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EXHIBIT 4(g)
SIXTH AMENDMENT
TO
AMENDED AND RESTATED FINANCING AGREEMENT
THIS SIXTH AMENDMENT (this "Amendment") dated as of November 15, 2001
is entered into by and among DeVry University, Inc., a Delaware corporation
(the "Borrower"), the financial institutions who are party to the Credit
Agreement referred to below (the "Lenders") and Bank of America, N.A., as Agent
for the Lenders (herein, in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties to
certain Amended and Restated Financing Agreement dated as of June 12, 1996
(as heretofore amended, called the "Credit Agreement"; terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement);
WHEREAS, the Borrower desires to amend the Credit Agreement in
certain respects; and
WHEREAS, subject to the terms and conditions set forth herein the
Agent and the Lenders are willing to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the Borrower, the Agent and the Lenders hereby agree as
follows:
SECTION 1. AMENDMENTS.
----------
In reliance on the Borrower's warranties set forth in Section 3
below, as of the date hereof the Credit Agreement is hereby amended as follows:
1.1 Paragraph 1(A) of the Credit Agreement is amended so that
the definition of "Fixed Charge Coverage Ratio" shall read in its
entirety as follows:
"Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of DeVry's (i) EBIT for such period, plus depreciation and
lease expense, in each case to the extent included in determining
such net income (excluding, however, lease expenses for
student housing leases for terms of less than 18 months), plus the
aggregate cash proceeds of sales and other dispositions of DeVry's or
Subsidiaries' assets received during such period, plus federal income
tax refunds received by DeVry during such period arising from losses
of DeVry and its Affiliates from prior periods, less Capital
Expenditures in respect of such period, to (ii) pro forma interest
expense and Fee Expenses accruing during such period calculated as if
any Indebtedness incurred in connection with a Permitted Transaction
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was incurred on the first day of such period plus lease expense
included in determining such net income (excluding, however, lease
expenses for student housing leases for terms of less than 18
months).
1.2 Paragraph 16(A)(ii) of the Credit Agreement is amended to read
in its entirety as follows:
(i) Maintain a Fixed Charge Coverage Ratio of not less than
2.25.1 for each four consecutive Fiscal Quarter period ending on or
before September 30, 2001 and not less than 1.50:1 for each
succeeding four consecutive Fiscal Quarter period ending thereafter;
provided, that each component of the definition of Fixed Charge
Coverage Ratio shall be calculated over the then applicable four
consecutive Fiscal Quarter period; and
1.3 Paragraph 16 of the Credit Agreement is amended by deleting in
its entirety Paragraph 16(B).
1.4 Paragraph 18(A) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(A) Term. This Agreement shall terminate on February 1, 2004
("Termination Date"), subject to the terms and provisions of
Paragraph 22(E) and of any other provisions of this Agreement or
any other Loan Document which specifically provides for the
continuation of obligations, duties, representations and
warranties beyond such termination. Upon the Termination Date,
all of Borrower's Obligations to Agent and each Lender, whether
or not incurred under this Agreement, or any amendment or
supplement thereto, under any Revolving Note, any other Loan
Document or otherwise, shall become immediately due and payable
without notice or demand."
1.5 Exhibit C, Annex I, is amended to read in its entirety as set
forth in Annex I hereto.
SECTION 2. WARRANTIES.
----------
To induce the Agent and the Lenders to enter into this Amendment, the
Borrower warrants to the Agent and the Lenders as of the date hereof that:
(a) The representations and warranties contained in the Credit
Agreement and Loan Documents are true and correct in all material
respects on and as of the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date);
and
(b) No Default or Event of Default has occurred and is continuing.
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SECTION 3. GENERAL.
(a) As hereby modified, the Credit Agreement shall remain in full
force and effect and is hereby ratified, approved and confirmed in
all respects.
(b) This Amendment shall be binding upon and shall inure to the
benefit of the Borrower, the Lenders and the Agent and respective
successors and assigns of the Lenders and the Agent.
(c) This Amendment may be executed in any number of counterparts and
by the different parties on separate counterparts, and each such
counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Amendment.
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ANNEX I
FIXED CHARGE COVERAGE RATIO
---------------------------
($000)
For the 4 Fiscal
Numerator Quarter Period Ended
--------- --------------------
EBIT
+ Depreciation $
---------------
+ Lease Expense* $
---------------
+ Cash Proceeds From Sale of Assets $
---------------
+ Federal Income Tax Refunds $
---------------
- Capital Expenditures $
---------------
= Total Numerator $
---------------
Denominator
-----------
Pro Forma Interest Expense
+ Agents Fee $
---------------
+ Letter of Credit Fees $
---------------
+ Pro Forma Revolving Loan Commitment Fees $
---------------
+ Lease Expenses* $
---------------
= Total Denominator $
---------------
ACTUAL RATIO
VS.
ALLOWABLE MINIMUM 1.50:1
*To include related figures associated with Permitted Transactions.
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DEBT COVERAGE RATIO
-------------------
($000)
For the Fiscal
Quarter Ended
--------------
Numerator
---------
Average daily aggregate pro forma Indebtedness $
for then ending Fiscal Quarter ---------------
Denominator
-----------
EBITDA (for the then ending and
three immediately preceding
Fiscal Quarters)
- 3,500,000
= Total Denominator $
----------------
ACTUAL
VS.
ALLOWABLE MAXIMUM: 2.00:1
OTHER FINANCIAL COVENANTS
-------------------------
<$000)
Actual Allowable
------ ---------
Consolidated Tangible Net Worth $ Minimum of $5,000,000+
(.75 X Consolidated Net
Income) for each Fiscal
Quarter since June 30, 1996
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Delivered at Chicago, Illinois, as of the date and year first above written.
DEVRY UNIVERSITY, INC.
By:
Title:
BANK OF AMERICA, N.A., as Agent
By:
Title:
BANK OF AMERICA, N.A., as Lender
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
XXXXXX TRUST AND SAVINGS BANK
By:
Title:
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The undersigned hereby (i) acknowledge the foregoing amendments,
(ii) acknowledge that their respective Guaranties continue to guaranty the
obligations of the Borrower arising under the Credit Agreement, as amended
hereby and (iii) and reaffirm their respective duties and obligations arising
under the Loan Documents to which each is a party.
DEVRY INC.
By:
Its:
XXXXXX CPA REVIEW CORP. (f/k/a
DEVRY CPA REVIEW CORP.)
By:
Its:
DEVRY/XXXXXX EDUCATIONAL
DEVELOPMENT CORP. (f/k/a DEVRY
EDUCATIONAL DEVELOPMENT CORP.)
By:
Its:
DEVRY EDUCATIONAL PRODUCTS, INC.
By:
Its:
DEVRY EDUCATIONAL DEVELOPMENT CORP.
By:
Its:
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XXXXXX CPA REVIEW, INC.
By:
Its:
DEVRY/NEW YORK, INC.
By:
Its:
DEVRY LEASING CORPORATION
By:
Its:
XXXXXX X-X LLC
By: Xxxxxx CPA Review, Inc., its sole member
By:
Its:
DEVRY COLORADO LLC
By: DeVry University, Inc., its sole member
By:
Its:
DEVRY FLORIDA, INC.
By:
Its:
