, Index Rate Borrowing or Base
Rate Borrowing.
	 
	3	 	Which must comply with the definition of “Interest
Period” and end not later than the Revolving Commitment Termination Date.




 









 











     The Borrower hereby represents and warrants that the conditions specified in Section 3.2 of
the Credit Agreement are satisfied.



	 	 	 	 	 
	 	Very truly yours,











STRAYER EDUCATION, INC., a Maryland

corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




 












 





Exhibit 2.4




FORM OF NOTICE OF SWINGLINE BORROWING




[Date]




SunTrust Bank,

as Administrative Agent

for the Lenders referred to below

303 Peachtree Street, N. E./ 25th Floor

Atlanta, GA 30308

Attention: Ms. Doris Folsom

Telecopy Number: (404) 658-4906



To Whom It May Concern:




     Reference is made to the Revolving Credit Agreement dated as of January 3, 2011 (as amended,
modified or supplemented and in effect on the date hereof, the “Credit Agreement”), among the
undersigned, as Borrower, the Lenders named therein, and SunTrust Bank, as Administrative Agent,
Issuing Bank and Swingline Lender. Terms defined in the Credit Agreement are used herein with the
same meanings. This notice constitutes a Notice of Swingline Borrowing, and the Borrower hereby
requests a Swingline Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Swingline Borrowing requested hereby:



          (A) Aggregate principal amount of Swingline Loan1:




          (B) Date of Swingline Loan (which is a Business Day):




          (C) Account of the Borrower to which the proceeds of such Swingline Loan should be
credited:






 




			
	1	 	Not less than $100,000 or a larger multiple of
$50,000.




 









 











     The Borrower hereby represents and warrants that the conditions specified in Section 3.2 of
the Credit Agreement are satisfied.



	 	 	 	 	 
	 	Very truly yours,







STRAYER EDUCATION, INC., a Maryland

corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page to Notice of Conversion/Continuation




 











 





Exhibit 2.8




FORM OF NOTICE OF CONVERSION/CONTINUATION




[Date]




SunTrust Bank,

as Administrative Agent

for the Lenders referred to below

Agency Services

303 Peachtree Street, N. E./ 25th Floor

Atlanta, Georgia 30308

Attention: Mr. Doug Weltz

Telecopy Number: (404) 221-2001



To Whom It May Concern:




     Reference is made to the Revolving Credit Agreement dated as of January 3, 2011 (as amended,
modified or supplemented and in effect on the date hereof, the “Credit Agreement”), among the
undersigned, as Borrower, the Lenders named therein, and SunTrust Bank, as Administrative Agent,
Issuing Bank and Swingline Lender. Terms defined in the Credit Agreement are used herein with the
same meanings. This notice constitutes a Conversion/Continuation, and the Borrower, hereby
requests the [conversion/continuation] of a Borrowing under the Credit Agreement, and in that
connection the undersigned specifies the following information with respect to the Borrowing to be
converted or continued as requested hereby:



          (A) Borrowing to which this request applies1:




          (B) Effective date of election (which is a Business Day):




          (C) Whether the resulting Borrowing is to be a Base Rate Borrowing, an Index Rate Borrowing or
a Eurodollar Borrowing:




          (D) Interest Period2:






 




			
	1	 	If different options are being elected with
respect to different portions thereof, indicate the portions thereof that are
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (C) and (D) hereof also shall be specified for
each resulting Borrowing).
	 
	2	 	To be completed by the undersigned if such
Borrowing is a Eurodollar Borrowing. Such period shall be a period
contemplated by the definition of “Interest Period” in the Credit Agreement.



 









 







	 	 	 	 	 
	 	Very truly yours,







STRAYER EDUCATION, INC.,

a Maryland corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




Signature Page to Notice of Conversion/Continuation
















 





Exhibit 5.1(d)




Covenant Compliance Certificate




     In connection with the terms of the Revolving Credit Agreement, dated as of January 3, 2011
(as amended, modified or supplemented from time to time, the “Credit Agreement”), among
Strayer Education, Inc., a Maryland corporation (the “Borrower”), SunTrust Bank, a Georgia
banking corporation (the “Administrative Agent”), and each Lender that is, or may become, a
party thereto, the undersigned certifies that the following information is true and correct, in all
material respects, as of the date of this Covenant Compliance Certificate:


1. No Default or Event of Default has occurred and is continuing.



2. For purposes of calculating the Applicable Margin and the Applicable Percentage, the Leverage
Ratio for the period of four consecutive Fiscal Quarters ended on                      was       to 1,
calculated as set forth on Schedule 1.



3. Consolidated EBITDA for the period of two consecutive Fiscal Quarters ended on                      was
$                    , calculated as set forth on Schedule 2, and exceeds the level required by
Section 6.1 of the Credit Agreement.



4. The Interest Coverage Ratio for the period of four consecutive Fiscal Quarters ended on
                     was       to 1, calculated as set forth on Schedule 3, and exceeds the level
required by Section 6.2 of the Credit Agreement.



5. Unrestricted Liquidity as of                      was $          , calculated as set forth on Schedule
4, and exceeds the level required by Section 6.3 of the Credit Agreement.




[SIGNATURE ON FOLLOWING PAGE]




 









 








     Capitalized terms used in this Covenant Compliance Certificate shall have the same meanings as
those assigned to them in the Credit Agreement. The foregoing is true and correct, in all material
respects, as of                     , 201   .



     Dated as of                           , 201  .



	 	 	 	 	 

	 	 	STRAYER EDUCATION, INC.,
	 	 	a Maryland corporation
	 
	 	 	 	 
	 

	 	By:
	 	 
	 	 	 	 	 
	 

	 	Name:	 	 
	 	 	 	 	 
	 

	 	Title:	 	 
	 	 	 	 	 





Covenant Compliance Certificate Signature Page





2









 








Exhibit 5.1(d)




Schedule 1




Leverage Ratio




	 	 	 	 	 	 	 

	1.

	 	Consolidated Total Debt	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Borrowed money
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) Obligations evidenced by bonds, debentures,

notes or other similar instruments
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) Deferred purchase price obligations (other than
trade payables incurred in the ordinary course of
business, provided that such trade payables which
are overdue by 120 days shall be included except to
the extent that such trade payables are being
disputed in good faith and by appropriate measures)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) Obligations under any conditional sale or other

title retention agreement
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) Capital Lease Obligations
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(f) Obligations for letters of credit, acceptances
or similar extensions of credit
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(g) Guaranties of Indebtedness of the types in the
foregoing (a) through (f)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(h) Indebtedness of a third party secured by any Lien
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(i) Preferred or common stock or similar equity
interests subject to mandatory sinking fund
payments, redemption or acceleration on equity
(other than voluntary repurchases of shares and the
exercise of options permitted by Sections 7.4(f)
and 7.5(iii) of the Credit Agreement)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(j) Off-Balance Sheet Liabilities
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(k) Partnership or joint venture debt
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b+c+d+e+f+g+h+i+j)1
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Consolidated EBITDA for the period of four consecutive
Fiscal Quarters ended on                     2	 	 	 	 








 




			
	1	 	Such amount shall be the sum of clauses (a)
through (j) without duplication. The calculation shall include the
Indebtedness of any partnership or joint venture in which such the Borrower or
any of its Subsidiaries is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Borrower or
Subsidiary is not liable therefor.




 









 










	 	 	 	 	 	 	 

	 

	 	(a) Consolidated Net Income
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) Consolidated Interest Expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) Income tax expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) Depreciation
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) Amortization
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(f) charges associated with the grant of any share
based payment awards to employees, officers,
directors or consultants
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(g) all other non-cash charges acceptable to the
Required Lenders
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b+c+d+e+f+g)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	3.

	 	Total Leverage Ratio
	 	=       to 1

	 

	 	Consolidated Total Debt
($                    )	 	 	 	 
	 

	 	Consolidated EBITDA (                    )	 	 	 	 








 




			
	2	 	All determined on a consolidated basis in accordance with GAAP for such period.




4









 










Exhibit 5.1(d)




Schedule 2




Consolidated EBITDA




	 	 	 	 	 	 	 

	Consolidated EBITDA for the period of two consecutive Fiscal Quarters
ended on                     3	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Consolidated Net Income
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) Consolidated Interest Expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) Income tax expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) Depreciation
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) Amortization
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(f) charges associated with the grant of any share based
payment awards to employees, officers, directors or
consultants
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(g) all other non-cash charges acceptable to the Required
Lenders
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b+c+d+e+f+g)
	 	$	                    	 
	 

	 	 	 	 	 	 







 




			
	3	 	All determined on a consolidated basis in accordance with GAAP for such period.






 











 





Exhibit 5.1(d)




Schedule 3




Interest Coverage Ratio




	 	 	 	 	 	 	 

	1. Consolidated EBIT for the period of four
consecutive Fiscal Quarters ended on                     4	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Consolidated Net Income
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) Consolidated Interest Expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) Income tax expense
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) charges associated with the grant of
any share based payment awards to
employees, officers, directors or
consultants
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) all other non-cash charges acceptable
to the Required Lenders
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b+c+d+e)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2. Capital Expenditures made during the four
consecutive Fiscal Quarters ending on or immediately
prior to                     	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	3. Restricted Payments made by the Borrower in cash
during the four consecutive Fiscal Quarters ending on
or immediately prior to                     	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	4. Consolidated Interest Expense for such period	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) total interest expense, including
without limitation the interest component
of any payments in respect of Capital
Lease Obligations capitalized or expensed
during such period (whether or not
actually paid during such period)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) the net amount payable (or
minus the net amount receivable) under Hedging Transactions
during such period (whether or not actually paid or received during such period)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	4. Interest Coverage Ratio	 	=            to 1

	 

	 	Coverage (1-2-3)	 	 	 	 
	 

	 	Consolidated Interest Expense (4)	 	 	 	 








 




			
	4	 	All determined on a consolidated basis in accordance with GAAP for such period.




 









 










Exhibit 5.1(d)




Schedule 4




Unrestricted Liquidity




	 	 	 	 	 	 	 

	Unrestricted Liquidity as of                     	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Cash5
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) Permitted Investments6
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) 90% of the fair market value of the Borrower’s
Investment in shares of Vanguard Short-term Tax-exempt
Bond Fund (Admiral Shares), as described in Schedule 7.4
of the Credit Agreement
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) aggregate unused Revolving Commitments of all Lenders
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TOTAL (a+b+c+d)
	 	$	                    	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 







 




			
	5	 	Not subject to any Lien, other than Liens in favor of the Administrative Agent, or any restriction on use.
	 
	6	 	Not subject to any Lien, other than Liens in favor of the Administrative Agent, or any restriction on use.