CREDIT AGREEMENT
Dated as of May 16, 2003
among
DeVry Inc. and Global Education International, Inc.,
as the Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager,
THE NORTHERN TRUST COMPANY,
as
Syndication Agent
and
LASALLE BANK NATIONAL ASSOCIATION
and
XXXXXX TRUST AND SAVINGS BANK,
as
Co-Documentation Agents
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
1.1. Defined Terms 1
1.2. Other Interpretive Provisions 23
1.3. Accounting Terms 24
1.4. Rounding 24
1.5. References to Agreements and Laws 24
1.6. Times of Day 25
1.7. Letter of Credit Amounts 25
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS 25
2.1. Revolving Loans 25
2.2. Borrowings, Conversions and Continuations of Revolving
Loans 25
2.3. Letters of Credit 27
2.4. Swing Line Loans 34
2.5. Prepayments 38
2.6. Termination or Reduction of Commitments 38
2.7. Repayment of Loans 39
2.8. Interest 39
2.9. Fees 40
2.10. Computation of Interest and Fees 41
2.11. Evidence of Debt 41
2.12. Payments Generally 42
2.13. Sharing of Payments 43
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 44
3.1. Taxes 44
3.2. Illegality 45
3.3. Inability to Determine Rates 45
3.4. Increased Cost and Reduced Return; Capital Adequacy 46
3.5. Funding Losses 46
3.6. Matters Applicable to all Requests for Compensation 47
3.7. Survival 47
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 47
4.1. Conditions of Initial Credit Extension 47
4.2. Conditions to all Credit Extensions 50
ARTICLE V REPRESENTATIONS AND WARRANTIES 50
5.1. Existence, Qualification and Power; Compliance with Laws 50
5.2. Authorization; No Contravention 51
5.3. Governmental Authorization; Other Consents 51
5.4. Binding Effect 51
5.5. Financial Statements; No Material Adverse Effect 51
5.6. Litigation 52
5.7. No Default 52
5.8. Ownership of Property; Liens 52
5.9. Environmental Compliance 53
5.10. Insurance 53
5.11. Taxes 53
5.12. ERISA Compliance 53
5.13. Subsidiaries 54
5.14. Margin Regulations; Investment Company Act; Public
Utility Holding Company Act 54
5.15. Dominica Purchase Agreement 54
5.16. Disclosure 55
5.17. Compliance with Laws 55
5.18. Intellectual Property; Licenses, Etc. 55
5.19. Guaranties 56
5.20. Pledge Documents 56
5.21. Solvency 56
5.22. Existing Indebtedness 56
5.23. Pari-Passu Obligations 56
ARTICLE VI AFFIRMATIVE COVENANTS 57
6.1. Financial Statements 57
6.2. Certificates; Other Information 57
6.3. Notices 59
6.4. Payment of Obligations 59
6.5. Preservation of Existence, Etc. 59
6.6. Maintenance of Properties 60
6.7. Maintenance of Insurance 60
6.8. Compliance with Laws 60
6.9. Books and Records 60
6.10. Inspection Rights 61
6.11. Use of Proceeds 61
6.12. Additional Guarantors 61
6.13. Pledgors 62
6.14. Pari-Passu Obligations 62
ARTICLE VII NEGATIVE COVENANTS 62
7.1. Liens 63
7.2. Investments 64
7.3. Indebtedness 64
7.4. Fundamental Changes 65
7.5. Dispositions 66
7.6. Restricted Payments 67
7.7. Change in Nature of Business 67
7.8. Transactions with Affiliates 67
7.9. Burdensome Agreements 67
7.10. Use of Proceeds 68
7.11. Dominica Purchase Agreement 68
7.12. Sale and Leaseback. 68
7.13. ERISA. 68
7.14. Subsidiaries. 68
7.15. Financial Covenants 69
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 70
8.1. Events of Default 70
8.2. Remedies Upon Event of Default 71
8.3. Application of Funds 72
ARTICLE IX ADMINISTRATIVE AGENT 73
9.1. Appointment and Authorization of Administrative Agent 73
9.2. Delegation of Duties 74
9.3. Liability of Administrative Agent 74
9.4. Reliance by Administrative Agent 74
9.5. Notice of Default 75
9.6. Credit Decision; Disclosure of Information by
Administrative Agent 75
9.7. Indemnification of Administrative Agent 76
9.8. Administrative Agent in its Individual Capacity 76
9.9. Successor Administrative Agent 76
9.10. Administrative Agent May File Proofs of Claim 77
9.11. Collateral and Guaranty Matters 78
9.12. Other Agents; Arrangers and Managers 79
ARTICLE X CONTINUING GUARANTY 79
10.1. Guaranty 79
10.2. No Termination 79
10.3. Waiver of Notices 79
10.4. Subrogation 79
10.5. Waiver of Suretyship Defenses 80
10.6. Exhaustion of Other Remedies Not Required 80
10.7. Reinstatement 80
10.8. Subordination 81
10.9. Stay of Acceleration 81
10.10. Condition of GEI 81
ARTICLE XI MISCELLANEOUS 81
11.1. Amendments, Etc. 81
11.2. Notices and Other Communications; Facsimile Copies 83
11.3. No Waiver; Cumulative Remedies 84
11.4. Attorney Costs, Expenses and Taxes 84
11.5. Indemnification by the Borrowers 84
11.6. Payments Set Aside 86
11.7. Successors and Assigns 86
11.8. Confidentiality 89
11.9. Set-off 90
11.10. Interest Rate Limitation 91
11.11. Counterparts 91
11.12. Integration 91
11.13. Survival of Representations and Warranties 91
11.14. Severability 91
11.15. Tax Forms 92
11.16. Replacement of Lenders. 93
11.17. Governing Law 94
11.18. Service of Process on GEI 94
11.19. Waiver of Right to Trial by Jury 96
11.20. Judgements In Foreign Currency 96
SCHEDULES
1.1 Existing Letters of Credit
2.1 Commitments and Pro Rata Shares
5.5 Supplement to Interim Financial Statements
5.6 Litigation
5.9 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
5.18 Intellectual Property
5.20 Filings Pursuant to the Pledge Agreement
5.22 Existing Indebtedness to be Repaid at Closing
7.1 Existing Liens
7.3 Existing Indebtedness Not to be Repaid at
Closing
11.2 Administrative Agent's Office, Certain
Addresses for Notices
EXHIBITS
Form of
A Revolving Loan Notice
B Swing Line Loan Notice
C-1 DeVry Note
C-2 GEI Note
D Compliance Certificate
E Assignment and Assumption
F-1 U.S. Subsidiary Guaranty
F-2 Offshore Subsidiary Guaranty
G Pledge Agreement
H Opinion Matters
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of May 16, 2003,
among DeVry Inc., a Delaware corporation ( "DeVry"), Global Education
International, Inc., a Barbados corporation ("GEI" and together with DeVry a
"Borrower" and collectively the "Borrowers"), each lender from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
DeVry has entered into the Dominica Purchase Agreement (hereinafter
defined) providing for, among other things, the acquisition of Dominica. In
connection therewith, the Borrowers have requested that the Lenders provide a
revolving credit facility, and the Lenders are willing to do so on the terms
and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.
-------------
"Acquired Entity" means any Person or assets, as the case may be,
acquired through an Acquisition.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of
any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary before giving effect to such merger or
consolidation, provided that DeVry or the Subsidiary is the surviving
entity).
"Acquisition Certificate" has the meaning specified in Section
4.1(a)(xii).
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 11.2, or such
other address or account as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
Without limiting the generality of the foregoing, a Person shall be deemed to
be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the
equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as
the Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate DeVry Commitments" means the Commitments of all Lenders to
DeVry.
"Aggregate GEI Commitments" means the Commitments of all Lenders to
GEI.
"Agreement" has the meaning specified in the introductory paragraph
hereto.
"Applicable Rate" means the following percentages per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.2(b):
Applicable Rate
-------------------------------------------------------------------------------
Eurodollar
Rate Loans
Pricing Consolidated Leverage and Letters
Level Ratio Commitment Fee Of Credit Base Rate Loans
-------------------------------------------------------------------------------
1 > 2.00:1 35 bps 175 bps 25 bps
2 > 1.50:1 but < 2.00:1 30 bps 150 bps 0 bps
3 > 1:00:1 but < 1.50:1 25 bps 125 bps 0 bps
4 > 0.50:1 but < 1.00:1 20 bps 100 bps 0 bps
5 < 0.50:1 17.5 bps 75 bps 0 bps
-------------------------------------------------------------------------------
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.2(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 1 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered. The
Applicable Rate in effect from the Closing Date through the date upon which
the initial Compliance Certificate is delivered pursuant to Section 6.2(b),
shall be determined based upon Pricing Level 2.
"Approved Fund" has the meaning specified in
Section 11.7(g).
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Asset Sale" shall mean any sale, transfer or other disposition by
DeVry or any of its Subsidiaries to any Person (including by way of
redemption by such Person) other than to DeVry or a Wholly-Owned Subsidiary
of DeVry of any asset (including, without limitation, any capital stock or
other securities of, or equity interests in, another Person); provided,
however, that the term Asset Sale shall not include (i) Dispositions
permitted under Section 7.5, or (ii) Sale and Leasebacks permitted under
Section 7.12.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses
and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of DeVry and its Subsidiaries for the fiscal year ended June 30, 2002,
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of DeVry and its
Subsidiaries, including the notes thereto.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.3(b)(iii).
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.6, and (c) the date of
termination of the commitment of each Lender to make Loans and of the
obligation of the of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.2.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. S 101, et. seq.).
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Revolving Loan" means a Revolving Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" means DeVry or GEI, as the context may require.
"Borrowers" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means (i) any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or
are in fact closed in Chicago, Illinois and the state where the
Administrative Agent's Office is located, and (ii) if such day relates to any
Eurodollar Rate Loan, any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Collateral Agent, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to the Pledge Agreement. Derivatives of such term
have corresponding meanings.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to
have "beneficial ownership" of all securities that such person or group
has the right to acquire (such right, an "option right"), whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of 25% or more of the equity securities of such
Person entitled to vote for members of the board of directors or
equivalent governing body of such Person on a fully-diluted basis (and
taking into account all such securities that such person or group has
the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of,
such Borrower.
Each Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with such Borrower's instructions or other irregularity, such
Borrower will immediately notify the L/C Issuer. Such Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None
of the L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any
Letter of Credit or Letter of Credit Application. Each Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude such Borrower from
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants
or assignees of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.3(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
applicable Borrower may have a claim against the L/C Issuer, and the L/C
Issuer may be liable to such Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by
such Borrower which such Borrower proves were caused by the L/C Issuer's
willful misconduct or gross negligence or the L/C Issuer's willful failure to
pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and
the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Letter of Credit Fees. Each Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a letter of credit fee for each Letter of Credit issued for
the account of such Borrower, such fee to be equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is in effect under such Letter of
Credit at the time such fee is payable). Such letter of credit fees shall be
computed on a quarterly basis in arrears. After the end of each March, June,
September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, such fees shall be due and payable one
Business Day after receipt by the Borrowers of an invoice for the same. If
there is any change in the Applicable Rate during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(h) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. Each Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit in the amounts
and at the times specified in the Fee Letter. In addition, each Borrower
shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit
as from time to time in effect. Such customary fees and standard costs and
charges are due and payable one Business Day after receipt by the Borrowers
of an invoice for the same and are nonrefundable.
(i) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(j) Removal of L/C Issuer. If (i) the L/C Issuer shall fail to issue
any Letters of Credit by reason of the conditions specified in Section
2.3(a)(ii)(A) or (C), or (ii) the L/C Issuer shall cease to have a minimum
long or short term credit rating of A or better from S&P or a long or short
term rating of A-3 or better from Xxxxx'x, the Borrowers may remove the L/C
Issuer by notice to the L/C Issuer, the Administrative Agent and the Lenders.
No removal of the L/C Issuer shall be effective prior to the acceptance by
another Lender hereunder of an appointment as L/C Issuer. Upon the
acceptance of an appointment as L/C Issuer, such successor shall succeed to
and become vested with all the interests, rights and obligations of the
retiring L/C Issuer and the retiring L/C Issuer shall be discharged from its
obligations to issue additional Letters of Credit hereunder. At the time
such removal shall become effective, the Borrowers shall pay all accrued and
unpaid fees pursuant to Section 2.3(g) and (h). The acceptance of an
appointment as L/C Issuer hereunder by a successor Lender shall be evidenced
by an agreement entered into by such successor, in a form satisfactory to the
Borrowers and the Administrative Agent, and, from and after the effective
date of such agreement, (a) such successor Lender shall have all the rights
and obligations of the previous L/C Issuer under this Agreement and the other
Loan Documents, and (b) references herein and in the other Loan Documents to
the term "L/C Issuer" shall be deemed to refer to such successor or to any
previous L/C Issuer, or to such successor and all previous L/C Issuers, as
the context shall require. After the removal of the L/C Issuer hereunder,
the retiring L/C Issuer shall remain a party hereto and shall continue to
have all the rights and obligations of an L/C Issuer under this Agreement and
the other Loan Documents with respect to Letters of Credit issued by it prior
to such resignation or removal, but shall not be required to issue additional
Letters of Credit.
2.4. Swing Line Loans.
----------------
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender shall make, in its sole discretion, loans (each
such loan, a "Swing Line Loan") to DeVry from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at
any time outstanding the amount of the Swing Line Sublimit (notwithstanding
the fact that such Swing Line Loans, when aggregated with the Pro Rata Share
of the Outstanding Amount of Revolving Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender's
Commitment); provided, however, that after giving effect to any Swing Line
Loan,
(i) the Total Outstandings shall not exceed the Aggregate
Commitments,
(ii) (A) the DeVry Total Outstandings shall not exceed the
Aggregate DeVry Commitments, and (B) the aggregate Outstanding Amount
of the Revolving Loans of any Lender to DeVry, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations of DeVry,
plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans, shall not exceed such Lender's Commitment to DeVry,
and
(iii) (A)the GEI Total Outstandings shall not exceed the Aggregate
GEI Commitments, and (B) the aggregate Outstanding Amount of the
Revolving Loans of any Lender to GEI, plus such Lender's Pro Rata Share
of the Outstanding Amount of all L/C Obligations of GEI, shall not
exceed such Lender's Commitment to GEI,
and provided, further, that DeVry shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, DeVry may
borrow under this Section 2.4, prepay under Section 2.5, and reborrow under
this Section 2.4. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender's Pro Rata Share times the amount of such
Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
DeVry's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 12:00
(noon) on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of DeVry. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice,
the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior
to 12:00 (noon) on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result
of the limitations set forth in the proviso to the first sentence of Section
2.4(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 2:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing
Line Loan available to DeVry at its office by crediting the account of DeVry
on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
-------------------------------
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of DeVry (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that
each Lender make a Base Rate Revolving Loan in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Revolving Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.2, without
regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.2. The
Swing Line Lender shall furnish DeVry with a copy of the applicable
Revolving Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent's
Office not later than 12:00 (noon) on the day specified in such
Revolving Loan Notice, whereupon, subject to Section 2.4(c)(ii), each
Lender that so makes funds available shall be deemed to have made a
Base Rate Revolving Loan to DeVry in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Borrowing in accordance with Section 2.4(c)(i), the request for
Base Rate Revolving Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant
Swing Line Loan and each Lender's payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.4(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to
be paid by such Lender pursuant to the foregoing provisions of this
Section 2.4(c) by the time specified in Section 2.4(c)(i), the Swing
Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the Swing Line Lender submitted to
any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv> Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.4(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, DeVry or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation
to make Revolving Loans pursuant to this Section 2.4(c) is subject to
the conditions set forth in Section 4.2. No such funding of risk
participations shall relieve or otherwise impair the obligation of
DeVry to repay Swing Line Loans, together with interest as provided
herein.
(v) Notwithstanding the foregoing provisions of this Section 2.4,
the Swing Line Lender shall not make any Swing Line Loan after the
Swing Line Lender has received written notice from any Lender (which
Lender shall promptly notify the Administrative Agent and the other
Lenders of such notice) specifying that a Default or an Event of
Default has occurred and is continuing, describing the nature thereof
and stating that, as a result thereof, such Lender shall cease to make
Revolving Loans or purchase participating interests with respect to
Swing Line Loans, as the case may be, and no Lender will be required to
make Revolving Loans or to purchase participating interests, as the
case may be, with respect to any Swing Line Loan made after the Swing
Line Lender has received such notice; provided, however, that the Swing
Line Lender may resume making Swing Line Loans and the obligations of
the Lenders to make Revolving Loans and purchase such participating
interests with respect to Swing Line Loans shall be reinstated upon the
earlier to occur of (x) the date upon which such Lender notifies the
Swing Line Lender (with prompt written notice to the Administrative
Agent and the other Lenders) that its prior notice is withdrawn and (y)
the date upon which the Default or Event of Default specified in such
notice is no longer continuing.
(d) Repayment of Participations.
---------------------------
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was
funded) in the same funds as those received by the Swing Line Lender.
(ii>If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned
by the Swing Line Lender under any of the circumstances described in
Section 11.6 (including pursuant to any settlement entered into by the
Swing Line Lender in its discretion), each Lender shall pay to the
Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing DeVry for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Revolving Loan or risk
participation pursuant to this Section 2.4 to refinance such Lender's Pro
Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. DeVry shall make all
payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
(g) Swing Loans in Administrative Agent's Discretion. Notwithstanding
anything in this Agreement to the contrary (including Section 4.2), all Swing
Loans shall be made at the sole discretion of the Swing Line Lender.
2.5. Prepayments.
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(a) The Borrowers may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Revolving Loans in whole or in
part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 10:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and
(B) on the date of prepayment of Base Rate Revolving Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Revolving Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case,
if less, the entire principal amount thereof then outstanding. Each such
notice shall specify the date and amount of such prepayment and the Type(s)
of Revolving Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of
such Lender's Pro Rata Share of such prepayment. If such notice is given by
a Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by
all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.5. Each such prepayment shall be applied to the
Revolving Loans of the Lenders in accordance with their respective Pro Rata
Shares.
(b) DeVry may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 12:00 (noon) on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by DeVry, DeVry shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.
(c) If for any reason the Total Outstandings of either Borrower at any
time exceed the Aggregate Commitments then in effect to such Borrower, DeVry
shall immediately prepay Loans in an aggregate amount equal to such excess;
provided, however, that DeVry shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.5(c) unless after the prepayment
in full of the Revolving Loans and Swing Line Loans the Total Outstandings
exceed the Aggregate Commitments then in effect.
2.6. Termination or Reduction of Commitments.
---------------------------------------
(a) On June 30, 2004, the Aggregate DeVry Commitments shall be reduced
by $25,000,000.
(b) If DeVry or any Subsidiary (other than GEI or any Offshore
Subsidiary) consummates any Asset Sale, the Aggregate DeVry Commitments shall
be reduced by the amount of the Net Cash Proceeds from such Asset Sale. If
GEI or any Offshore Subsidiary consummates any Asset Sale, the Aggregate GEI
Commitments shall be reduced by the amount of the Net Cash Proceeds from such
Asset Sale. Each reduction under this Section 2.6(b) shall be effective
immediately upon receipt thereof by DeVry or any Subsidiary of the Net Cash
Proceeds giving rise thereto and shall be in addition to the scheduled
commitment reduction amounts set forth in Section 2.6(a).
(c) Either Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Commitments to such Borrower, or from time to time
permanently reduce the Aggregate Commitments to such Borrower; provided that
(i) any such notice shall be received by the Administrative Agent not later
than 10:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii)
neither Borrower shall terminate or reduce the Aggregate Commitments to such
Borrower if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings of such Borrower would exceed the Aggregate
Commitments to such Borrower, (iv) if, after giving effect to any reduction
of the Aggregate DeVry Commitments, the DeVry Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate DeVry
Commitments, the DeVry Letter of Credit Sublimit shall be automatically
reduced by the amount of such excess, and (v) if, after giving effect to any
reduction of the Aggregate GEI Commitments, the GEI Letter of Credit Sublimit
exceeds the amount of the Aggregate GEI Commitments, the GEI Letter of Credit
Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments.
(d) Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share. All commitment
fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.
2.7. Repayment of Loans.
------------------
(a) Each Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of its Revolving Loans outstanding on such date.
(b) DeVry shall repay each Swing Line Loan on the earlier to occur of
(i) the date five Business Days after such Loan is made and (ii) the Maturity
Date.
2.8. Interest.
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(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
Revolving Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.
(b) If any principal amount payable by the Borrowers (or either of
them) under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Furthermore, upon the request of the
Required Lenders, while any Event of Default exists, each Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder
then owing by it at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.9. Fees. In addition to certain fees described in subsections (g)
and (h) of Section 2.3:
(a) Commitment Fee. DeVry shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a commitment
fee equal to the Applicable Rate times the actual daily amount by which the
Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The
commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article
IV is not met. The commitment fee shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on
the Maturity Date, provided that if DeVry has not received an invoice for
such fees, such fees shall be due one Business Day after receipt of an
invoice therefore. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees. (i) DeVry shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter (it being understood that such
fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever), and (ii) DeVry shall pay to the Lenders such fees as
shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.
2.10. Computation of Interest and Fees.
--------------------------------
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-
day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.12(a), bear interest
for one day.
2.11. Evidence of Debt.
----------------
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made
by the Lenders to each Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of each Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the
Administrative Agent, each Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and
sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
2.12. Payments Generally.
------------------
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
(or either of them) hereunder shall be made to the Administrative Agent, for
the account of the respective Lenders to which such payment is owed, at the
Administrative Agent's Office in Dollars and in immediately available funds
not later than 1:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender's Lending Office. All payments
received by the Administrative Agent after 1:00 p.m. shall be deemed received
on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) If any payment to be made by the Borrower s (or either of them)
shall come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(c) Unless either Borrower or any Lender has notified the Administra-
tive Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that such Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to
the extent that such payment was not in fact made to the Administrative Agent
in immediately available funds, then:
(i) if such Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of
such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to such Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Revolving Loan included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon DeVry, and DeVry
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the Administrative Agent or DeVry may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or DeVry with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Revolving Loans
and to fund participations in Letters of Credit and Swing Line Loans are
several and not joint. The failure of any Lender to make any Revolving Loan
or to fund any such participation on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Revolving Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds
for any Loan in any particular place or manner.
2.13. Sharing of Payments.
-------------------
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Revolving Loans made by it, or the participations in
L/C Obligations or in Swing Line Loans held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Revolving Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line
Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Revolving
Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.6 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall
to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of
(i) the amount of such paying Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total
amount so recovered, without further interest thereon. Each Borrower agrees
that any Lender so purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.9) with respect to
such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation. The Administrative Agent
will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section 2.13 and will
in each case notify the Lenders following any such purchases or repayments.
Each Lender that purchases a participation pursuant to this Section 2.13
shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent
as though the purchasing Lender were the original owner of the Obligations
purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1. Taxes.
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(a) Any and all payments by the Borrowers to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding, in the
case of the Administrative Agent and each Lender, taxes imposed on or
measured by its overall net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent or such Lender, as
the case may be, is organized or maintains a lending office (all such non-
excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred
to as "Taxes"). If either Borrower shall be required by any Laws to deduct
any Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, (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 3.1(a)), each of the Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions, (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, such Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof. The
Obligations of the Borrowers under this Section 3.1 are subject to the
provisions of Section 11.16.
(b) In addition, each Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under
any Loan Document or from the execution, delivery, performance, enforcement
or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
(c) If either Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time
interest is paid, such additional amount that the Administrative Agent or
such Lender specifies is necessary to preserve the after-tax yield (after
factoring in all taxes, including taxes imposed on or measured by net income)
that the Administrative Agent or such Lender would have received if such
Taxes or Other Taxes had not been imposed.
(d) Each Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes
or Other Taxes imposed or asserted by any jurisdiction on additional amounts
payable under this Section 3.1) paid by the Administrative Agent and such
Lender with respect to payments made by a Borrower hereunder, (ii) amounts
payable under Section 3.1(c), and (iii) any liability (including additions to
tax, penalties, interest and expenses arising therefrom or with respect
thereto, but excluding penalties, interest and expenses imposed or asserted
on account of the bad faith or willful neglect of the Administrative Agent or
such Lender). Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand
therefor.
3.2. Illegality.
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If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, then, on notice thereof by such Lender to the applicable Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the applicable Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the applicable
Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such Lender may
not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the applicable Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.
3.3. Inability to Determine Rates.
----------------------------
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate
Loan, or that the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the applicable Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. Upon receipt of such notice,
the applicable Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of
Base Rate Loans in the amount specified therein.
3.4. Increased Cost and Reduced Return; Capital Adequacy.
---------------------------------------------------
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's
compliance therewith, after the date hereof, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Loans or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable by
such Lender in connection with any of the foregoing (excluding for purposes
of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.1 shall
govern), (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender
is organized or has its Lending Office, and (iii) reserve requirements
utilized in the determination of the Eurodollar Rate, then from time to time
upon demand of such Lender (with a copy of such demand to the Administrative
Agent)), DeVry shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, after the date
hereof, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital),
then from time to time upon demand of such Lender (with a copy of such demand
to the Administrative Agent), DeVry shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
3.5. Funding Losses.
--------------
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, DeVry shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by either Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
such Borrower, including any loss of anticipated profits and any loss or
expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. For purposes of calculating amounts payable
by such Borrower to the Lenders under this Section 3.5, each Lender shall be
deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.6. Matters Applicable to all Requests for Compensation.
---------------------------------------------------
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) To the extent reasonably possible, each Lender shall designate an
alternate Lending Office with respect to its Eurodollar Rate Loans to reduce
any liability of the Borrowers to such Lender under Sections 3.1 and 3.4
and/or to avoid suspension of such Lender's obligation to make Eurodollar
Rate Loans under Section 3.2, as long as such designation is not, in the
judgement of such Lender, disadvantageous to such Lender.
(c) Upon any Lender's making a claim for compensation under Section 3.1
or 3.4 or any exercise by such Lender of its rights not to make Eurodollar
Rate Loans under Section 3.2, the Borrowers may replace such Lender in
accordance with Section 11.16.
3.7. Survival.
--------
The obligations of each Borrower under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.1. Conditions of Initial Credit Extension.
--------------------------------------
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent
(except with respect to non-material matters or items with respect to which
DeVry has given assurances satisfactory to the Administrative Agent that such
items shall be delivered promptly following the Closing Date):
(a) The Administrative Agent's (or in the case of items (iii), (iv) and
(v) the Collateral Agent's) receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer or Senior
Responsible Officer of the signing Loan Party, each dated the Closing Date
(or, in the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, the U.S. Subsidiary
Guaranty, the Offshore Guaranty, and the Pledge Agreement, in
sufficient number for distribution to the Administrative Agent, each
Lender and the Borrowers;
(ii) as to each Borrower, a Note executed by such Borrower in favor
of each Lender requesting a Note;
(iii) share certificates representing the Collateral pledged under
the Pledge Agreement, together with stock powers executed in blank;
(iv) evidence of the filing in the appropriate offices of UCC
financing statements in the name of each Loan Party which is a pledgor
under the Pledge Agreement (as debtor) and the Collateral Agent (as
secured party) describing the Collateral under the Pledge Agreement;.
(v) such UCC search reports as the Administrative Agent or the
Collateral Agent shall have requested;
(vi) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(vii) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each of the Loan Parties is validly
existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(viii) favorable opinions of (A) Xxxxxxxx X. Xxxxx, General Counsel
of DeVry and Mayer, Brown, Xxxx & Maw special counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, as to
the matters set forth in Exhibits H-1 and H-2 and (B) Xxxxxx, Xxxxxxx &
Xxxxxx Barbados counsel to the Loan Parties;
(ix) copies of all opinions of counsel, if any, addressed and
delivered to DeVry pursuant to the Dominica Purchase Agreement,
together with reliance letters to the effect that the Administrative
Agent and the Lenders may rely on such opinions as if addressed to
them;
(x) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(xi) a certificate (the "Closing Certificate") signed by a Senior
Responsible Officer of DeVry to the effect that (A) the conditions
specified in Sections 4.2(a) and (b) have been satisfied, (B) there has
been no event or circumstance since March 31, 2003 that has had or
could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; (C) attached thereto is a
calculation of the financial tests set forth in Section 7.15 (such
calculation to be as of the last day of the period of four consecutive
fiscal quarters of DeVry most recently ended prior to the Closing Date
and to be on a proforma basis as if the Dominica Acquisition had been
consummated at the beginning of such period), and (D) the unutilized
Aggregate Commitments shall not be less than $25,000,000 after giving
effect to the consummation of the Dominica Acquisition, the incurrence
of all Indebtedness under this Agreement and the Senior Notes on the
Closing Date, and the repayment of the Existing Indebtedness;
(xii) a certificate (the "Acquisition Certificate") signed by a
Senior Responsible Officer of DeVry to the effect that concurrently
therewith, (A) the conditions in Section 2.01(a) through 2.01(l) of
the Dominica Purchase Agreement have been satisfied, without waiver
thereof, (B) the Dominica Acquisition has been consummated
substantially in accordance with the terms of the Dominica Acquisition
Documents, and in compliance with applicable Laws, (C) all Existing
Indebtedness has been repaid, all Liens (if any) securing such Existing
Indebtedness have been released, and all commitments to extend credit
pursuant to any agreement giving rise to such Existing Indebtedness
have been terminated, (D) the Dominica Acquisition Documents have not
been materially altered, amended or changed or supplemented or any
condition therein waived, in each case in a manner adverse to the
Lenders (without the prior written consent of the Administrative Agent
and the Arranger), and (E) attached thereto is a copy of the Dominica
Purchase Agreement (together with related schedules and exhibits);
(xiii) a certificate (the "Senior Note Funding Certificate") signed
by a Responsible Officer of DeVry to the effect that (A) attached
thereto is a true and correct copy of the Senior Note Purchase
Agreement, and (B) the Senior Notes have been issued in an aggregate
principal amount of not less than $125,000,000, (C) concurrently
therewith, the Borrowers have received proceeds of the Senior Notes in
an amount not less than the aggregate principal amount thereof (less
fees and related expenses), and (D) concurrently therewith, all fees
and expenses then due and owing in connection with the issuance of the
Senior Notes have been paid;
(xiv) evidence that the Existing Credit Agreement has been or
concurrently with the Closing Date is being terminated and all Liens
(if any) securing obligations under the Existing Credit Agreement have
been or concurrently with the Closing Date are being released;
(xv) such other evidence of the accuracy of the certifications in
the Closing Certificate, the Acquisition Certificate, and the Senior
Note Funding Certificate as the Administrative Agent shall have
requested; and
(xvi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
(b) Any and all fees and expenses required to be paid on or before the
Closing Date (including any and all fees and expenses in respect of this
Agreement, the Fee Letter and the Senior Note Purchase Agreement), shall have
been paid.
(c) Unless waived by the Administrative Agent, DeVry shall have paid all
Attorney Costs of the Administrative Agent to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between DeVry and
the Administrative Agent).
4.2. Conditions to all Credit Extensions.
-----------------------------------
The obligation of each Lender to honor any Request for Credit Extension
(other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans to the other Type, or a continuation of Eurodollar Rate Loans) is
subject to the following conditions precedent:
(a) The representations and warranties of the Borrowers and each other
Loan Party contained in Article V of this Agreement or in any other Loan
Document, or which are contained in any document furnished at any time under
or in connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such Credit Extension, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date, and except that for purposes of this Section 4.2, the representations
and warranties contained in subsections (a) and (b) of Section 5.5 shall be
deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.1.
(b) No Default shall exist, or would result from such proposed Credit
Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by either Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.2(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower jointly and severally represents and warrants to the
Administrative Agent and the Lenders that:
5.1. Existence, Qualification and Power; Compliance with Laws.
--------------------------------------------------------
Each Loan Party (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws; except in
each case referred to in clause (b)(i), (c) or (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.2. Authorization; No Contravention.
-------------------------------
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien (other than Liens under the Loan Documents) under, (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any
Law.
5.3. Governmental Authorization; Other Consents.
------------------------------------------
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person not
previously obtained or made is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party
of this Agreement or any other Loan Document other than filings in connection
with the Pledge Agreement.
5.4. Binding Effect.
--------------
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party
that is party thereto. This Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, except as such enforceability may
be limited by (i) applicable Debtor Relief Laws and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5.5. Financial Statements; No Material Adverse Effect.
------------------------------------------------
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; (ii) fairly present the financial
condition of DeVry and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness
and other liabilities, direct or contingent, of DeVry and its Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.
(b) The unaudited consolidated financial statements of DeVry and its
Subsidiaries dated March 31, 2003 and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, (ii) fairly present the financial
condition of DeVry and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments and (iii) except as set forth on Schedule 5.5, show all
material indebtedness and other liabilities, direct or contingent, of DeVry
and its consolidated Subsidiaries as of the date of such financial
statements, including liabilities for taxes, material commitments and
Indebtedness.
(c) Since March 31, 2003 (and solely with respect to information not
disclosed in DeVry's quarterly SEC filings for the quarters ended September
30, 2002, December 31, 2002 and March 31, 2003), and after giving effect to
the Dominica Acquisition, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
5.6. Litigation.
----------
Except as specifically disclosed in Schedule 5.6, there are no actions,
suits, proceedings, claims or disputes pending or, to the knowledge of DeVry
after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against
DeVry or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document or the Dominica Purchase Agreement, or any of the transactions
contemplated hereby, or (b) either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a Material Adverse
Effect.
5.7. No Default.
----------
Neither DeVry nor any Subsidiary is in default under or with respect to
any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing or would result from the consummation
of the transactions contemplated by this Agreement or any other Loan
Document.
5.8. Ownership of Property; Liens.
----------------------------
Each of DeVry and each Subsidiary has good and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The property of DeVry and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.1.
5.9. Environmental Compliance.
------------------------
DeVry and its Subsidiaries conduct in the ordinary course of business a
review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law
on their respective businesses, operations and properties, and as a result
thereof DeVry has reasonably concluded that, except as specifically disclosed
in Schedule 5.9, such Environmental Laws and claims could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
5.10. Insurance.
---------
The properties of DeVry and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of DeVry,
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 DeVry or the applicable Subsidiary
operates.
5.11. Taxes.
-----
DeVry and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income
or assets otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against DeVry or any Subsidiary that would, if made,
have a Material Adverse Effect.
5.12. ERISA Compliance.
----------------
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto
and, to the best knowledge of DeVry, nothing has occurred which would
prevent, or cause the loss of, such qualification.
(b) There are no pending or, to the best knowledge of DeVry, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) None of the Borrowers, any Subsidiary, or any ERISA Affiliate is a
party to, participates in or has any liability with respect to any Pension
Plan or any other plan subject to Section 412 of the Code.
(d) None of the Borrowers, any Subsidiary, or any ERISA Affiliate has
incurred withdrawal liabilities (or is subject to contingent withdrawal
liabilities) (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Section
4201, 4204 or 4243 of ERISA with respect to a Multiemployer Plan.
5.13. Subsidiaries.
------------
As of the Closing Date, DeVry has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part(b) of Schedule 5.13. Schedule 5.13 correctly sets forth,
as of the Closing Date, (i) the percentage ownership (direct or indirect) of
DeVry in each class of capital stock or other equity of each of its
Subsidiaries and also identifies the direct owner thereof and (ii) the
jurisdiction of organization of each such Subsidiary. Schedule 5.13
identifies (by an asterisk) each Subsidiary (if any) which is a Dormant
Subsidiary. Set forth in Schedule 5.13 is a true and correct organization
chart showing DeVry and its Subsidiaries after giving effect to the Dominica
Acquisition and the Reorganization.
5.14. Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
-----------------------------------------------------------
(a) Neither Borrower is engaged or will engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of DeVry, any Person Controlling DeVry, or any Subsidiary (i)
is a "holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15. Dominica Purchase Agreement.
---------------------------
DeVry has furnished to the Administrative Agent a true and correct copy
of the Dominica Purchase Agreement.
5.16. Disclosure.
----------
Each Borrower has disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which it
or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of (a) the Confidential Offering
Memorandum or (b) any report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, as set forth in the Confidential
Offering Memorandum, each Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at
the time.
5.17. Compliance with Laws.
--------------------
DeVry and each Subsidiary is in compliance in all material respects
with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect. Without limiting the generality of the foregoing, all of the
operations of DeVry and each Subsidiary are in compliance with (i) all Laws
the violation of which would terminate or materially impair the eligibility
of DeVry or any Subsidiary for participation, if applicable, in student
financial assistance programs under Title IV, (ii) the Federal Truth-in-
Lending Act, 15 U.S.C. S 1601 et seq., and all other consumer credit laws
applicable to DeVry or any Subsidiary in connection with the advancing of
student loans, except for such laws and regulations the violation of which,
in the aggregate, will not have a Material Adverse Effect, (iii) all
statutory and regulatory requirements for authorization to provide post-
secondary education in the jurisdictions in which its educational facilities
are located, except for such requirements the violation of which would not
have a Material Adverse Effect, and (iv) if applicable, all requirements for
continuing its accreditations from the North Central Association of Schools
and Colleges, except for such requirements the violation of which would not
have a Material Adverse Effect.
5.18. Intellectual Property; Licenses, Etc.
-------------------------------------
DeVry and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively,
"IP Rights") that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person.
To the best knowledge of DeVry, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by DeVry or any Subsidiary infringes upon
any rights held by any other Person except as disclosed in Schedule 5.18. No
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of DeVry, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.19. Guaranties.
----------
Each U.S. Subsidiary (other than a Dormant Subsidiary) has executed and
delivered to the Administrative Agent a U.S. Subsidiary Guaranty; and each
Offshore Subsidiary (other than GEI) has duly executed and delivered to the
Administrative Agent an Offshore Subsidiary Guaranty.
5.20. Pledge Documents.
----------------
Each Subsidiary which owns any capital stock or other equity interest
in any other Subsidiary has duly executed and delivered the Pledge Agreement.
The Pledge Agreement is effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral and, when the Collateral is
delivered to the Collateral Agent (and the appropriate filings or other
action specified in Schedule 5.20 are made), the Pledge Agreement shall
constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the pledgors thereunder in such
Collateral, in each case prior and superior in right to any other person.
5.21. Solvency.
--------
Immediately after the consummation of the transactions to occur on the
Closing Date and immediately following the making of each Loan and after
giving effect to the application of the proceeds of such Loans, (a) the fair
value of the assets of the Loan Parties, at a fair valuation, will exceed
their debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of the Loan Parties will be
greater than the amount that will be required to pay the probable liability
of their debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (c) each
Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party will not have unreasonably small capital
with which to conduct the business in which it is engaged as such business is
now conducted and is proposed to be conducted following the Closing Date.
Subject to Section 7.2 (last sentence), the provisions of this Section 5.21
shall not apply to DeVry Canada, LLC, DeVry Leasing Corp. and DeVry
Educational Products, Inc.
5.22. Existing Indebtedness.
---------------------
Schedule 5.22 sets forth a complete and accurate list of all
Indebtedness of DeVry or any Subsidiary, which is to be repaid on the Closing
Date.
5.23. Pari-Passu Obligations.
----------------------
The Obligations of each Borrower are pari-passu in the event of
insolvency with the Senior Notes issued by such Borrower and are secured on
an equal and ratable basis with the holders of the Senior Notes. The
Barbados Courts (or other applicable jurisdictions in the case of any
Offshore Subsidiary) will rank the obligations of GEI or any Offshore
Subsidiary Guarantor under the GEI Notes or the Offshore Subsidiary Guaranty
at least pari passu with all unsecured and unsubordinated indebtedness of GEI
or such Offshore Subsidiary Guarantor in the event such Person becomes
insolvent or bankrupt and a custodian, liquidator, trustee or receiver is
appointed for the major part of the property of such entity.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, DeVry shall, and shall (except in the
case of the covenants set forth in Sections 6.1, 6.2, 6.3 and 6.11) cause
each Subsidiary to:
6.1. Financial Statements.
--------------------
Deliver to the Administrative Agent, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of DeVry, a consolidated balance sheet of DeVry and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and
shall not be subject to any "going concern" or like qualification or
exception or any qualification or exception as to the scope of such audit;
and
(b) as soon as available, but in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of DeVry, a
consolidated balance sheet of DeVry and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and
for the portion of DeVry's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of
DeVry as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of DeVry and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and
the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.2(d), DeVry shall not be separately required to furnish such information
under clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of DeVry to furnish the information and materials described
in subsections (a) and (b) above at the times specified therein.
6.2. Certificates; Other Information.
-------------------------------
Deliver to the Administrative Agent, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.1(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making
the examination necessary therefor no knowledge was obtained of any Default
under the financial covenants set forth herein or, if any such Default shall
exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referre
to in Sections 6.1(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of DeVry;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of DeVry by independent accountants in connection
with the accounts or books of DeVry or any Subsidiary, or any audit of any of
them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication of a
financial nature sent to the stockholders of DeVry, and copies of all annual,
regular, periodic and special reports and registration statements which DeVry
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered
to the Administrative Agent pursuant hereto; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of DeVry or any Subsidiary, or compliance with
the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.1(a) or (b) or
Section 6.2(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
DeVry posts such documents, or provides a link thereto on DeVry's website on
the Internet at the website address listed on Schedule 11.2; or (ii) on which
such documents are posted on DeVry's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) DeVry shall
deliver paper copies of such documents to the Administrative Agent for any
Lender that requests DeVry to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent
and (ii) DeVry shall notify (which may be by facsimile or electronic mail)
the Administrative Agent of the posting of any such documents and provide to
the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in
every instance DeVry shall be required to provide paper copies of the
Compliance Certificates required by Section 6.2(b) to the Administrative
Agent. Promptly upon receipt of any certificate or other information
pursuant to this Section 6.2, the Administrative Agent shall furnish a copy
thereof to each Lender or post a copy thereof on IntraLinks/IntraAgency or
another relevant website for access thereto by each Lender.
6.3. Notices.
-------
Promptly notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a Contractual Obligation of DeVry or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between DeVry or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or
proceeding affecting DeVry or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by DeVry or any Subsidiary; and
(e) of the occurrence of any proposed Asset Sale pursuant to
Section 2.6(b).
Each notice pursuant to this Section 6.3 shall be accompanied by a statement
of a Responsible Officer of DeVry setting forth details of the occurrence
referred to therein and stating what action DeVry has taken and proposes to
take with respect thereto. Each notice pursuant to Section 6.3(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached. Promptly upon receipt of any
notice pursuant to this Section 6.3, the Administrative Agent shall furnish a
copy thereof to each Lender or post a copy thereof on IntraLinks/IntraAgency
or another relevant website for access thereto by each Lender.
6.4. Payment of Obligations.
----------------------
Pay and discharge as the same shall become due and payable all material
taxes, assessments and other material liabilities except as contested in good
faith and by appropriate proceedings with respect to which reserves have been
established and are being maintained in accordance with GAAP, except where
the failure to pay would not have a Material Adverse Effect.
6.5. Preservation of Existence, Etc.
-------------------------------
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.4 or 7.5 (other
than Dormant Subsidiaries); (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect; and
(c) preserve or renew all of its registered patents, trademarks, trade names
and service marks, the non-preservation of which could reasonably be expected
to have a Material Adverse Effect.
6.6. Maintenance of Properties.
-------------------------
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear excepted; and (b) make all necessary
repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.7. Maintenance of Insurance.
------------------------
Maintain with financially sound and reputable insurance companies not
Affiliates of DeVry, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.
6.8. Compliance with Laws.
--------------------
Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith
by appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
Without limiting the generality of the foregoing, DeVry will, and will cause
each Subsidiary to, comply with (i) all applicable Laws, the violation of
which would terminate or materially impair the eligibility of DeVry or any
Subsidiary for participation, if applicable, in student financial assistance
programs under Title IV, (ii) the federal Truth-in-Lending Act, 15 U.S.C. S
1601 et seq., and all other consumer credit laws applicable to DeVry or any
Subsidiary in connection with the advancing of student loans, except for such
laws and regulations the violation of which, in the aggregate, will not
result in the assessment of penalties and damages claims against DeVry or any
Subsidiary which could have a Material Adverse Effect, (iii) all statutory
and regulatory requirements for authorization to provide post-secondary
education in the jurisdictions in which its educational facilities are
located, except for such requirements the violation of which will not have a
Material Adverse Effect, and (iv) if applicable, all requirements for
continuing its accreditations from the North Central Association of Schools
and Colleges, except for such requirements the violation of which will not
have a Material Adverse Effect.
6.9. Books and Records.
-----------------
(a) Maintain proper books of record and account, in which materially
complete and accurate entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets
and business of DeVry or such Subsidiary, as the case may be; and (b)
maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over DeVry or such Subsidiary, as the case may be.
6.10. Inspection Rights.
-----------------
Permit representatives and independent contractors of the
Administrative Agent and each Lender (at their expense, so long as no Event
of Default exists) to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, at such
reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to DeVry; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of DeVry at any time
during normal business hours and without advance notice.
6.11. Use of Proceeds.
---------------
Use the proceeds of the Credit Extensions to (i) finance the Dominica
Acquisition, (ii) support the issuance of standby letters of credit, (iii)
finance working capital and capital expenditures, and (iv) for other general
corporate purposes not in contravention of any Law or of any Loan Document.
In no event will the proceeds of any Credit Extension be used to prepay,
redeem or defease the Senior Notes.
6.12. Additional Guarantors.
---------------------
(a) Cause each U.S. Subsidiary (including any U.S. Subsidiary which
converts from a Dormant Subsidiary to a non-Dormant Subsidiary) to forthwith
execute and deliver a U.S. Subsidiary Guaranty; and
(b) Notify the Administrative Agent at the time that any Person becomes
a Subsidiary after the date hereof (such notice to specify whether such
Subsidiary is a U.S. Subsidiary or an Offshore Subsidiary), and promptly
thereafter (and in any event within 30 days), (i) if such Person is a U.S.
Subsidiary (other than a Dormant Subsidiary) cause such Person to become a
U.S. Guarantor by executing and delivering to the Administrative Agent a
counterpart of the U.S. Guaranty, and (ii) if such Person is an Offshore
Subsidiary, to the extent permitted by Law, cause such Person to become a
Offshore Guarantor by executing and delivering to the Administrative Agent a
counterpart of the Offshore Guaranty,
Each Guaranty executed pursuant to this Section 6.12 is to be accompanied by
such supporting documents of the types referred to in Section 4.1(a)(vi) and
(vii) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability
of U.S. Guaranty), all in form, content and scope reasonably satisfactory to
the Administrative Agent.
6.13. Pledgors.
--------
(a) Cause each Subsidiary (whether now or hereafter existing) which
owns any stock (or equity interest) in any Subsidiary (other than a Dormant
Subsidiary of a U.S. Subsidiary) to be a party to the Pledge Agreement, and
(b) pursuant to the terms of the Pledge Agreement, grant or cause to be
granted to the Collateral Agent, a first priority perfected security interest
in such stock (or equity interest), subject to the following: (i) 100% of the
stock of (or equity interest in) each U.S. Subsidiary shall secure all Senior
Debt, (ii) 65% of the stock of (or equity interest in) any first tier
Offshore Subsidiary (or first tier Special Non-U.S. Subsidiary formed
pursuant to Section 7.14) shall secure the Senior Debt, (iii) 100% of the
stock of (or equity interest in) each Offshore Subsidiary (and each Special
Non-U.S. Subsidiary) shall secure the Senior Debt of GEI (but not the Senior
Debt of DeVry), and (iv) the pledge of any stock of (or equity interest in)
any Offshore Subsidiary shall only be required hereunder to the extent
permitted by Law. In the case of any Subsidiary created after the date
hereof, DeVry shall cause the pledge of the stock (or equity interest) to be
effected within 30 days of the date of creation.
(b) Notwithstanding any provision of this Section 6.13 or any other
provision of this Agreement to the contrary, it is understood that as of the
Closing Date the capital stock of or equity interest in RUSOV (the "RUSOV
Stock") shall not be required to be pledged pursuant to the Pledge Agreement,
it being understood that at any time (whether or not a Default or Event of
Default then exists), the Required Lenders may request that DeVry cause the
RUSOV Stock to be pledged as security for the Senior Debt of GEI, whereupon
within 30 days of such request DeVry shall (and hereby agrees that it will)
cause all of the RUSOV Stock to be pledged as Offshore Stock (under and as
defined in) the Pledge Agreement (such pledge to be accompanied by such
documents and/or the taking of such action in connection therewith, as the
Administrative Agent or the Collateral Agent shall require pursuant to
Section 6.15(c)).
(c) In connection with the pledge of stock or equity interests pursuant
to the Pledge Agreement, DeVry agrees that it will from time to time upon
request of the Administrative Agent, at DeVry's expense, deliver or cause to
be delivered to the Collateral Agent such pledge supplements, share
certificates, stock powers, opinions of counsel, and other documents, and
take or cause to be taken such other action (including the action identified
in Schedule 5.20, the filing of documents, and the payment of taxes and
charges) as the Administrative Agent or Collateral Agent shall request.
6.14. Pari-Passu Obligations.
----------------------
If at any time the Borrowers or any Subsidiary shall grant to any one
or more of the Collateral Agent or any holder of Senior Notes additional
security or collateral of any kind pursuant to the requirements of the Note
Purchase Agreement, then the Borrowers or such Subsidiary shall grant to the
Collateral Agent the same security or collateral so that the Lenders shall at
all times be pari passu with the holders of the Senior Notes and shall be
secured on an equal and ratable basis with the holders of the Senior Notes.
6.15. Post Closing Items.
------------------
Within 45 days after the Closing Date, furnish to the Administrative
Agent opinions of local counsel in the jurisdictions of Dominica, St. Kitts
and St. Lucia with respect to the Loan Parties which are Offshore
Subsidiaries, such opinions to (i) address such matters as the Administrative
Agent may request (including, without limitation, the matters set forth in
Sections 5.1, 5.2, 5.3, 5.4, 5.19 and 5.20 and the payment of taxes and
completion of Collateral filings) and (ii) be in form and substance
satisfactory to the Administrative Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, DeVry shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.1. Liens.
-----
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens in favor of the Collateral Agent pursuant to the Pledge
Agreement;
(b) Liens existing on the date hereof and listed on Schedule 7.1 and
any renewals or extensions thereof, provided that the property covered
thereby is not increased and any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 7.3(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under Section 8.1(h) or securing appeal or other surety
bonds related to such judgments;
(i) Liens securing Indebtedness permitted under Section 7.3(e);
provided that (i) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness and (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition; and
(j) Liens on bank accounts of DeVry established pursuant to the
Xxxxxxxx Loan Program securing obligations of DeVry to pay fees and repurchase
Xxxxxxxx Loans in certain instances.
7.2. Investments.
-----------
Make any Investments, except:
(a) Investments held by DeVry or such Subsidiary in the form of cash
equivalents or short-term marketable debt securities;
(b) advances to officers, directors and employees of DeVry and
Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of DeVry in any U.S. Guarantor which is a wholly-owned
Subsidiary and Investments of any U.S. Guarantor in DeVry or in another U.S.
Guarantor which is a wholly-owned Subsidiary;
(d) Investments by GEI or any Offshore Subsidiary in GEI or any
Offshore Subsidiary or in DeVry or any wholly owned U.S. Guarantor;
(e) Investments made on the Closing Date in connection with the
Reorganization;
(f) Investments by DeVry or any U.S. Guarantor in GEI or any Offshore
Guarantor; provided, however, that such Investments to the extent made after
the Reorganization shall not at any time exceed 10% of Consolidated Net
Worth;
(g) Investments in Xxxxxxxx Loans, provided, however, that such
Investments shall not exceed $15,000,000 at any one time;
(h) 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;
(i) Guarantees permitted by Section 7.3;
(j) the Dominica Acquisition;
(k) Permitted Acquisitions; and
(l) other Investments not exceeding $5,000,000 in the aggregate in any
fiscal year of DeVry;
Notwithstanding the foregoing, in no event shall DeVry or any Subsidiary make
any Investment after the Closing Date in DeVry Leasing Corp. or DeVry
Educational Products, Inc. unless and until the Administrative Agent shall
have received from each such Subsidiary a solvency certificate in form and
substance satisfactory to the Administrative Agent.
7.3. Indebtedness.
------------
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness comprising the Senior Debt;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.3 and any refinancings, refundings, renewals or extensions thereof;
provided that the amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder;
(c) Guarantees of DeVry or any Subsidiary in respect of Indebtedness
otherwise permitted hereunder of DeVry or any wholly-owned Subsidiary;
(d) Obligations (contingent or otherwise) of DeVry or any Subsidiary
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course
of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person, and not for purposes of speculation or taking a "market view;"
and (ii) such Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets within
the limitations set forth in Section 7.1(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall
not exceed $30,000,000; and
(f) Unsecured Indebtedness in an aggregate principal amount not to
exceed $15,000,000 at any time outstanding.
7.4. Fundamental Changes.
-------------------
Merge, dissolve, liquidate, consolidate with or into another Person,
or, except as permitted under Section 7.5, Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:
(a) any U.S. Subsidiary may merge with (i) DeVry, provided that DeVry
shall be the continuing or surviving Person, or (ii) any one or more other
U.S. Subsidiaries, provided that when any U.S. Guarantor is merging with
another Subsidiary, a U.S. Guarantor shall be the continuing or surviving
Person;
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to DeVry or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be DeVry or a U.S. Guarantor;
(c) any Offshore Subsidiary may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to DeVry or to a U.S.
Guarantor wholly-owned Subsidiary or to GEI or to an Offshore Guarantor;
(d) any Offshore Subsidiary may (i) merge with GEI, provided that GEI
shall be the continuing or surviving person and (ii) merge with any one or
more Offshore Subsidiaries, provided that when any Offshore Guarantor is
merging with another Offshore Subsidiary, an Offshore Guarantor shall be the
continuing or surviving person;
(e) Dispositions on the Closing Date in connection with the
Reorganization; and
(f) Dormant Subsidiaries may be dissolved.
7.5. Dispositions.
------------
Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out or excess property, whether
now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to DeVry or to a wholly-
owned Subsidiary; provided that if the transferor of such property is a U.S.
Guarantor, the transferee thereof must either be DeVry or a U.S. Guarantor;
(e) Dispositions permitted by Section 7.4(b), (c), (d) or (e);
(f) Non-exclusive licenses of IP Rights (i) in the ordinary course of
business and substantially consistent with past practice for terms not
exceeding five years, or (ii) by any Subsidiary to DeVry or any other
Subsidiary;
(g) Dispositions of Xxxxxxxx Loans in accordance with the Xxxxxxxx Loan
Program; and
(h) Dispositions by DeVry and its Subsidiaries not otherwise permitted
under this Section 7.5; provided that (i) at the time of such Disposition, no
Default shall exist or would result from such Disposition and (ii) the
aggregate book value of all property Disposed of in reliance on this clause
(g) from the Closing Date shall not exceed $50,000,000 in the aggregate;
provided, however, that any Disposition pursuant to clauses (a), (b), (c),
(f)(i) and (g) shall be for fair market value.
7.6. Restricted Payments.
-------------------
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) Each Subsidiary may make Restricted Payments to DeVry and to wholly
owned Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-
owned Subsidiary, to DeVry and any Subsidiary and to each other owner of
capital stock or other equity interests of such Subsidiary on a pro rata
basis based on their relative ownership interests);
(b) DeVry and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the common stock or other common equity
interests of such Person;
(c) DeVry and each Subsidiary may purchase, redeem or otherwise acquire
shares of its common stock or other common equity interests or warrants or
options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other
common equity interests; and
(d) DeVry may make Restricted Payments, provided that immediately
before and after giving effect thereto (i) the Consolidated Leverage Ratio,
determined on a proforma basis to give effect to such Restricted Payments as
if such Restricted Payments occurred at the beginning of the period of four
consecutive fiscal quarters then most recently ended for which financial
statements have been delivered to the Administrative Agent pursuant to
Section 6.1 hereof, is less than 1.5:1.0, (ii) DeVry shall be in compliance
with the financial tests set forth in Section 7.15, and (iii) no Default or
Event of Default shall have occurred or be continuing.
7.7. Change in Nature of Business.
----------------------------
Engage in any material line of business substantially different from
those lines of business conducted by DeVry and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.
7.8. Transactions with Affiliates.
----------------------------
Enter into any transaction of any kind with any Affiliate (other than a
Subsidiary) of DeVry, whether or not in the ordinary course of business,
other than on fair and reasonable terms substantially as favorable to DeVry
or such Subsidiary as would be obtainable by DeVry or such Subsidiary at the
time in a comparable arm's length transaction with a Person other than an
Affiliate.
7.9. Burdensome Agreements.
---------------------
Enter into any Contractual Obligation that;
(a) limits the ability of any Subsidiary to make Restricted Payments to
DeVry or any U.S. Guarantor or to otherwise transfer property to DeVry or any
Guarantor;
(b) limits the ability of any Subsidiary to Guarantee the Indebtedness
of DeVry or GEI;
(c) limits the ability of DeVry or any Subsidiary to create, incur,
assume or suffer to exist Liens on property of such Person (it being
understood that this clause (c) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.3(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness); or
(d) requires the grant of a Lien to secure an obligation of such Person
if a Lien is granted to secure another obligation of such Person.
Notwithstanding the foregoing, the provisions of this Section 7.9 shall not
apply to this Agreement, the Senior Notes, the Senior Note Purchase Agreement
or any Specified Swap Contract, and further provided that subsection 7.9(c)
shall not apply to the Xxxxxxxx Loans.
7.10. Use of Proceeds.
---------------
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase
or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11. Dominica Purchase Agreement.
---------------------------
Amend or modify the Dominica Purchase Agreement in any manner adverse
to the Lenders.
7.12. Sale and Leaseback.
------------------
Enter into any arrangement, directly or indirectly, with any Person
(other than a Borrower or a Wholly-Owned Subsidiary) whereby it shall sell or
transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a "Sale and
Leaseback"); provided that DeVry or any Subsidiary may enter into any such
transaction to the extent that the aggregate obligation of DeVry and its
Subsidiaries shall not exceed $25,000,000.
7.13. ERISA.
-----
(a) Become, nor permit an ERISA Affiliate to become, a party to,
participate in or have any liability with respect to a Pension Plan or any
other plan subject to Section 412 of the Code; or
(b) Incur, nor permit an ERISA Affiliate to incur, any withdrawal
liabilities (or become subject to contingent withdrawal liabilities) under
Section 4201, 4204 or 4243 of ERISA with respect to a Multiemployer Plan.
7.14. Subsidiaries.
------------
Create or permit to exist any Subsidiary other than an Offshore
Subsidiary or a U.S. Subsidiary; provided, however, that DeVry may create a
Subsidiary organized outside the laws of the United States or any political
subdivision thereof (a "Special Non-U.S. Subsidiary") so long as each of the
following conditions is satisfied:
(a) The stock of (or equity interest in) such Subsidiary shall be
pledged to the Collateral Agent pursuant to Section 6.13.
(b) Such Subsidiary shall execute and delivery an Offshore Subsidiary
Guaranty (but modified to reflect that such Subsidiary is not a Subsidiary of
GEI);
(c) The foregoing pledge and guaranty shall be accompanied by such
other assurances, certificates, documents, consents and/or opinions as the
Administrative Agent shall reasonably request; and
(d) Any Investment (direct or indirect) of DeVry in such Subsidiary
shall comply with the limitations set forth in Section 7.2(f).
7.15. Financial Covenants.
-------------------
(a) Consolidated Net Worth. Permit Consolidated Net Worth at any time
to be less than the sum of (a) $350,000,000, (b) an amount equal to 75% of
the Consolidated Net Income earned in each full fiscal quarter ending after
December 31, 2002 (with no deduction for a net loss in any such fiscal
quarter) and (c) an amount equal to 100 % of the aggregate increases in
Shareholders' Equity of DeVry and its Subsidiaries after the date hereof by
reason of the issuance and sale of capital stock or other equity interests of
DeVry or any Subsidiary (other than issuances to DeVry or a wholly-owned
Subsidiary), including upon any conversion of debt securities of DeVry into
such capital stock or other equity interests.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of DeVry to
be less than 1.75:1.0
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio for any period of four consecutive fiscal quarters of DeVry ending during
any period set forth below to be greater than the ratio set forth below
opposite such period:
Period Maximum
Consolidated
Leverage Ratio
------------------------------------------------------------------
Closing Date through December 31, 2003 2.25:1.0
January 1, 2004 through September 30, 2004 2.00:1.0
October 1, 2004 through June 30, 2005 1.75:1.0
July 1, 2005 and thereafter 1.50:1.0
------------------------------------------------------------------
(d) Composite DOE Financial Responsibility Ratio. Permit the DOE Ratio
as of the end of any fiscal year of DeVry to be less than 1.50:1.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.1. Events of Default.
-----------------
Any of the following shall constitute an Event of Default:
(a) Non-Payment. DeVry or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any commitment or
other fee due hereunder, or (iii) within five Business Days after the same
becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. DeVry fails to perform or observe any term,
covenant or agreement contained in any of Section 6.1, 6.2, 6.3, 6.5, 6.10,
6.11 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
DeVry or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) DeVry or any Loan Party (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount,
or (B) fails to observe or perform any other agreement or condition relating
to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which DeVry or any Loan Party is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which DeVry or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed
by DeVry or such Loan Party as a result thereof is greater than the Threshold
Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) DeVry or any Loan Party
becomes unable or admits in writing its inability or fails generally to pay
its debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against DeVry or any Loan Party (i) a
final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of 10
consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
(i) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases to
be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document; or any
Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or
(j) Collateral. Any security interest created by the Pledge Documents
shall cease to be, or shall be asserted by DeVry or any other Loan Party not
to be, a valid, perfected, first priority (except as otherwise expressly
provided in this Agreement and the Pledge Documents) security interest in the
securities, assets or properties covered thereby; or
(k) Change of Control. There occurs any Change of Control with respect
to DeVry.
8.2. Remedies Upon Event of Default.
------------------------------
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by each Borrower;
(c) require that DeVry Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof by furnishing cash
collateral to the Collateral Agent for pledge under the Pledge Agreement);
and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any Event of Default
described in Section 8.1(f) or 8.1(g), the obligation of each Lender to make
Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of DeVry to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
8.3. Application of Funds.
--------------------
After the exercise of remedies provided for in
Section 8.2 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.2), any amounts
received on account of the Obligations (including any distribution by the
Collateral Agent to the Administrative Agent pursuant to the Pledge
Agreement) shall be applied by the Administrative Agent in the following
order (but subject to the provisions of the Pledge Agreement, including
Section 10 thereof, which shall control in the event of a conflict with the
terms of this Agreement).
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its
capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Fourth held
by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to be held by it to satisfy that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit; and
Sixth, to payment of the Obligations arising under Specified Swap
Contracts, ratably among the Lenders in proportion to the respective amounts
in this clause sixth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the applicable Borrower or as otherwise
required by Law.
Subject to Section 2.3(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all Letters
of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Obligations, if any, in the order set forth
above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.1. Appointment and Authorization of Administrative Agent.
-----------------------------------------------------
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender or participant,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and
in the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is
used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided
to the Administrative Agent in this Article IX with respect to any acts taken
or omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as
fully as if the term "Administrative Agent" as used in this Article IX and in
the definition of "Agent-Related Person" included the L/C Issuer with respect
to such acts or omissions, and (ii) as additionally provided herein with
respect to the L/C Issuer.
9.2. Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.3. Liability of Administrative Agent.
---------------------------------
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except
for its own gross negligence or willful misconduct in connection with its
duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or
warranty made by any Loan Party or any officer thereof, contained herein or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan
Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.4. Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required Lenders
(or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the condition
specified in Section 4.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Closing
Date specifying its objection thereto.
9.5. Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in
the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Default and stating
that such notice is a "notice of default." The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default as may be directed
by the Required Lenders in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent has received any such
direction, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
as it shall deem advisable or in the best interest of the Lenders.
9.6. Credit Decision; Disclosure of Information by Administrative
Agent.
------------------------------------------------------------
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related
Person to any Lender as to any matter, including whether Agent-Related
Persons have disclosed material information in their possession. Each Lender
represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrowers and the
other Loan Parties hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Loan Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person.
9.7. Indemnification of Administrative Agent.
---------------------------------------
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the
extent not reimbursed by or on behalf of any Loan Party and without limiting
the obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that
no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 9.7. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrowers. The undertaking in this Section
9.7 shall survive termination of the Aggregate Commitments, the payment of
all other Obligations and the resignation of the Administrative Agent.
9.8. Administrative Agent in its Individual Capacity.
-----------------------------------------------
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative
Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.9. Successor Administrative Agent.
------------------------------
The Administrative Agent may resign as Administrative Agent upon 45
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent
shall be consented to by DeVry at all times other than during the existence
of an Event of Default (which consent of DeVry shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed
prior to the effective date of the resignation of the Administrative Agent,
the Administrative Agent may appoint, after consulting with the Lenders and
DeVry, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, L/C
Issuer and Swing Line Lender and the respective terms "Administrative Agent,"
"L/C Issuer" and "Swing Line Lender" shall mean such successor administrative
agent, Letter of Credit issuer and swing line lender, and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring L/C Issuer's and Swing Line Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring L/C Issuer or Swing Line
Lender or any other Lender, other than the obligation of the successor L/C
Issuer to issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume
the obligations of the retiring L/C Issuer with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 11.4 and
11.5 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective and the Lenders
shall perform all of the duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
9.10. Administrative Agent May File Proofs of Claim.
---------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any
demand on DeVry) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the Lenders
and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.3(i)
and (j), 2.9 and 11.4) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Lender to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any
other amounts due the Administrative Agent under Sections 2.9 and 11.4.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf
of any Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.11. Collateral and Guaranty Matters.
-------------------------------
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release or authorize the release of any Lien (if any) on any
property granted to or held by the Administrative Agent or the Collateral
Agent under any Loan Document (i) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters
of Credit, (ii) that comprises an Asset Sale consented to by the Required
Lenders or that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, or (iii) subject
to Section 11.1, if approved, authorized or ratified in writing by the
Required Lenders; and
(b) to release any Guarantor from its obligations under a Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to
this Section 9.11.
9.12. Other Agents; Arrangers and Managers.
------------------------------------
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead
arranger" or "co-arranger" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than, in the
case of such Lenders, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified
shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of
the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
CONTINUING GUARANTY
10.1. Guaranty.
--------
DeVry hereby absolutely and unconditionally guarantees, as a guarantee
of payment and not merely as a guarantee of collection, prompt payment when
due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, of any and all Obligations of GEI (including all renewals,
extensions and modifications thereof and all costs, attorneys' fees and
expenses incurred by the Lenders in connection with the collection or
enforcement thereof) (collectively, the "Guaranteed Obligations"). The books
and records of the Administrative Agent and the Lenders showing the amount of
the Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon DeVry and conclusive, absent manifest
error, for the purpose of establishing the amount of the Guaranteed
Obligations. This guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Guaranteed Obligations or any
instrument or agreement evidencing any Guaranteed Obligations, or by the
existence, validity, enforceability, perfection, or extent of any collateral
therefor, or by any fact or circumstance relating to the Guaranteed
Obligations which might otherwise constitute a defense to the obligations of
DeVry hereunder.
10.2. No Termination.
--------------
The obligations of DeVry under this Article X constitute a continuing
and irrevocable guaranty of all Guaranteed Obligations now or hereafter
existing and shall remain in full force and effect until all Guaranteed
Obligations and any other amounts payable under this Article X are
indefeasibly paid and performed in full and the Commitments of the Lenders
with respect to the Guaranteed Obligations are terminated.
10.3. Waiver of Notices.
-----------------
DeVry waives notice of the extension or continuation of the Guaranteed
Obligations or any part thereof. DeVry further waives presentment, protest,
notice, dishonor or default, demand for payment and any other notices to
which DeVry might otherwise be entitled.
10.4. Subrogation.
-----------
DeVry shall exercise no right of subrogation, contribution or similar
rights with respect to any payments it makes in respect of this guaranty
until all of the Guaranteed Obligations and any amounts payable under this
Article X are indefeasibly paid and performed in full and the Commitments of
the Lenders are terminated. If any amounts are paid to DeVry in violation of
the foregoing limitation, then such amounts shall be held in trust for the
benefit of the Lenders and shall forthwith be paid to the Lenders to reduce
the amount of the Guaranteed Obligations, whether matured or unmatured.
10.5. Waiver of Suretyship Defenses.
-----------------------------
DeVry agrees that the Administrative Agent and Lenders may, at any time
and from time to time, and without notice to DeVry, make any agreement with
GEI or with any other person or entity liable on any of the Guaranteed
Obligations or providing collateral as security for the Guaranteed
Obligations, for the extension, renewal, payment, compromise, discharge or
release of the Guaranteed Obligations or any collateral (in whole or in
part), or for any modification or amendment of the terms thereof or of any
instrument or agreement evidencing the Guaranteed Obligations or the
provision of collateral, all without in any way impairing, releasing,
discharging or otherwise affecting the obligations of DeVry under this
Article X. DeVry waives any defense arising by reason of any disability or
other defense of GEI or any other Loan Party, or the cessation from any cause
whatsoever of the liability of GEI, or any claim that DeVry's obligations
exceed or are more burdensome than those of GEI and waives the benefit of any
statute of limitations affecting the liability of the Administrative Agent or
DeVry hereunder. DeVry waives any right to enforce any remedy which the
Administrative Agent or Lenders now have or may hereafter have against GEI
and waives any benefit of and any right to participate in any security now or
hereafter held by the Lenders. Further, DeVry consents to the taking of, or
failure to take, any action which might in any manner or to any extent vary
the risks of DeVry under this Article X or which, but for this provision,
might operate as a discharge of DeVry.
10.6. Exhaustion of Other Remedies Not Required.
-----------------------------------------
The obligations of DeVry in respect of this guaranty are those of
primary obligor, and not merely as surety, and are independent of the
Guaranteed Obligations. DeVry waives diligence by the Lenders and action on
delinquency in respect of the Guaranteed Obligations or any part thereof,
including, without limitation any provisions of law requiring the Lenders to
exhaust any right or remedy or to take any action against GEI, or any other
person, entity or property before enforcing this guaranty against DeVry.
10.7. Reinstatement.
-------------
Notwithstanding anything in this Article X to the contrary, the
obligations of DeVry under this Article X shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any portion
of the Guaranteed Obligations is revoked, terminated, rescinded or reduced or
must otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of GEI or any other person or entity or otherwise, as if such
payment had not been made and whether or not the Lenders is in possession of
or has released DeVry from the obligations of this Article X and regardless
of any prior revocation, rescission, termination or reduction.
10.8. Subordination.
-------------
DeVry hereby subordinates the payment of all obligations and
indebtedness of GEI owing to DeVry, whether now existing or hereafter
arising, including but not limited to any obligation of GEI to DeVry as
subrogee of the Lenders or resulting from DeVry's performance under this
Article X, to the indefeasible payment in full of all Guaranteed Obligations.
If the Lenders so request, any such obligation or indebtedness of GEI to
DeVry shall be enforced and performance received by DeVry as trustee for the
Lenders and the proceeds thereof shall be paid over to the Lenders on account
of the Guaranteed Obligations, but without reducing or affecting in any
manner the liability of DeVry under this Article X.
10.9. Stay of Acceleration.
--------------------
In the event that acceleration of the time for payment of any of the
Guaranteed Obligations is stayed, upon the insolvency, bankruptcy or
reorganization of GEI or any other person or entity, or otherwise, all such
amounts shall nonetheless be payable by DeVry immediately upon demand by the
Administrative Agent or the Required Lenders.
10.10. Condition of GEI.
----------------
DeVry acknowledges and agrees that it has the sole responsibility for,
and has adequate means of, obtaining from GEI such information concerning the
financial condition, business and operations of GEI as DeVry requires, and
that neither the Administrative Agent nor the Lenders have any duty, and
DeVry is not relying on the Administrative Agent or Lenders at any time, to
disclose to DeVry any information relating to the business, operations or
financial condition of GEI.
ARTICLE XI
MISCELLANEOUS
11.1. Amendments, Etc.
---------------
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by DeVry or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and DeVry or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such amendment, waiver or consent
shall:
(a) except as provided in Section 4.1, waive any condition set forth in
Section 4.1(a), without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.2), without the written consent
of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them) or any
scheduled or mandatory reduction of the Aggregate Commitments hereunder or
under any other Loan Document (excluding mandatory reductions of the Aggregate
DeVry Commitments or Aggregate GEI Commitments arising from mandatory
prepayments pursuant to Section 2.6(b)), without the written consent of each
Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second
proviso to this Section 11.1) any fees or other amounts payable hereunder or
under any other Loan Document, without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of "Default
Rate" or to waive any obligation of the Borrowers to pay interest at the
Default Rate or (ii) 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 L/C Borrowing or to reduce any fee
payable hereunder;
(e) change Section 2.13 or Section 8.3 in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
(g) except for releases pursuant to Section 9.11(b), release any
Guarantor from any Guaranty to the extent that the assets or revenues of such
Guarantor (together with the assets or revenues of all other Guarantors then
or theretofore released hereunder) represent all or a substantial part of the
consolidated assets or consolidated revenues of DeVry, without the written
consent of each Lender; or
(h) release or authorize the release of all or any substantial portion
of the Collateral under the Pledge Agreement without the written consent of
each Lender, it being understood that to the extent that Collateral
comprises assets (i) which are permitted to be sold pursuant to Section 7.5
such Collateral may be released without the consent of any of the Lenders, or
(ii) which are part of an Asset Sale under Section 2.6, such Collateral may
be released with the consent of the Required Lenders (in addition to any
necessary consent of the holders of the Senior Debt);
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer in its capacity as such
under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender in its capacity as such under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent in its capacity as such under
this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto directly affected thereby.
11.2. Notices and Other Communications; Facsimile Copies.
--------------------------------------------------
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrowers, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule
11.2 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrowers, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto
and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, the L/C Issuer
and the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder. Each notice
to GEI may be given to GEI in care of DeVry.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same
force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by
a manually-signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such
as financial statements and other information as provided in Section 6.2, and
to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrowers even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any
confirmation thereof. Each Borrower shall indemnify each Agent-Related
Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given
by or on behalf of such Borrower. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.3. No Waiver; Cumulative Remedies.
------------------------------
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.4. Attorney Costs, Expenses and Taxes.
----------------------------------
DeVry agrees (a) to pay or reimburse the Administrative Agent for all
costs and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Loan Documents and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated hereby or thereby
are consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay
or reimburse the Administrative Agent and each Lender for all costs and
expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other
Loan Documents (including all such costs and expenses incurred during any
"workout" or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including
all Attorney Costs. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and, solely in connection with a "workout", the cost of
independent public accountants and other nonlegal outside experts retained by
the Administrative Agent on behalf of the Lenders. All amounts due under
this Section 11.4 shall be payable within ten Business Days after demand
therefor. The agreements in this Section 11.4 shall survive the termination
of the Aggregate Commitments and repayment of all other Obligations.
11.5. Indemnification by the Borrowers.
--------------------------------
Whether or not the transactions contemplated hereby are consummated,
each Borrower shall indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in
any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer 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), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by DeVry, any Subsidiary or any other
Loan Party, or any Environmental Liability related in any way to DeVry, any
Subsidiary or any other Loan Party, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits,
costs, expenses or disbursements 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. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.5 shall be payable
within ten Business Days after demand therefor. The agreements in this
Section 11.5 shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.
11.6. Payments Set Aside.
------------------
To the extent that any payment by or on behalf of either Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the
proceeds of such set-off 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 or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) 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 set-off
had not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share 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.
11.7. 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 neither Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section 11.7, (ii)
by way of participation in accordance with the provisions of subsection (d)
of this Section 11.7, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section 11.7
(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 subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) 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 Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that:
(i) except in the case of an assignment of the entire remainin
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 or an Affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) 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, DeVry otherwise consents (each such consent not to be
unreasonably withheld or delayed);
(ii) 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 Obligations or the Commitments
assigned (i.e., the same proportionate assignment by a Lender of its
DeVry Commitment and its GEI Commitment and related Obligations),
except that this clause (ii) shall not apply to rights in respect of
Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless
the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible
Assignee); and
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (it being understood that
pursuant to such Assignment and Assumption Agreement the assignee shall
be bound by the terms of the Pledge Agreement).
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible 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 3.1,
3.4, 3.5, 11.4 and 11.5 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, the
applicable Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
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 subsection
(d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office 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 amounts of the Loans and L/C Obligations 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 Borrowers, 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 Borrowers 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 Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or DeVry or any of DeVry'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 (including such Lender's participations in
L/C Obligations and/or Swing Line 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 Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement. 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, waiver or other modification described
in the first proviso to Section 11.1 that directly affects such Participant.
Subject to subsection (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.1, 3.4 and 3.5 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 11.9 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.1 or 3.4 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 such
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 3.1 unless such Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of such
Borrower, to comply with Section 11.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations of such Lender, including 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.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of Default
has occurred and is continuing, DeVry (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include DeVry or any of
DeVry's Affiliates or Subsidiaries any Person which cannot make the
representations in Section 11.15(a).
"Fund" means 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.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security
for such obligations or securities, provided that unless and until such
trustee actually becomes a Lender in compliance with the other provisions of
this Section 11.7, (i) no such pledge shall release the pledging Lender from
any of its obligations under the Loan Documents and (ii) such trustee shall
not be entitled to exercise any of the rights of a Lender under the Loan
Documents even though such trustee may have acquired ownership rights with
respect to the pledged interest through foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection 11.7(b) above, Bank of America may, (i) upon 30 days' notice to
DeVry and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice
to DeVry, resign as Swing Line Lender. In the event of any such resignation
as L/C Issuer or Swing Line Lender, DeVry shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by DeVry to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans
or fund risk participations in Unreimbursed Amounts pursuant to Section
2.3(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect
to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base
Rate Revolving Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.4(c).
11.8. Confidentiality.
---------------
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent
requested by any regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
(d) to any other party to this Agreement; (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative transaction
relating to obligations of the Loan Parties; (g) with the consent of DeVry;
(h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than DeVry; or (i) to the National Association of Insurance
Commissioners or any other similar organization. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to
the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents,
the Commitments, and the Credit Extensions. For the purposes of this
Section, "Information" means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information
that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party; provided that,
in the case of information received from a Loan Party after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section 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 to its own confidential information.
11.9. Set-off.
-------
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice
to DeVry or any other Loan Party, any such notice being waived by DeVry (on
its own behalf and on behalf of each Loan Party) 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 by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing
to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured or denominated
in a currency different from that of the applicable deposit or indebtedness.
Each Lender agrees promptly to notify DeVry and the Administrative Agent
after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application.
11.10. Interest Rate Limitation.
------------------------
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by
applicable Law (the "Maximum Rate"). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the applicable Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.
11.11. Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.12. Integration.
-----------
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights
or remedies in favor of the Administrative Agent or the Lenders in any other
Loan Document shall not be deemed a conflict with this Agreement. Each Loan
Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.13. Survival of Representations and Warranties.
------------------------------------------
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.
11.14. Severability.
------------
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other
Loan Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11.15. Tax Forms.
---------
(a) (i) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender")
shall deliver to the Administrative Agent, the date on which the first
payment to such Lender is due hereunder (or upon accepting an
assignment of an interest herein), two duly signed completed copies of
either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from withholding tax on
all payments to be made to such Foreign Lender by the Borrowers
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Agreement) or such other evidence
satisfactory to the Borrowers and the Administrative Agent that such
Foreign Lender is entitled to an exemption from U.S. withholding tax,
including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrowers and the Administrative Agent of any
available exemption from United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrowers
pursuant to this Agreement, (B) promptly notify the Administrative
Agent of any change in circumstances which would modify or render
invalid any claimed exemption, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-
designation of its Lending Office) to avoid any requirement of
applicable Laws that the Borrowers make any deduction or withholding
for Taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required
under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such
Lender.
(iii) Neither Borrower shall be required to pay any additional
amount to any Foreign Lender under Section 3.1 (a) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(b) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 11.15(a); provided that if such Lender shall
have satisfied the requirement of this Section 11.15(a) on the date
such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this
Section 11.15(a) shall relieve either Borrower of its obligation to pay
any amounts pursuant to Section 3.1 in the event that, as a result of
any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under
any of the Loan Documents is not subject to withholding or is subject
to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrowers are not
required to pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and
expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section shall survive the termination of
the Aggregate Commitments, repayment of all other Obligations hereunder and
the resignation of the Administrative Agent.
11.16. Replacement of Lenders.
----------------------
Under any circumstances set forth herein providing that the Borrowers
shall have the right to replace a Lender as a party to this Agreement, the
Borrowers may, upon notice to such Lender and the Administrative Agent,
replace such Lender by causing such Lender to assign its Commitment (with the
assignment fee to be paid by the Borrowers in such instance) pursuant to
Section 11.7(b) to one or more other Lenders or Eligible Assignees procured
by the Borrowers; provided, however, that if the Borrowers elect to exercise
such rights with respect to any Lender pursuant to Section 3.6(c), they shall
be obligated to replace all Lenders that have exercised similar rights
pursuant to Sections 3.1, 3.2 or 3.4. The Borrowers shall or shall each
cause the replacement Lender to (x) pay in full all principal, interest, fees
and other amounts owing to such replaced Lender through the date of
replacement (including any amounts payable pursuant to Section 3.5), (y)
provide appropriate assurances and indemnities (which may include letters of
credit) to the L/C Issuer and the Swing Line Lender as each may reasonably
require with respect to any continuing obligation to fund participation
interests in any L/C Obligations or any Swing Line Loans then outstanding,
and (z) release such replaced Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment
and Assumption with respect to such Lender's Commitment and outstanding Loans
and participations in L/C Obligations and Swing Line Loans.
11.17. Governing Law.
-------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN XXX XXXX XX XXX XXXX XX XX XXX XXXXXX XXXXXX FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
11.18. Service of Process on GEI.
-------------------------
GEI hereby irrevocably designates, appoints and empowers DeVry, and
successors as the designee, appointee and agent of GEI to receive, accept and
acknowledge, for and on behalf of GEI and its properties, service of any and
all legal process, summons, notices and documents which may be served in such
action, suit or proceeding relating to this Agreement or the Loan Documents
in the case of the courts of the Southern District of New York or of the
courts of the State of New York sitting in the city of New York, which
service may be made on any such designee, appointee and agent in accordance
with legal procedures prescribed for such courts. GEI agrees to take any and
all action necessary to continue such designation in full force and effect
and should such designee, appointee and agent become unavailable for this
purpose for any reason, GEI will forthwith irrevocably designate a new
designee, appointee and agent, which shall irrevocably agree to act as such,
with the powers and for purposes specified in this Section 11.18. GEI further
irrevocably consents and agrees to service of any and all legal process,
summons, notices and documents out of any of the aforesaid courts in any such
action, suit or proceeding relating to the GEI Notes or this Agreement or the
other Loan Documents delivered to GEI in accordance with this Section 11.18
or to its then designee, appointee or agent for service. If service is made
upon such designee, appointee and agent, a copy of such process, summons,
notice or document shall also be provided to GEI at the address specified in
Section 11.2 by registered or certified mail, or overnight express air
courier; provided that failure of such holder to provide such copy to GEI
shall not impair or affect in any way the validity of such service or any
judgment rendered in such action or proceedings. GEI agrees that service
upon GEI or any such designee, appointee and agent as provided for herein
shall constitute valid and effective personal service upon GEI with respect
to matters contemplated in this Section 11.18 and that the failure of any
such designee, appointee and agent to give any notice of such service to GEI
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing herein
shall, or shall be construed so as to, limit the right of the Administrative
Agent or the Lenders to bring actions, suits or proceedings with respect to
the obligations and liabilities of GEI under, or any other matter arising out
of or in connection with, this Agreement, or for recognition or enforcement
of any judgment rendered in any such action, suit or proceeding, in the
courts of whatever jurisdiction in which the respective offices of the
Administrative Agent or the Lenders may be located or assets of GEI may be
found or as otherwise shall to the Administrative Agent or the Lenders seem
appropriate, or to affect the right to service of process in any jurisdiction
in any other manner permitted by law.
11.19. Waiver of Right to Trial by Jury.
--------------------------------
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.20. Judgements In Foreign Currency.
------------------------------
Any payment on account of an amount that is payable hereunder or under
the GEI Notes by GEI in Dollars which is made to or for the account of any
Lender in currency of any other jurisdiction, or in the lawful currency of
any other country, whether as a result of any judgment or order or the
enforcement thereof or the realization of any security or the liquidation of
such party, shall constitute a discharge of such party's obligation under
this Agreement or the GEI Notes only to the extent of the amount of Dollars
which such Lender could purchase in the foreign exchange markets with the
amount of the currency of such other jurisdiction, or other currency, as the
case may be, in accordance with normal banking procedures at the rate of
exchange prevailing on the Business Day following receipt of the payment
first referred to above. If the amount of Dollars that could be so purchased
is less than the amount of Dollars originally due to such Lender, each of
DeVry and GEI jointly and severally agrees, to the full extent permitted by
law, to indemnify and save harmless such Lender from and against all loss or
damage arising out of or as a result of such deficiency. This indemnity
shall, to the fullest extent permitted by law, constitute an obligation
separate and independent from the other obligations contained in this
Agreement and the GEI Notes, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence granted by such
Lender from time to time and, shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or the GEI Notes or under any judgment or order.
11.21. Obligations of DeVry.
--------------------
Notwithstanding anything contained herein or in the other Loan
Documents, in no event shall GEI or any Offshore Guarantor be liable for any
of the Obligations of DeVry.
11.22. Authorization of Pledge Agreement.
---------------------------------
Each Lender hereby (i) authorizes the Administrative Agent to execute
and deliver the Pledge Agreement on behalf of such Lender and (ii) agrees to
be bound by the terms thereof (as a Bank and a Secured Party thereunder).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
DEVRY INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
GLOBAL EDUCATION INTERNATIONAL, INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By: ________________________________
Name: ______________________________
Title: _______________________________
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: ________________________________
Name: ______________________________
Title: _______________________________
other LENDERS
By: ________________________________
Name: ______________________________
Title: _______________________________
SCHEDULE 1.1
EXISTING LETTERS OF CREDIT
#7405243 Secretary of U.S. Dept. of Education $1,007,834.00
#7405717 UBS Cayman Islands LTD. (captive insurance group) $486,074.00 (1)
#7408719 Secretary of U.S. Dept. of Education $364,356.00
#7408720 Secretary of U.S. Dept. of Education $201,327.00
#7408721 Secretary of U.S. Dept. of Education $353,749.00
#7408722 Secretary of U.S. Dept. of Education $420,228.00
#7409821 Secretary of U.S. Dept. of Education $178,219.00
#7409942 Magnolia Associates (rental of NY offices) $180,340.00
TOTAL $3,192,127.00
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Lender DeVry GEI Aggregate Pro Rata Share
Commitment Commitment Commitments
-----------------------------------------------------------------------------
Bank of
America, N.A. 35,000,000.00 14,000,000 49,000,000 28.000000%
LaSalle Bank
National
Association 19,285,714.29 7,714,285.71 27,000,000 15.428571%
The Northern
Trust
Company 19,285,714.29 7,714,285.71 27,000,000 15.428571%
Xxxxxx Trust
& Savings
Bank 19,285,714.29 7,714,285.71 27,000,000 15.428571%
JPMorgan
Chase 10,714,285.71 4,285,714.29 15,000,000 8.571429%
National
City Bank of
MI/IL 10,714,285.71 4,285,714.29 15,000,000 8.571429%
SunTrust
Bank, Inc. 10,714,285.71 4,285,714.29 15,000,000 8.571429%
Total $125,000,000 $50,000,000 $175,000,000 100.000000000%
SCHEDULE 5.5
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
SCHEDULE 5.6
LITIGATION
SCHEDULE 5.9
ENVIRONMENTAL MATTERS
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
Part (b). Other Equity Investments.
[To be completed in conformity with Section 5.13.]
SCHEDULE 5.18
INTELLECTUAL PROPERTY MATTERS
SCHEDULE 5.20
FILINGS PURSUANT TO THE PLEDGE AGREEMENT
SCHEDULE 5.22
EXISTING INDEBTEDNESS
SCHEDULE 7.1
EXISTING LIENS
SCHEDULE 7.3
EXISTING INDEBTEDNESS
SCHEDULE 11.2
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWERS:
Xxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
e-mail: xxxxxxx@xxxxx.xxx
website: xxx.xxxxx.xxx
ADMINISTRATIVE AGENT:
Bank of America, N.A., as Agent
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-08-30
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE:
----------------------
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABA #111 000012
Account #: 000-0000-000
Account Name: Corporate Credit Services
Ref: DeVry University
L/C ISSUER:
Bank of America, N.A.
Attention: Riyaz Kaka
Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: Xxxxx.Xxxx@xxxxxxxxxxxxx.xxx
SWING LINE LENDER:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-08-30
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABA #111 000012
Account #: 000-0000-000
Account Name: Corporate Credit Services
Ref: DeVry University
LENDERS:
JPMorgan Chase Bank
2 Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 212-552-1020
Electronic Mail: xxxxx.xxxxx@xxxxxxxx.xxx
Lender's Bank: JPMorgan Chase Bank
Account #: 2-2000002782
Ref: DeVry Inc.
ABA #: 000000000
SunTrust Bank
000 Xxxxx Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxx.Xxxxxxx@xxxxxxxx.xxx
Lender's Bank: SunTrust Bank
Account #: 9088000112
Ref: Wire Clearing
ABA #: 000000000
National City Bank of MI/IL
0000 Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Credit:
Attention: Xxxx X. Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxx.xxxx@xxxxxxxxxxxx.xxx
L/C:
Attention: Xxxxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxx.xxxxxx@xxxxxxxxxxxx.xxx
Lender's Bank: National City Bank of Michigan/Illinois
Account #: 000000000
Ref: DeVry Inc.
ABA#: 151804
Xxxxxx Trust and Savings Bank
000 X. Xxxxxx Xxxxxx 000/00X
Xxxxxxx, XX 00000
Credit:
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxx.xxxx@xxxxxxxxxx.xxx
L/C:
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxxxxx.xxx
Lender's Bank: Xxxxxx Trust & Savings Bank
Account #: 000000000
Ref: DeVry Inc.
ABA #: 1092154
The Northern Trust Company
00 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Credit:
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: XXXX@XXXX.xxx
L/C:
Attention: Xxxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: XXX0@XXXX.xxx
Lender's Bank: The Northern Trust Co.
Account #: 000000000
Ref: DeVry Inc.
ABA#: 5186401000
LaSalle Bank National Association
000 X. XxXxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail:
Lender's Bank: LaSalle Bank NA
Account #: 000-000-000
Ref: Commercial Loans
ABA #: GL 1378018/7300
EXHIBIT A
FORM OF REVOLVING LOAN NOTICE
Date: ___________, ____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among DeVry Inc., a Delaware
corporation, and Global Education International, Inc., a Barbados
corporation, as borrowers (the "Borrowers"), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.
The undersigned hereby requests (select one):
_ A Borrowing of Revolving Loans _ A conversion or continuation
of Loans
1. On ________________________________ (a Business Day)
2. In the amount of $ ________________________
3. Comprised of ____________________________.
[Type of Revolving Loan requested]
4. For Eurodollar Rate Loans: with an Interest
Period of ______ months.
[The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.1 of the Credit Agreement.]
[BORROWER]
By: ________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, ____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among DeVry Inc., a Delaware
corporation, and Global Education International, Inc., a Barbados
corporation, as borrowers (the "Borrowers"), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On ____________________________ (a Business Day)
2. In the amount of $_______________________.
The Swing Line Borrowing requested herein complies with the
requirements of the provisos to the first sentence of Section 2.4(a) of the
Credit Agreement.
DEVRY INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT C-1
FORM OF NOTE
(DEVRY)
____________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Credit Agreement (as hereinafter
defined), the principal amount of each Loan from time to time made by the
Lender to the Borrower under that certain Credit Agreement, dated as of May
16, 2003 (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Credit Agreement;" the terms defined
therein being used herein as therein defined), among Global International
Education, Inc., the Borrower, the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Credit
Agreement. Except as otherwise provided in Section 2.4(f) of the Credit
Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the
Lender in Dollars in immediately available funds at the Administrative
Agent's Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after
judgment) computed at the per annum rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Note is also
entitled to the benefits of the Pledge Documents referred to in the Credit
Agreement. Upon the occurrence and continuation of one or more of the Events
of Default specified in the Credit Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due
and payable all as provided in the Credit Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained
by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of
its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
DEVRY INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
LOANS AND PAYMENTS WITH RESPECT THERETO
Principal or Outstanding
End of Interest Principal
Date Type of Amount of Interest Paid This Balance Notation
Loan Made Loan Made Period Date This Date Made By
-------------------------------------------------------------------------------
EXHIBIT C-2
FORM OF NOTE
(GEI)
____________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Credit Agreement (as hereinafter
defined), the principal amount of each Loan from time to time made by the
Lender to the Borrower under that certain Credit Agreement, dated as of May
16, 2003 (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Credit Agreement;" the terms defined
therein being used herein as therein defined), among DeVry Inc., the
Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Credit
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to
be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Note is also
entitled to the benefits of the Pledge Documents referred to in the Credit
Agreement. Upon the occurrence and continuation of one or more of the Events
of Default specified in the Credit Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due
and payable all as provided in the Credit Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained
by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of
its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
GLOBAL EDUCATION INTERNATIONAL, INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of
Principal or Outstanding
End of Interest Principal
Type of Amount of Interest Paid This Balance Notation
Date Loan Made Loan Made Period Date This Date Made By
------------------------------------------------------------------------------
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Credit Agreement;" the terms defined therein
being used herein as therein defined), among DeVry Inc., a Delaware
corporation, and Global Education International, Inc., a Barbados
corporation, as borrowers (the "Borrowers"), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ______________________________________________ of
the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower,
and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end
audited financial statements required by Section 6.1(a) of the Credit
Agreement for the fiscal year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited
financial statements required by Section 6.1(b) of the Credit Agreement for
the fiscal quarter of the Borrower ended as of the above date. Such
financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP as at such date and for such period, subject only to normal year-
end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar
with the terms of the Credit Agreement and has made, or has caused to be made
under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting
period covered by the attached financial statements.
3. A review of the activities of the Borrower
during such fiscal period has been made under the supervision of the
undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents,
and
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
the Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default and its nature and
status:]
4. The representations and warranties of the
Borrower contained in Article V of the Credit Agreement, or which are
contained in any document furnished at any time under or in connection with
the Loan Documents, are true and correct on and as of the date hereof, except
to the extent that such representations and warranties specifically refer to
an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Compliance Certificate, the
representations and warranties contained in subsections (a) and (b) of
Section 5.5 of the Credit Agreement shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.1 of the Credit Agreement, including the statements in connection
with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information
set forth on Schedule 2 attached hereto are true and accurate on and as of
the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________, ______________.
DEVRY INC.
By: ________________________________
Name: ______________________________
Title: _______________________________
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 7.15(a) - Consolidated Net Worth.
A. Actual Consolidated Net Worth at Statement Date:
1. Shareholders' Equity: $__________
B. Opening Amount $350,000,000
C. 75% of Consolidated Net Income for each full fiscal
quarter ending after December 31, 2002 (no
reduction for losses): $__________
D. 100% of increases in Shareholders' Equity after
date of Agreement from issuance and sale of capital
stock or other equity interests (including from
conversion of debt securities): $__________
E. Minimum required Consolidated Net
Worth
(Lines I.B + I.C + I.D) for Subject Period: $__________
F. Excess (deficient) for covenant compliance (Line
I.A - I.E): $__________
II. Section 7.15 (b) - Consolidated Fixed Charge Coverage Ratio.
A. Consolidated EBITDA for the period of the four
fiscal quarters then ending on the above date
("Subject Period"):
1. Consolidated Net Income for Subject
Period: $__________
2. Consolidated Interest Charges for Subject
Period: $__________
3. Provision for income taxes for Subject
Period: $__________
4. Depreciation expenses for Subject Period: $__________
5. Amortization expenses for Subject Period: $__________
6. Non-cash and nonrecurring charges for
Subject Period: $__________
7. Nonrecurring and extraordinary gains for
Subject Period: $__________
8. Consolidated EBITDA (Lines II.A.1+2+3+4
+5+6-7): $__________
B. Consolidated EBITDAR for Subject Period:
1. Consolidated EBITDA for Subject Period: $__________
2. Consolidated Rental Payments for Subject
Period: $__________
3. Consolidated EBITDAR (Lines II.B.1+2): $__________
C. Numerator for Consolidated Fixed Charge Coverage
Ratio for Subject Period:
1. Consolidated EBITDAR for the Subject
Period: $__________
2. Consolidated Capital Expenditures for the
Subject Period: $__________
3. Income taxes used in Consolidated Net
Income, paid or required to be paid on a
consolidated basis during the Subject
Period: $__________
4. Numerator (Line II.C.1-2-3): $__________
D. Denominator for Consolidated Fixed Charge Coverage
Ratio for Subject Period:
1. Consolidated Interest Charges for the
Subject Period: $__________
2. Principal payments on Indebtedness for the
Subject Period: $__________
3. Consolidated Rental Payments for Subject
Period: $__________
4. Denominator (Line II.D.1+2+3): $__________
E. Consolidated Fixed Charge Coverage Ratio (Line
II.C.4 ? Line II.D.4):
__________
F. Minimum Consolidated Fixed Charge Coverage Ratio
for Subject Period: 1.75:1
III. Section 7.15 (c) - Consolidated Leverage Ratio.
A. Consolidated EBITDA for Subject Period (Line II.A.8
above): $__________
B. Consolidated Funded Indebtedness at Statement Date:$__________
C. Consolidated Leverage Ratio (Line III.B ? Line
III.A): $__________
D. Maximum Consolidated Leverage Ratio for Subject
Period: __________
IV. Section 7.15(d) - Composite DOE Financial Responsibility
Ratio.
X. XXX Composite Score as of end of last fiscal
year: __________
B. Minimum DOE Ratio as of the end of the last
fiscal year: 1.5:1.0
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "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 Credit Agreement identified
below (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 as a Lender under the Credit Agreement and
any other documents or instruments, including the Pledge Agreement, 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, without
limitation, Letters of Credit, Guarantees and Swing Line 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, but not limited to, 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(s): ______________________________
4. Administrative Agent: ______________________, as the administrative
agent under the Credit Agreement
[1] Select as applicable
5. Credit Agreement: [The Credit Agreement, dated as of ________,
among [name of borrower(s)], the Lenders parties thereto, [and] Bank
of America, N.A., as Administrative Agent[, and the other agents
parties thereto]]
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitments/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders* Assigned* Commitment/Loans[2]
------------------------------------------------------------------------------
_____________ [3] $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
[7. Trade Date: __________________]
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, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
[3] Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Commitment to GEI", "Commitment to DeVry", etc.).
[4] To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
[Consented to and][5] Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By: _____________________________
Title:
[Consented to:][6]
By: _____________________________
Title:
[5] To be added only if the consent of the Administrative Agent is required
by the terms of the Credit Agreement.
[6] To be added only if the consent of the Borrower and/or other parties
(e.g. Sling Line Lender, L/C Issuer) is required by the terms of the
Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]
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 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 meets all requirements of an Eligible Assignee
under the Credit Agreement (subject to receipt of such consents as may be
required under the Credit Agreement), (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 __ 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 or any other Lender, and (v) if it is a Foreign Lender,
attached hereto 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, (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, and (iii) agrees to be bound by the terms
of the Pledge Agreement.
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 Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly
between themselves.
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 State of ____________________
[confirm that choice of law provision parallels the Credit Agreement].
EXHIBIT F-1
FORM OF U.S. SUBSIDIARY GUARANTY
EXHIBIT F-2
FORM OF OFFSHORE SUBSIDIARY GUARANTY
EXHIBIT G
PLEDGE AGREEMENT
EXHIBIT H
OPINION MATTERS
[TO BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE ADMINISTRATIVE AGENT]
