Document/Exhibit Description Pages Size
1: 10-K Annual Report 72 250K
2: EX-4 Instrument Defining the Rights of Security Holders 103 344K
3: EX-10 Material Contract 62 162K
4: EX-10 Material Contract 1 7K
5: EX-21 Subsidiaries of the Registrant 1 5K
6: EX-23 Consent of Experts or Counsel 1 5K
7: EX-27 Financial Data Schedule (Pre-XBRL) 1 6K
EX-4 — Instrument Defining the Rights of Security Holders
Exhibit Table of Contents
73
EXHIBIT 4(c)
------------
AMENDED AND RESTATED FINANCING AGREEMENT
Dated as of June 12, 1996
between
KELLER GRADUATE SCHOOL OF
MANAGEMENT, INC.
as Borrower
CERTAIN FINANCIAL INSTITUTIONS
as Lenders
and
BANK OF AMERICA ILLINOIS,
as Agent
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TABLE OF CONTENTS
-----------------
PARAGRAPH PAGE
--------- ----
1. DEFINITIONS AND INTERPRETATION 1
2. LOANS AND LETTERS OF CREDIT. 13
(A) Revolving Loan 13
(B) Notice of Borrowing 14
(C) Loan Account 15
(D) Prepayments 15
(E) Voluntary Reduction or Termination of the
Revolving Maximum Loan Commitment 16
(F) Letters of Credit; Reimbursement Obligations 16
(G) Allocation 17
3. INTEREST ON THE LOANS. 17
(A) Rate of Interest 17
(B) Interest Payments and Computation 18
(C) Default Interest 19
(D) Conversion or Continuation 19
(E) Increased Costs; Legal Restrictions 20
(F) Amount of Eurodollar Rate Loans 22
(G) Determination of Eurodollar Interest Period 22
(H) Substituted Rate of Borrowing 22
(I) Required Termination and Prepayment 23
(J) Option of Borrower 24
(K) Compensation; Breakage Fees 24
(L) Eurodollar Rate Taxes; Indemnification 25
(M) Certain Indemnification 26
(N) Eurodollar Rate Loans After Default 26
(O) Affiliates Not Obligated 26
(P) Increased Capital 26
4. FEES AND CHARGES 27
(A) Non-Use Fees 27
(B) Agent's Fees 27
(C) Letter of Credit Fees 27
(D) Unpaid Charges 28
5. QUARTERLY ACCOUNTINGS BY AGENT. 28
6. RESERVED 28
7. RESERVED 28
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8. PROCEEDS, PAYMENTS AND APPLICATION 28
(A) Application and Posting Time 28
(B) Order of Application; Invalidated Payments 29
(C) Sharing of Payments 29
9. AGENT AS BORROWER'S ATTORNEY 29
10. INSURANCE 30
11. REPORTING 30
(A) Quarterly Reports. 30
(B) Annual Reports 31
(C) Communication with Accountants; Other
Financial Information 32
(D) Reports to SEC 32
(E) Reports of Changes in Subsidiaries 32
(F) Notices Relating to Default 32
(G) Notice of Material Adverse Events 33
(H) Other Reports 33
12. WARRANTIES AND REPRESENTATIONS 33
(A) Corporate Existence 33
(B) Corporate Authority 33
(C) Binding Effect 34
(D) Financial Data 34
(E) Material Adverse Change 35
(F) Tax Liabilities 35
(G) Loans; Guaranties 35
(H) Margin Security 35
(I) Subsidiaries 36
(J) Litigation and Proceedings 36
(K) Other Agreements 36
(L) Employee Controversies 36
(M) Compliance with Laws and Regulations 36
(N) Patents, Trademarks and Licenses 37
(O) ERISA 38
(P) Use of Proceeds 38
(Q) Fiscal Year 38
(R) Compliance with Environmental and Safety Laws 38
(S) Survival of Warranties 39
13. GENERAL AFFIRMATIVE COVENANTS. 39
(A) Reimbursement of Loan Operating Costs 39
(B) Notice of Claims 40
(C) Conduct of Business 40
(D) Claims and Taxes 41
(E) ERISA 42
(F) Environmental and Safety Laws 42
(G) Books, Records and Inspections 43
14. GENERAL NEGATIVE COVENANTS 44
(A) Consolidations, Mergers and Asset Acquisitions 44
(B) Investments 45
(C) Distributions and Loans 46
(D) Transactions With Affiliates 47
(E) Asset Disposition, etc. 47
(F) Conditional Sales 48
(G) Encumbrances 48
76
(H) Indebtedness 48
(I) Guarantees 49
(J) Amendment of Certificate of Incorporation
or By-Laws. 49
(K) ERISA 49
(L) Transfer of DeVry Canada Stock 50
15. RESERVED 50
16. FINANCIAL COVENANTS 50
17. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS
AGREEMENT. 51
18. TERMINATION, ACCELERATION AND DEMAND 52
(A) Term 52
(B) Repayment and Acceleration of Loans 53
(C) Repayment and Acceleration of Interest and Fees 53
(D) Certain Obligations Payable on Demand; Waivers 53
19. EVENTS OF DEFAULT 53
20. LENDER'S RIGHTS AND REMEDIES 56
(A) Equitable Relief 56
(B) Cash Collateral for Letters of Credit 56
21. AGENT 57
(A) Actions; Indemnification 57
(B) Funding Reliance, etc. 58
(C) Exculpation 58
(D) Successor 58
(E) Loans by Agent 59
(F) Credit Decisions 59
(G) Copies, etc 59
22. MISCELLANEOUS 59
(A) Waivers, Amendments, etc 59
(B) Notices 60
(C) Costs and Expenses 61
(D) Indemnification 61
(E) Survival 63
(F) Severability 63
77
(G) Headings 63
(H) Counterparts, Effectiveness, etc 63
(I) Governing Law; Entire Agreement 63
(J) Successors and Assigns 63
(K) Assignments and Participations 64
(L) Other Transactions 68
(M) Waiver of Jury Trial 68
(N) Submission to Jurisdiction 68
(O) Restatement 69
78
References to Exhibits
Exhibit Paragraph
------- ---------
A Form of Revolving Note 2(A)
B Form of Notice of Borrowing 2(B)
C Form of Compliance Certificate 11(A)
D Form of Guaranty 1(A)
E Existing L/Cs 2(A)
F Other Indebtedness, Guaranties, 12(G)
G Subsidiaries 12(I)
H Litigation; Other Agreements 12(J); 12(K)
I ERISA 12(O)
J Investments 14(B)
K Liens, Claims, Security Interests, 14(G)
Encumbrances
L Form of Opinion of Special Counsel 17(A)
for Borrower
M Form of Assignment 22(K)
79
AMENDED AND RESTATED FINANCING AGREEMENT
This Amended and Restated Financing Agreement (this
"Agreement"), made as of June 12, 1996 (the "Restatement Date"),
by and between Keller Graduate School of Management, Inc., a
Delaware corporation ("Borrower"), various financial institutions
which are, or may become, parties hereto ("Lenders"), and Bank of
America Illinois, a banking association having its principal
office at 231 South LaSalle Street, Chicago, Illinois, as agent
for Lenders (in such capacity, "Agent").
W I T N E S S E T H:
WHEREAS, Borrower has entered into an Amended and Restated
Financing Agreement made as of April 14, 1994 (as amended or
modified and in effect on the Restatement Date, the "Existing
Agreement") with the Lenders and the Agent;
WHEREAS, Borrower, the Agent and the Lenders desire to amend
and restate the Existing Agreement in its entirety in order to,
without limitation, (i) increase the aggregate amount of
Revolving Loans and Letters of Credit which may be outstanding
hereunder at any one time, (ii) to extend the Termination Date
and (iii) provide for the modification of certain of the
representations and warranties, covenants and other provisions
contained in the Existing Agreement;
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and of any loans or extensions of credit now or
hereafter made to or for the benefit of Borrower by Lenders, the
parties hereto agree to amend and restate the Existing Agreement
as follows:
1. DEFINITIONS AND INTERPRETATION.
(A) In this Agreement and the other Loan Documents, the
following terms have the respective meanings indicated, unless a
clear contrary intention appears:
"Affiliate," as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by", and "under common control
with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote ten percent (10%) or more of
the securities or other interests having voting power for the
election of directors of such Person or otherwise to direct or
cause the direction of the management policies of that Person,
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whether through the ownership of voting securities, by contract
or otherwise. Without limiting the generality of the foregoing,
all of Borrower's officers, directors, Subsidiaries, joint
ventures and partnerships shall be deemed to be Borrower's
Affiliates for purposes of this Agreement.
"Agent" shall have the meaning set forth in the preamble
hereto.
"Agreement" shall have the meaning set forth in the preamble
hereto.
"Applicable L/C Fee" and "Applicable Non-Use Fee" shall
mean, and "Applicable Margin", as applied to Eurodollar Rate
Loans or Base Rate Loans, as the case may be, shall mean, the
percentage indicated in the table below opposite the then
applicable range of Debt Coverage Ratio values:
[Download Table]
Applicable Margin
Debt Coverage Applicable --------------------- Applicable
Ratio L/C Fee Eurodollar Base Rate Non-Use Fee
------------- ---------- ---------- --------- -----------
less than 0.5:1 0.35 0.35 % 0.00% 0.15 %
0.5:1 up to but 0.50 0.50 % 0.00% 0.20 %
not including
1.0:1
1.0:1 up to but 0.625 0.625% 0.00% 0.25 %
not including
1.5:1
1.5:1 up to but 0.75 0.75 % 0.00% 0.25 %
not including
2.0:1
2.0:1 up to but 1.25 1.25 % 0.00% 0.30 %
not including
3.0:1
equal to or 1.75 1.75 % 0.50% 0.375%
greater than
3.0:1
provided, that any change in the Applicable Non-Use Fee, the
Applicable Margin and the Applicable L/C Fee because of a change
in the Debt Coverage Ratio as measured at the end of a Fiscal
Quarter shall become effective as of the first day of the second
succeeding Fiscal Quarter; provided, further, that with respect
to the Fiscal Quarters ending December 31, 1995, March 31, 1996
and June 30, 1996, the Debt Coverage Ratio shall be deemed to be
between 1.5:1 and 2.0:1.
"Assignable Commitments" shall have the meaning ascribed to
such term in Paragraph 22(K).
"Assignable Loans" shall have the meaning ascribed to such
term in Paragraph 22(K).
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"Assignment" shall have the meaning ascribed to such term in
Paragraph 22(K)(b)(vi).
"Attorneys' Fees" shall mean the reasonable fees (and costs
and expenses related thereto) of the attorneys (and all
paralegals and other staff employed by such attorneys whose
services are regularly billed to such attorneys' clients)
employed by Agent or any Lender from time to time to (i) file a
petition, complaint, answer, motion or other pleading, or to take
any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) relating to the Obligations or any
security for the Obligations or relating to this Agreement or any
of the other Loan Documents; (ii) enforce any of Agent's or any
Lender's rights to collect any of the Obligations; or (iii) give
any advice with respect to any of the foregoing; provided that
documentation supporting such services in reasonable detail as
reasonably requested by Borrower shall be furnished to Borrower.
"BAI" shall mean Bank of America Illinois and any successor
thereto.
"Bankruptcy Code" shall mean Title 11 of the United States
Code (11 U.S.C., 101 et seq.).
"Base Rate" shall mean, for any day, a fluctuating rate per
annum (rounded upward to the next highest 1/8 of 1% if not
already an integral multiple of 1/8 of 1%) equal to the greater
of (i) the Reference Rate in effect on such day or (ii) the
Federal Funds Effective Rate in effect on such day. For purposes
of this Agreement, any change in the Base Rate due to a change in
the Reference Rate shall be effective on the date such change in
the Reference Rate is announced, and any change in the Base Rate
due to a change in the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Federal
Funds Effective Rate. If for any reason BAI shall have
determined (which determination shall be conclusive in the
absence of manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the
inability or failure of BAI to obtain sufficient bids or
publication in accordance with the terms hereof, the Base Rate
shall be a fluctuating rate per annum equal to the Reference Rate
in effect from time to time until the circumstances giving rise
to such inability no longer exist.
"Base Rate Loans" shall mean those Loans outstanding which
bear interest at a rate based upon the Base Rate, as provided in
Paragraph 3(A).
"Becker Subsidiaries" shall mean, collectively, (i) DeVry
CPA Review Course, Inc., a Delaware corporation, to be renamed
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"Becker CPA Review Corporation" following consummation of the
Becker Transaction, and (ii) DeVry Educational Development
Corporation, a Delaware corporation, to be renamed "Becker/DeVry
Educational Development Corporation" following consummation of
the Becker Transaction.
"Becker Transaction" shall mean, collectively, (i) the
acquisition by DeVry Educational Development Corporation of all
the trademarks, copyrights and certain other related intellectual
property relating to the Becker Subsidiaries, (ii) the
acquisition by DeVry CPA Review Course, Inc. of all the issued
and outstanding capital stock of The Becker CPA Review, Inc., a
Delaware corporation and (iii) the acquisition by DeVry of all
the issued and outstanding partnership interests of Becker CPA
Review Course Ltd., a California limited partnership, all as
contemplated by the Agreement Regarding Purchase of Partnership
Interests, among DeVry, the Becker Subsidiaries and other parties
thereto.
"Benefit Plan" shall mean any employee benefit plan which is
subject to the provisions of Title IV of ERISA and which is, or
was at any time, during the five preceding years, maintained for
employees of Borrower, any Subsidiary or any ERISA Affiliate,
other than a Multiemployer Plan.
"Borrower" shall have the meaning set forth in the preamble
hereto.
"Business Day" shall mean any day excluding (i) Saturday,
(ii) Sunday and (iii) any day which is a holiday under the laws
of the State of Illinois; and with respect to Eurodollar Rate
Loans, means such a day on which dealings are carried on in the
London Interbank Market.
"Canadian Letters of Credit" shall mean Letters of Credit
issued by the Agent for the account or benefit of DeVry Canada.
"Capital Expenditures" shall mean, for any period, (i) the
aggregate of all expenditures (when paid in cash or, if earlier,
accrued as liabilities), other than with respect to capitalized
leases, made by DeVry and its Subsidiaries during such period
that, in conformity with GAAP, are required to be included in the
property, plant, equipment or similar fixed facilities accounts
on the consolidated balance sheet of DeVry minus (ii) any such
expenditures referred to in clause (i) of this definition which
were made in connection with the maintenance, preservation,
replacement or restoration of assets to the extent such
expenditures were financed from insurance or other proceeds paid
on account of the loss of or damage to the assets being replaced
or restored or from awards of compensation arising from the
83
taking by condemnation or eminent domain of such assets being
replaced.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended.
"Conditions Precedent" shall have the meaning ascribed to
such term in Paragraph 17.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income of DeVry and the Subsidiaries for such
period; provided, however, that any write-off or other charge
against income relating to (i) an intangible or other asset
excluded from the calculation of Consolidated Tangible Net Worth,
(ii) deferred financing costs in connection with indebtedness
hereunder and (iii) repurchase of interest rate protection
agreements, currency exchange agreements or similar agreements,
shall not be charged against consolidated net income for such
period.
"Consolidated Subsidiary" means, at any date, any Subsidiary
or other entity (including, if applicable, the Exempt Entities)
the accounts of which, in accordance with GAAP consistently
applied, would be consolidated with those of DeVry in its
consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" shall mean, with respect
to DeVry and the Subsidiaries on a consolidated basis at any
date, stockholders' equity minus, without duplication, all items
which would properly be classified as intangible assets of DeVry
and its Subsidiaries under GAAP, including deferred charges such
as unamortized debt discount and expenses, organization costs and
research and development costs.
"Debt Coverage Ratio" shall mean the ratio, calculated as of
the last day of each Fiscal Quarter, of (i) the average daily
aggregate Indebtedness (excluding all Indebtedness to the extent
consisting of items described in clause (iii) of the definition
of "Indebtedness") of DeVry and its Subsidiaries for the then
ending Fiscal Quarter to (ii) the difference of (a) EBITDA for
the then ending and three immediately preceding Fiscal Quarters
less (b) $3,500,000.
"Default" shall mean any event which through the passage of
time or the giving of notice or both would mature into an Event
of Default.
"DeVry" shall mean DEVRY INC., a Delaware corporation.
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"DeVry Canada" shall mean DeVry Canada Inc., a Canadian
corporation.
"EBIT" shall mean DeVry's Consolidated Net Income before
deducting interest expense (including, without limitation, any
imputed interest attributable to capitalized leases), Fee
Expenses and taxes.
"EBITDA" shall mean DeVry's Consolidated Net Income before
deducting interest expense (including, without limitation, any
imputed interest attributable to capitalized leases), Fee
Expenses, taxes, depreciation and amortization and other non-cash
charges.
"Eligible Assignee" shall mean any commercial bank.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974.
"ERISA Affiliate" shall mean (i) a corporation which is a
member of the same controlled group of corporations (within the
meaning of section 414(b) of the Internal Revenue Code) as
Borrower, DeVry or any Subsidiary; (ii) a trade or business which
is under common control (within the meaning of section 414(c) of
the Internal Revenue Code) with Borrower, DeVry or any
Subsidiary; and (iii) an organization which is a member of the
same affiliated service group (within the meaning of section
414(m) of the Internal Revenue Code) as Borrower, DeVry or any
Subsidiary, or corporation or trade or business described in
clause (i) or (ii) hereof.
"Eurodollar Interest Period" shall mean any interest period
applicable to a Eurodollar Rate Loan, as determined pursuant to
Paragraph 3(G).
"Eurodollar Interest Rate Determination Date" shall mean
each date on which the Eurodollar Rate is calculated for purposes
of determining the interest rate with respect to a Eurodollar
Interest Period, which date shall be the second Business Day
prior to the first day of the related Eurodollar Interest Period
for a Eurodollar Rate Loan.
"Eurodollar Rate" shall mean, for any Eurodollar Interest
Period, a per annum rate of interest obtained by dividing (i) the
rate of interest determined by the per annum rate at which
deposits in U.S. Dollars are offered by the principal office of
BAI in London to major banks in the London interbank market at
11:00 A.M. (London time) on the Eurodollar Interest Rate
Determination Date for a period equal to such Eurodollar Interest
Period and in an amount substantially equal to the amount of the
85
Eurodollar Rate Loan requested by Borrower, by (ii) a percentage
equal to 100% minus the Eurodollar Reserve Percentage for such
Eurodollar Interest Period.
"Eurodollar Rate Loans" shall mean those Loans outstanding
which bear interest at a rate based upon the Eurodollar Rate as
provided in Paragraph 3(A).
"Eurodollar Reserve Percentage" shall mean, for any
Eurodollar Interest Period, that percentage (expressed as a
decimal) which is in effect during such Eurodollar Interest
Period (or, if more than one such percentage shall be in effect
during such period, the daily average of such percentages for
those days during such period on which any such percentage shall
be in effect), as prescribed by the Board of Governors of the
Federal Reserve System for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal
Reserve System in Chicago, Illinois of that class of member banks
of which Agent is a member in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United
States office of Agent to United States residents). The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" shall mean any of the events listed in
Paragraph 19.
"Exempt Entities" shall mean, collectively: (i) Becker
C.P.A. Review (Isreal) Limited, an Israeli corporation; (ii)
Newton Becker Limited, a Hong Kong corporation; (iii) DeVry
Institute of Technology, Inc., a Delaware corporation; (iv)
Missouri Institute of Technology, Inc., a Missouri corporation;
and (v) Provost & Associates, Inc., an Illinois corporation.
"Existing Agreement" shall have the meaning set forth in the
recitals hereto.
"Existing L/Cs" shall have the meaning ascribed to such term
in Paragraph 2(A).
"Federal Funds Effective Rate" shall mean, for any day, an
interest rate per annum equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as
published for such day by the Federal Reserve Bank of New York,
86
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by BAI from three federal funds brokers of
recognized standing selected by it. In the case of a day which
is not a Business Day, the Federal Funds Effective Rate for such
day shall be the Federal Funds Effective Rate for the next
preceding Business Day.
"Fee Expenses" shall mean all commitment fees, Agent's fees
and letter of credit fees paid or owed by Borrower pursuant to
Paragraph 4.
"Financials" shall have the meaning ascribed to such term in
Paragraph 11(B).
"Fiscal Quarter" shall mean a calendar quarter.
"Fixed Charge Coverage Ratio" shall mean, for any period,
the ratio of DeVry's (i) EBIT, plus lease expense included in
determining net earnings (excluding, however, lease expenses for
student housing leases for terms of less than 18 months), plus
the aggregate cash proceeds of sales and other dispositions of
DeVry's or Subsidiaries' assets, plus federal income tax refunds
received by DeVry arising from losses of DeVry and its Affiliates
from prior periods to (ii) interest expense and Fee Expenses plus
lease expense included in determining net earnings (excluding,
however, lease expenses for student housing leases for terms of
less than 18 months).
"GAAP" shall have the meaning ascribed to such term in
Paragraph l(D).
"Governmental Authority" shall mean any nation or
government, any state, province or other political subdivision
thereto and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to such government, nation, state, province or political
subdivision thereof.
"Guaranty" shall mean a guaranty in substantially the form
of Exhibit D hereto.
"Indebtedness" shall mean all of Borrower's obligations and
liabilities to any Person, including all debts, claims and
indebtedness, contingent, fixed or otherwise, heretofore, now
and/or from time to time hereafter owing, due or payable, however
evidenced, created, incurred, acquired or owing and however
arising, whether under written or oral agreement, operation of
law, or otherwise. Indebtedness includes, without limitation,
(i) the Obligations; (ii) obligations and liabilities of any
87
Person secured by a lien, claim, encumbrance, or security
interest upon property owned by Borrower, even though Borrower
has not assumed or become liable for the payment therefor; and
(iii) obligations or liabilities created or arising under any
lease of real or personal property, or conditional sales contract
or other title retention agreement with respect to property used
and/or acquired by Borrower, even though the rights and remedies
of the lessor, seller and/or lender thereunder are limited to
repossession of such property.
"Indemnified Liabilities" shall have the meaning ascribed to
such term in Paragraph 22(D).
"Indemnified Parties" shall have the meaning ascribed to
such term in Paragraph 22(D).
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986.
"Investment" shall mean, with respect to any Person, (i) any
loan or advance made by such Person to another Person, (ii) any
purchase or other acquisition of any capital stock, obligations
or other securities of, or equity interest in, another Person
(including the acquisition of capital stock or other equity
interest in connection with the foundation of such Person), or
(iii) any capital contribution to or other investment in or
acquisition of any interest in another Person.
"L/C Documents" shall mean all Letters of Credit and all
applications, reimbursement agreements, security agreements,
certificates, written draws, agreements, documents,
correspondences and instruments in any way related to such
Letters of Credit.
"Lenders" shall have the meaning set forth in the preamble
hereto.
"Letter of Credit" shall mean the Existing L/C's and each
other letter of credit issued by Agent for the account of
Borrower or DeVry Canada hereunder.
"Loan Documents" shall mean all agreements, instruments and
documents, including security agreements, loan agreements
(including this Agreement and the L/C Documents) notes,
guarantees (including any Guaranty), mortgages, deeds of trust,
subordination agreements, pledges, powers of attorney, consents,
assignments, contracts, notices, leasehold mortgages, financing
statements and all other written matter whether heretofore, now
or hereafter executed by or on behalf of Borrower or any other
Person and delivered to Agent or any Lender pursuant to this
88
Agreement or in connection with the transactions related hereto
or contemplated hereby, together with all agreements and
documents executed and delivered in connection therewith.
"Loans" shall mean the Revolving Loan and each advance or
component thereof consisting of a Base Rate or a Eurodollar Rate
Loan.
"Multiemployer Plan" shall mean a "multiemployer plan" as
defined in section 4001(a)(3) of ERISA which is, or was at any
time during the five preceding years, maintained for employees of
Borrower, DeVry, any Subsidiary or any ERISA Affiliate.
"Notice of Borrowing" shall have the meaning ascribed to
such term in Paragraph 2(B).
"Notice of Conversion or Continuation" shall have the
meaning ascribed to such term in Paragraph 3(D).
"Notice of Issuance" shall have the meaning ascribed to such
term in Paragraph 2(F).
"Obligations" shall mean and include all loans, advances,
debts, liabilities, obligations, covenants and duties owing by
Borrower to Agent or any Lender of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other
instrument, whether arising under or with respect to this
Agreement, any of the other Loan Documents or under any other
agreement, instrument or document, whether or not for the payment
of money, whether arising by reason of an extension of credit,
opening of a Letter of Credit, loan, guaranty, interest rate
protection agreement, currency exchange agreement,
indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, arising before or after the
filing of a petition in bankruptcy by or on behalf of Borrower,
now existing or hereafter arising and however acquired any
reimbursement obligations, and any other liabilities hereafter
arising and owing to Agent in connection with the issuance of
Letters of Credit. The Obligations include all interest,
charges, expenses, fees, Attorneys' Fees and any other sums
chargeable to Borrower under this Agreement, any of the Loan
Documents or any other agreement with Agent or any Lender.
"Percentage" shall mean, as to any Lender, such Lender's
percentage set forth against its name on the signature pages
hereof or, if such Lender has executed an Assignment, its
percentage set forth therein or, if such Lender has executed more
than one Assignment, the most recent thereof.
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"Person" shall mean and include any individual, sole
proprietorship, partnership, limited liability company, joint
venture, trust, unincorporated organization, association,
corporation, institution, entity, party or government (whether
national, federal, state, provincial county, city, municipal, or
otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" shall mean any employee benefit plan defined in
section 3(3) of ERISA other than a Multiemployer Plan or any
employee welfare benefit plan which is maintained pursuant to a
collective bargaining agreement to which two or more unrelated
employers contribute and in respect of which Borrower, DeVry or
and Subsidiary or any ERISA Affiliate is an "employer" as defined
in section 3(5) of ERISA.
"Quarterly Payment Date" shall mean each February 1, May 1,
August 1 and November 1, commencing August 1, 1996.
"Reference Rate" shall mean, at any time and from time to
time, the rate per annum then most recently announced by BAI at
its head office as its reference rate. The Reference Rate is not
necessarily intended to be the lowest rate of interest determined
by BAI in connection with extensions of credit.
"Register" shall have the meaning ascribed to such term in
Paragraph 22(K)(c).
"Required Lenders" shall mean Lenders whose aggregate
Percentages are at least sixty-six and two-thirds percent
(66-2/3%).
"Restatement Date" shall have the meaning set forth in the
preamble hereto.
"Revolving Loan" shall have the meaning ascribed to such
term in Paragraph 2(A).
"Revolving Loan Maximum Commitment" shall mean Eighty-Five
Million Dollars ($85,000,000).
"Semester" shall mean an academic period, consisting of
approximately seventeen (17) weeks, including any associated
administrative periods and holidays, as to which Borrower shall
have given Agent written notice reasonably promptly following
Borrower's announcement of the academic calendar which includes
such academic period. A Semester shall be deemed to begin on the
first day of classes in an academic period and end on the day
prior to the commencement of classes in the subsequent academic
period.
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"Special Purpose Subsidiary" means any Subsidiary: (1) of
which Borrower owns, directly all of the issued and outstanding
voting stock, general partner's interests or other equity
interests having ordinary voting power to elect the board of
directors or other managers of such; (2) which has executed and
delivered to the Agent for the benefit of the Lenders a Guaranty;
and (3) which has been designated in writing by the Borrower to
the Agent and the Lenders as a "Special Purpose Subsidiary".
"Subsidiary" shall mean any corporation or other entity of
which more than fifty percent (50%) of the outstanding capital
stock or ownership interest having ordinary voting power to elect
a majority of the board of directors or other management body of
such corporation or other entity (irrespective of whether at the
time stock of any other class or classes of such corporation or
other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time, directly or
indirectly, owned by DeVry, including, without limitation,
Borrower; provided, that in no event shall "Subsidiary" include
the Exempt Entities.
"Termination Date" shall have the meaning ascribed to such
term in Paragraph 18(A).
(B) Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided
in this Agreement shall have such meanings when used in the other
Loan Documents including each Notice of Borrowing, Notice of
Continuation or Conversion and any other notice or communication
delivered from time to time in connection with this Agreement or
any other Loan Document.
(C) Interpretation. In this Agreement and each other Loan
Document, unless a clear contrary intention appears:
(a) the singular number includes the plural number and vice
versa;
(b) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Agreement, and
reference to a Person in a particular capacity excludes such
Person in any other capacity or individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement
and the Schedules and Exhibits hereto), document or instrument
means such agreement, document or instrument as amended or
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modified and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof and reference
to any promissory note includes any promissory note which is an
extension or renewal thereof or a substitute or replacement
therefor;
(e) reference to any applicable law means such applicable
law as amended, modified, codified or reenacted, in whole or in
part, and in effect from time to time, including rules and
regulations promulgated thereunder;
(f) unless the context indicates otherwise, reference to
any Paragraph, Schedule or Exhibit means such Paragraph hereof or
Schedule or Exhibit hereto;
(g) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to this Agreement as a whole
and not to any particular Paragraph or other provision hereof;
(h) "including" (and with correlative meaning "include")
means including without limiting the generality of any
description preceding such term; and
(i) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but
excluding".
(D) Accounting Terms. For purposes of this Agreement and
the other Loan Documents, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in
conformity with generally accepted accounting principles
("GAAP"), from time to time in effect, unless a clear contrary
intention appears and, where appropriate, reference to DeVry
shall be deemed a reference to DeVry and its Subsidiaries on a
consolidated basis.
2. LOANS AND LETTERS OF CREDIT.
(A) Revolving Loan. Borrower acknowledges that set forth
on Exhibit E is a true and complete listing of all "Letters of
Credit" (as defined in the Existing Agreement); such Letters of
Credit being referred to herein as the "Existing L/C's." From
time to time before the Termination Date, each Lender severally
and for itself alone shall make advances (such advances of all
Lenders, in the aggregate, being hereinafter referred to as the
"Revolving Loan") to or for the benefit of Borrower on a
revolving credit basis in such Lender's Percentage of such
aggregate amounts as Borrower may from time to time request. The
aggregate outstanding principal amount of the Revolving Loan,
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when added to the aggregate undrawn face amount of any
outstanding Letters of Credit (together with any reimbursement
obligations of Borrower with respect to such Letters of Credit),
may aggregate, but shall not exceed at any one time outstanding
the Revolving Loan Maximum Commitment then in effect. The
Revolving Loan shall be evidenced by a promissory note executed
by Borrower and made payable to the order of Agent in the form of
Exhibit A (the "Revolving Note") and, subject to the terms and
provisions of the Revolving Note and this Agreement, shall be due
and payable on the Termination Date, unless no principal balance
of the Revolving Loan is then outstanding.
(B) Notice of Borrowing. Whenever Borrower desires to
borrow under Paragraph 2(A), it shall deliver to Agent (who will
promptly inform Lenders of the substance thereof) a written
notice containing the original signature of an authorized officer
or employee of Borrower ("Notice of Borrowing") substantially in
the form of Exhibit B (i) no later than 10:00 a.m. (Chicago time)
on the proposed date of disbursement of such borrowing, in the
case of a borrowing of Base Rate Loans and (ii) no later than
10:00 a.m. (Chicago time) at least three (3) Business Days in
advance of the proposed date of disbursement of such borrowing,
in the case of a borrowing of Eurodollar Rate Loans. The Notice
of Borrowing shall specify (a) that such proposed borrowing is an
advance of the Revolving Loan, (b) the proposed date of
disbursement of such proposed borrowing, (c) the amount of such
proposed borrowing, (d) whether the proposed borrowing will be a
Base Rate Loan or Eurodollar Rate Loan and (e) in the case of a
Eurodollar Rate Loan, the requested Eurodollar Interest Period.
In lieu of delivering the above described Notice of Borrowing,
Borrower may give Agent (who will promptly inform Lenders of the
substance thereof) telephonic notice of the request within the
required time of any proposed borrowing under this Paragraph 2(B)
provided that such notice is confirmed in writing by delivery to
Agent promptly (but in no event later than the proposed date of
disbursement of such borrowing) of a Notice of Borrowing. In the
event such written confirmation is not delivered to Agent on or
before the proposed date of disbursement, no Lender shall have
any obligation to disburse such requested Loan. Subject to the
terms of this Agreement, each proposed borrowing shall be made on
the proposed date of disbursement of such borrowing. On such
date of disbursement, each Lender shall deposit with Agent same
day funds, at or before 12:00 noon (Chicago time), in an amount
equal to such Lender's Percentage of such borrowing, such deposit
to be made to such account as Agent shall specify from time to
time to Lenders. After timely receipt of such funds, Agent shall,
at or before 2:00 p.m. (Chicago time), make such funds available
to Borrower by depositing such funds in an account maintained by
Borrower with Agent for such purpose. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to
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make any Loan. Prior to the initial advance of the Revolving
Loan after the Restatement Date, Borrower shall notify Agent in
writing of the names of the officers and employees authorized to
request borrowings on behalf of Borrower and shall provide Agent
with a specimen signature of each such officer. Agent and each
Lender shall be entitled to rely conclusively on such officers'
and employees' authority to request borrowings on behalf of
Borrower until Agent receives written notice to the contrary.
Neither Agent nor any Lender shall have any duty to verify the
authenticity of the signature appearing on any written Notice of
Borrowing and, with respect to an oral request for a borrowing,
shall have no duty to verify the identity of any Person
representing himself or herself as one of the officers or
employees authorized to make such request on behalf of Borrower.
Neither Agent nor any Lender shall incur any liability to
Borrower in acting upon any notice referred to above which Agent
or such Lender believes in good faith to have been given by a
duly authorized officer or employee authorized to act on behalf
of Borrower or for otherwise acting in good faith under this
Paragraph 2(B) and, upon disbursement of Loans in accordance with
this Agreement pursuant to any such notice, Borrower shall have
effected a borrowing of loans hereunder. Any Notice of Borrowing
pursuant to this Paragraph 2(B) shall be irrevocable and Borrower
shall be bound to make a borrowing in accordance therewith.
(C) Loan Account. Agent shall maintain a loan account on
its books in which shall be recorded (i) all Loans made to
Borrower by Lenders pursuant to this Agreement, (ii) all payments
made by Borrower on all such Loans and (iii) all other
appropriate debits and credits as provided in this Agreement,
including those for all fees, charges, expenses and interest.
All entries in such loan account shall be made in accordance with
Agent's customary accounting practices as in effect from time to
time. Subject to the terms of Paragraph 5, Borrower promises to
pay the amount reflected as owing by it under such loan account
and all of its Obligations as such amounts become due or are
declared due pursuant to the terms of this Agreement or the other
Loan Documents.
(D) Prepayments. Borrower may, at any time, prepay any or
all of the outstanding principal portion of the Obligations in
increments of $500,000, without penalty or premium, other than
the payment of any amounts owing pursuant to Paragraph 3(E) or
3(K); provided, that any prepayment of all of the outstanding
principal portion of the Obligations need not be in an increment
of $500,000; provided, further, that on the Restatement Date the
Borrower may make a one-time prepayment of the Outstanding
Revolving Loans in any amount of up to $50,000. Each such
voluntary prepayment shall be applied as specified by Borrower to
Agent at the time of such prepayment or, if Borrower fails to so
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specify the application thereof, as specified by the Agent to the
outstanding principal balance of the Revolving Loan.
(E) Voluntary Reduction or Termination of the Revolving
Maximum Loan Commitment. The Borrower may from time to time
prior to the Termination Date on at least five (5) Business Days'
prior written notice received by the Agent (which shall promptly
advise each Lender thereof) permanently reduce the amount of the
Revolving Loan Maximum Commitment (such reduction to be pro rata
among the Lenders according to their respective Percentages) to
an amount not less than the aggregate unpaid principal amount of
the Revolving Loan plus the aggregate undrawn face amount of all
outstanding Letters of Credit (together with any reimbursement
obligations of the Borrower with respect to such Letters of
Credit) then outstanding. Any such reduction shall be in an
aggregate amount of $1,000,000 or an integral multiple thereof.
Subject to the requirements of Paragraph 20(B), the Borrower may
at any time on like notice prior to the Termination Date
terminate the Revolving Loan Maximum Commitment upon payment in
full of the Revolving Loans and other obligations of the Borrower
hereunder pertaining to the Revolving Loans.
(F) Letters of Credit; Reimbursement Obligations. Whenever
Borrower desires a Letter of Credit, it shall deliver to Agent
(who will promptly inform Lenders of the substance thereof) a
written notice on an appropriate form of application and
containing the original signature of an authorized officer or
employee of Borrower ("Notice of Issuance") no later than 10:00
a.m. at least three (3) Business Days in the case of any Letter
of Credit other than a Canadian Letter of Credit and at least
five (5) Business Days in the case of any Canadian Letter of
Credit in advance of the proposed date of issuance. The Notice
of Issuance shall specify the amount, beneficiary and other
material terms of the proposed Letter of Credit. In lieu of
delivery of the above-described Notice of Issuance, Borrower may
give Agent (who will promptly inform Lenders of the substance
thereof) telephonic notice of the request within the required
time of any proposed Letter of Credit under this Paragraph 2(F)
provided that such notice is confirmed in writing by delivery to
Agent promptly (but in no event later than the proposed date of
issuance of such Letter of Credit). Subject to the terms of this
Agreement, Agent shall issue the requested Letter of Credit on
the proposed date of issuance. Effective immediately on such
issuance, and without any further or other act by Agent or any
Lender, each Lender will be deemed to have purchased a pro rata
undivided interest according to their respective Percentages in
all Agent's right, title and interest in, under and to such
Letter of Credit including any Canadian Letter of Credit,
including Agent's obligations thereunder and Borrower's
obligations to reimburse Agent with respect thereto, and each
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Lender shall, to the extent of its respective Percentage, be
responsible to promptly reimburse Agent for any and all payments
made by Agent under such Letter of Credit not theretofore
reimbursed by Borrower as provided herein. Borrower hereby
agrees and acknowledges that any payments made by Agent to any
beneficiary of any such Letter of Credit shall constitute
advances of the Revolving Loan to Borrower and shall be
originally made as Base Rate Loans, which Loans are hereby
irrevocably authorized and directed by Borrower. Borrower's
obligation to repay Revolving Loans made in accordance with this
Paragraph 2(F) shall be unconditional regardless of (i) any lack
of validity or enforceability of any L/C Document; (ii) any
amendment or waiver of or consent to or departure from, any of
the terms of any L/C Document; (iii) the existence of any claim,
setoff, defense or other right which Borrower or any Affiliate of
Borrower may have at any time against any issuer or beneficiary
of any Letter of Credit; (iv) evidence that any L/C Document
proves to be forged, fraudulent, invalid or insufficient in any
respect or that any statement therein is untrue or inaccurate in
any respect, regardless of whether or how such facts or alleged
facts are brought to the attention of Agent; (v) payment by the
issuer of any Letter of Credit against presentation of a written
demand or certificate which does not comply with the terms of
such Letter of Credit, except to the extent of the Letter of
Credit issuer's gross negligence or willful misconduct with
respect to any of the foregoing or (vi) the fact that a Default
or an Event of Default has occurred or is continuing. The Agent
shall not have any obligation to inquire with respect to the
truthfulness or accuracy of any communication delivered by any
beneficiary of a Letter of Credit to Agent.
(G) Allocation. All payments by Borrower pursuant to this
Agreement or any other Loan Document, whether in respect of
principal of or interest on Loans, shall be made by Borrower to
Agent for the account of Lenders pro rata according to their
respective Percentages. The payment of all fees referred to in
Paragraph 4(A) shall be made by the Borrower to the Agent for the
account of the Lenders entitled thereto pro rata according to
their respective Percentages. The payment of all fees referred
to in Paragraph 4(B) shall be made to Agent for its own account.
All other amounts payable to Agent or any Lender under this
Agreement or any other Loan Document shall be paid to Agent for
the account of the Person entitled thereto.
3. INTEREST ON THE LOANS.
(A) Rate of Interest. All Loans shall be either Base Rate
Loans or Eurodollar Rate Loans. To the extent past due, all fees
described in Paragraph 4 and all other liquidated Obligations
shall constitute principal and shall bear interest hereunder. The
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outstanding principal balance of all Obligations other than Loans
shall bear interest from the date such Obligations become past
due until paid in full at a per annum rate equal to the sum of
the Base Rate in effect from time to time plus one percent
(1.0%). Borrower shall determine whether the Loans shall bear
interest determined by reference to the Base Rate or the
Eurodollar Rate at the time a Notice of Borrowing is given by the
Borrower pursuant to Paragraph 2(B) or at the time a Notice of
Conversion or Continuation is given by Borrower pursuant to
Paragraph 3(D), as the case may be. To the extent any Loan is
outstanding with respect to which notice has not been delivered
to Agent in accordance with the terms of this Agreement
specifying the basis for determining the applicable rate of
interest, then that Loan shall be a Base Rate Loan and shall bear
interest at a rate determined by reference to the Base Rate. The
Loans shall bear interest, except as otherwise provided in
Paragraph 3(D), as follows:
(i) If a Base Rate Loan, then at a per annum rate equal to
the sum of the Base Rate plus the Applicable Margin in effect
from time to time; and
(ii) If a Eurodollar Rate Loan, then at a per annum rate
equal to the sum of the Eurodollar Rate for the applicable
Eurodollar Interest Period plus the Applicable Margin.
(B) Interest Payments and Computation. Interest accrued on
all Base Rate Loans and other Obligations outstanding in any
calendar quarter shall be payable, in arrears, on each Quarterly
Payment Date. Interest accrued on all Eurodollar Rate Loans
shall be payable, in arrears, on the last day of the applicable
Eurodollar Interest Period (and if such Interest Period exceeds
three months on the ninetieth day of such Interest Period).
Interest on all Eurodollar Rate Loans shall be computed on the
basis of a year of 360 days and on all Base Rate Loans shall be
computed on the basis of a year of 365 or, where applicable, 366
days and on all Loans shall be computed for the actual number of
days elapsed in the period during which interest accrues. In
computing interest on any Loan or principal portion of the
obligations, the date of the making of the Loan, the date on
which such other Obligations become past due or the first day of
a Eurodollar Interest Period, as the case may be, shall be
included and the date of payment or the expiration date of a
Eurodollar Interest Period, as the case may be, shall be
excluded; provided that if a repayment of any Loan or principal
portion of other obligations is received by Agent after 11:00
a.m. (Chicago time), then the date of payment shall be included
in computing interest on such Loan or principal portion of other
Obligations.
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(C) Default Interest. Notwithstanding the rates of
interest specified in Paragraph 3(A), effective immediately upon
the occurrence of an Event of Default described in Paragraph
19(A), (D) (under clause (i) or clause (ii), but, in the latter
of which cases, only if an acceleration has occurred), (E), (G),
(H), (I), (J), (K) or (L) or an Event of Default by reason of
Borrower's breach of any covenant contained in Paragraph 16, and
for as long thereafter as any such Event of Default shall be
continuing, the principal balance of all Loans and other
obligations then outstanding shall bear interest at a rate which
is two percent (2%) per annum in excess of the rate of interest
otherwise payable under this Agreement.
(D) Conversion or Continuation. Borrower shall have the
option (i) to convert at any time all or any part of the
outstanding Base Rate Loans in a minimum amount of $500,000 and
integral multiples of $500,000 in excess of that amount from a
Base Rate Loan to a Eurodollar Rate Loan; (ii) to convert all or
any part of the outstanding Eurodollar Rate Loans in a minimum
amount of $500,000 and integral multiples of $500,000 in excess
of that amount from a Eurodollar Rate Loan to a Base Rate Loan on
the expiration date of a Eurodollar Interest Period applicable
thereto; or (iii) upon the expiration of any Eurodollar Interest
Period applicable to a Eurodollar Rate Loan, to continue all or
any portion of a Eurodollar Rate Loan in a minimum amount of
$500,000 and integral multiples of $500,000 in excess of that
amount as a Eurodollar Rate Loan, and the succeeding Eurodollar
Interest Period(s) of such continued Loan shall commence on the
expiration date of the Eurodollar Interest Period applicable
thereto; provided, that, except pursuant to Paragraph 3(N), no
outstanding Loan may be continued as, or be converted into, a
Eurodollar Rate Loan when any Event of Default or Default has
occurred and is continuing.
In the event Borrower shall elect to convert or continue a
Loan under this Paragraph 3(D), Borrower shall deliver to Agent
(who shall promptly inform Lenders of the substance thereof) a
written notice containing the original signature of an authorized
officer or employee of Borrower ("Notice of Conversion or
Continuation") (i) no later than 10:00 a.m. (Chicago time) at
least two (2) Business Days in advance of the proposed conversion
date in the case of a conversion to a Base Rate Loan, and (ii) no
later than at least three (3) Business Days in advance of the
proposed conversion or continuation date in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan. A
Notice of Conversion or Continuation shall specify (a) the
proposed conversion or continuation date (which shall be a
Business Day), (b) the amount of the Loans to be converted or
continued, (c) the nature of the proposed conversion or
continuation, and (d) in the case of a conversion to, or
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continuation of, a Eurodollar Rate Loan, the requested Eurodollar
Interest Period. In lieu of delivering the above-described
Notice of Conversion or Continuation, Borrower may give Agent
(who shall promptly inform Lenders of the substance thereof)
telephonic notice within the required time of any proposed
conversion or continuation under this Paragraph 3(D) provided
that such notice is confirmed in writing by delivery to Agent
promptly (but in no event later than the proposed conversion or
continuation date) of a Notice of Conversion or Continuation. In
the event such written confirmation is not delivered to Agent on
or before the proposed date of disbursement, neither Agent nor
any Lender shall have any obligation to convert or continue such
requested Loan.
The officers and employees of Borrower authorized to request
a borrowing on behalf of Borrower pursuant to Paragraph 2(B)
shall also be authorized to request a conversion or continuation
hereunder on behalf of Borrower and Agent and each Lender shall
be entitled to rely conclusively on such officers' and employees'
authority until Agent is notified to the contrary in writing.
Neither Agent nor any Lender shall have any duty to verify the
authenticity of the signature appearing on any written Notice of
Conversion or Continuation and, with respect to an oral request
therefor, neither Agent nor any Lender shall have any duty to
verify the identity of any person representing himself or herself
as one of the officers or employees authorized to make such
request. Neither Agent nor any Lender shall incur any liability
to Borrower in acting upon any such notice referred to above
which Agent or such Lender believes in good faith to have been
given by a duly authorized officer or employee authorized to act
on behalf of Borrower or for otherwise acting in good faith under
this Paragraph 3(D) and, upon conversion or continuation by Agent
or such Lender in accordance with this Agreement pursuant to any
such notice, Borrower shall have effected the conversion or
continuation of Loans hereunder.
Any Notice of Conversion or Continuation for conversion to,
or continuation of, a Loan (or telephonic notice in lieu thereof)
shall be irrevocable and Borrower shall be bound to convert or
continue in accordance therewith.
(E) Increased Costs; Legal Restrictions. In the event that
(a) any law, treaty, rule, regulation, guideline or determination
of a court or Governmental Authority or any change therein or
interpretation or application thereof by a court or Governmental
Authority, enacted or announced after the date hereof (including
enactments of amendments to existing laws, treaties, rules,
regulations or guidelines), or (b) compliance by any Lender with
any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority or
99
quasi-governmental authority, enacted or announced after the date
hereof (including enactments of amendments to existing laws,
treaties, rules, regulations or guidelines):
(i) does or will subject any Lender (or its applicable
lending office or any Affiliate of such Lender) to any tax, duty
or other charge of any kind which such Lender reasonably
determines to be applicable to this Agreement, the Loans or the
Obligations, or changes the basis of taxation of payments to such
Lender of principal, fees, interest, or any other amount payable
hereunder (except for changes in the rate of taxes imposed on or
measured by the overall net income of such Lender by the United
States of America or any political subdivision or taxing
authority thereof or therein, or taxes on or measured by the
overall net income of any Affiliate of such Lender by any foreign
country or subdivision thereof in which that Affiliate is doing
business); or
(ii) does or will impose, modify, or hold applicable any
reserve, special deposit, compulsory loan, FDIC insurance,
capital allocation or similar requirement against assets held by,
or deposits or other liabilities in or for the account of,
advances or loans by, commitments made, or other credit extended
by, or any other acquisition of funds by, any Lender or any
applicable lending office of such Lender or any Affiliate of such
Lender; or
(iii) does or will impose on any Lender or any Affiliate of
such Lender any other condition materially more burdensome in
nature, extent or consequence than those in existence as of the
Restatement Date;
and the result of any of the foregoing is to increase the cost to
such Lender or any Affiliate of such Lender of making, renewing
or maintaining the Loans, or any commitment to make such Loans
or, in the case of such Affiliate, issuing or maintaining any
Canadian Letter of Credit; then, in any such case, Borrower shall
promptly pay to Agent for the account of such Lender or such
Affiliate, upon demand, such amount or amounts as may be
necessary to compensate such Lender or such Affiliate, for any
such additional cost incurred; provided, however, that Borrower
shall have no obligations to pay such Lender for any of the
foregoing increased costs to the extent they may relate to Base
Rate Loans to the extent that the reserve and FDIC insurance
requirements are reflected in such definition of "Base Rate" or
Eurodollar Rate Loans to the extent that the reserve requirements
are reflected in the definition of "Eurodollar Rate." Each
Lender and each Affiliate of any Lender shall deliver to the
Borrower a written statement of the losses or expenses sustained
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or incurred, and any reasonable allocation made by such Lender or
such Affiliate of such losses and expenses shall be conclusive,
absent manifest error.
(F) Amount of Eurodollar Rate Loans. Each Eurodollar Rate
Loan shall be for a minimum amount of $500,000 and in integral
multiples of $500,000 in excess of that amount.
(G) Determination of Eurodollar Interest Period. By giving
notice as set forth in Paragraphs 2(B) or 3(D), Borrower shall
have the option, subject to the other provisions of this
Paragraph 3, to specify whether the Eurodollar Interest Period
commencing on any such date shall be a one-month, two-month,
three-month, six-month or, if in the reasonable judgment of Agent
determined to be available to Lenders, twelve-month period. The
determination of Eurodollar Interest Periods shall be subject to
the following provisions:
(i) In the case of immediately successive Eurodollar
Interest Periods, each successive Eurodollar Interest Period
shall commence on the day on which the next preceding Eurodollar
Interest Period expires.
(ii) If any Eurodollar Interest Period would otherwise
expire on a day which is not a Business Day, the Eurodollar
Interest Period shall be extended to expire on the next
succeeding Business Day; provided, that if any such Eurodollar
Interest Period would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further
Business Day occurs in that month, that Eurodollar Interest
Period shall expire on the immediately preceding Business Day.
(iii) The Borrower may not select a Eurodollar Interest
Period for any Loan the last day of which shall occur later than
the Termination Date.
(iv) There shall be no more than five (5) Eurodollar
Interest Periods in effect at any one time.
(H) Substituted Rate of Borrowing. In the event that on
any Eurodollar Interest Rate Determination Date the Required
Lenders with respect to clause (i) hereof or any Lender with
respect to clause (ii) hereof shall have determined (which
determination shall be binding upon the parties hereto, absent
manifest error) that:
(i) by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market or affecting
the position of such Lender or any Affiliate of such Lender in
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such market, adequate and fair means do not exist for
ascertaining the applicable interest rates by reference to which
the Eurodollar Rate then being determined is to be fixed; or
(ii) by reason of (a) any change after the Restatement Date
in any applicable law or governmental rule, regulation or order
(or any interpretation thereof and including the introduction of
any new law or governmental rule, regulation or order) or (b)
other circumstances affecting such Lender or any Affiliate of
such Lender or the interbank Eurodollar market or the position of
such Lender or any Affiliate of such Lender in such market (such
as, for example, but not limited to official reserve requirements
required by Regulation D of the Federal Reserve Act to the extent
not given effect in the Eurodollar Rate), the Eurodollar Rate
shall not represent the effective pricing to such Lender or such
Affiliate for U.S. Dollar deposits of comparable amounts for the
relevant period;
then, and in any such event, such Lender shall promptly (and in
any event as soon as possible after being notified of a
borrowing, conversion or continuation) give notice (by telephone
confirmed in writing) to Borrower of such determination. In each
such event, Borrower shall pay to Agent for the account of such
Lender, upon written demand thereof, such additional amounts (in
the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole
discretion shall reasonably determine) as shall be required to
cause such Lender to receive interest with respect to its
Eurodollar Rate Loans for the Eurodollar Interest Period then in
effect and for the Eurodollar Interest Period following that
Eurodollar Interest Rate Determination Date (such Interest
Periods being each an "Affected Interest Period") at a per annum
rate equal to the sum of one and one-eighth percent (1.125%) plus
the effective pricing to such Lender for U.S. Dollar deposits to
make or maintain its Eurodollar Rate Loans. A certificate as to
additional amount or amounts owed such Lender, showing in
reasonable detail the basis for the calculation thereof,
submitted in good faith to Borrower by such Lender shall, absent
manifest error, be presumptively correct and binding upon each of
the parties hereto.
(I) Required Termination and Prepayment. In the event that
on any date any Lender shall have reasonably determined (which
determination shall, absent manifest error, be final and
conclusive and binding upon each of the parties hereto) that the
making or continuation of its Eurodollar Rate Loans has become
unlawful by compliance by such Lender in good faith with any law,
governmental rule, regulation or order (whether or not having the
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force of law and whether or not failure to comply therewith would
be unlawful), then, and in any such event, such Lender shall
promptly give notice (by telephone confirmed in writing) to
Borrower of that determination. The obligation of such Lender to
make or maintain its Eurodollar Rate Loans during any such period
shall be terminated at the earlier of the termination of the
Eurodollar Interest Period then in effect or when required by law
and Borrower shall, no later than the termination of the
Eurodollar Interest Period in effect at the time any such
determination pursuant to this Paragraph 3(I) is made or,
earlier, when required by law, repay Agent for the account of
such Lender the Eurodollar Rate Loans of such Lender, together
with all interest accrued thereon.
(J) Option of Borrower. In lieu of paying any Lender such
additional moneys as are required by Paragraph 3(H) or the
prepayment required by Paragraph 3(I), Borrower may, by giving
notice (by telephone confirmed promptly in writing) to Agent and
such Lender, require such Lender to make the Eurodollar Rate Loan
then being requested as a Base Rate Loan or to continue to
maintain the outstanding Base Rate Loan then the subject of a
Notice of Conversion or continuation as a Base Rate Loan or to
convert the Eurodollar Rate Loans then outstanding that are so
affected into Base Rate Loans at the end of the then current
Eurodollar Interest Period (or at such earlier time as repayment
is otherwise required) in the manner contemplated by Paragraph
3(D).
(K) Compensation; Breakage Fees. In addition to such
amounts as are required to be paid by Borrower pursuant to
Paragraphs 3(A) and 3(E), Borrower shall compensate each Lender
upon written request by such Lender (which request shall set
forth in reasonable detail the basis for requesting such
amounts), for all losses, expenses and liabilities, including any
loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender
to fund or maintain Eurodollar Rate Loans to Borrower which such
Lender may sustain (i) if for any reason a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor
in a Notice of Borrowing (including such Lender's failure to fund
its initial Loans hereunder by reason of any Conditions Precedent
having not been satisfied by the proposed date of disbursement
described in the Notice of Borrowing pertaining to such initial
Loans) or a Notice of Conversion or Continuation or in a
telephonic request for borrowing or conversion or continuation
(including such Lender's failure to fund, convert or continue a
Loan by reason of Borrower's failure to deliver to Agent on or
before the proposed date of disbursement, conversion or
continuation, as the case may be, a written confirmation of such
telephonic request for borrowing, conversion or continuation as
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provided in Paragraphs 2(B) and 3(D), respectively) or a
successive Eurodollar Interest Period does not commence after
notice therefor is given pursuant to Paragraphs 2(B) or 3(D),
(ii) if any prepayment of any Eurodollar Rate Loan occurs for any
reason on a date which is not the last day of a Eurodollar
Interest Period, (iii) as a consequence of any required
conversion of a Eurodollar Rate Loan to a Base Rate Loan as a
result of any the events indicated in Paragraph 3(I), and (iv) as
a consequence of any other default by Borrower to repay
Eurodollar Rate Loans when required by the terms of this
Agreement.
(L) Eurodollar Rate Taxes; Indemnification. Borrower
agrees that:
(i) Borrower will pay, prior to the date on which penalties
attach thereto, all income, stamp and other taxes, levies, or
costs and charges whatsoever hereafter imposed, assessed, levied
or collected on or in respect of a Loan solely as a result of the
interest rate being determined by reference to the Eurodollar
Rate and/or the provisions of this Agreement relating to the
Eurodollar Rate and/or the recording, registration, notarization
or other formalization of any of the foregoing and/or any
payments of principal, interest or other amounts made on or in
respect of a Loan when the interest rate is determined by
reference to the Eurodollar Rate (all such taxes, levies, costs
and charges being herein collectively called "Eurodollar Rate
Taxes"); provided that Eurodollar Rate Taxes shall not include
taxes imposed on or measured by the overall net income of any
Lender by the United States of America or any political
subdivision or taxing authority thereof or therein, or taxes on
or measured by the overall net income of any Affiliate of any
Lender by any foreign country or subdivision thereof in which
that Affiliate is doing business. Borrower shall also pay such
additional amounts equal to increases in taxes payable by any
Lender described in the foregoing proviso which increases are
attributable to payments made by Borrower described in this
sentence and in the immediately preceding sentence of this
Paragraph 3(L)(i). Promptly after the date on which payment of
any such Eurodollar Rate Tax is due pursuant to applicable law,
the Borrower will, at the request of any Lender, furnish to such
Lender evidence, in form and substance satisfactory to such
Lender that Borrower has met its obligation under this Paragraph
3(L); and
(ii) Borrower will indemnify each Lender against, and
reimburse each Lender on demand for, any Eurodollar Rate Taxes,
as reasonably determined such by each Lender. Each Lender shall
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provide the Borrower with appropriate receipts for any payments
or reimbursements made by Borrower pursuant to this clause (ii)
of Paragraph 3(L).
(M) Certain Indemnification. In the event that, as a
result of any law, rule, regulation or order (or any
interpretation thereof and including the introduction of any new
law or governmental rule, regulation or order) that becomes
effective after the Restatement Date, a determination is made by
any Lender or any Affiliate of any Lender in its sole discretion
or by any regulatory authority or entity that reserves must be
maintained with any Federal Reserve Bank of the United States or
any other regulatory authority or entity (domestic or foreign)
having jurisdiction over or with respect to such Lender or such
Affiliate in connection with any of the then outstanding
Eurodollar Rate Loans (including any applicable reserve
requirements against assets held by, or deposits in or for the
account of, or advances by any Lender and/or such Affiliate and
any applicable reserve requirements not given effect in any prior
determination of the Eurodollar Rate), then Borrower agrees to
indemnify such Lender and/or such Affiliate and to hold them
harmless with respect to the cost of such Lender's and/or such
Affiliate's obtaining and/or maintaining any such reserves. The
foregoing shall not cover or be applicable to any reserves
required to be maintained which are given effect in the
determination of the Eurodollar Rate.
(N) Eurodollar Rate Loans After Default. After the
occurrence of and during the continuance of an Event of Default,
Borrower may not elect to have a Loan be made or continued as, or
converted to, a Eurodollar Rate Loan after the expiration of any
Eurodollar Interest Period then in effect for that Loan. After
the occurrence of and during the continuance of a Default,
Borrower may not elect to have a Loan be made or continued as, or
converted to, a Eurodollar Rate Loan after the expiration of any
Eurodollar Interest Period in effect for that Loan, other than a
Eurodollar Rate Loan having a Eurodollar Interest Period of one
month.
(O) Affiliates Not Obligated. No Affiliate of any Lender
shall be deemed to be a party to this Agreement or shall have any
liability or obligation under this Agreement.
(P) Increased Capital. If either (i) the introduction of
or any change in or in the interpretation of any law or
regulation or (ii) compliance by any Lender with any guideline or
request from any central bank or other Governmental Authority
(whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and such
105
Lender reasonably determines that the amount of such capital is
increased by or based upon the existence of such Lender's
obligations under this Agreement and other commitments of this
type, then, upon demand by such Lender, Borrower shall
immediately pay to Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of Lender's obligations under this Agreement. A
certificate as to such amounts submitted to Borrower by such
Lender, shall, in the absence of manifest error, be conclusive
and binding for all purposes.
4. FEES AND CHARGES.
(A) Non-Use Fees. Borrower shall pay to Agent for the
account of each Lender pro rata according to their respective
Percentages a non-use fee equal to the Applicable Non-Use Fee
multiplied by the amount by which the Revolving Loan Maximum
Commitment exceeds the sum of the average daily aggregate
outstanding principal balance of the Revolving Loan plus the
average daily aggregate undrawn face amount of any outstanding
Letters of Credit for the period commencing on the Restatement
Date and ending on the Termination Date, which shall be payable,
in arrears, on each Quarterly Payment Date, and on the
Termination Date. Such commitment fees shall be computed based
upon a 360-day year and actual days elapsed.
(B) Agent's Fees. Borrower shall pay to Agent an agent's
fee of $50,000 per annum, payable quarterly in arrears on each
Quarterly Payment Date.
(C) Letter of Credit Fees. With respect to each Letter of
Credit, Borrower shall pay to Agent for the account of each
Lender a per annum fee in an amount equal to the Applicable L/C
Fee multiplied by the undrawn face amount of such Letter of
Credit; provided, however, that at all times during which the
principal balance of the obligations bears interest at the
post-default rate pursuant to Paragraph 3(C), Borrower shall pay
Agent for the account of each Lender a per annum fee in an amount
equal to three percent (3%) of the undrawn face amount of such
Letter of Credit. Such fee shall be payable, in arrears on each
Quarterly Payment Date for the period during which such Letter of
Credit is issued or outstanding (or portion thereof). Such fee
shall be computed based upon a 360-day year and the actual number
of days of the Fiscal Quarter for which such fee is payable. In
addition, with respect to each Letter of Credit Borrower shall
pay to Agent such fees as are charged by Agent in connection with
its issuance of such Letter of Credit, including its standard
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fees for opening, amending and renewing letters of credit and all
other fees associated with issuing or servicing letters of
credit.
(D) Unpaid Charges. If Borrower fails to pay to any Lender
any interest, fees or other charges, or any part thereof, due
under this Agreement promptly when due after passage of any
applicable grace period the passage of which would give rise to
an Event of Default, such Lender may (but shall not be required
to) charge the same to Borrower's loan account with such Lender
as part of the Obligations, payable on demand.
5. QUARTERLY ACCOUNTINGS BY AGENT.
Agent will provide Borrower and each Lender, on a quarterly
basis, with a statement, with reasonable detail, of advances,
charges and payments made pursuant to this Agreement and the
Revolving Note. Such account rendered by Agent shall, absent
manifest error, be deemed binding and shall constitute an account
statement unless Borrower, in good faith, notifies Agent in
writing to the contrary within thirty (30) days after the date of
each account rendered.
6. RESERVED.
7. RESERVED.
8. PROCEEDS, PAYMENTS AND APPLICATION.
(A) Application and Posting Time. All payments received by
Agent will be applied to the Obligations as follows: (i) all cash
payments received by Agent, at Chicago, Illinois, including
payments made by wire transfer or otherwise made by immediately
available funds received by Agent in time for posting to the
account of Lenders on the date received, will be credited to
Borrower's loan account with each Lender immediately after
receipt thereof by Agent; (ii) all cash payments received by
Agent, at Chicago, Illinois, including payments made by wire
transfer or otherwise made by immediately available funds
received by Agent on any day after the cut-off time for posting
to the account of Lenders on the date so received, will be
credited to Borrower's loan account with each Lender on the next
succeeding Business Day; and (iii) all payments in the form of
checks and other instruments received by Agent, at Chicago,
Illinois will be credited (conditional upon final collection),
after allowing two (2) Business Days for collection, to
Borrower's loan account with each Lender. For purposes of this
Paragraph 8(A), the cut-off time for posting to the account of
Lenders shall be 11:00 a.m. (Chicago time).
107
(B) Order of Application; Invalidated Payments. Subject to
the application provisions contained in Paragraphs 2(D) and 2(G),
at all times prior to the occurrence of an Event of Default,
Lenders shall have the continuing and exclusive right to apply
all payments to any portion of the Obligations which are due and
payable at the time of such payment, and if no Obligations are
then due and payable, Lenders shall have the continuing and
exclusive right to apply any and all such payments to any portion
of the Obligations. After the occurrence of an Event of Default,
Lenders shall have the continuing and exclusive right to apply,
reverse and reapply any and all payments to any portion of the
Obligations. To the extent that Borrower makes a payment or
payments to Lenders which payment(s) or any part thereof is
subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause then, to the
extent of such payment received, the Obligations or part thereof
intended to be satisfied shall be revived and continue in full
force and effect, as if such payment had not been received by
Lenders.
(C) Sharing of Payments. Each Lender agrees that if it shall,
by exercising any right of set-off, counterclaim or otherwise,
obtain any payment or other recovery on account of any Loan or
Letter of Credit (excluding payments or fees received by any
Lender with respect to interest rate protection, currency
exchange or similar agreement) in excess of its pro rata share
(based on its Percentage) of all payments and other recoveries
obtained by all Lenders on account of principal of and interest
on the Loans or reimbursement or fees with respect to the Letters
of Credit then held by them, the Lender receiving such
proportionately greater payment shall purchase such
participations in the Loans and Letters of Credit held by the
other Lenders, and such other adjustments shall be made, as may
be required so that any such excess payment or recovery shall be
shared ratably among Lenders; provided, however, that nothing in
this Paragraph 8(C) shall impair the right of any Lender to
exercise any right of set off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of
indebtedness of Borrower owing such Lender other than with
respect to the Loans or Letters of Credit.
9. AGENT AS BORROWER'S ATTORNEY.
Borrower hereby appoints Agent, or any other Person whom
Agent may designate, as Borrower's attorney-in-fact, with power
at all times on or before the Termination Date and at all times
thereafter until such time as there shall exist no Obligations
outstanding, to do all things necessary during the occurrence and
108
continuation of an Event of Default to carry out the terms and
provisions of Section 20(B) of this Agreement (provided that
unless a delay in the taking of such action may, in Agent's or
Agent's counsel's opinion, jeopardize the repayment of the
Obligations or portion thereof or materially adversely affect the
business operations or prospects of Borrower, Agent shall notify
Borrower at least five (5) Business Days prior to Agent's taking
action under this sentence). Except as provided in the
immediately succeeding sentence, Borrower ratifies and approves
all acts of such attorney carried out in accordance with the
foregoing. Neither Agent nor the attorney will be liable for any
acts or omissions nor for any error of judgment or mistake of
fact or law in connection with any of the foregoing, except for
its acts of bad faith, willful misconduct or gross negligence.
This power, being coupled with an interest, is irrevocable at all
times on or before the Termination Date and at all times
thereafter until such time as there shall exist no Obligations
outstanding.
10. INSURANCE.
Borrower shall, at all times on or before the Termination
Date and at all times thereafter until such time as there shall
exist no Obligations outstanding, at its expense, insure, and
maintain insurance, on its tangible assets and real property
against loss or damage by fire, flood and earthquake and for
general liability, public liability, third party property damage
and such other additional types of coverages customarily obtained
by insureds in Borrower's industry. All such insurance shall be
in such amounts, with such deductibles, under such policies and
terms and issued by such insurers, as are customary for Persons
engaged in the Borrower's industry. In the event Agent requests,
pursuant to the immediately preceding sentence, insurance having
terms, deductibles, coverage or insurers which are different than
that which is then currently maintained by Borrower, then,
provided that Borrower at all times maintains insurance at least
as adequate as that which is then currently maintained by
Borrower, Borrower shall obtain such requested insurance within
thirty (30) days after such request. Borrower shall establish
adequate reserves on its books, in amounts in accordance with
GAAP, for all hazards and losses for which Borrower is
self-insured, underinsured or uninsured.
11. REPORTING.
(A) Quarterly Reports. As soon as available after the end
of each Fiscal Quarter of DeVry, but in no event later than
forty-five (45) days after the end of such Fiscal Quarter,
Borrower shall provide Agent (with a copy for each Lender) with
unaudited, consolidated and consolidating financial statements of
109
DeVry and its Consolidated Subsidiaries, for such Fiscal Quarter,
including statements of earnings, statements of cash flows and
balance sheets. All such financial statements shall be (i)
prepared on a basis consistent with such statements prepared in
prior periods (except by reason of changes in accounting
treatment which are permitted by GAAP) and with the annual
audited statements of DeVry delivered pursuant to Paragraph
11(B), (ii) prepared in accordance with GAAP (subject to normal
year-end adjustments and without footnotes), (iii) accompanied by
the financial statements for comparative periods of DeVry's
previous fiscal year, and (iv) accompanied by a compliance
certificate, substantially in the form of Exhibit C,
appropriately certified and signed by DeVry's Chairman, President
or Chief Financial Officer stating that such financial statements
fairly present the consolidated financial condition of DeVry, no
Default or Event of Default has occurred or exists, and that
DeVry has complied with the financial covenants contained in
Paragraph 16, setting forth the figures providing the basis for
such statement with respect to such financial covenants.
Borrower shall additionally deliver to Agent (with a copy
for each Lender), together with a certification by Borrower's
Chairman, President or Chief Financial Officer that the contents
of such are fairly presented: (a) concurrently with Borrower's
delivery thereof to the United States Department of Education,
copies of Borrower's audit reports and default reports prepared
pursuant to Title IV of the Higher Education Act of 1965; (b)
within sixty (60) days after the end of each Semester ending
after the Restatement Date, a statement disclosing the admission
level for new students and total enrollment of Borrower's
operations in the aggregate, by educational facility; and (c)
within forty-five (45) days after the end of each Fiscal Quarter
after the Restatement Date, statements of gross profit and loss
for each of Borrower's educational facilities.
(B) Annual Reports. Borrower shall provide Agent (with a
copy for each Lender) with annual audited consolidated and
unaudited consolidating financial statements of DeVry and its
Consolidated Subsidiaries, including statements of earnings,
statements of cash flows and balance sheets ("Financials"), as
soon as available and, in any event, within one hundred and
twenty (120) days after the end of each of DeVry's fiscal years,
which Financials (i) shall be prepared in accordance with GAAP
(except for any changes thereto), (ii) shall be accompanied by an
opinion, which is unqualified as to DeVry's going concern, of
Price Waterhouse, or such other certified public accountants
chosen by DeVry acceptable to the Agent, that such Financials
fairly present the financial position of the companies being
reported upon at the end of such fiscal year and the results of
their operations and changes in their financial position for such
110
year in conformity with GAAP consistently applied (except for
changes in GAAP with which such accountants concur and which are
disclosed in the notes to such Financials) and its examination of
such Financials has been made in accordance with generally
accepted auditing standards and included such tests of the
accounting records and other auditing procedures as considered
necessary in the circumstances, (iii) shall be delivered by such
accountants to Agent at the address stated in Paragraph 22(B)
concurrently with such accountants' delivery thereof to DeVry and
(iv) shall be accompanied by a certificate of such accountants
stating that, in making the examination necessary for the
issuance of the opinion referred to in clause (ii) of this
Paragraph 11(B), no knowledge was obtained of any Default or
Event of Default (or in the opinion of such accountants, a
Default or Event of Default has occurred and is continuing, and,
if such is the case, a statement as to the nature thereof) and
the independent review and opinion of such accountants of the
computation of financial covenants contained in Paragraph 16
hereof; provided, however, if the information set forth in any
financial statements of DeVry and its Consolidated Subsidiaries
is not sufficient in the opinion of Agent and Lenders to
determine Borrower's compliance with the covenants contained in
this Agreement, Borrower shall provide additional information as
and when requested by Agent on behalf of Lenders as shall be
necessary to permit such determination.
(C) Communication with Accountants; Other Financial
Information. Borrower and DeVry hereby authorize: (i) Agent to
communicate directly with their respective independent public
accountants, provided that Agent shall promptly inform Borrower
or DeVry of the substance thereof; and (ii) such independent
public accountants, upon Agent's request, to provide to Agent
copies of any financial statements, management reports and
workpapers contained in their files with respect to Borrower,
DeVry, the Consolidated Subsidiaries and their respective
businesses and financial affairs.
(D) Reports to SEC. Promptly upon the filing or making
thereof, Borrower shall provide to Agent (with a copy for each
Lender) copies of each filing and report made by Borrower, DeVry
or the Subsidiaries with or to any securities exchange or the
Securities and Exchange Commission.
(E) Reports of Changes in Subsidiaries. From time to time,
Borrower shall provide to Agent (with a copy for each Lender) a
written report of any change in the identity of the Subsidiaries,
promptly upon the occurrence of such change.
(F) Notices Relating to Default. Forthwith upon learning
of the occurrence of an Event of Default or a Default, Borrower
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shall provide to Agent (with a copy for each Lender) written
notice thereof, describing the same and the steps being taken by
Borrower or DeVry with respect thereto.
(G) Notice of Material Adverse Events. Forthwith upon
learning of the occurrence of any change, event, action,
condition or effect which individually or in the aggregate either
(i) impairs the validity or enforceability of any of the Loan
Documents, or (ii) materially and adversely affects the
consolidated business, operations, licenses, prospects or
financial condition of DeVry and its Subsidiaries, taken as a
whole, or the ability of DeVry and its Subsidiaries to perform
their respective obligations under any of the Loan Documents,
Borrower shall provide to Agent (with a copy for each Lender)
written notice thereof, describing the same and the steps being
taken with respect thereto.
(H) Other Reports. In addition to the other reports and
statements described in this Paragraph 11, Borrower and DeVry
shall provide Agent with such other financial and other reports
and information as any Lender may from time to time reasonably
request through Agent including any monthly reporting which the
Agent may require from time to time.
12. WARRANTIES AND REPRESENTATIONS.
Each of the Borrower and DeVry represents and warrants to
Agent and Lenders that, as of the Restatement Date and such other
dates as are provided below:
(A) Corporate Existence. On the Restatement Date and,
subject to the exceptions set forth in Paragraph 14(A) below, on
each date hereafter on which Borrower requests Lenders to make a
Loan or Agent to issue a Letter of Credit hereunder, each of
Borrower, DeVry and each Subsidiary is a corporation duly
organized and in good standing under the laws of the jurisdiction
of its incorporation and each is duly qualified as a foreign
corporation and in good standing in all states where the nature
and extent of the business transacted by it or the ownership of
its assets makes such qualification necessary, except for those
jurisdictions in which the failure so to qualify would not have a
material adverse effect on the Borrower's, DeVry's and each
Subsidiary's financial condition, results of operations, business
or prospects.
(B) Corporate Authority. The execution and delivery by the
Borrower of this Agreement and by Borrower, DeVry and each
Subsidiary of the other Loan Documents to which Borrower, DeVry
or such Subsidiaries are parties and the performance of the
Borrower's obligations hereunder and their respective obligations
112
thereunder: (i) are within the Borrower's, DeVry's and such
Subsidiaries' corporate powers; (ii) are duly authorized by the
Borrower's, DeVry's and such Subsidiaries' respective Board of
Directors and, if necessary, the Borrower's, DeVry's and such
Subsidiaries' stockholders; (iii) are not in contravention of the
terms of the Borrower's, DeVry's and such Subsidiaries'
certificate of incorporation, by-laws or other organizational
documents, or of any indenture, agreement or undertaking to which
the Borrower, DeVry or any Subsidiary is a party or by which the
Borrower, DeVry or any Subsidiary or any of their respective
property is bound, the contravention of which would have a
material adverse effect on Borrower's, DeVry's or such
Subsidiaries' financial condition, results of operations,
business or prospects; (iv) do not require any governmental
consent, registration or approval which has not been previously
obtained; (v) do not contravene any governmental restriction
binding upon the Borrower, DeVry or any Subsidiary; and (vi) do
not, except as contemplated herein, result in the imposition of
any lien, charge, security interest or encumbrance upon any
property of the Borrower, DeVry or any Subsidiary under any
existing indenture, mortgage, deed of trust, loan or credit
agreement or other material agreement or instrument to which the
Borrower, DeVry or any Subsidiary is a party or by which it or
any of its property may be bound or affected.
(C) Binding Effect. On the Restatement Date and on each
date hereafter on which Borrower requests Lenders to make a loan
or Agent to issue a Letter of Credit hereunder, this Agreement
and all of the other Loan Documents to which Borrower, DeVry or
any Subsidiary is a party are the legal, valid and binding
obligations of Borrower, DeVry and such Subsidiaries and are
enforceable against Borrower, DeVry and such Subsidiaries in
accordance with their respective terms, except as limited by
applicable bankruptcy, reorganization, insolvency or similar laws
affecting the enforceability of creditors' rights generally and
by general equitable principles.
(D) Financial Data. The historical consolidated financial
statements, with respect to DeVry, heretofore furnished and to be
furnished to Agent in accordance with Paragraph 11, are in
accordance with the consolidated books and records of DeVry,
fairly present the consolidated financial condition of DeVry at
the dates thereof and the results of operations for the periods
indicated (subject, in the case of unaudited interim financial
statements, to normal year end adjustments), and have been
prepared in conformity with GAAP consistently applied throughout
the periods reported (except for changes therein as noted in the
footnotes to such financial statements).
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(E) Material Adverse Change. Since March 31, 1996, no
change, event, action, condition or effect has occurred which
individually or in the aggregate either (i) impairs the validity
or enforceability of any of the Loan Documents, or (ii)
materially and adversely affects the consolidated business,
operations, licenses, prospects or financial condition of DeVry
and its Subsidiaries, taken as a whole, or the ability of DeVry
and its Subsidiaries to perform their respective obligations
under any of the Loan Documents,
(F) Tax Liabilities. As of the Restatement Date and on
each date hereafter on which Borrower requests Lenders to make a
Loan or Agent to issue a Letter of Credit hereunder, Borrower and
DeVry have filed and caused each Subsidiary to file all federal,
state and local tax reports and returns required by any law or
regulation to be filed by it except for extensions duly obtained,
and has either duly paid all taxes, duties and charges indicated
due on the basis of such returns and reports, or will have made
adequate provision for the payment thereof, and the assessment of
any material amount of additional taxes in excess of those paid
and reported are not reasonably expected. As of the Restatement
Date and on each date hereafter on which Borrower requests
Lenders to make a Loan or Agent to issue a Letter of Credit
hereunder, the reserves for taxes reflected on the balance sheets
of Borrower, DeVry or any Subsidiary submitted to Agent in
accordance with the terms of Paragraph 11 are adequate in amount
for the payment of all liabilities for all taxes (whether or not
disputed) of such Person accrued through the date of such balance
sheet. As of the Restatement Date, there are no material
unresolved questions or claims concerning any tax liability of
Borrower, DeVry or any Subsidiary except for DeVry's consolidated
federal income tax returns for its taxable years ending June 30,
1988 through June 30, 1991 which are currently under examination
by the Internal Revenue Service.
(G) Loans; Guaranties. Except for the Obligations and as
disclosed on Exhibit F, as of the Restatement Date, Borrower,
DeVry and any Subsidiary have no Indebtedness for borrowed money
and have not guaranteed the obligations of any other Person.
(H) Margin Security. As of the Restatement Date and on
each date hereafter on which Borrower requests Lenders to make a
Loan or Agent to issue a Letter of Credit hereunder, neither
Borrower, DeVry nor any Subsidiary owns any margin security and
none of the loans advanced hereunder will be used for the purpose
of purchasing or carrying any margin securities or for the
purpose of reducing or retiring any indebtedness which was
originally incurred to purchase any margin securities or for any
other purpose not permitted by Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System.
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(I) Subsidiaries. As of the Restatement Date, Exhibit G
sets forth a true and correct list of all Subsidiaries and the
Exempt Entities. As of the Restatement Date, the net worth of
the Exempt Entities does not exceed $500,000.
(J) Litigation and Proceedings. As of the Restatement Date
and on each date hereafter on which Borrower requests Lenders to
make a Loan or Agent to issue a Letter of Credit hereunder,
except as disclosed on Exhibit H, no litigation, investigation or
proceedings before any arbitrator or governmental tribunal,
injunctions, writs, restraining orders, judgments or decrees are
pending or outstanding against Borrower, DeVry or any Subsidiary
nor is there pending or, to the best of Borrower's knowledge
after diligent inquiry, threatened, any such action by or against
Borrower, DeVry or any Subsidiary except such actions which are
not, in the aggregate, materially adverse to Borrower's, DeVry's
or any Subsidiary's financial condition, results of operations,
prospects or business.
(K) Other Agreements. As of the Restatement Date and on
each date hereafter on which Borrower requests Lenders to make a
Loan or Agent to issue a Letter of Credit hereunder, except as
disclosed on Exhibit H, neither Borrower, DeVry nor any
Subsidiary is in default under any contract, lease or commitment
to which it is a party or by which it is bound which is material
to Borrower's, DeVry's or any Subsidiary's operations, prospects
or financial condition, which default either gives the other
party to such contract, lease or commitment the right to
terminate such contract, lease or commitment or a remedy which
would have a material adverse effect on Borrower's, DeVry's or
any Subsidiary's business operations, prospects or financial
condition. As of the Restatement Date and on each date hereafter
on which Borrower requests Lenders to make a Loan hereunder,
neither Borrower, DeVry nor any Subsidiary knows of any dispute
regarding any contract, lease or commitment which is materially
adverse to the continued financial success and well-being of the
Borrower, DeVry or any Subsidiary.
(L) Employee Controversies. As of the Restatement Date and
on each date hereafter on which Borrower requests Lenders to make
a Loan or Agent to issue a Letter of Credit hereunder, there are
no employee or labor controversies pending, other than employee
grievances arising in the ordinary course of business which are,
in the aggregate, materially adverse to the continued financial
success and well-being of Borrower, DeVry or any Subsidiary.
(M) Compliance with Laws and Regulations. The execution
and delivery by Borrower of this Agreement and all of the other
Loan Documents to which Borrower, DeVry or any Subsidiary is a
party and the performance of the Borrower's, DeVry's or any
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Subsidiary's obligations hereunder and thereunder is not in
contravention of any law or laws, the contravention of which
would materially adversely affect Borrower's, DeVry's or any
Subsidiary's financial condition, results of operations, business
or prospects. As of the Restatement Date and on each date
hereafter on which Borrower requests Lenders to make a Loan or
Agent to issue a Letter of Credit hereunder, Borrower, DeVry and
each Subsidiary is in compliance with all laws, orders,
regulations and ordinances of all federal, foreign, state and
local governmental authorities relating to the business
operations and the assets of Borrower, DeVry or such Subsidiary,
except for laws, orders, regulations and ordinances, the
violation of which would not have a material adverse effect on
Borrower's, DeVry's or such Subsidiary's financial condition,
prospects, results of operations or business. Without limiting
the generality of the foregoing and notwithstanding any
limitations contained therein as of the Restatement Date and on
each date hereafter on which Borrower requests Lenders to make a
Loan or Agent to issue a Letter of Credit hereunder, all of
Borrower's, DeVry's and each Subsidiary's operations are in
compliance with (i) all laws, regulations and standards, the
violation of which would terminate or materially impair
Borrower's, DeVry's or any Subsidiary's eligibility for
participation, if applicable, in student financial assistance
programs under Title IV of the Higher Education Act of 1965, 20
U.S.C., 1070 et seq., (ii) the federal Truth-in-Lending Act, 15
U.S.C., 1601 et seq., and all other consumer credit laws
applicable to Borrower, 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
Borrower, DeVry or any Subsidiary in excess of the greater of (a)
$5,000,000 or (b) 10% of Consolidated Tangible Net Worth, (iii)
all statutory and regulatory requirements for authorization to
provide post-secondary education in the jurisdictions in which
its educational facilities are located, and (iv) if applicable,
all requirements for continuing its accreditations from the North
Central Association of Schools and Colleges.
(N) Patents, Trademarks and Licenses. As of the
Restatement Date and on each date hereafter on which Borrower
requests Lenders to make a Loan or Agent or any Affiliate of any
Lender to issue a Letter of Credit hereunder, Borrower, DeVry or
any Subsidiary possesses adequate licenses, accreditations,
patents, patent applications, copyrights, copyright applications,
service marks, trademarks and trade names to conduct their
respective businesses. As of the Restatement Date and on each
date hereafter on which Borrower requests Lenders to make a Loan
or Agent to issue a Letter of Credit hereunder, except as
otherwise permitted by Paragraph 14(G), all such property and
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interests in property are, and will continue to be, owned by
Borrower, DeVry or any Subsidiary, as the case may be, free and
clear of conflicting claims and uses of all other Persons.
(O) ERISA. Except as set forth on Exhibit I, neither
Borrower, DeVry, any Subsidiary nor any ERISA Affiliates maintain
any Benefit Plan or contribute to any Multiemployer Plan.
Borrower has given to Agent a summary plan description of each
Plan of Borrower, DeVry, each Subsidiary or each ERISA Affiliate
in existence as of the Restatement Date. Borrower has made
available to Agent copies of all Plans of Borrower, DeVry, each
Subsidiary and each ERISA Affiliate which are in existence as of
the Restatement Date. Each Plan of Borrower, DeVry, each
Subsidiary or each ERISA Affiliates, which is intended to be a
qualified plan under section 401(a) of the Internal Revenue Code
as currently in effect, has been determined by the Internal
Revenue Service to be qualified under section 401(a) of the
Internal Revenue Code, and the trust related thereto is exempt
from federal income tax under section 501(a) of the Internal
Revenue Code. Except as set forth on Exhibit I, neither
Borrower, DeVry, any Subsidiary nor any ERISA Affiliates have
breached any of the responsibilities, obligations or duties
imposed on it by ERISA with respect to any of their respective
Plans, which breach has given rise to, or which would in the
future give rise to, any material obligation to pay money.
Neither Borrower, DeVry, any Subsidiary nor any ERISA Affiliates
nor any fiduciary of or any trustee to any of their respective
Plans has engaged in a nonexempt "prohibited transaction"
described in section 406 of ERISA or section 4975 of the Internal
Revenue Code, which transaction have given rise to, or which
would in the future give rise to any material obligation to pay
money.
(P) Use of Proceeds. All advances of the Revolving Loan on
and after the Restatement Date have been and will be used by
Borrower in accordance with all corporate laws applicable to
Borrower (and in accordance with Borrower's Certificate of
Incorporation and By-Laws) and in a manner which is consistent
with all applicable laws and statutes, as in effect as of the
respective dates of such uses.
(Q) Fiscal Year. Each of Borrower and DeVry has
established for all purposes, including accounting purposes, a
fiscal year based upon a twelve-month period ending June 30.
(R) Compliance with Environmental and Safety Laws. As of
the Restatement Date and on each date hereafter on which Borrower
requests Lenders to make a Loan or Agent to issue a Letter of
Credit hereunder, (i) the operations of Borrower, DeVry, and each
Subsidiary comply in all material respects with all applicable
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federal, state or local environmental statutes and regulations;
(ii) none of the operations of Borrower, DeVry or any Subsidiary
are subject to any judicial or administrative proceedings
alleging the violation of any federal, state or local
environmental, health or safety statute or regulation; (iii) none
of the operations of the Borrower, DeVry or any Subsidiary are
the subject of federal, state or local investigation evaluating
whether any remedial action is needed to respond to a release of
any hazardous or toxic waste, substance or constituent, or any
other substance into the environment, which remedial action may
materially adversely affect Borrower's, DeVry's or any
Subsidiary's business operations, prospects or financial
condition; (iv) none of Borrower, DeVry or the Subsidiaries have
filed any notice under any federal, state or local law indicating
past or present treatment, storage or disposal of a hazardous
waste or reporting a spill or release of a hazardous or toxic
waste, substance or constituent, or any other substance into the
environment; and (v) none of Borrower, DeVry and the Subsidiaries
have contingent liabilities in connection with any release of any
hazardous or toxic waste, substance or constituent or any other
substance into the environment, which materially and adversely
affects Borrower's business operations, prospects or financial
condition.
(S) Survival of Warranties. All representations and
warranties of Borrower contained in this Agreement and of
Borrower, DeVry and each Subsidiary in each of the other Loan
Documents to which Borrower, DeVry or a Subsidiary is a party
shall survive the execution and delivery of this Agreement or
such other Loan Documents, unless otherwise provided herein or
therein.
13. GENERAL AFFIRMATIVE COVENANTS.
Each of Borrower and DeVry covenants that, at all times on
or before the Termination Date and at all times thereafter until
such time as there shall exist no Obligations outstanding:
(A) Reimbursement of Loan Operating Costs. Borrower shall
pay to Agent, for Agent's account, within thirty (30) days of
Agent's demand therefor, any and all fees, costs and expenses
which Agent pays to a bank or other similar institution arising
out of or in connection with the forwarding by Lenders to
Borrower, or any other Person on Borrower's behalf, of proceeds
of Loans made by Lenders to Borrower pursuant to this Agreement.
Notwithstanding the foregoing, Borrower shall not be obligated to
reimburse Agent or any Lender for any fees, costs or expenses
incurred or paid by Agent or any Lender in connection with (a)
travel to and from any negotiations and other meetings with
participants or assignees of the obligations the primary purpose
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of which is to discuss or resolve Agent or any Lender's and such
participants' or assignees' relative rights and duties with
respect to one another or such parties' collective position with
respect to issues relating to this Agreement or the other Loan
Documents, (b) communications, written or otherwise, with
participants and assignees of the Obligations, including, notices
and reports relating to Borrower, or (c) wire transfer expenses
to and from participants and assignees of the Obligations.
(B) Notice of Claims. Borrower shall notify Agent in
writing, promptly upon Borrower's learning thereof, of (i) any
pending or threatened litigation affecting Borrower, DeVry or any
Subsidiary, whether or not the claim is considered by Borrower to
be covered by insurance, involving in the aggregate in excess of
the greater of (a) $5,000,000 and (b) 10% of Consolidated
Tangible Net Worth or (ii) the institution of any administrative
or arbitration proceeding or investigation, or the receipt by
Borrower, DeVry or any Subsidiary of any notice or order from any
regulatory body or agency having jurisdiction over the Borrower,
which litigation, proceeding, investigation, notice or order,
might materially and adversely affect the operations, prospects,
financial condition or business of Borrower, DeVry or any
Subsidiary and involves in the aggregate in excess of 10% of
Consolidated Tangible Net Worth. Without limiting the generality
of the foregoing and notwithstanding any limitation therein,
Borrower shall notify Agent (who shall promptly advise Lenders of
the substance thereof), in writing, promptly upon Borrower's
learning thereof, of (a) any action, decision or recommendation
by a review committee or board of any educational accreditation
association to discontinue any educational accreditation of
Borrower, DeVry or any Subsidiary, (b) any notice from any state
educational licensing board of a state in which Borrower, DeVry
or any Subsidiary has a school of a denial to Borrower, DeVry or
any Subsidiary, as the case may be, of operating authority in
such state and (c) any proposed limitations, suspensions, fines,
penalties, terminations or findings of noncompliance by any
Governmental Authority or private guaranty agency with respect to
the eligibility of Borrower, DeVry or any Subsidiary to
participate in student financial assistance programs which, in
the case of (c) only, would have a material adverse effect on the
financial condition, results of operations or business of
Borrower, DeVry or any Subsidiary.
(C) Conduct of Business. Subject to the exceptions set
forth in Paragraph 14(A) below, each of Borrower and DeVry shall
maintain, and shall cause each of the Subsidiaries to maintain,
its legal existence and shall limit its operations to, the same
general line of business as that previously conducted by
Borrower, DeVry and any Subsidiary. Borrower shall maintain, and
cause DeVry and any Subsidiary to maintain, in full force and
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effect (or shall renew prior to the termination or expiration of
any of the following) all licenses, accreditations, consents,
approvals, bonds, franchises, leases, patents, copyrights,
contracts, trademarks, trade names and other rights, the absence
of which would have a material and adverse effect on the
financial condition or business operations or prospects of
Borrower, DeVry or any Subsidiary. Without limiting the
generality of the foregoing and notwithstanding any limitation
contained therein, each of Borrower and DeVry shall maintain, and
shall cause each of the Subsidiaries to maintain, in full force
and effect, as applicable (i) its eligibility to participate in
all student financial assistance programs in which and to the
extent that it currently participates, except where the failure
to maintain such eligibility to participate in which would not
have a material adverse effect on the financial condition,
results of operations or business of Borrower, DeVry or any
Subsidiary, (ii) its accreditations from the North Central
Association of Schools and Colleges, and (iii) its licenses to
provide postsecondary education in all jurisdictions where it is
so licensed, except where the failure to maintain such licenses
would not have a material adverse effect on the financial
condition, results of operations or business of Borrower, DeVry
or any Subsidiary. Each of Borrower and DeVry shall comply, and
cause each Subsidiary to comply, with all applicable laws and
regulations of any federal, state or local governmental
authority, except for such laws and regulations the violation of
which would not have a material adverse effect on Borrower's,
DeVry's or such Subsidiary's financial condition, results of
operations or business. Without limiting the generality of the
foregoing and notwithstanding any limitations contained therein,
Borrower, DeVry and each Subsidiary shall comply with the
Truth-in-Lending Act, 15 U.S.C., 1601 et seq., all regulations
promulgated thereunder, and all other consumer credit laws
applicable to it in connection with the advancing of student
loans, except for such laws and regulations the violation of
which, in the aggregate, may not result in the assessment of
penalties and damages claims against Borrower, DeVry or the
respective Subsidiary, as the case may be, in excess of the
greater of (a) $5,000,000 or (b) 10% of Consolidated Tangible Net
Worth. Notwithstanding anything in this Paragraph 13(C) or
elsewhere in this Agreement to the contrary, in the event that
Borrower, DeVry or the respective Subsidiary, as the case may be,
shall have failed to comply with any covenant contained in this
Paragraph 13(C), other than those stated in the first sentence
hereof, it shall have thirty (30) days from the date of such
failure to cure such failure before such failure shall constitute
an Event of Default.
(D) Claims and Taxes. Each of Borrower and DeVry shall pay
or cause to be paid, and cause each Subsidiary to pay or cause to
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be paid, all license fees, bonding premiums and related taxes and
charges, and shall pay, or cause to be paid, all of its real and
personal property taxes, assessments and charges and all of its
franchise, income, unemployment, use, excise, old age benefit,
withholding, sales and other taxes and other governmental charges
assessed against it, or payable by it, at such times and in such
manner as to prevent any penalty from accruing or any lien or
charge (other than liens for taxes not yet delinquent) from
attaching to its property for a period longer than five (5)
Business Days, provided that the Borrower, DeVry or the
respective Subsidiary, as the case may be, shall have the right
to contest in good faith, by an appropriate proceeding promptly
initiated and diligently conducted, the validity, amount or
imposition of any such tax, assessment or charge, and upon such
good faith contest to delay or refuse payment thereof, if
(i) Borrower, DeVry or any Subsidiary establishes adequate
reserves in accordance with GAAP to cover such contested taxes,
assessments or charges, and (ii) such contest does not have a
material adverse effect on the financial condition, results of
operations, business or prospects of Borrower, DeVry or any
Subsidiary or the ability of Borrower or DeVry to pay any of the
Obligations.
(E) ERISA. Each of Borrower and DeVry shall deliver, and
cause each Subsidiary to deliver, to Agent promptly upon becoming
aware of any "prohibited transaction," as such term is defined in
section 4975 of the Internal Revenue Code, in connection with any
Plan or any trust created thereunder, which has given rise to, or
which would in the future give rise to, any material obligation
of Borrower, DeVry any Subsidiary or any ERISA Affiliates to pay
money, a written notice specifying the nature thereof, what
action Borrower, DeVry, such Subsidiary or such ERISA Affiliate,
as applicable, has taken, and, when known, any action taken or
threatened by the Internal Revenue Service or the Pension Benefit
Guaranty Corporation with respect thereto.
(F) Environmental and Safety Laws. Each of Borrower and
DeVry will conduct, and cause each Subsidiary to conduct, its
business so as to comply in all material respects with all
environmental, health and safety laws and regulations in all
jurisdictions in which it is or may at any time be doing
business, including the federal Resource Conservation and
Recovery Act, the federal Comprehensive Environmental Response,
Compensation and Liability Act, the federal Clean Water Act, the
federal Clean Air Act and the federal Occupational Safety and
Health Act; provided that nothing contained in this Paragraph
13(F) shall prevent Borrower, DeVry or any Subsidiary from
contesting, in good faith by appropriate legal proceedings, any
such law, regulation, interpretation thereof or application
thereof, provided, further, that each of Borrower and DeVry shall
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comply, and cause any Subsidiary to comply, with the order of any
court or other governmental body of applicable jurisdiction
relating to such laws unless Borrower, DeVry or any Subsidiary
shall currently be prosecuting an appeal or proceedings for
review and shall have secured a stay of enforcement or execution
or other arrangement postponing enforcement or execution pending
such appeal or proceedings for review. If Borrower, DeVry or any
Subsidiary shall (a) receive notice that any violation of any
federal, state or local environmental, health or safety law or
regulation may have been committed or is about to be committed by
Borrower, DeVry or any Subsidiary, (b) receive notice that any
administrative or judicial complaint or order has been filed or
is about to be filed against Borrower, DeVry or any Subsidiary
alleging violations of any federal, state or local environmental
law or regulation or requiring Borrower to take any action in
connection with the release of any hazardous or toxic waste,
substance or constituent, or any other substance into the
environment, (c) receive any notice from a federal, state, or
local governmental agency or private party alleging that
Borrower, DeVry or any Subsidiary may be liable or responsible
for costs associated with a response to or cleanup of a release
of toxic waste, substance or constituent, or any other substance
into the environment or any damages caused thereby, (d) receive
any notice that Borrower, DeVry or any Subsidiary is subject to
federal, state or local investigation evaluating whether any
remedial action is needed to respond to the release of any
hazardous or toxic waste, substance or constituent, or any other
substance into the environment, or (e) receive any notice that
any properties or assets of Borrower, DeVry, or any Subsidiary
are subject to a lien in favor of any governmental entity for any
liability under federal, state or local environmental laws or
regulations or damages arising from or costs incurred by such
governmental entity in response to a release of a hazardous or
toxic waste, substance or constituent, or any other substance
into the environment, then each of Borrower and DeVry shall, and
shall cause such Subsidiary to, promptly provide Agent with a
copy of such notice, and in no event later than within fifteen
(15) days from receipt thereof by Borrower, DeVry or such
Subsidiary. Within fifteen (15) days of Borrower's, DeVry's or
any Subsidiary's having learned of the enactment or promulgation
of any federal, state or local environmental law/or regulation
pertaining specifically to Borrower, DeVry or any Subsidiary or
to Borrower's, DeVry's or such Subsidiary's industry which may
result in any material adverse change in the condition, financial
or otherwise, of Borrower, DeVry or such Subsidiary, each of
Borrower and DeVry shall, and shall cause such Subsidiary to,
provide Agent with notice thereof.
(G) Books, Records and Inspections. (a) Borrower and DeVry
will maintain, and cause each Subsidiary to maintain, complete
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and accurate books and records; (b) permit, and cause each
Subsidiary to permit, access at reasonable times by the Agent,
and each Lender to its books and records; (c) permit, and cause
each Subsidiary to permit, the Agent, and each Lender to inspect
at reasonable times its properties and operations; and (d)
permit, and cause each Subsidiary to permit, the Agent, and each
Lender to discuss its business, operations and financial
condition with its officers.
14. GENERAL NEGATIVE COVENANTS.
Each of Borrower and DeVry covenants that, at all times on
or before the Termination Date and at all times thereafter until
such time as there shall exist no Obligations outstanding:
(A) Consolidations, Mergers and Asset Acquisitions.
Borrower and DeVry shall not, and shall not permit any Subsidiary
to, (i) liquidate or dissolve, consolidate with, or merge into or
with, any other Person, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division
thereof) or (ii) make any other material change in business
objectives, purposes, operations or prospects of the Borrower,
DeVry or any Subsidiary which adversely affects the repayment of
the Obligations; provided, that (a) DeVry and the Becker
Subsidiaries may undertake the Becker Transaction, (b) following
consummation of the Becker Transaction, The Becker CPA Review,
Inc. and Becker CPA Review Course Ltd., a California limited
partnership, may be liquidated and dissolved, (c) so long as both
immediately before and after giving effect thereto, no Default or
Event of Default shall exist, DeVry or any Subsidiary may make
additional acquisitions of all or substantially all of the assets
of any Person; provided, further, that the aggregate
consideration paid for the acquisitions permitted by the
foregoing clause (c) when added to the aggregate consideration
paid for Investments made pursuant to Paragraph 14(B)(vi) shall
not exceed $5,000,000 in total fair market value during the term
of this Agreement, and (d) Special Purpose Subsidiaries may
acquire assets of Borrower, DeVry and the Subsidiaries. For
purposes of determining whether a Default or Event of Default
exists with respect to the financial covenants set forth in
Paragraph 16 (both immediately before and after giving effect to
the foregoing actions) compliance with such covenants shall be
calculated as of the end of the most recently ended Fiscal
Quarter as if, without double-counting, all actions permitted by
the foregoing clause (c) and all other actions undertaken in
conformity with the provisos set forth in Paragraph 14(B)(vi),
14(C), 14(H) and 14(I) occurring since the end of most recently
ended Fiscal Quarter had occurred as of the last day of such
Fiscal Quarter.
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(B) Investments. Borrower and DeVry shall not, and shall
not permit any Subsidiary to, make or permit to exist any
Investment in any Person; provided, however, that Borrower may
make any of the following Investments at such times when no
Default or Event of Default has occurred and to the extent such
would not otherwise result in the occurrence of an Event of
Default or Default and may permit to exist: (i) Investments in
short-term obligations issued by, or guaranteed by, the United
States Government and Investments in any tax-free municipal
bonds, (ii) Investments in negotiable certificates of deposit,
bankers' acceptances, eurodollar time deposits or money market
securities issued, or money market funds offered, by any Lender,
any Affiliate of any Lender, or by any bank or branch of a bank
having an office in New York City or Chicago and having capital
and surplus of at least $250,000,000 in the aggregate at all
times, (iii) Investments in commercial paper issued by any Lender
or in commercial paper rated Pl or Al by Moody's Investors
Service, Inc. or Standard & Poor's Corporation, respectively,
(iv) Investments existing as of the Restatement Date in amounts
and in such entities which are described on Exhibit J,
(v) additional Investments by Borrower in DeVry Canada or any
Special Purpose Subsidiary and additional Investments by DeVry in
Subsidiaries which are Subsidiaries on the Restatement Date,
(vi) so long as both immediately before and after giving effect
thereto, no Default or Event of Default shall exist, Investments
by DeVry in Subsidiaries which become Subsidiaries after the
Restatement Date, provided, that the aggregate consideration paid
for such Investments when added to the aggregate consideration
paid for any acquisitions made pursuant to Paragraph 14(A)(c)
shall not exceed $5,000,000 in total fair market value during the
term of this Agreement, (vii) additional Investments by DeVry in
an aggregate amount not to exceed $2,000,000 at any one time
outstanding, (viii) loans and advances permitted by Paragraph
14(C) below; and (ix) Investments in the Exempt Entities in an
aggregate amount at any one time outstanding of not greater than
$1,000,000; it being understood that any Investment made pursuant
to any of clauses (i) through (iii) of this Paragraph 14(B) shall
continue to be permitted pursuant to such clause throughout the
term of such Investment irrespective of whether such Investment
continues to meet the requirements of such clause throughout its
term, but only if the term of such Investment expires within one
(1) year from the date such Investment fails to meet such
requirements. For purposes of determining whether a Default or
Event of Default exists with respect to the financial covenants
set forth in Paragraph 16 (both immediately before and after
giving effect to the foregoing actions) compliance with such
covenants shall be calculated as of the end of the most recently
ended Fiscal Quarter as if, without double-counting, all such
actions and all other actions undertaken in conformity with the
provisos set forth in Paragraphs 14(A)(c), 14(C), 14(H) and 14(I)
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occurring since the end of most recently ended Fiscal Quarter had
occurred as of the last day of such Fiscal Quarter.
(C) Distributions and Loans. Except for loans set forth on
Exhibit J hereto, Borrower and DeVry shall not, and shall not
permit any Subsidiary to, directly or indirectly, declare, pay or
make any dividend or distribution (in cash, property or
obligations) on any shares of any class of capital stock (now or
hereafter outstanding) of Borrower, DeVry or any Subsidiary or on
any warrants, options or other rights with respect to any shares
of any class of capital stock (now or hereafter outstanding) of
Borrower, DeVry or any Subsidiary (other than dividends or
distributions payable in its common stock or warrants to purchase
its common stock or splitups or reclassifications of its stock
into additional or other shares of its common stock) or apply, or
permit any Subsidiary to apply directly or indirectly, any funds,
property or assets to the redemption, retirement purchase or
other acquisition of any shares of any class of capital stock
(now or hereafter outstanding) of Borrower, any Subsidiary or any
option, warrant or other right to acquire shares of capital stock
of Borrower, any Subsidiary, or make, or permit any Subsidiary to
make, any loans, advances or other extensions of credit to any
Person; provided, that so long as both immediately before and
after giving effect thereto no Default or Event of Default shall
exist, (i) Borrower and DeVry may, and may permit any Subsidiary
to, directly or indirectly declare or pay cash dividends upon any
of Borrower's, DeVry's or any Subsidiary's stock, (ii) Borrower
may make loans to DeVry and any Special Purpose Subsidiary, and
DeVry may make loans to the Subsidiaries, (iii) Borrower, DeVry
or the Subsidiaries (other than Special Purpose Subsidiaries) may
make loans to their respective officers or employees, or pay any
management or similar fees, and (iv) Borrower, DeVry or the
Subsidiaries may redeem, retire, purchase or otherwise acquire,
directly or indirectly, any of Borrower's, DeVry's or any
Subsidiary's capital stock or any warrants therefor; provided,
further, that (i) Borrower and DeVry shall not and shall not
permit DeVry or any Subsidiary to make cash payments of
director's fees in excess of $500,000, in the aggregate, during
any fiscal year and (ii) Borrower shall not make cash dividends
or make loans in an aggregate amount (for all such loans and
dividends, collectively) in excess of $1,000,000 during the term
of this Agreement to DeVry to fund, directly or indirectly, the
costs, expenses and indemnities in connection with any secondary
offerings of DeVry's capital stock. For purposes of determining
whether a Default or Event of Default exists with respect to the
financial covenants set forth in Paragraph 16 (both immediately
prior and after giving effect to the foregoing actions)
compliance with such covenants shall be calculated as of the end
of the most recently ended Fiscal Quarter as if, without double-
counting, all such actions and all other actions undertaken in
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conformity with the provisos set forth in Paragraphs 14(A)(c),
14(B)(vi), 14(H) and 14(I) occurring since the end of most
recently ended Fiscal Quarter had occurred as of the last day of
such Fiscal Quarter.
(D) Transactions With Affiliates. Borrower and DeVry shall
not enter into, or be a party to any transaction with any of
their respective Affiliates or stockholders, except in the
ordinary course of business and pursuant to the reasonable
requirements of their respective businesses and upon fair and
reasonable terms no less favorable to Borrower or DeVry, as the
case may be, than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate or
stockholder. Without limiting the provisions of the immediately
preceding sentence, Borrower and DeVry shall not, and not permit
any Subsidiary, to make any loans or advances or other transfers
to its Affiliates. Nothing contained in this Paragraph 14(D)
shall be deemed to prohibit: (i) transactions expressly
permitted by Paragraph 14(B) or 14(C); (ii) transactions
consummated prior to the Restatement Date or pursuant to
agreements in existence at the Restatement Date; (iii) payments
to officers and directors pursuant to indemnities contained in
Borrower's, DeVry's or any Subsidiary's certificate of
incorporation, by-laws or other organizational documents or any
indemnity agreement to which Borrower, Devry or any Subsidiary is
a party.
(E) Asset Disposition, etc. Borrower and DeVry shall not,
and not permit any Subsidiary to, sell, assign, lease, transfer,
contribute, convey or otherwise dispose of, or grant options,
warrants or other rights with respect to, any of its assets to
any Person, except for:
(i) any sale, assignment, transfer, lease, contribution,
conveyance or other disposition made in the ordinary course of
its business; or
(ii) in the case of Borrower, any sale, assignment,
transfer, lease, contribution, conveyance or other disposition
made to a Special Purpose Subsidiary; or
(iii) in the case of DeVry or any Subsidiary (other than
Borrower), any sale assignment, transfer, lease, contribution,
conveyance or other disposition made to a Subsidiary which, if
not Borrower, shall have duly executed and delivered to the Agent
for the benefit of the Lenders a Guaranty; or
(iv) any licensing of intellectual property of DeVry or any
Subsidiary made pursuant to a licensing or royalty agreement;
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provided, that: (a) if such licensing is to any Person other than
DeVry or its Subsidiaries it shall be made for fair
consideration; and (b) after giving effect to such licensing the
Borrower, DeVry and each Subsidiary shall be in compliance with
the provisions of Paragraph 13(c) above.
(F) Conditional Sales. Borrower shall not make a sale of
any of its assets to any customer on a bill-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or any
other repurchase or return basis nor shall Borrower provide any
services subject to rebate or return of any consideration
received by Borrower, except as otherwise required by law or as
is otherwise customarily provided by Borrower.
(G) Encumbrances. Except as set forth on Exhibit K,
Borrower and DeVry will not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any security
interest, mortgage, pledge, lien or other encumbrance of any
nature whatsoever on any of its assets, other than: (i) liens
securing the payment of taxes, either not yet delinquent or the
validity of which is being contested in good faith in accordance
with the provisions of Paragraph 13(D); (ii) deposits under
workmen's compensation, unemployment insurance, social security
and other similar laws, or to secure the performance of bids,
tenders or contracts (other than for the repayment of borrowed
money) or to secure indemnity, performance or other similar bonds
for the performance of bids, tenders or contracts (other than for
the repayment of borrowed money) or to secure statutory
obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of
business; (iii) liens which arise by operation of law; (iv)
zoning restrictions, easements, licenses, covenants and other
restrictions affecting the use of the real estate or interests
therein of Borrower or its Subsidiaries which do not have a
materially adverse effect on Borrower's or its Subsidiaries'
business operations, prospects or financial condition or the
value of the real estate or interests therein of Borrower or its
Subsidiaries; and (v) purchase money liens and security interests
granted in connection with the purchase of equipment or real
estate to secure purchase money Indebtedness permitted under
Paragraph 14(H).
(H) Indebtedness. Borrower and DeVry shall not, and shall
not permit any Subsidiary to, incur, create, assume, become or be
liable in any manner with respect to, or permit to exist, any
indebtedness for borrowed money or for the deferred purchase
price for the acquisition of property; provided, that so long as
both immediately prior and after giving effect thereto no Default
or Event of Default shall exist, Borrower may, and may permit
DeVry or any Subsidiary (other than a Special Purpose Subsidiary)
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to, incur, create, assume, become or be liable in any manner with
respect to, or permit to exist, any indebtedness for borrowed
money or for the deferred purchase price for the acquisition of
property, except Indebtedness which by its terms is structurally
or contractually senior in right of payment, remedial rights or
otherwise to the Obligations; provided, further, that for
purposes of determining whether a Default or Event of Default
exists with respect to the financial covenants set forth in
Paragraph 16 (both immediately prior and after giving effect to
the foregoing actions) compliance with such covenants shall be
calculated as of the end of the most recently ended Fiscal
Quarter as if, without double-counting, all such actions and all
other actions undertaken in conformity with the provisos set
forth in Paragraphs 14(A)(c), 14(B)(vi), 14(C) and 14(I)
occurring since the end of most recently ended Fiscal Quarter had
occurred as of the last day of such Fiscal Quarter.
(I) Guarantees. Borrower and DeVry shall not, and shall
not permit any Subsidiary to, guaranty, endorse or otherwise in
any way become or be responsible for obligations of any other
Person; provided, that so long as both immediately prior and
after giving effect thereto no Default or Event of Default shall
exist, Borrower and DeVry may and may permit any Subsidiary
(other than a Special Purpose Subsidiary) to, guarantee, endorse
or otherwise in any way become or be responsible for obligations
of any other Person; provided, that for purposes of determining
whether a Default or Event of Default exists with respect to the
financial covenants set forth in Paragraph 16 (both immediately
prior and after giving effect to the foregoing actions)
compliance with such covenants shall be calculated as of the end
of the most recently ended Fiscal Quarter as if, without double-
counting, all such actions and all other actions undertaken in
conformity with the provisos set forth in Paragraphs 14(A)(c),
14(B)(vi), 14(C) and 14(H) occurring since the end of most
recently ended Fiscal Quarter had occurred as of the last day of
such Fiscal Quarter.
(J) Amendment of Certificate of Incorporation or By-Laws.
Provided that Borrower furnishes to Agent a copy of such
amendment, certified by the Secretary of State of Delaware,
within ten (10) days after the date such amendment is filed with
such Secretary of State, Borrower may amend its Certificate of
Incorporation so long as such amendment does not have a
materially adverse effect on Borrower's, DeVry's or any
Subsidiary's operations, prospects or financial condition.
(K) ERISA. Borrower shall not, and shall not permit DeVry
nor any of the Subsidiaries nor any of their respective ERISA
Affiliates to engage in any transaction in connection with which
Borrower or any Subsidiary or any of their respective ERISA
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Affiliates could be subject to either a material civil penalty
assessed pursuant to section 502(i) of ERISA or material tax
imposed by section 4975 of the Internal Revenue Code.
(L) Transfer of DeVry Canada Stock. Borrower shall not
sell, transfer or otherwise dispose of the outstanding capital
stock of DeVry Canada. DeVry shall not sell, transfer or
otherwise dispose of the outstanding capital stock of the Becker
Subsidiaries.
15. RESERVED.
16. FINANCIAL COVENANTS.
(A) DeVry covenants that it shall, at all times after
the Restatement Date and so long as any of the Obligations are
outstanding:
(i) Maintain a Consolidated Tangible Net Worth for each
Fiscal Quarter commencing with the Fiscal Quarter ending June 30,
1996 equal to (a) $5,000,000 plus (b) an amount equal to the sum
of seventy-five percent (75%) of DeVry's Consolidated Net Income
(without reduction for any Fiscal Quarter where the Consolidated
Net Income is negative) for each of the Fiscal Quarters
subsequent to June 30, 1996;
(ii) Maintain a Fixed Charge Coverage Ratio for the four
consecutive Fiscal Quarter period ending June 30, 1996 and for
each succeeding four consecutive Fiscal Quarter period ending
thereafter which equals or exceeds 1.8:1; provided, that each
component of the definition of Fixed Charge Coverage Ratio shall
be calculated over the then applicable four consecutive Fiscal
Quarter period; and
(iii) Maintain a Debt Coverage Ratio for each Fiscal Quarter
ending during the period set forth below of not greater than the
ratio set forth below opposite such Fiscal Quarter:
Fiscal Quarters
ending between Ratio
June 30, 1996 and
June 29, 1997 3.50:1
June 30, 1997 and
June 29, 1998 3.25:1
June 30, 1998 and
the Termination Date 3.00:1
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(B) DeVry covenants that, at all times after the
Restatement Date and for so long as any of the Obligations are
outstanding, DeVry shall not, and shall not permit its
Subsidiaries to, make Capital Expenditures in an aggregate
amount, on a consolidated basis, in excess of $25,000,000 in any
fiscal year of DeVry.
17. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT
(A) The effectiveness of this Agreement is expressly
conditioned upon the fulfillment of each of the following
conditions precedent ("Conditions Precedent") in a manner
reasonably satisfactory to Agent:
(i) No Default or Event of Default shall exist as of the
Restatement Date;
(ii) Borrower shall have delivered or Agent shall have otherwise
obtained:
(a) a Revolving Note in the form attached hereto as Exhibit A;
(b) a Guaranty duly executed by DeVry and each Subsidiary
(other than DeVry Canada);
(c) a copy of the current Certificate of Incorporation of
Borrower, DeVry and of each Subsidiary (other than DeVry Canada),
certified by the Secretary of State of its jurisdiction of
organization;
(d) certificate of good standing for the Borrower, DeVry and
each Subsidiary (other than DeVry Canada) from the Secretary of
State of Delaware and from each other state where the nature and
extent of the business transacted by it or the ownership of its
assets makes such qualification necessary, except for those
jurisdictions in which the failure so to qualify would not have a
material adverse effect on the Borrower's, DeVry's or the
respective Subsidiary's financial condition, results of
operations, business or prospects;
(e) the opinions of Mayer, Brown & Platt, counsel to
Borrower, DeVry and each Subsidiary (other than DeVry Canada),
and of Borrower's, DeVry's and each Subsidiary's (other than
DeVry Canada) general counsel, dated the Restatement Date,
substantially in the form of Exhibit L;
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(f) the certificate of the Chairman and Chief operating
officer of Borrower dated the date hereof, certifying to the best
of their knowledge after diligent inquiry (A) to the truth and
accuracy, as of the Restatement Date, of the representations and
warranties of Borrower contained in this Agreement and (B) that
no Default or Event of Default shall exist as of the Restatement
Date;
(g) the Certificates of each of the Secretaries of
Borrower, DeVry and each Subsidiary (other than DeVry Canada)
certifying as to (1) the accuracy and the due adoption of its
Board of Directors' resolutions authorizing the Loan Documents,
(2) the names, incumbency and signatures of its officers and (3)
the accuracy and currency of a copy of its By-Laws; and
(h) such other documents as may be
reasonably required by Agent.
(B) RESERVED.
(C) Each advance of the Revolving Loan and issuance of any
Letter of Credit after the Restatement Date is expressly
conditioned upon the fulfillment of the following conditions
precedent in a manner reasonably satisfactory to Agent:
(i) No Default or Event of Default shall exist as of the
date of such advance or issuance of such Letter of Credit, as the
case may be; and
(ii) Borrower shall have delivered to Agent a Notice of
Borrowing with respect to such advance or a written notice
pursuant to Paragraph 2(B) with respect to such Letter of Credit,
as the case may be.
18. TERMINATION, ACCELERATION AND DEMAND.
(A) Term. This Agreement shall terminate on August 1, 1999
("Termination Date"), subject to the terms and provisions of
Paragraph 22(E) and of any other provisions of this Agreement or
any other Loan Document which specifically provide for the
continuation of obligations, duties, representations and
warranties beyond such termination. Upon the Termination Date,
all of Borrower's Obligations to Agent and each Lender, whether
or not incurred under this Agreement, or any amendment or
supplement thereto, under any Revolving Note, any other Loan
Document or otherwise, shall become immediately due and payable
without notice or demand.
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(B) Repayment and Acceleration of Loans. That portion of
the Obligations evidenced by the Revolving Note shall be payable
in accordance with the terms set forth in such note,
respectively, unless and until there shall exist an Event of
Default under this Agreement or this Agreement shall be
terminated, in which case, such Obligations shall become
immediately due and payable pursuant to Paragraphs 18(A) or 19,
respectively.
(C) Repayment and Acceleration of Interest and Fees. That
portion of the Obligations constituting interest and fees shall
be payable in accordance with the terms set forth in Paragraphs 3
and 4, respectively, unless and until there shall exist an Event
of Default under this Agreement or this Agreement shall be
terminated, in which case such obligations shall become
immediately due and payable pursuant to Paragraph 18(A) or 19,
respectively.
(D) Certain Obligations Payable on Demand; Waivers. All
obligations, other than those referred to in Paragraphs 18(B) and
(C) above, and each portion thereof, shall be payable by Borrower
on demand at Agent's address set forth in Paragraph 22(B), unless
and until there shall exist an Event of Default or this Agreement
shall be terminated, in which case such obligations shall become
immediately due and payable pursuant to Paragraph 18(A) or 19,
respectively. With respect to all Obligations, Borrower waives
to the fullest extent permitted by law presentment and protest of
any instrument and notice thereof, notice of default and all
other notices to which Borrower might otherwise be entitled by
operation of law and recourse to security will not be required at
any time.
19. EVENTS OF DEFAULT.
Each of the following occurrences shall constitute an "Event
of Default" under this Agreement:
(A) Borrower shall fail to pay, when due, any of the
principal portion of the Obligations or, within five (5) days of
becoming due, any of the interest portion fees or other charges
constituting part of the Obligations or, within ten (10) days of
becoming due, any other Obligations; or
(B) Borrower, DeVry or any Subsidiary shall commit, or
there shall arise or exist, any material breach of any covenant
of this Agreement or any of the other Loan Documents, which
breach (other than a breach of Paragraph 14(A) or 14(L) which
shall constitute an immediate Event of Default) continues uncured
for thirty (30) days after the earlier of (i) actual knowledge
thereof by Borrower, DeVry or any Subsidiary, as the case may be,
132
or (ii) written notice thereof has been given by Agent or any
Lender to Borrower; or
(C) Any representation or warranty made by Borrower, DeVry
or any Subsidiary in this Agreement or any of the other Loan
Documents or in any certificate, document or financial or other
statement furnished at any time by Borrower, DeVry or any
Subsidiary, as the case may be, in writing pursuant hereto or
thereto, shall prove to have been untrue or misleading in any
material respect as of the date when made; or
(D) Borrower, DeVry or any guarantor of the Obligations
shall (i) default in any payment of principal or interest on any
of its indebtedness (excluding the Obligations), or in the
payment of any written contingent obligation in respect of the
indebtedness or obligations of any other Person when due (after
giving effect to any applicable grace period), whether by
acceleration or otherwise, and the aggregate principal amount of
such indebtedness or contingent obligation exceeds $2,500,000,
the grace period, if any, provided in the instrument or agreement
under which such indebtedness or contingent obligation was
created has expired and such default entitles the holder of such
indebtedness or contingent obligation to accelerate payment of
such indebtedness or contingent obligation, or (ii) default in
the observance or performance of any other agreement or condition
relating to any such indebtedness or contingent obligation or
contained in any instrument or agreement evidencing, securing or
relating to such indebtedness or contingent obligation, and the
grace period, if any, provided in such agreement, or instrument
has expired and such default entitles the holder of such
indebtedness or contingent obligation to accelerate payment of
such indebtedness or contingent obligation; or
(E) Borrower, DeVry or any Subsidiary shall make an
assignment for the benefit of creditors, call a meeting of its
creditors for the recomposition or readjustment of debts, or
commence any case, proceeding or other action (i) under any
existing or future law of any jurisdiction relating to
bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it,
or seeking to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or
its debts; or (ii) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any
substantial part of its assets; or (iii) there shall be commenced
involuntarily against Borrower, DeVry or any Subsidiary any such
case, proceeding or other action and such case, proceeding or
other action is not dismissed before the earlier of thirty (30)
days from the commencement of such action or the entering of an
133
order of relief for such action; or (iv) there shall be commenced
against Borrower, DeVry or any Subsidiary any case, proceeding or
other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets and such case, proceeding or other
action is not dismissed before the earlier of thirty (30) days
from the commencement thereof or the entry of an order of relief
for such action; or (v) Borrower, DeVry or any Subsidiary shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth above
in this Paragraph 19(E); or (vi) Borrower, DeVry or any
Subsidiary shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become
due; or
(F) Any of the acts or events described in Paragraph 19(G)
shall be commenced by or against, or occur with respect to, DeVry
Canada or any guarantor of the Obligations which has generated
annual revenues in excess of $4,000,000 in its most recently
ended fiscal year; or
(G) One or more judgments or decrees shall be entered
against Borrower, DeVry on any of their respective property or
assets, the portion of liability for which is not covered by
insurance and in the aggregate exceeds $2,500,000, and all such
judgments or decrees shall not have been vacated, satisfied,
discharged or stayed or bonded pending appeal within sixty (60)
days from the entry thereof; or
(H) DeVry or any other guarantor of the Obligations shall
fail in any material respect to perform or observe any term,
covenant or agreement in any Guaranty; or any Guaranty is for any
reason partially (including with respect to future advances) or
wholly revoked or invalidated or otherwise ceases to be in full
force and effect, or DeVry or any other such guarantor or any
other Person contests in any manner the validity or
enforceability thereof or denies that it has any further
liability or obligation thereunder; or
(I) (i) Dennis J. Keller and Ronald L. Taylor (either
individually or, upon death or disability, by their respective
estates, personal representatives or heirs) shall cease to
collectively own and control (on a fully-diluted basis and free
from any voting trusts or similar arrangements which restrict
their ability to vote) more than ten percent (10%) of the issued
and outstanding capital voting stock of DeVry, or (ii) DeVry
shall cease to own directly or indirectly all of the issued and
outstanding capital stock of Borrower and of the Becker
Subsidiaries; or
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(J) Dennis J. Keller or Ronald L. Taylor shall at any time
for any reason other than death or disability, cease to serve as
senior officers of Borrower or shall cease to perform the duties
presently performed by them; or
(K) The U.S. Department of Education shall have, pursuant
to Subpart G of 34 C.F.R., Part 668, regarding Borrower's
eligibility to participate in federal student financial
assistance programs, notified Borrower of any suspension or
termination affecting such eligibility, the ineligibility to
participate in which would have a material adverse effect on
Borrower's financial condition, results of operations or
business, and such notification shall not have been withdrawn,
suspended or otherwise terminated within thirty (30) days from
such notification; or
(L) The default rate on Stafford loans, Perkins loans, or
the aggregate of all student loans made by Borrower to students
at Borrower's educational facilities in the aggregate shall
exceed twenty-five percent (25%) of the principal of all such
loans which have reached their repayment period.
Upon the occurrence of any Event of Default described above,
Agent may, and at the direction of the Required Lenders shall,
(i) by notice to Borrower, declare the obligations to be due and
payable forthwith, whereupon the same immediately become due and
payable; provided, however, that, upon the occurrence of an Event
of Default described in Paragraph 19(E), all obligations shall
automatically become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by Borrower to the fullest extent
permitted by law, (ii) terminate the Revolving Loan Maximum
Commitment or (iii) all Letters of Credit shall be deemed drawn
and shall be cash collateralized in accordance with Paragraphs
2(F) and 20(B).
20. LENDER'S RIGHTS AND REMEDIES.
(A) Equitable Relief. Borrower recognizes that in the
event Borrower fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy of
law may prove to be inadequate relief to Agent; therefore,
Borrower agrees that Agent, if Agent so requests, shall be
entitled to temporary and permanent injunctive relief in any such
case without the necessity of proving actual damages.
(B) Cash Collateral for Letters of Credit. Upon the
occurrence of an Event of Default under Paragraph 19(E), upon the
request of Agent at any time after the occurrence of any other
Event of Default or upon termination of the Revolving Maximum
135
Loan Commitment, Borrower shall immediately deliver to Agent, for
the benefit of each issuer of a Letter of Credit then
outstanding, as cash collateral for Borrower's reimbursement
obligations to such issuers, cash in an amount equal to the then
undrawn face amount of such Letters of Credit plus the then
projected amount of all fees associated therewith for the
respective effective periods of such Letters of Credit calculated
on such undrawn face amount. Such cash collateral shall be
granted to Agent subject to agreements and instruments executed
by Borrower and in form and substance acceptable to Agent and
such issuers.
21. AGENT
(A) Actions; Indemnification. Each Lender authorizes Agent
to act on behalf of such Lender under this Agreement and any
other Loan Document and, in the absence of other written
instructions from Required Lenders received from time to time by
Agent, to exercise such powers hereunder and thereunder as are
specifically delegated to or required of Agent by the terms
hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender agrees (which
agreement shall survive any termination of this Agreement) to
indemnify Agent, pro rata according to such Lender's respective
Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or
asserted against Agent in any way relating to or arising out of
this Agreement and any other Loan Document, including the
reimbursement of Agent for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by Agent
hereunder or in connection herewith or in enforcing the
Obligations of Borrower or any Person under this Agreement or any
other Loan Document, in all cases as to which Agent is not
reimbursed by Borrower, including the failure of Borrower to
reimburse Agent for any Letter of Credit; provided that no Lender
shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
solely from Agent's gross negligence or wilful misconduct. Agent
shall not be required to take any action hereunder or under any
other Loan Document, or to prosecute or defend any suit in
respect of this Agreement or any other Loan Document, unless it
is indemnified to its satisfaction by Lenders against loss,
costs, liability and expense. If any indemnity in favor of Agent
shall become impaired, Agent may call for additional indemnity
and cease to do the acts indemnified against until such
additional indemnity is given.
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(B) Funding Reliance, etc. Unless Agent shall have been
notified by telephone, confirmed in writing, by any Lender by
12:00 noon (Chicago time) on the day prior to a proposed date of
disbursement of a proposed borrowing that such Lender will not
make available the amount which would constitute its Percentage
of such borrowing on the date specified therefor, Agent may
assume that such Lender has made such amount available to Agent
and, in reliance upon such assumption, make available to Borrower
a corresponding amount. If such amount is made available by such
Lender to Agent on a date after the date of such borrowing, such
Lender shall pay to Agent on demand interest on such amount at
the Federal Funds Effective Rate for the number of days from the
date of such borrowing to the date on which such amount becomes
immediately available to Agent, together with such other
compensatory amounts as may be required to be paid by such Lender
to Agent pursuant to the Rules for Interbank Compensation of the
Council on International Banking or the Clearinghouse
Compensation Committee, as the case may be, as in effect from
time to time. A statement of Agent submitted to any Lender with
respect to any amounts owing under this Paragraph 21(B) shall be
conclusive, in the absence of manifest error. If such amount is
not in fact made available to Agent by such Lender within three
(3) Business Days after the date of such borrowing, Agent shall
be entitled to recover such amount, with interest thereon at the
rate per annum then applicable to the Loans comprising such
borrowing, within three (3) Business Days after demand, from
Borrower.
(C) Exculpation. Neither Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for
any action taken or omitted to be taken by it under this
Agreement or any other Loan Document, or in connection herewith
or therewith, except for its own wilful misconduct or gross
negligence, nor shall they be responsible for any recitals or
warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for any inquiry regarding the
performance by Borrower of its Obligations hereunder or
thereunder. Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which it believes to be genuine
and to have been presented by a proper Person.
(D) Successor. Agent may resign as such at any time upon
at least ten (10) days' prior notice to Borrower and all Lenders,
such resignation not to be effective until a successor Agent is
in place. If Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Agent which
shall thereupon become Agent hereunder. If no successor Agent
shall have been so appointed by the Required Lenders, and shall
137
have accepted such appointment, within thirty (30) days after the
retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of Lenders, appoint a successor Agent, which
shall be one of Lenders or a financial institution reasonably
acceptable to Borrower organized under the laws of the United
States and having a combined capital and surplus of at least
$1,000,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall be
entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with
all rights, powers, privileges, and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations under this Agreement.
(E) Loans by Agent. Agent shall have the same rights and
powers with respect to the Loans made by it or any of its
Affiliates as any Lender and may exercise the same as if it were
not Agent.
(F) Credit Decisions. Each Lender acknowledges that it
has, independently of Agent and each other Lender, and based on
the financial information of Borrower and such other documents,
information and investigations as it has deemed appropriate, made
its own credit decision to enter this Agreement and make Loans
hereunder. Each Lender also acknowledges that it will,
independently of Agent and each other Lender, and based on such
other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or
any other Loan Document.
(G) Copies, etc. Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be
given to Agent by Borrower pursuant to the terms of this
Agreement. Notwithstanding anything herein contained to the
contrary, all notices to and communications with Borrower under
this Agreement and the other Loan Documents shall be effected by
Lenders through Agent. Neither Agent nor any Lender will have
any obligation to distribute any information to other Lenders
except for information which was given to Agent or such Lender in
its capacity as Agent or Lender, as the case may be.
138
22. MISCELLANEOUS.
(A) Waivers, Amendments, etc. The provisions of this
Agreement and of each Loan Document may from time to time be
amended, modified or waived, if such amendment, modification or
waiver is in writing and consented to by Borrower and Required
Lenders; provided that no such amendment, modification or waiver:
(a) which would modify any requirement hereunder that any
particular action be taken by all Lenders or by the Required
Lenders shall be effective unless consented to by each Lender;
(b) which would modify this Paragraph 22(A), change the
definition of "Required Lenders", change any Percentage for any
Lender, reduce any fees (other than fees pursuant to Paragraph
4(B)), extend the Termination Date or subject any Lender to any
additional obligations shall be made without the consent of each
Lender;
(c) which would extend the due date for, or reduce the
amount of, any payment or prepayment of principal of or interest
on any Loan (or reduce the principal amount of or rate of
interest on any Loan) shall be made without the consent of the
holder of such Loan; or
(d) which would affect adversely the interests, rights or
obligations of Agent in its capacity as Agent hereunder shall be
made without consent of Agent.
No failure or delay on the part of Agent or any Lender in
exercising any power or right under this Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude
any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on Borrower in any
case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by Agent or any Lender
under this Agreement or any other Loan Document shall, except as
may be otherwise stated in such waiver or approval, be applicable
to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
(B) Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan
Document shall be in writing or by telex or by facsimile and
addressed or delivered to it at its address set forth on the
signature pages hereof or at such other address as may be
designated by such party from time to time in a notice complying
139
as to delivery with the terms of this Section to the other
parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes and
receipt confirmed in the case of facsimiles).
(C) Costs and Expenses. Borrower agrees to pay on demand
all expenses of Agent (including the reasonable fees and out-of
pocket expenses of counsel to Agent and of local counsel, if any,
who may be retained by counsel to Agent (in consultation with
Borrower)) in connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other
Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are
consummated; and
(b) the consideration of legal questions relevant hereto
and thereto and the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations.
Borrower also agrees to reimburse Agent and each Lender upon
demand for all reasonable out-of-pocket expenses (including
attorneys' fees and legal expenses) incurred by Agent or such
Lender in enforcing the obligations of Borrower under this
Agreement or any other Loan Document. Such expenses of Agent,
each Lender (including the reasonable fees and expenses of
counsel) will be reflected in documentation in reasonable detail
furnished to Borrower.
(D) Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of
the Loans and other financial accommodations contemplated hereby,
Borrower hereby indemnifies, exonerates and holds Agent and each
Lender and each of its officers, directors, employees and agents
(the "Indemnified Parties") free and harmless from and against
any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses actually incurred in
connection therewith (irrespective of whether such Indemnified
Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and
disbursements (the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out
of, or relating to:
140
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation, or proceeding related to
any acquisition or proposed acquisition by Borrower or any
Subsidiary of all or any portion of the stock or all or
substantially all the assets of any Person, whether or not Agent
or such Lender is party thereto; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by the Borrower or any
of its Subsidiaries of any Hazardous Material (including any
losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under CERCLA, any so-called "Superfund" or
"Superlien" law, or any other federal, state, local or other
statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of
conduct concerning, any Hazardous Material), regardless of
whether caused by, or within the control of, Borrower or any of
its Subsidiaries, except for (i) any such Indemnified Liabilities
arising for the account of a particular Indemnified Party
(individually and not as a co-conspirator with Borrower or any of
its Affiliates) by reason of the relevant Indemnified Party's
gross negligence, bad faith, misuse of confidential information
or wilful misconduct (as determined by a judgment of a court of
competent jurisdiction in a final, nonappealable order), and (ii)
any settlement of any claim or action effected without Borrower's
written consent (provided such consent was not unreasonably
delayed or withheld) and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, Borrower hereby
agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. Subject to applicable laws and
ethical rules (as to the interpretation of which the Indemnified
Parties may rely upon the advice of their respective counsel)
with respect to civil litigation or civil proceedings relating to
any Indemnified Liability, the Indemnified Parties will agree to
be represented by one law firm for any one jurisdiction, which
counsel shall be subject to Borrower's approval (and which
approval shall not be unreasonably withheld or delayed).
141
Borrower may participate in any defense with its own counsel, but
may not direct or control the defense of any Indemnified Party.
(E) Survival. The obligations of Borrower under Paragraphs
3(L), 3(M) and 22(C), and the obligations of Lenders under
Paragraph 21(A) shall in each case survive any termination of
this Agreement. The representations and warranties made by
Borrower in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each
such other Loan Document.
(F) Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or such
other Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
(G) Headings. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement
or such other Loan Document or any provisions hereof or thereof.
(H) Counterparts, Effectiveness, etc. This Agreement may
be executed by the parties hereto in several counterparts, each
of which shall be executed by Borrower and Agent and be deemed to
be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of Borrower and each
Lender (or notice thereof satisfactory to Agent) shall have been
received by Agent and notice thereof shall have been given by
Agent to Borrower and each Lender.
(I) Governing Law; Entire Agreement. This Agreement and
each other Loan Document shall each be deemed to be a contract
made under and governed by the internal laws of the State of
Illinois. This Agreement and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to
the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto.
(J) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns; provided that:
(a) Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of all
Lenders; and
142
(b) the rights of sale, assignment and transfer of Lenders
are subject to Paragraph 22(K).
(K) Assignments and Participations. Assignments by any
Lender of, and the granting of participations in, all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its agreements hereunder
("Assignable Commitments"), its Loans and Letters of Credit made
or issued with respect hereto and owing to it ("Assignable
Loans")) shall be subject to the following terms and conditions:
(a) Each Lender may, upon the giving in writing to Agent of
at least five (5) prior Business Days' notice, 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 Assignable Commitments and Assignable Loans) subject only to
the conditions set forth in clause (b) below. Each assignee
under this clause (a) shall be approved by Agent and Borrower,
such approval by Borrower not to be unreasonably withheld.
(b) Any assignments made pursuant to this Paragraph 22(K)
shall comply with the following conditions:
(ii) each such assignment shall identify each of the
facilities being assigned, and while the percentages assigned may
vary by facility, as to each such facility such assignment shall
be of a constant, and not a varying, percentage of the aggregate
rights and assignable obligations of Lenders under this Agreement
and shall cover the same aggregate percentage of such Lenders'
Assignable Loans and Assignable Commitments;
(iii) the amount of the Assignable Commitment of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment (as defined below)
with respect to such assignment) shall (except in the case of
assignments to other Lenders) not be less than $5,000,000 (and an
integral multiple of $1,000,000) or constitute the whole
Assignable Commitment of such Lender and all of such Lender's
Assignable Loans;
(iv) each such assignment shall be to an Eligible Assignee;
(v) no such assignment shall require Borrower to file a
registration statement with the Securities and Exchange
Commission or apply to qualify any Assignable Commitment,
143
Assignable Loan or interest in any Note, or any interest in any
thereof, under the "blue sky" or other securities law of any
jurisdiction;
(vi) except in the case of assignments to any other Lenders,
in no event shall any assigning Lender making an assignment
pursuant to clause (b) of this Paragraph 22(K) make any
assignments if after taking such assignment into effect such
Lender's Assignable Commitments would be less than $10,000,000,
unless such assignment is of all of such Assignable Commitments;
provided that upon any prepayment permitted under this Agreement
such amounts shall be reduced by the same percentage as such
prepayment bears to the assigning Lender's initial Assignable
Commitments;
(vii) the parties to each such assignment shall:
(A) execute and deliver to Agent, for its acceptance
and recording in the Register, an Assignment and Assumption
Agreement substantially in the form of Exhibit M (an
"Assignment"),
(B) pay to the Agent in immediately available funds a
processing and recordation fee of $3,000, and
(C) in the case of the assignee, if it is a
Non-United States Person, execute and deliver to the Agent either
(i) five Internal Revenue Service Forms 1001 or (ii) five
Internal Revenue Service Forms 4224 together with five Internal
Revenue Service Forms W-9, or any successor forms, as
appropriate, properly completed and claiming complete exemption
from withholding and deduction of United States Federal Taxes as
of the date of such Assignment;
(viii) such assignment will not result in the payment
offset by Borrower with respect to any then outstanding Loan;
(ix) Borrower would, under Paragraph 3(E), 3(H), 3(K), 3(L),
3(M) or 3(P) of this Agreement, be obligated to make any payment
to or for the account of any Assignee, Borrower shall only be
obligated to make such payment to the extent that it would have
been obliged to make such payment to the assigning Lender.
144
(c) Agent shall maintain at its address set forth on
the signature page hereto a copy of each Assignment
delivered to and accepted by it and a register for the
recordation of the names and addresses of Lenders and the
agreements of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). Upon such
execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment,
(i) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such
Assignment, have the rights and obligations of a Lender
hereunder, and all references to any Lender hereunder
or in any of the other Loan Documents shall include
such assignee, and
(ii) the assigning Lender thereunder shall,
to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment,
relinquish its rights and be released from its
unmatured obligations under this Agreement (and, in the
case of an Assignment covering all or the remaining
portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease
to be a party hereto); provided that any assigning
Lender shall retain any rights to indemnification which
accrued to it hereunder with respect to events prior to
the date of its Assignment to the assignee.
The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and Borrower, the
Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available
for inspection by Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon Agent's receipt of an Assignment executed by
an assigning Lender and an assignee representing that it is
an Eligible Assignee, Agent shall, if such Assignment has
been completed and is in substantially the form of Exhibit M
(and is accompanied by any Internal Revenue Service forms
required by clause (c)(vi)(C) of this Paragraph 22(K)), (i)
accept such Assignment, (ii) record the information
contained therein in the Register, and (iii) give prompt
notice thereof to Borrower. Any Eligible Assignee in
respect of which an Assignment is so recorded is herein
called an "Assignee".
145
(e) Any Lender may sell participations to one or more
participants in or to all or a portion of its rights and
obligations under this Agreement (including all or a portion
of its agreements hereunder and its Loans); 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,
(iii) such Lender shall remain the owner of
any such Loans made by such Lender for all purposes of
this Agreement,
(iv) Borrower, Agent and other Lenders shall
continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations
under this Agreement,
(v) participants shall be entitled to the
cost and yield protection provisions contained in
Paragraphs 3(E), 3(L), 3(M) and 3(P) of this Agreement;
provided that Borrower shall not be under any
obligation to pay to or for the account of any such
participant any greater amount than it would have been
obliged to pay to or for the account of Lender from
which it acquired its participation,
(vi) no participant (other than an Affiliate
of such Lender) shall have any right to require such
Lender to take or omit to take any action under this
Agreement or any Loan Document, except actions
extending any scheduled maturity of any Loan or the
Termination Date of any Commitment in which the
participant has a participation, reducing the interest
rate, fees or commissions on, any such Loans in which
such participation was sold or forgiving any principal
of or interest, fees or commissions payable on such
Loans, and
(vii) no participant may exercise any such
right of setoff except with the consent of Required
Lenders.
Each Lender agrees to incorporate the requirements set forth
in clauses (vi) and (vii) above into each participation
agreement which such Lender enters into with any
participant. Borrower-agrees that if amounts outstanding
under this Agreement are due and unpaid, or shall have been
146
declared or shall have become due and payable, each
participant shall, to the extent permitted by applicable
law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this
Agreement or such Note; provided that any participant
exercising such right shall be obligated to share with
Lenders, as if such participant were a "Lender" hereunder,
the amount of any such setoff; and provided, further, that
if all or any portion of such excess payment or other
recovery is thereafter recovered from the participant by or
on behalf of Borrower, the participant's obligation to share
such excess payment shall be rescinded and such payment
shall be returned to participant to the extent of such
recovery.
(g) Any Lender may, in connection with any assignment
or participation or proposed assignment or participation
pursuant to this Paragraph 22(K), disclose to the Assignee
or participant or proposed assignee or participant any
information relating to Borrower furnished to such Lender by
or on behalf of Borrower; provided that, prior to any such
disclosure, the Assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality
of any confidential information relating to Borrower
received by it from such Lender to the same extent as
Lenders hereunder.
(L) Other Transactions. Nothing contained herein shall
preclude Agent or any other Lender from engaging in any debt,
equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with Borrower or any
of its Affiliates in which Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
(M) Waiver of Jury Trial. AGENT, LENDERS AND BORROWER
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF AGENT, SUCH LENDERS, OR BORROWER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR AGENT AND SUCH LENDERS TO
ENTER INTO THIS AGREEMENT.
(N) Submission to Jurisdiction. Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of any
Illinois State or Federal court sitting in Chicago, Illinois over
any action or proceeding arising out of or relating to this
147
Agreement or the Loan Documents, and Borrower hereby irrevocably
agrees that all claims in respect of such action or proceeding
may be heard and determined in such Illinois State or Federal
court. Borrower, on behalf of itself and each Subsidiary, hereby
irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the laying of venue in
any such action or proceeding in any such court as well as any
right it may now or hereafter have, to remove any such action or
proceeding, once commenced, to another court on the grounds of
forum non conveniens or otherwise. Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
Borrower agrees not to institute any legal action or
proceeding against Agent or any Lender or the directors,
officers, employees, agents or property of any thereof, arising
out of or relating to this Agreement, in any court other than the
one hereinabove specified in this Paragraph 22(N). Nothing in
this Paragraph 22(N) shall affect the right of Agent or any
Lender to serve legal process in any other manner permitted by
law or affect the right of Agent or any Lender to bring any
action or proceeding against Borrower or its properties in the
courts of any other jurisdictions.
(O) Restatement. Borrower acknowledges that this Agreement
amends and restates in its entirety the Existing Agreement.
Borrower further acknowledges that all Revolving Loans (as such
term is defined in the Existing Agreement) currently outstanding
and all Existing L/C's shall upon satisfaction in full of all
Conditions Precedent be deemed to be Revolving Loans and Letters
of Credit hereunder.
148
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
KELLER GRADUATE SCHOOL OF
MANAGEMENT, INC.
By: /s/Ronald L. Taylor
Title: President
Address: One Tower Lane
Suite 1000
Oakbrook Terrace
Illinois 60181
Telecopy No.:(630)571-7700
Attention: Norman M. Levine
BANK OF AMERICA ILLINOIS,
as Agent
By: /s/David L. Graham
Title: Vice President
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Telecopy No.: (312) 828-1974
Attention: David Graham
149
Percentage
----------
56.0173731% BANK OF AMERICA ILLINOIS,
as Lender
By: /s/Christine M. Tierney
Title: Senior Vice President
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Telecopy No.: (312) 828-5120
Attention: David Stang
Domestic Office:
231 South LaSalle Street
Chicago, Illinois 60697
Eurodollar Office:
231 South LaSalle Street
Chicago, Illinois 60697
150
27.489141% THE NORTHERN TRUST COMPANY
By: /s/J. Graham Leonard
Title: Vice President
Address: 50 South LaSalle Street
Chicago, IL 60675
Telecopy No.: (312) 444-7028
Attention: J. Graham Leonard, Division I
Domestic Office:
50 South LaSalle Street
Chicago, IL 60675
Eurodollar Office:
50 South LaSalle Street
Chicago, IL 60675
151
16.4934851% HARRIS TRUST AND SAVINGS BANK
By: /s/R.L. Dell 'Artino
Title: Vice President
Address: 111 West Monroe Street
Chicago, IL 60690
Telecopy No.: (312) 461-2591
Attention: EMI/II
Domestic Office:
111 West Monroe Street
Chicago, IL 60690
Eurodollar Office:
111 West Monroe Street
Chicago, IL 60690
-------
100.00%
152
ACCEPTANCE AND ACKNOWLEDGEMENT
DeVry, Inc. hereby acknowledges and agrees to make such
deliveries as are required by it and comply with the covenants
and other provisions applicable to it contained in this
Agreement.
DeVry, Inc.
By: /s/Ronald L. Taylor
Name: Ronald L. Taylor
Title: President
Notice Address:
DeVry Inc.
One Tower Lane, Suite 1000
Oakbrook Terrace, IL 60181
Attention: Ronald L. Taylor
Telephone: (630) 574-1919
Facsimile: (630) 574-1903
Copies of all notices
shall also be sent to:
Mayer, Brown & Platt
1675 Broadway
New York, NY 10019
Attention: James B. Carlson
Telephone: (212) 506-2515
Facsimile: (212) 262-1910
153
EXHIBIT A
FORM OF REPLACEMENT GLOBAL REVOLVING NOTE
$85,000,000 June 12, 1996
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned, KELLER GRADUATE SCHOOL
OF MANAGEMENT, INC., a Delaware corporation with its chief
executive office located at One Tower Lane, Suite 1000, Oakbrook
Terrace, IL 60181 ("Borrower"), promises to pay to the order of
BANK OF AMERICA ILLINOIS, as agent (in such capacity, "Agent")
for itself and the other financial institutions (individually,
"Lender," and collectively, "Lenders") which are, or may become,
parties to that certain Amended and Restated Financing Agreement
dated as of June 12, 1996 (the "Financing Agreement"), EIGHTY-
FIVE MILLION AND NO/100THS DOLLARS ($85,000,000) or such lesser
amount as may be outstanding hereunder from time to time. The
Revolving Loan evidenced by this Replacement Global Revolving
Note ("Revolving Note") shall be repaid in accordance with the
terms and provisions of the Financing Agreement.
This Revolving Note is issued pursuant to, and entitled to
the benefits of, the Financing Agreement, to which reference is
hereby made for a more complete statement of the terms and
conditions under which the Revolving Loan evidenced hereby is
made and is to be repaid, including a description of the terms
and conditions under which the Revolving Loan may or is required
to be prepaid and the unpaid aggregate principal balance of this
Revolving Note may or shall be accelerated and for a description
of the collateral security for this Revolving Note and the
respective rights of the parties therein. Capitalized terms used
herein without definition shall have the respective meanings set
forth in the Financing Agreement.
The Borrower also promises to pay interest on the unpaid
aggregate principal amount of the Revolving Loan in accordance
with the terms and provisions of the Financing Agreement from the
Restatement Date until the Revolving Loan shall have been paid in
full.
All payments of principal and interest in respect of this
Revolving Note shall be made to Agent for the benefit and account
of the Lenders in lawful money of the United States of America in
same day funds at Agent's principal office in Chicago, Illinois
or at such other place as shall be designated in writing by Agent
for such purpose in accordance with the terms of the Financing
Agreement.
154
This Revolving Note is a replacement for Borrower's
Replacement Global Revolving Note dated April 14, 1994 (the
"Prior Note") payable to the order of the Agent (f/k/a
Continental Bank N.A.) and evidences indebtedness evidenced
thereby and nothing herein contained or implied shall be
construed or deemed to render the Prior Note or the indebtedness
evidenced thereby paid or satisfied or any guaranty thereof or
collateral security therefor released, discharged or otherwise
prejudicially affected in any manner whatsoever.
The Financing Agreement and this Revolving Note shall be
governed by, and shall be construed and enforced in accordance
with, the laws of the State of Illinois, without regard to its
conflicts of laws rules.
The terms of this Revolving Note are subject to amendment
only in the manner set forth in the Financing Agreement.
The Borrower promises to pay all costs and expenses,
including reasonable attorneys' and legal assistants' fees, and
disbursements incurred in collection and enforcement of this
Revolving Note or any appeal of a judgment rendered hereon. The
Borrower and the endorsers of this Revolving Note hereby consent
to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment,
protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations
as a defense to any demands thereafter.
IN WITNESS HEREOF, the Borrower has caused this Revolving
Note to be executed and delivered by its duly authorized officer,
as to the day and year and at the place first above written.
KELLER GRADUATE SCHOOL OF
MANAGEMENT, INC.
By:
-------------------
Title:
Attest: ----------------
By:
---------------------------------
Secretary
155
GUARANTY
FOR VALUE RECEIVED and in consideration of any loan or
other financial accommodation heretofore or hereafter at any time
made or granted to Keller Graduate School of Management, Inc., a
Delaware corporation (hereinafter called the "Debtor"), by the
lenders who are or may become party to that certain Amended and
Restated Financing Agreement, dated as of June 12, 1996 (as from
time to time, in whole or in part, amended, modified,
supplemented, restated, refinanced, refunded or renewed, the
"Credit Agreement"), among the undersigned, the lenders who are
or from time to time become party thereto (the "Lenders"), and
Bank of America Illinois, as agent for the Lenders (the "Agent"),
the "undersigned" hereby unconditionally guarantees the full and
prompt payment when due, whether at stated maturity, by required
prepayment, declaration, demand, acceleration or otherwise
(including amounts that would become due but for the operation of
the automatic stay under section 362(a) of the Bankruptcy Code
(11 U.S.C., 362(a)), and at all times thereafter, of all
obligations of the Debtor to the Agent and the Lenders in their
respective capacities under the Credit Agreement, howsoever
created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or
to become due (all such obligations being hereinafter
collectively called "Liabilities"), and the undersigned further
agrees to pay all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent and the Lenders in
endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this guaranty.
1. The undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or the undersigned, or
the inability of the Debtor or the undersigned to pay its debts
as they mature, or an assignment by the Debtor or the undersigned
for the benefit of creditors, or the institution of any
proceeding by or against the Debtor or the undersigned alleging
that the Debtor or the undersigned is insolvent or unable to pay
its debts as they mature, and if such event shall occur at a time
when any of the Liabilities may not then be due and payable, the
undersigned will pay to the Agent for the benefit of the Lenders
forthwith the full amount which would be payable hereunder by the
undersigned if all Liabilities were then due and payable.
2. To secure all obligations of the undersigned hereunder,
the Agent for the benefit of the Lenders shall have a lien upon
and security interest in (and may, without demand or notice of
any kind, at any time and from time to time when any amount shall
156
be due and payable by the undersigned hereunder, appropriate and
apply toward the payment of such amount, in such order of
application as the Agent may elect) any and all balances,
credits, deposits (general or special, time or demand,
provisional or final), accounts or moneys of or in the name of
the undersigned now or hereafter with the Agent or any Lender and
any and all property of every kind or description of or in the
name of the undersigned now or hereafter, for any reason or
purpose whatsoever, in the possession or control of, or in
transit to, the Agent or the Lenders or any agent or bailee for
the Agent or the Lenders.
3. This guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain in full
force and effect (notwithstanding, without limitation, the
dissolution of the undersigned) until all of the Liabilities have
been paid in full, subject to discontinuance as to the
undersigned only upon receipt by the Agent of written notice from
the undersigned, or any person duly authorized and acting on
behalf of the undersigned, of the discontinuance hereof as to the
undersigned; provided, however, that no such notice of
discontinuance shall affect or impair any of the agreements and
obligations of the undersigned hereunder with respect to any and
all Liabilities existing prior to the time of receipt of such
notice by the Agent, any and all Liabilities created or acquired
thereafter pursuant to any previous commitments made by the Agent
or the Lenders, any and all extensions or renewals of any of the
foregoing, any and all interest on any of the foregoing, and any
and all expenses paid or incurred by the Agent and the Lenders in
endeavoring to collect any of the foregoing and in enforcing this
guaranty against the undersigned; and all of the agreements and
obligations of the undersigned under this guaranty shall,
notwithstanding any such notice of discontinuance, remain fully
in effect until all such Liabilities (including any extensions or
renewals of any thereof) and all such interest and expenses shall
have been paid in full.
4. The undersigned further agrees that, if at any time all or
any part of any payment theretofore applied by the Agent or the
Lenders to any of the Liabilities is or must be rescinded or
returned by the Agent or the Lenders for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of the Debtor), such Liabilities shall, for the
purposes of this guaranty, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or the
Lenders, and this guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as
though such application by the Agent or the Lenders had not been
made.
157
5. The Agent may, from time to time, whether before or after
any discontinuance of this guaranty, at its sole discretion and
without notice to the undersigned, take any or all of the
following actions: (a) retain or obtain a security interest in
any property to secure any of the Liabilities or any obligation
hereunder, (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend
or renew for one or more periods (whether or not longer than the
original period), or alter or exchange, any of the Liabilities,
or release or compromise any obligation of the undersigned
hereunder or any obligation of any nature of any other obligor
with respect to any of the Liabilities, (d) release its security
interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned for payment of any of the
Liabilities, whether or not the Agent (i) shall have resorted to
any property securing any of the Liabilities or any obligation
hereunder or (ii) shall have proceeded against any other obligor
primarily or secondarily obligated with respect to any of the
Liabilities (all of the actions referred to in preceding clauses
(i) and (ii) being hereby expressly waived by the undersigned).
6. Any amounts received by the Agent from whatsoever source
on account of the Liabilities may be applied by it toward the
payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect.
7. No payment made by or for the account of the undersigned
pursuant to this guaranty shall entitle the undersigned by
subrogation or otherwise to any payment by the Debtor or from or
out of any property of the Debtor and the undersigned shall not
exercise any right or remedy against the Debtor or any property
of the Debtor by reason of any performance by the undersigned of
this guaranty. The undersigned waives, to the fullest extent
permitted by law, all rights of the undersigned against the
Debtor, arising out of any payment by the undersigned under this
guaranty, whether arising by way of any subrogation,
contribution, reimbursement or otherwise and agrees that, to the
extent that any such rights may not be waived under applicable
law, it will contribute such rights to the Debtor as a capital
contribution concurrently with the arising of such rights.
8. The undersigned hereby expressly waives: (a) notice of
the acceptance by the Agent of this guaranty, (b) notice of the
158
existence or creation or non-payment of all or any of the
Liabilities, (c) presentment, demand, notice of dishonor, protest
and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon the Liabilities
or any thereof, any obligation hereunder, or any security for or
guaranty of any of the foregoing.
9. The Lenders may, from time to time, without notice to the
undersigned, assign or transfer any or all of the Liabilities or
any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of
this guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any
interest therein shall, to the extent of the interest of such
assignee or transferee in the Liabilities, be entitled to the
benefits of this guaranty to the same extent as if such assignee
or transferee were a Lender; provided, however, that, unless the
assigning or transferring Lender shall otherwise consent in
writing, such Lender shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce
this guaranty, for the benefit of the Lender, as to those of the
Liabilities which the Lender has not assigned or transferred.
10. The undersigned hereby warrants to the Agent and the
Lenders that the undersigned now has and will continue to have
independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The
Agent and the Lenders shall not have any duty or responsibility
to provide the undersigned with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the Agent's or any of the Lenders'
possession.
11. The undersigned hereby warrants and agrees that: (a) the
undersigned is a corporation duly existing and in good standing
under the laws of the state of its incorporation, and the
undersigned is duly qualified and in good standing and authorized
to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required,
(b) the undersigned has full corporate power and authority to
execute and deliver this guaranty, (c) the execution, delivery
and performance by the undersigned of this guaranty are within
the undersigned's corporate powers, have been duly authorized by
all necessary action, have received all necessary governmental
approval (if any shall be required) and do not and will not
contravene or conflict with any provision of law or of the
organizational documents of the undersigned or of any agreement
binding upon the undersigned, (d) this guaranty is the legal,
159
valid and binding obligation of the undersigned enforceable
against the undersigned in accordance with its terms, except as
enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally or by
equitable principles, and (e) this guaranty will directly or
indirectly benefit the undersigned.
12. No delay on the part of the Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Agent of any right or remedy shall
preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of
any of the provisions of this guaranty be binding upon the Agent
except as expressly set forth in a writing duly signed and
delivered on behalf of the Agent for the benefit of the Lenders.
No action of the Agent permitted hereunder shall in any way
affect or impair the rights of the Agent and the obligations of
the undersigned under this guaranty. For the purposes of this
guaranty, Liabilities shall include all obligations of the Debtor
to the Agent and the Lenders, notwithstanding any right or power
of the Debtor or anyone else to assert any claim or defense as to
the invalidity or unenforceability of any such obligation, and no
such claim or defense shall affect or impair the obligations of
the undersigned hereunder. The obligations of the undersigned
under this guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might
constitute a legal or equitable discharge or defense of the
undersigned. The undersigned hereby acknowledges that there are
no conditions to the effectiveness of this guaranty.
13.
13. This guaranty shall be binding upon the undersigned, and
upon any successors and assigns of the undersigned; and to the
extent that the Debtor or any of the undersigned is either a
partnership or a corporation, all references herein to the Debtor
and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such
partnership or corporation. If more than one party shall execute
this guaranty, the term "undersigned," as used herein, shall mean
all parties executing this guaranty and each of them, and all
such parties shall be jointly and severally obligated hereunder.
14. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO
ITS PRINCIPLES OF CHOICE OF LAW. WHEREVER POSSIBLE EACH
PROVISION OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS GUARANTY SHALL BE PROHIBITED BY OR INVALID
UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT
160
OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE
REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
GUARANTY.
15. The undersigned hereby irrevocably agrees that any legal
action or proceeding pertaining to this guaranty may be brought
in the courts of the State of Illinois, County of Cook, or of the
United States of America for the Northern District of Illinois.
The undersigned hereby irrevocably agrees that service of process
in such action or proceeding may be made either by mailing, by
registered or certified mail, postage prepaid, a copy of the
summons or complaint, or other legal process in such action or
proceeding to the undersigned at the address shown on the
signature page hereof. Service of process in any such action or
proceeding, effected as aforesaid, shall be effective upon
receipt by the undersigned and shall be deemed personal service
upon the undersigned and shall be legal and binding upon the
undersigned for all purposes. The undersigned hereby waives, to
the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any such action or
proceeding in any such court as well as any right it may now or
hereafter have to remove any such action or proceeding, once
commenced, to another court on the grounds of forum non
conveniens or otherwise.
16. The undersigned hereby expressly waives any right to a
trial by jury in any action or proceeding to enforce or defend
any rights (a) under this guaranty or under any amendment,
instrument, document or agreement delivered or which may in the
future be delivered in connection herewith or (b) arising from
any banking relationship existing in connection with this
guaranty, and agrees that any such action or proceeding shall be
tried before a court and not before a jury.
* * * * *
161
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed as of this 12th day of June, 1996.
DEVRY EDUCATIONAL DEVELOPMENT
CORPORATION
By: /s/Ronald L. Taylor
Name: Ronald L. Taylor
Title: President
Address: One Tower Lane
Suite 1000
Oakbrook Terrace,
Illinois 60181
162
GUARANTY
FOR VALUE RECEIVED and in consideration of any loan or
other financial accommodation heretofore or hereafter at any time
made or granted to Keller Graduate School of Management, Inc., a
Delaware corporation (hereinafter called the "Debtor"), by the
lenders who are or may become party to that certain Amended and
Restated Financing Agreement, dated as of June 12, 1996 (as from
time to time, in whole or in part, amended, modified,
supplemented, restated, refinanced, refunded or renewed, the
"Credit Agreement"), among the undersigned, the lenders who are
or from time to time become party thereto (the "Lenders"), and
Bank of America Illinois, as agent for the Lenders (the "Agent"),
the "undersigned" hereby unconditionally guarantees the full and
prompt payment when due, whether at stated maturity, by required
prepayment, declaration, demand, acceleration or otherwise
(including amounts that would become due but for the operation of
the automatic stay under section 362(a) of the Bankruptcy Code
(11 U.S.C., 362(a)), and at all times thereafter, of all
obligations of the Debtor to the Agent and the Lenders in their
respective capacities under the Credit Agreement, howsoever
created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or
to become due (all such obligations being hereinafter
collectively called "Liabilities"), and the undersigned further
agrees to pay all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent and the Lenders in
endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this guaranty.
1. The undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or the undersigned, or
the inability of the Debtor or the undersigned to pay its debts
as they mature, or an assignment by the Debtor or the undersigned
for the benefit of creditors, or the institution of any
proceeding by or against the Debtor or the undersigned alleging
that the Debtor or the undersigned is insolvent or unable to pay
its debts as they mature, and if such event shall occur at a time
when any of the Liabilities may not then be due and payable, the
undersigned will pay to the Agent for the benefit of the Lenders
forthwith the full amount which would be payable hereunder by the
undersigned if all Liabilities were then due and payable.
2. To secure all obligations of the undersigned hereunder,
the Agent for the benefit of the Lenders shall have a lien upon
and security interest in (and may, without demand or notice of
any kind, at any time and from time to time when any amount shall
163
be due and payable by the undersigned hereunder, appropriate and
apply toward the payment of such amount, in such order of
application as the Agent may elect) any and all balances,
credits, deposits (general or special, time or demand,
provisional or final), accounts or moneys of or in the name of
the undersigned now or hereafter with the Agent or any Lender and
any and all property of every kind or description of or in the
name of the undersigned now or hereafter, for any reason or
purpose whatsoever, in the possession or control of, or in
transit to, the Agent or the Lenders or any agent or bailee for
the Agent or the Lenders.
3. This guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain in full
force and effect (notwithstanding, without limitation, the
dissolution of the undersigned) until all of the Liabilities have
been paid in full, subject to discontinuance as to the
undersigned only upon receipt by the Agent of written notice from
the undersigned, or any person duly authorized and acting on
behalf of the undersigned, of the discontinuance hereof as to the
undersigned; provided, however, that no such notice of
discontinuance shall affect or impair any of the agreements and
obligations of the undersigned hereunder with respect to any and
all Liabilities existing prior to the time of receipt of such
notice by the Agent, any and all Liabilities created or acquired
thereafter pursuant to any previous commitments made by the Agent
or the Lenders, any and all extensions or renewals of any of the
foregoing, any and all interest on any of the foregoing, and any
and all expenses paid or incurred by the Agent and the Lenders in
endeavoring to collect any of the foregoing and in enforcing this
guaranty against the undersigned; and all of the agreements and
obligations of the undersigned under this guaranty shall,
notwithstanding any such notice of discontinuance, remain fully
in effect until all such Liabilities (including any extensions or
renewals of any thereof) and all such interest and expenses shall
have been paid in full.
4. The undersigned further agrees that, if at any time all or
any part of any payment theretofore applied by the Agent or the
Lenders to any of the Liabilities is or must be rescinded or
returned by the Agent or the Lenders for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of the Debtor), such Liabilities shall, for the
purposes of this guaranty, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or the
Lenders, and this guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as
though such application by the Agent or the Lenders had not been
made.
164
5. The Agent may, from time to time, whether before or after
any discontinuance of this guaranty, at its sole discretion and
without notice to the undersigned, take any or all of the
following actions: (a) retain or obtain a security interest in
any property to secure any of the Liabilities or any obligation
hereunder, (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend
or renew for one or more periods (whether or not longer than the
original period), or alter or exchange, any of the Liabilities,
or release or compromise any obligation of the undersigned
hereunder or any obligation of any nature of any other obligor
with respect to any of the Liabilities, (d) release its security
interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned for payment of any of the
Liabilities, whether or not the Agent (i) shall have resorted to
any property securing any of the Liabilities or any obligation
hereunder or (ii) shall have proceeded against any other obligor
primarily or secondarily obligated with respect to any of the
Liabilities (all of the actions referred to in preceding clauses
(i) and (ii) being hereby expressly waived by the undersigned).
6. Any amounts received by the Agent from whatsoever source
on account of the Liabilities may be applied by it toward the
payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect.
7. No payment made by or for the account of the undersigned
pursuant to this guaranty shall entitle the undersigned by
subrogation or otherwise to any payment by the Debtor or from or
out of any property of the Debtor and the undersigned shall not
exercise any right or remedy against the Debtor or any property
of the Debtor by reason of any performance by the undersigned of
this guaranty. The undersigned waives, to the fullest extent
permitted by law, all rights of the undersigned against the
Debtor, arising out of any payment by the undersigned under this
guaranty, whether arising by way of any subrogation,
contribution, reimbursement or otherwise and agrees that, to the
extent that any such rights may not be waived under applicable
law, it will contribute such rights to the Debtor as a capital
contribution concurrently with the arising of such rights.
8. The undersigned hereby expressly waives: (a) notice of
the acceptance by the Agent of this guaranty, (b) notice of the
165
existence or creation or non-payment of all or any of the
Liabilities, (c) presentment, demand, notice of dishonor, protest
and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon the Liabilities
or any thereof, any obligation hereunder, or any security for or
guaranty of any of the foregoing.
9. The Lenders may, from time to time, without notice to the
undersigned, assign or transfer any or all of the Liabilities or
any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of
this guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any
interest therein shall, to the extent of the interest of such
assignee or transferee in the Liabilities, be entitled to the
benefits of this guaranty to the same extent as if such assignee
or transferee were a Lender; provided, however, that, unless the
assigning or transferring Lender shall otherwise consent in
writing, such Lender shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce
this guaranty, for the benefit of the Lender, as to those of the
Liabilities which the Lender has not assigned or transferred.
10. The undersigned hereby warrants to the Agent and the
Lenders that the undersigned now has and will continue to have
independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The
Agent and the Lenders shall not have any duty or responsibility
to provide the undersigned with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the Agent's or any of the Lenders'
possession.
11. The undersigned hereby warrants and agrees that: (a) the
undersigned is a corporation duly existing and in good standing
under the laws of the state of its incorporation, and the
undersigned is duly qualified and in good standing and authorized
to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required,
(b) the undersigned has full corporate power and authority to
execute and deliver this guaranty, (c) the execution, delivery
and performance by the undersigned of this guaranty are within
the undersigned's corporate powers, have been duly authorized by
all necessary action, have received all necessary governmental
approval (if any shall be required) and do not and will not
contravene or conflict with any provision of law or of the
organizational documents of the undersigned or of any agreement
binding upon the undersigned, (d) this guaranty is the legal,
166
valid and binding obligation of the undersigned enforceable
against the undersigned in accordance with its terms, except as
enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally or by
equitable principles, and (e) this guaranty will directly or
indirectly benefit the undersigned.
12. No delay on the part of the Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Agent of any right or remedy shall
preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of
any of the provisions of this guaranty be binding upon the Agent
except as expressly set forth in a writing duly signed and
delivered on behalf of the Agent for the benefit of the Lenders.
No action of the Agent permitted hereunder shall in any way
affect or impair the rights of the Agent and the obligations of
the undersigned under this guaranty. For the purposes of this
guaranty, Liabilities shall include all obligations of the Debtor
to the Agent and the Lenders, notwithstanding any right or power
of the Debtor or anyone else to assert any claim or defense as to
the invalidity or unenforceability of any such obligation, and no
such claim or defense shall affect or impair the obligations of
the undersigned hereunder. The obligations of the undersigned
under this guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might
constitute a legal or equitable discharge or defense of the
undersigned. The undersigned hereby acknowledges that there are
no conditions to the effectiveness of this guaranty.
13.
13. This guaranty shall be binding upon the undersigned, and
upon any successors and assigns of the undersigned; and to the
extent that the Debtor or any of the undersigned is either a
partnership or a corporation, all references herein to the Debtor
and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such
partnership or corporation. If more than one party shall execute
this guaranty, the term "undersigned," as used herein, shall mean
all parties executing this guaranty and each of them, and all
such parties shall be jointly and severally obligated hereunder.
14. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO
ITS PRINCIPLES OF CHOICE OF LAW. WHEREVER POSSIBLE EACH
PROVISION OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS GUARANTY SHALL BE PROHIBITED BY OR INVALID
UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT
167
OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE
REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
GUARANTY.
15. The undersigned hereby irrevocably agrees that any legal
action or proceeding pertaining to this guaranty may be brought
in the courts of the State of Illinois, County of Cook, or of the
United States of America for the Northern District of Illinois.
The undersigned hereby irrevocably agrees that service of process
in such action or proceeding may be made either by mailing, by
registered or certified mail, postage prepaid, a copy of the
summons or complaint, or other legal process in such action or
proceeding to the undersigned at the address shown on the
signature page hereof. Service of process in any such action or
proceeding, effected as aforesaid, shall be effective upon
receipt by the undersigned and shall be deemed personal service
upon the undersigned and shall be legal and binding upon the
undersigned for all purposes. The undersigned hereby waives, to
the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any such action or
proceeding in any such court as well as any right it may now or
hereafter have to remove any such action or proceeding, once
commenced, to another court on the grounds of forum non
conveniens or otherwise.
16. The undersigned hereby expressly waives any right to a
trial by jury in any action or proceeding to enforce or defend
any rights (a) under this guaranty or under any amendment,
instrument, document or agreement delivered or which may in the
future be delivered in connection herewith or (b) arising from
any banking relationship existing in connection with this
guaranty, and agrees that any such action or proceeding shall be
tried before a court and not before a jury.
* * * * *
168
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed as of this 12th day of June, 1996.
DEVRY CPA REVIEW COURSE, INC.
By: /s/Ronald L. Taylor
Name: Ronald L. Taylor
Title: President
Address: One Tower Lane
Suite 1000
Oakbrook Terrace,
Illinois 60181
169
GUARANTY
FOR VALUE RECEIVED and in consideration of any loan or
other financial accommodation heretofore or hereafter at any time
made or granted to Keller Graduate School of Management, Inc., a
Delaware corporation (hereinafter called the "Debtor"), by the
lenders who are or may become party to that certain Amended and
Restated Financing Agreement, dated as of June 12, 1996 (as from
time to time, in whole or in part, amended, modified,
supplemented, restated, refinanced, refunded or renewed, the
"Credit Agreement"), among the undersigned, the lenders who are
or from time to time become party thereto (the "Lenders"), and
Bank of America Illinois, as agent for the Lenders (the "Agent"),
the "undersigned" hereby unconditionally guarantees the full and
prompt payment when due, whether at stated maturity, by required
prepayment, declaration, demand, acceleration or otherwise
(including amounts that would become due but for the operation of
the automatic stay under section 362(a) of the Bankruptcy Code
(11 U.S.C., 362(a)), and at all times thereafter, of all
obligations of the Debtor to the Agent and the Lenders in their
respective capacities under the Credit Agreement, howsoever
created, arising or evidenced, whether direct or indirect,
absolute or contingent, or now or hereafter existing, or due or
to become due (all such obligations being hereinafter
collectively called "Liabilities"), and the undersigned further
agrees to pay all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent and the Lenders in
endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this guaranty.
1. The undersigned agrees that, in the event of the
dissolution or insolvency of the Debtor or the undersigned, or
the inability of the Debtor or the undersigned to pay its debts
as they mature, or an assignment by the Debtor or the undersigned
for the benefit of creditors, or the institution of any
proceeding by or against the Debtor or the undersigned alleging
that the Debtor or the undersigned is insolvent or unable to pay
its debts as they mature, and if such event shall occur at a time
when any of the Liabilities may not then be due and payable, the
undersigned will pay to the Agent for the benefit of the Lenders
forthwith the full amount which would be payable hereunder by the
undersigned if all Liabilities were then due and payable.
2. To secure all obligations of the undersigned hereunder,
the Agent for the benefit of the Lenders shall have a lien upon
and security interest in (and may, without demand or notice of
any kind, at any time and from time to time when any amount shall
170
be due and payable by the undersigned hereunder, appropriate and
apply toward the payment of such amount, in such order of
application as the Agent may elect) any and all balances,
credits, deposits (general or special, time or demand,
provisional or final), accounts or moneys of or in the name of
the undersigned now or hereafter with the Agent or any Lender and
any and all property of every kind or description of or in the
name of the undersigned now or hereafter, for any reason or
purpose whatsoever, in the possession or control of, or in
transit to, the Agent or the Lenders or any agent or bailee for
the Agent or the Lenders.
3. This guaranty shall in all respects be a continuing,
absolute and unconditional guaranty, and shall remain in full
force and effect (notwithstanding, without limitation, the
dissolution of the undersigned) until all of the Liabilities have
been paid in full, subject to discontinuance as to the
undersigned only upon receipt by the Agent of written notice from
the undersigned, or any person duly authorized and acting on
behalf of the undersigned, of the discontinuance hereof as to the
undersigned; provided, however, that no such notice of
discontinuance shall affect or impair any of the agreements and
obligations of the undersigned hereunder with respect to any and
all Liabilities existing prior to the time of receipt of such
notice by the Agent, any and all Liabilities created or acquired
thereafter pursuant to any previous commitments made by the Agent
or the Lenders, any and all extensions or renewals of any of the
foregoing, any and all interest on any of the foregoing, and any
and all expenses paid or incurred by the Agent and the Lenders in
endeavoring to collect any of the foregoing and in enforcing this
guaranty against the undersigned; and all of the agreements and
obligations of the undersigned under this guaranty shall,
notwithstanding any such notice of discontinuance, remain fully
in effect until all such Liabilities (including any extensions or
renewals of any thereof) and all such interest and expenses shall
have been paid in full.
4. The undersigned further agrees that, if at any time all or
any part of any payment theretofore applied by the Agent or the
Lenders to any of the Liabilities is or must be rescinded or
returned by the Agent or the Lenders for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or
reorganization of the Debtor), such Liabilities shall, for the
purposes of this guaranty, to the extent that such payment is or
must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Agent or the
Lenders, and this guaranty shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as
though such application by the Agent or the Lenders had not been
made.
171
5. The Agent may, from time to time, whether before or after
any discontinuance of this guaranty, at its sole discretion and
without notice to the undersigned, take any or all of the
following actions: (a) retain or obtain a security interest in
any property to secure any of the Liabilities or any obligation
hereunder, (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the
undersigned, with respect to any of the Liabilities, (c) extend
or renew for one or more periods (whether or not longer than the
original period), or alter or exchange, any of the Liabilities,
or release or compromise any obligation of the undersigned
hereunder or any obligation of any nature of any other obligor
with respect to any of the Liabilities, (d) release its security
interest in, or surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the
Liabilities or any obligation hereunder, or extend or renew for
one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned for payment of any of the
Liabilities, whether or not the Agent (i) shall have resorted to
any property securing any of the Liabilities or any obligation
hereunder or (ii) shall have proceeded against any other obligor
primarily or secondarily obligated with respect to any of the
Liabilities (all of the actions referred to in preceding clauses
(i) and (ii) being hereby expressly waived by the undersigned).
6. Any amounts received by the Agent from whatsoever source
on account of the Liabilities may be applied by it toward the
payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect.
7. No payment made by or for the account of the undersigned
pursuant to this guaranty shall entitle the undersigned by
subrogation or otherwise to any payment by the Debtor or from or
out of any property of the Debtor and the undersigned shall not
exercise any right or remedy against the Debtor or any property
of the Debtor by reason of any performance by the undersigned of
this guaranty. The undersigned waives, to the fullest extent
permitted by law, all rights of the undersigned against the
Debtor, arising out of any payment by the undersigned under this
guaranty, whether arising by way of any subrogation,
contribution, reimbursement or otherwise and agrees that, to the
extent that any such rights may not be waived under applicable
law, it will contribute such rights to the Debtor as a capital
contribution concurrently with the arising of such rights.
8. The undersigned hereby expressly waives: (a) notice of
the acceptance by the Agent of this guaranty, (b) notice of the
172
existence or creation or non-payment of all or any of the
Liabilities, (c) presentment, demand, notice of dishonor, protest
and all other notices whatsoever, and (d) all diligence in
collection or protection of or realization upon the Liabilities
or any thereof, any obligation hereunder, or any security for or
guaranty of any of the foregoing.
9. The Lenders may, from time to time, without notice to the
undersigned, assign or transfer any or all of the Liabilities or
any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of
this guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any
interest therein shall, to the extent of the interest of such
assignee or transferee in the Liabilities, be entitled to the
benefits of this guaranty to the same extent as if such assignee
or transferee were a Lender; provided, however, that, unless the
assigning or transferring Lender shall otherwise consent in
writing, such Lender shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce
this guaranty, for the benefit of the Lender, as to those of the
Liabilities which the Lender has not assigned or transferred.
10. The undersigned hereby warrants to the Agent and the
Lenders that the undersigned now has and will continue to have
independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The
Agent and the Lenders shall not have any duty or responsibility
to provide the undersigned with any credit or other information
concerning the affairs, financial condition or business of the
Debtor which may come into the Agent's or any of the Lenders'
possession.
11. The undersigned hereby warrants and agrees that: (a) the
undersigned is a corporation duly existing and in good standing
under the laws of the state of its incorporation, and the
undersigned is duly qualified and in good standing and authorized
to do business in each jurisdiction where, because of the nature
of its activities or properties, such qualification is required,
(b) the undersigned has full corporate power and authority to
execute and deliver this guaranty, (c) the execution, delivery
and performance by the undersigned of this guaranty are within
the undersigned's corporate powers, have been duly authorized by
all necessary action, have received all necessary governmental
approval (if any shall be required) and do not and will not
contravene or conflict with any provision of law or of the
organizational documents of the undersigned or of any agreement
binding upon the undersigned, (d) this guaranty is the legal,
173
valid and binding obligation of the undersigned enforceable
against the undersigned in accordance with its terms, except as
enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally or by
equitable principles, and (e) this guaranty will directly or
indirectly benefit the undersigned.
12. No delay on the part of the Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Agent of any right or remedy shall
preclude other or further exercise thereof or the exercise of any
other right or remedy; nor shall any modification or waiver of
any of the provisions of this guaranty be binding upon the Agent
except as expressly set forth in a writing duly signed and
delivered on behalf of the Agent for the benefit of the Lenders.
No action of the Agent permitted hereunder shall in any way
affect or impair the rights of the Agent and the obligations of
the undersigned under this guaranty. For the purposes of this
guaranty, Liabilities shall include all obligations of the Debtor
to the Agent and the Lenders, notwithstanding any right or power
of the Debtor or anyone else to assert any claim or defense as to
the invalidity or unenforceability of any such obligation, and no
such claim or defense shall affect or impair the obligations of
the undersigned hereunder. The obligations of the undersigned
under this guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might
constitute a legal or equitable discharge or defense of the
undersigned. The undersigned hereby acknowledges that there are
no conditions to the effectiveness of this guaranty.
13.
13. This guaranty shall be binding upon the undersigned, and
upon any successors and assigns of the undersigned; and to the
extent that the Debtor or any of the undersigned is either a
partnership or a corporation, all references herein to the Debtor
and to the undersigned, respectively, shall be deemed to include
any successor or successors, whether immediate or remote, to such
partnership or corporation. If more than one party shall execute
this guaranty, the term "undersigned," as used herein, shall mean
all parties executing this guaranty and each of them, and all
such parties shall be jointly and severally obligated hereunder.
14. THIS GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO
ITS PRINCIPLES OF CHOICE OF LAW. WHEREVER POSSIBLE EACH
PROVISION OF THIS GUARANTY SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS GUARANTY SHALL BE PROHIBITED BY OR INVALID
UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT
174
OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE
REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
GUARANTY.
15. The undersigned hereby irrevocably agrees that any legal
action or proceeding pertaining to this guaranty may be brought
in the courts of the State of Illinois, County of Cook, or of the
United States of America for the Northern District of Illinois.
The undersigned hereby irrevocably agrees that service of process
in such action or proceeding may be made either by mailing, by
registered or certified mail, postage prepaid, a copy of the
summons or complaint, or other legal process in such action or
proceeding to the undersigned at the address shown on the
signature page hereof. Service of process in any such action or
proceeding, effected as aforesaid, shall be effective upon
receipt by the undersigned and shall be deemed personal service
upon the undersigned and shall be legal and binding upon the
undersigned for all purposes. The undersigned hereby waives, to
the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any such action or
proceeding in any such court as well as any right it may now or
hereafter have to remove any such action or proceeding, once
commenced, to another court on the grounds of forum non
conveniens or otherwise.
16. The undersigned hereby expressly waives any right to a
trial by jury in any action or proceeding to enforce or defend
any rights (a) under this guaranty or under any amendment,
instrument, document or agreement delivered or which may in the
future be delivered in connection herewith or (b) arising from
any banking relationship existing in connection with this
guaranty, and agrees that any such action or proceeding shall be
tried before a court and not before a jury.
* * * * *
175
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed as of this 12th day of June, 1996.
DEVRY INC.
By: /s/Ronald L. Taylor
Name: Ronald L. Taylor
Title: President
Address: One Tower Lane
Suite 1000
Oakbrook Terrace,
Illinois 60181
Dates Referenced Herein and Documents Incorporated by Reference
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