OFFSHORE SUBSIDIARY GUARANTY
OFFSHORE SUBSIDIARIES OF GLOBAL EDUCATION INTERNATIONAL, INC.
Dated as of May 16, 2003
Re: Credit Agreement dated May 16, 2003, among DeVry Inc. and Global
Education International, Inc. as the Borrowers, Bank of America, N.A. as
Administrative Agent, Swing Line Lender and L/C Issuer, and the Other Lenders
Party Thereto
TABLE OF CONTENTS
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(Not a part of the Agreement)
SECTION HEADING PAGE
Parties . 1
Recitals 1
Section 1. Definitions 1
Section 2. Guaranty of Obligations and Credit Agreement. 2
Section 3. Guaranty of Payment and Performance. 2
Section 4. General Provisions Relating to the Guaranty 3
Section 5. Representations and Warranties of the Guarantors. 8
Section 6. Amendments, Waivers and Consents 9
Section 7. Submission to Jurisdiction; Waiver of Jury Trial 10
Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of
Jury Trial 10
Section 7.2. Service of Process Upon Guarantors 10
Section 7.3. Tax Indemnity 11
Section 7.4. Repayment 12
Section 8. Notices 11
Section 9. Miscellaneous 12
ATTACHMENTS TO OFFSHORE SUBSIDIARY GUARANTY:
EXHIBIT A - Form of Guaranty Joinder
OFFSHORE SUBSIDIARY GUARANTY
Re: Credit Agreement
This OFFSHORE SUBSIDIARY GUARANTY dated as of May 16, 2003 (this "Guaranty")
is entered into on a joint and several basis by each of the undersigned (which
parties are hereinafter referred to individually as a "Guarantor" and
collectively as the "Guarantors").
RECITALS
A. Each Guarantor is a direct or indirect Offshore Subsidiary of
Global Education International, Inc., a Barbados corporation ("GEI").
B. In order to raise funds to finance the acquisition of Dominica
Management, Inc., the parent of Ross University Services, Inc. and Ross
University Management, Inc., to finance working capital and capital
expenditures and for other general corporate purposes, GEI and DeVry Inc., a
Delaware corporation ("Devry" and, together with GEI, the "Borrowers") have
entered into the Credit Agreement dated as of May 16, 2003 (herein, as the
same may be amended or modified from time to time, the "Credit Agreement")
among the Borrowers, the lenders party thereto (the "Lenders"), and Bank of
America, N.A. as administrative agent (the "Administrative Agent") providing
for, among other things, up to $175 million in loans (the "Loans") and letters
of credit (the "Letters of Credit") of which up to $50,000,000 in Loans and
Letters of Credit will be initially available to GEI at any one time
outstanding.
C. The Administrative Agent and the Lenders have required as a
condition to their obligations to make Credit Extensions under the Credit
Agreement that DeVry cause each of the undersigned to enter into this Guaranty
and to cause each Person which hereafter at any time becomes an Offshore
Subsidiary to enter into a Guaranty Joinder in substantially the form set
forth as Exhibit A hereto (a "Guaranty Joinder"), in each case as security for
the Obligations of GEI under the Credit Agreement, and GEI has agreed to cause
each of the undersigned to execute this Guaranty and to cause each Person
which hereafter becomes an Offshore Subsidiary to execute a Guaranty Joinder,
in each case in order to induce the Lenders to enter into the Credit Agreement
and thereby benefit the Borrowers and their Subsidiaries by providing funds to
enable the Borrowers to finance the acquisition and for the other purposes
referred to above.
NOW, THEREFORE, as required by the Credit Agreement and in consideration
of the premises and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Guarantor does hereby
covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Credit Agreement or as the context shall otherwise
require.
SECTION 2. GUARANTY OF OBLIGATIONS AND CREDIT AGREEMENT.
(a) Subject to the limitations set forth in Section 2(b) hereof,
each Guarantor jointly and severally does hereby irrevocably, absolutely and
unconditionally guarantee unto the Administrative Agent and the Lenders:
(1) the full and prompt payment of all Obligations (as defined in the Credit
Agreement) of GEI including, without limitation, all principal of and interest
under, all Loans (whether Base Rate Loans or Eurodollar Rate Loans) made to
GEI, all L/C Obligations of GEI, all L/C Borrowings of GEI, all Specified Swap
Obligations of GEI or its Subsidiaries and all fees, expenses and other
amounts for which GEI is liable, if any, from time to time outstanding, as and
when such payments shall become due and payable, whether by lapse of time,
upon redemption or prepayment, by extension or by acceleration or declaration
or otherwise (including, to the extent legally enforceable, interest due on
overdue payments of principal) in Federal or other immediately available funds
of the United States of America which at the time of payment or demand
therefor shall be legal tender for the payment of public and private debts,
(2) the full and prompt performance and observance by GEI of each and all of
the obligations, covenants and agreements required to be performed or owed by
GEI under the terms of the Loan Documents, and (3) the full and prompt
payment, upon demand by the Administrative Agent or the Lenders, of all costs
and expenses, legal or otherwise (including reasonable attorneys' fees), if
any, as shall have been expended or incurred in the protection or enforcement
of any rights, privileges or liabilities in favor of the Administrative Agent
or any Lender under or in respect of GEI's Obligations under any Loan Document
to which GEI or any of its Subsidiaries is a party or in any action in
connection therewith or herewith and in each and every case irrespective of
the validity, regularity, or enforcement of any of the Loan Documents or any
of the terms thereof or any other like circumstance or circumstances (the
payment, performance and observance of all such Obligations, covenants and
agreements being herein collectively called the "Guaranteed Obligations").
Notwithstanding anything contained herein or in the other Loan Documents, no
Guarantor hereunder shall be liable for any Obligations of DeVry.
(b) The liability of each Guarantor under this Guaranty shall not
exceed an amount equal to a maximum amount as will, after giving effect to
such maximum amount and all other liabilities of such Guarantor, contingent or
otherwise, be enforceable under applicable law and result in the performance
of the obligations of such Guarantor hereunder and not constitute a fraudulent
transfer, obligation or conveyance.
(c) All amounts payable under this Guaranty by each Guarantor shall
be made in the lawful currency of the United States of America (hereinafter
referred to as "United States Dollars").
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and each Guarantor
hereby waives, to the fullest extent permitted by law, any right to require
that any action on or in respect of any Obligation or any Loan Document be
brought against GEI or any other Person or that resort be had to any direct
or indirect security for the Guaranteed Obligations or any Loan Document or
any other remedy. The Administrative Agent on behalf of the Lenders may, at
its option, proceed hereunder against any Guarantor in the first instance to
collect monies when due, the payment of which is guaranteed hereby, without
first proceeding against GEI or any other Person and without first resorting
to any direct or indirect security for the Guaranteed Obligations or any Loan
Document or any other remedy. The liability of each Guarantor hereunder
shall in no way be affected or impaired by any acceptance by the
Administrative Agent or any Lender of any direct or indirect security for, or
other guaranties of, any debt, liability or obligation of GEI or any other
Person to the Administrative Agent or any Lender or by any failure, delay,
neglect or omission by the Administrative Agent or any Lender to realize upon
or protect any such guarantees, debt, liability or obligation or any
instruments evidencing the same or any direct or indirect security therefor
or by any approval, consent, waiver, or other action taken, or omitted to be
taken by the Administrative Agent or any Lender.
The covenants and agreements on the part of the Guarantors herein
contained shall be joint and several covenants and agreements, and references
to the Guarantors shall be deemed references to each of them and none of them
shall be released from liability hereunder by reason of the guarantee ceasing
to be binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that the Administrative
Agent and/or any Lender from time to time, with or without any further notice
to or assent from any other Guarantor may, without in any manner affecting the
liability of any Guarantor under this Guaranty, and upon such terms and
conditions as the Administrative Agent or such Lender may deem advisable:
(1) extend in whole or in part (by renewal or otherwise),
modify, increase, change, compromise, release or extend the duration of
the time for the performance or payment of any debt, liability or
obligation of GEI or of any other Person secondarily or otherwise
liable for any debt, liability or obligations of GEI on the Guaranteed
Obligations or under any Loan Document, or waive any Default or Event
of Default with respect thereto, or waive, modify, amend or change any
provision of any Loan Document;
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, the Administrative Agent or
any Lender as direct or indirect security for the payment or
performance of any debt, liability or obligation of GEI or of any other
Person secondarily or otherwise liable for any debt, liability or
obligation of GEI under any Loan Document; and/or
(3) settle, adjust or compromise any claim of GEI against any
other Person secondarily or otherwise liable for any debt, liability or
obligation of GEI under any Loan Document.
Each Guarantor hereby ratifies and confirms any such extension, renewal,
change, sale, release, waiver, surrender, exchange, modification, amendment,
impairment, substitution, settlement, adjustment or compromise and agrees that
the same shall be binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets which it
might or could have by reason thereof, it being understood that such Guarantor
shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by
law:
(1) notice of acceptance of this Guaranty by the
Administrative Agent or the Lenders or of the creation, renewal or
accrual of any liability of GEI, present or future, or of the reliance
of the Administrative Agent or any of the Lenders upon this Guaranty
(it being understood that all Guaranteed Obligations described in
Section 2 hereof shall conclusively be presumed to have been created,
contracted or incurred in reliance upon the execution of this
Guaranty); and
(2) demand of payment by the Administrative Agent on behalf of
the Lenders from GEI or any other Person indebted in any manner on or
for any of the Guaranteed Obligations; and
(3) presentment for the payment by the Administrative Agent on
behalf of the Lenders or any other Person of any Loan Document or any
other instrument, protest thereof and notice of its dishonor to any
party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of
the Administrative Agent to enforce such obligations by any proceedings,
whether by action at law, suit in equity or otherwise, shall not be subject to
any reduction, limitation, impairment or termination, whether by reason of any
claim of any character whatsoever or otherwise and shall not be subject to any
defense, set-off, counterclaim (other than any compulsory counterclaim),
recoupment or termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon
such Guarantor and its successors and assigns, and shall remain in full force
and effect until the date on which all Commitments of the Lenders to GEI shall
have terminated, all Letters of Credit pursuant to the GEI Commitment shall
have expired or terminated and all Obligations of GEI have indefeasibly been
paid in full (the "Termination Date") and such obligations shall not be
affected, modified or impaired upon the happening from time to time of any
event, including, without limitation, any of the following, whether or not
with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or enforceability of
any of the Loan Documents or any of the terms of any thereof, the
continuance of any obligation on the part of GEI or any other Guarantor
on or in respect of or under any Loan Document or the power or
authority or the lack of power or authority of GEI to execute and
deliver any Loan Document or of any other Guarantor to execute and
deliver this Guaranty or to perform any of its obligations hereunder or
the existence or continuance of GEI or any other Guarantor as a legal
entity; or
(2) any default, failure or delay, willful or otherwise, in
the performance by GEI or any other Guarantor of any obligations of any
kind or character whatsoever under any Loan Document; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of GEI or any other Guarantor or in respect of
the property of GEI or any other Guarantor or any merger,
consolidation, reorganization, dissolution, liquidation, the sale of
all or substantially all of the assets of or winding up of GEI or any
other Guarantor; or
(4) impossibility or illegality of performance on the part of
GEI or any other Guarantor of its obligations under any Loan Document;
or
(5) in respect of GEI or any other Guarantor, any change of
circumstances, whether or not foreseen or foreseeable, whether or not
imputable to GEI or any other Guarantor, or other impossibility of
performance through fire, explosion, accident, labor disturbance,
floods, droughts, embargoes, wars (whether or not declared), civil
commotion, acts of God or the public enemy, delays or failure of
suppliers or carriers, inability to obtain materials, action of any
federal or state regulatory body or agency, change of law or any other
causes affecting performance, or any other force majeure, whether or
not beyond the control of GEI or any other Guarantor and whether or not
of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order,
process,lien or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, debt,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against GEI or any Guarantor
or any claims, demands, charges or Liens of any nature, foreseen or
unforeseen, incurred by any Guarantor, or against any sums payable in
respect of or under any Loan Document, so that such sums would be
rendered inadequate or would be unavailable to make the payments herein
provided; or
(7) any order, judgment, decree, ruling or regulation (whether
or not valid) of any court of any nation or of any political sub-
division thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any other action,
happening, event or reason whatsoever which shall delay, interfere
with, hinder or prevent, or in any way adversely affect, the
performance by GEI or any Guarantor of its respective obligations
under or in respect of any Loan Document; or
(8) the failure of any Guarantor to receive any benefit from
or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to
give notice to any Guarantor of failure of GEI or any other Guarantor
to keep and perform any obligation, covenant or agreement under the
terms of any Loan Document or this Guaranty or failure to resort for
payment to GEI or any other Guarantor or to any other guaranty or to
any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other
guaranty, the advance of additional money to GEI or any other
Guarantor, amendments, modifications, consents or waivers with respect
to any Loan Document, or the sale, release, substitution or exchange of
any security for any Guaranteed Obligation of GEI; or
(11) any change in the ownership of any shares of GEI or any
Guarantor; or
(12) any defense whatsoever that: (i) GEI or any other
Guarantor might have to the payment under any Loan Document, other than
payment thereof in Federal or other immediately available funds, or
(ii) GEI or any other Guarantor might have to the performance or
observance of any of the provisions of any Loan Document, whether
through the satisfaction or purported satisfaction by GEI or any other
Guarantor of its debts due to any cause such as bankruptcy, insolvency,
receivership, merger, consolidation, reorganization, dissolution,
liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to any Loan Document
or anything which might vary the risk of any Guarantor; or
(14) any other circumstance which might otherwise constitute a
defense available to, or a discharge of any Guarantor in respect of the
obligations of any Guarantor under this Guaranty;
provided that the specific enumeration of the above-mentioned acts, failures
or omissions shall not be deemed to exclude any other acts, failures or
omissions, though not specifically mentioned above, it being the purpose and
intent of this Guaranty that the obligations of each Guarantor shall be
absolute, irrevocable and unconditional and shall not be discharged, impaired
or varied except by the payment of all Obligations of GEI in accordance with
their respective terms whenever the same shall become due and payable and all
other sums due and payable under any Loan Document, at the place specified in
and all in the manner and with the effect provided in the Credit Agreement, as
may be amended or modified from time to time. Without limiting the foregoing,
it is understood that repeated and successive demands may be made and
recoveries may be had hereunder as and when, from time to time, GEI shall
default under or in respect of the terms of any Loan Document and that
notwithstanding recovery hereunder for or in respect of any given default or
defaults by GEI under any Loan Document shall remain in full force and effect
and shall apply to each and every subsequent default.
(d) All rights of the Administrative Agent or any Lender hereunder may
be transferred or assigned at any time and shall be considered to be
transferred or assigned at any time or from time to time upon the appointment
of a successor to the Administrative Agent or any permitted transfer by a
Lender of its rights under the Credit Agreement, whether with or without the
consent of or notice to the Guarantors under this Guaranty or to GEI.
(e) To the extent of any payments made under this Guaranty, each
Guarantor shall be subrogated to the rights of the Administrative Agent and/or
the Lenders to whom such payment was made, but such Guarantor covenants and
agrees that such right of subrogation shall be subordinate in right of payment
to the prior indefeasible final payment in cash in full of all amounts due and
owing by GEI with respect to the Obligations of GEI under the Loan Documents
and by the Guarantors under this Guaranty, and the Guarantors shall not take
any action to enforce such right of subrogation, and the Guarantors shall not
accept any payment in respect of such right of subrogation, until the
Termination Date. If any amount shall be paid to any Guarantor in violation
of the preceding sentence at any time prior to the indefeasible payment in
cash in full of all amounts payable by GEI under the Loan Documents and this
Guaranty, such amount shall be held in trust for the benefit of the Lenders
and shall forthwith be paid to the Administrative Agent for the benefit of the
Administrative Agent and the Lenders to be credited and applied to the amounts
due or to become due with respect to all amounts payable by GEI under the Loan
Documents and this Guaranty, whether matured or unmatured. Each Guarantor
acknowledges that it has received direct and indirect benefits from the
financing arrangements contemplated by the Loan Documents and that the waiver
set forth in this paragraph (e) is knowingly made as a result of the receipt
of such benefits.
(f) Each Guarantor agrees that, to the extent GEI, any other Guarantor
or any other Person makes any payment under any of the Loan Documents with
respect to GEI's Obligations, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential,
set aside, recovered, rescinded or is required to be retained by or repaid to
a trustee, receiver, or any other Person under any bankruptcy code, common
law, or equitable cause, then and to the extent of such payment, the
obligation or the part thereof intended to be satisfied shall be revived and
continued in full force and effect with respect to the Guarantors' obligations
hereunder, as if said payment had not been made. The liability of the
Guarantors hereunder shall not be reduced or discharged, in whole or in part,
by any payment to the Administrative Agent or any Lender from any source that
is thereafter paid, returned or refunded in whole or in part by reason of the
assertion of a claim of any kind relating thereto, including, but not limited
to, any claim for breach of contract, breach of warranty, preference,
illegality, invalidity, or fraud asserted by any account debtor or by any
other Person.
(g) Neither the Administrative Agent nor any Lender, shall be under
any obligation: (1) to marshall any assets in favor of the Guarantors or in
payment of any or all of the liabilities of GEI under or in respect of the
Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue
any other remedy that the Guarantors may or may not be able to pursue
themselves and that may lighten the Guarantors' burden, any right to which
each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank pari
passu in right of payment with all other Indebtedness of such Guarantor which
is not secured or which is not expressly subordinated in right of payment to
any other Indebtedness of such Guarantor.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to the Administrative Agent and
each Lender that:
(a) Such Guarantor is a corporation, limited liability company,
limited partnership or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization, and is
duly qualified as a foreign corporation, limited liability company, limited
partnership or other similar legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on (1) the ability of such Guarantor to perform its
obligations under this Guaranty, or (2) the validity or enforceability of this
Guaranty against such Guarantor (herein in this Section 5, a "Material Adverse
Effect"). Such Guarantor has the power and authority to own or hold under
lease the properties it purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute and deliver this
Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary corporate
or other organizational action on the part of such Guarantor, and this
Guaranty constitutes a legal, valid and binding obligation of such Guarantor
enforceable against such Guarantor in accordance with its terms, except as
such enforceability may be limited by (1) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or other similar
laws affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(c) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any
property of such Guarantor or any of its Subsidiaries under its charter
documents, or except for contraventions, breaches or defaults which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, under any indenture, mortgage, deed of trust, loan, purchase
or credit agreement, lease, or any other agreement or instrument to which such
Guarantor or any of its Subsidiaries is bound or by which such Guarantor or
any of its Subsidiaries or any of their respective properties may be bound or
affected, (2) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to such Guarantor or
any of its Subsidiaries or (3) violate any provision of any statute or other
rule or regulation of any Governmental Authority applicable to the such
Guarantor or any of its Subsidiaries.
(d) No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required in connection with
the execution, delivery or performance by such Guarantor of this Guaranty.
(e) Such Guarantor is solvent, has capital not unreasonably small in
relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value
greater than the amount required to pay its debts as they become due and
greater than the amount that will be required to pay its probable liability on
its existing debts as they become absolute and matured. Such Guarantor does
not intend to incur, or believe that it will incur, debts beyond its ability
to pay such debts as they become due. Such Guarantor will not be rendered
insolvent by the execution and delivery of, and performance of its obligations
under, this Guaranty. Such Guarantor does not intend to hinder, delay or
defraud its creditors by or through the execution and delivery of, or
performance of its obligations under, this Guaranty.
(f) All representations in the Credit Agreement applicable to such
Guarantors (or any of them) are true and correct in all material respects.
SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.
This Guaranty may be amended, and the observance of any term hereof may
be waived (either retroactively or prospectively), pursuant to the provisions
of Section 11.1 of the Credit Agreement. This Guaranty may be amended by the
addition of additional Guarantors pursuant to a Guaranty Joinder.
SECTION 7. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of Jury
Trial. (a) Each Guarantor irrevocably submits to the nonexclusive in personam
jurisdiction of any State of New York or federal court sitting in New York
City, over any suit, action or proceeding arising out of or relating to this
Guaranty. To the fullest extent it may effectively do so under applicable
law, each Guarantor irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not subject to the in
personam jurisdiction of any such court, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(b) Each Guarantor agrees, to the fullest extent it may effectively do
so under applicable law, that a final judgment in any suit, action or
proceeding of the nature referred to in paragraph (a) of this Section 7.1
brought in any such court shall be conclusive and binding upon such party,
subject to rights of appeal and may be enforced in the courts of the United
States of America or the State of New York (or any other courts to the
jurisdiction of which such party is or may be subject) by a suit upon such
judgment.
(c) Each Guarantor consents to process being served in any suit,action
or proceeding of the nature referred to in paragraph (a) of this Section 7.1
by mailing a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to the address of such Guarantor specified in
Section 8 or at such other address of which you shall then have been notified
pursuant to said Section or to any agent for service of process appointed
pursuant to the provisions of Section 7.2. Each Guarantor agrees that such
service upon receipt (i) shall be deemed in every respect effective service of
process upon it in any such suit, action or proceeding and (ii) shall, to the
full extent permitted by law, be taken and held to be valid personal service
upon and personal delivery to such party. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished by
the United States Postal Service or any reputable commercial delivery service.
(d) Nothing in this Section 7.1 shall affect the right of the
Administrative Agent or the Lenders to serve process in any manner permitted
by law, or limit any right that the Administrative Agent or the Lenders may
have to bring proceedings against any Guarantor in the courts of any
appropriate jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
(e) Each Guarantor waives trial by jury in any action brought on or
with respect to this Guaranty or the Loan Documents or any other document
executed in connection herewith or therewith.
(f) Any payment on account of any amount that is payable hereunder by
any Guarantor in United States Dollars which is made to or for the account of
the Administrative Agent or any Lender in currency of any other jurisdiction,
or in the lawful currency of any other country, whether as a result of any
judgment or order or the enforcement thereof or the realization of any
security or the liquidation of such party, shall constitute a discharge of
such party's obligation under this Guaranty only to the extent of the amount
of United States Dollars which such Lender could purchase in the foreign
exchange markets with the amount of currency of such other jurisdiction, or
other currency, as the case may be, in accordance with normal banking
procedures at the rate of exchange prevailing on the Business Day following
receipt of the payment first referred to above. If, the amount of United
States Dollars that could be so purchased is less than the amount of United
States Dollars originally due to the Administrative Agent and/or such Lender,
each Guarantor agrees, to the full extent permitted by law, to indemnify and
save harmless the Administrative Agent and/or such Lender from and against all
loss or damage arising out of or as a result of such deficiency. This
indemnity shall, to the fullest extent permitted by law, constitute an
obligation separate and independent from the other obligations contained in
this Guaranty, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by the Administrative Agent
and such Lender from time to time and, shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order.
Section 7.2. Service of Process Upon Guarantors. Each Guarantor hereby
irrevocably designates, appoints and empowers DeVry and its successors as the
designee, appointee and agent for each Guarantor to receive, accept and
acknowledge, for and on behalf of such Guarantor and its properties, service
of any and all legal process, summons, notices and documents which may be
served in such action, suit or proceeding relating to this Guaranty in the
case of the New York federal and state courts located in New York City, which
service may be made on any such designee, appointee and agent in accordance
with legal procedures prescribed for such courts. Each Guarantor agrees to
take any and all action necessary to continue such designation in full force
and effect and should such designee, appointee and agent become unavailable
for this purpose for any reason, each Guarantor will forthwith irrevocably
designate a new designee, appointee and agent, which shall irrevocably agree
to act as such, with the powers and for purposes specified in this
Section 7.2. Each Guarantor further irrevocably consents and agrees to service
of any and all legal process, summons, notices and documents out of any of the
aforesaid courts in any such action, suit or proceeding relating to any Loan
Document or this Guaranty delivered to such Guarantor in accordance with this
Section 7.2 or to its then designee, appointee or agent for service. If
service is made upon such designee, appointee and agent, a copy of such
process, summons, notice or document shall also be provided to any Guarantor
at the address specified in Section 8 by registered or certified mail, or
overnight express air courier; provided that failure of such Lender to provide
such copy to such Guarantor shall not impair or affect in any way the validity
of such service or any judgment rendered in such action or proceedings. Each
Guarantor agrees that service upon such Guarantor or any such designee,
appointee and agent as provided for herein shall constitute valid and
effective personal service upon such Guarantor with respect to matters
contemplated in this Section 7.2 and that the failure of any such designee,
appointee and agent to give any notice of such service to such Guarantor shall
not impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon. Nothing herein shall, or
shall be construed so as to, limit the right of the Administrative Agent or
the Lenders to bring actions, suits or proceedings with respect to the
obligations and liabilities of any Guarantor under, or any other matter
arising out of or in connection with, this Agreement, or for recognition or
enforcement of any judgment rendered in any such action, suit or proceeding,
in the courts of whatever jurisdiction in which the respective offices of the
Administrative Agent or the Lenders may be located or assets of such Guarantor
may be found or as otherwise shall to Administrative Agent or the Lenders seem
appropriate, or to affect the right to service of process in any jurisdiction
in any other manner permitted by law.
Section 7.3. Tax Indemnity. All payments whatsoever under this Guaranty
will be made by any Guarantor free and clear of, and without liability for
withholding or deduction for or on account of, any present or future Tax
imposed or levied by or on behalf of (i) its jurisdiction of organization or
(ii) any jurisdiction other than the United States (or any political
subdivision or taxing authority of or in the United States) from or through
which any amount is paid by any Guarantor pursuant to the terms of this
Guaranty (hereinafter, a "Taxing Jurisdiction"), unless the withholding or
deduction of such Tax is compelled by law. If any deduction or withholding or
payment for any tax shall at any time be compelled by law, each Guarantor will
pay such additional amounts as may be necessary in order that the net amounts
paid to each Lender pursuant to the terms of this Guaranty after such
deduction or withholding (including, without limitation, any required
deduction, withholding or other payment of Tax on or with respect to such
additional amount) shall be not less than the amounts then due and payable
under the terms of this Guaranty; provided, however, that no payment of any
additional amounts shall be required to be made for or on account of:
(i) in case of a tax imposed or levied on behalf of Barbados,
any Tax that would not have been imposed but for the existence of any
present or former connections between such Lender (or between a
shareholder of, or possessor of a power over, such Lender, if such
Lender is an estate, trust, partnership or corporation, or any Person
other than the Lender to which any amount payable under any Obligation
or under this Guaranty is attributable for the purposes of such Tax,
assessment or charge) and the Taxing Jurisdiction,
(ii) any estate, inheritance, gift, sale, transfer, personal
property or similar tax or duty;
(iii)any Tax that is payable otherwise than by withholding from
payments under this Guaranty, except that such Guarantor shall be
required to make payments for or on account of any Tax that would have
been payable through withholding but which because of a connection
between the Lender and the Taxing Jurisdiction (or some other special
circumstance of the Lender) is instead collected by such Taxing
Jurisdiction directly from such Lender unless such Tax is of a nature
that is otherwise not subject to the payment of additional amounts
under this Section 7.3; or
(iv) any combination of clauses (i), (ii) and (iii) above;
provided further, however, that no such additional amounts shall be payable in
respect of this Guaranty to (x) any Lender which is a fiduciary or a
partnership or a beneficial owner which is other than the sole beneficial
owner of such payment to the extent a beneficiary or settlor with respect to
such fiduciary or a member of such partnership or a beneficial owner would not
have been entitled to such additional amounts had it been in the position of
such Lender or (y) any Lender which is not a resident of the United States.
In connection with the transfer of rights under the Credit Agreement,
each Guarantor will furnish the Administrative Agent and the transferee of
such with copies of all tax forms then required. Each Guarantor will also
furnish the Administrative Agent and the Lenders, within the period of payment
permitted by applicable law, an official receipt, if any, issued by the
relevant taxation or other authorities involved for all amounts deducted or
withheld as aforesaid.
Section 7.4. Repayment. If any Guarantor has made a payment pursuant to
Section 7.3 of additional amounts to any Lender, to the extent a Lender
receives a tax credit or refund in respect of any payment made by any
Guarantor on the Obligations which has the net effect of paying to such Lender
an amount greater than the amounts due and payable on any Obligation or under
this Guaranty which such Lender would have received in the absence of any
payment being required under Section 7.3, such Lender agrees to repay to such
Guarantor reasonably promptly after the receipt thereof by such Lender such
amount as will put such Lender in no better or worse position as such Lender
would have been in had no additional amount been required to be paid pursuant
to Section 7.3 (which determinations shall be made by such Lender in good
faith).
SECTION 8. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(1) if to the Administrative Agent, to such address as listed in
Schedule 11.2 of the Credit Agreement, or
(2) if to any Guarantor, to such Guarantor c/o the Borrowers at
One Tower Lane, Oakbrook Terrace, IL 60181, or at such other address as
such Guarantor shall have specified to the Administrative Agent in
writing.
Notices under this Section 8 will be deemed given only when actually received.
SECTION 9. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to the Administrative
Agent or any Lender is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Guaranty now or hereafter
existing at law or in equity. No delay or omission to exercise any right or
power accruing upon any default, omission or failure of performance hereunder
shall impair any such right or power or shall be construed to be a waiver
thereof but any such right or power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the Administrative
Agent or any Lender to exercise any remedy reserved to it under the Guaranty,
it shall not be necessary for such Administrative Agent or Lender to
physically produce the Loan Documents in any proceedings instituted by it or
to give any notice, other than such notice as may be herein expressly
required.
(b) The Guarantors will pay all sums becoming due under this Guaranty
by the method and at the address specified for such purpose in the Credit
Agreement, or by such other reasonable method or at such other address as the
Administrative Agent or the Lenders shall have from time to time specified to
the Guarantors in writing for such purpose, without the presentation or
surrender of this Guaranty or any Loan Documents.
(c) Any provision of this Guaranty that 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 hereof, and any such prohibition or unenforceability in
any jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter
become unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Administrative
Agent and each Lender and its successors and assigns whether so expressed or
not, until the Termination Date.
(f) This Guaranty may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(g) This Guaranty shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by the law of the State of New
York.
(h) The Recitals are incorporated into this Guaranty by reference with
the same force and effect as though set forth herein in full.
(i) The Administrative Agent is authorized to enforce this Guaranty on
behalf of the Lenders.
IN WITNESS WHEREOF, each of the undersigned has caused this Offshore
Subsidiary Guaranty to be duly executed by an authorized representative as of
this 15th day of May, 2003.
ROSS UNIVERSITY MANAGEMENT, INC.
By
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Its
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ROSS UNIVERSITY SCHOOL OF MEDICINE SCHOOL OF
VETERINARY MEDICINE LIMITED
By
-----------------------------
Its
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ROSS UNIVERSITY SCHOOL OF MEDICINE SCHOOL OF
VETERINARY MEDICINE (ST. KITTS) LIMITED
By
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Its
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FORM OF GUARANTY JOINDER
------------------------
Re: Credit Agreement
This [GUARANTY JOINDER] dated as of _________, _____ (the or this
"[Guaranty Joinder]") is entered into [on a joint and several basis] by [each
of] the undersigned __________, a ____________ corporation [and ____________, a
___________ corporation] ([which parties are hereinafter referred to
individually as] an "Additional Guarantor" [and collectively as the
"Additional Guarantors"]). Terms not otherwise defined herein shall have the
meaning set forth in the Credit Agreement hereinafter referred to.
RECITALS
A. [Each] Additional Guarantor, is presently an Offshore Subsidiary of
Global Education International, Inc., a Barbados corporation, ("GEI").
B. In order to raise funds to finance the acquisition of Dominica
Management, Inc., the parent of Ross University Services, Inc. and Ross
University Management, Inc., to finance working capital and capital
expenditures and for other general corporate purposes, GEI and DeVry, Inc. a
Delaware corporation ("DeVry" and, together with GEI, the "Borrowers") have
entered into the Credit Agreement dated as of May 16, 2003 (herein, as amended
and modified from time to time, the "Credit Agreement") among the Borrowers,
the lenders, party thereto (the "Lenders") and Bank of America, N.A. as
administrative agent (the "Administrative Agent") providing for, among other
things, up to $175 million in loans (the "Loans") and Letters of Credit (the
"Letters of Credit") of which up to $50,000,000 in Loans and Letters of Credit
will be available to GEI
C. The Administrative Agent and the Lenders have required as a
condition to their obligations to make Extensions of Credit under the Credit
Agreement, that the Offshore Subsidiaries of the Borrowers enter into the
Offshore Subsidiary Guaranty dated as of May 16, 2003 (the "Guaranty") as
security for the Obligations of GEI.
NOW, THEREFORE, as required by the Credit Agreement and in consideration
of the premises and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, [each/the] Additional Guarantor
does hereby covenant and agree, [jointly and severally,] as follows:
In accordance with the requirements of the Guaranty, the Additional
Guarantor[s] desire to amend the definition of Guarantor (as the same may have
been heretofore amended) set forth in the Guaranty attached hereto so that at
all times from and after the date hereof, the Additional Guarantor[s] shall be
jointly and severally liable as Guarantors as set forth in the Guaranty for
the Guaranteed Obligations of GEI under the Credit Agreement to the extent and
in the manner set forth in the Guaranty.
The undersigned is the duly elected ____________ of the Additional
Guarantor[s] and is duly authorized to execute and deliver this Guaranty
Joinder for the benefit of all Lenders. The execution by the undersigned of
this Guaranty Joinder shall evidence its consent to and acknowledgment and
approval of the terms set forth herein and in the Guaranty. By its execution
hereof, the Additional Guarantor[s] shall be deemed to have made the
representations and warranties set forth in Section 5 of the Guaranty in favor
of the Lenders as of the date of this Guaranty Joinder.
Upon execution of this Guaranty Joinder, the Guaranty shall be deemed to
be amended as set forth above. The Additional Guarantor[s] hereby become[s] a
Guarantor under the Guaranty and as a Guarantor thereunder, hereby guarantees
all Guaranteed Obligations. Except as amended herein, the terms and
provisions of the Guaranty are hereby ratified, confirmed and approved in all
respects.
Any and all notices, requests, certificates and other instruments may
refer to the Guaranty without making specific reference to this Guaranty
Joinder, but nevertheless all such references shall be deemed to include this
Guaranty Joinder unless the context shall otherwise require.
[NAME OF ADDITIONAL GUARANTOR]
By
-----------------------------
Its
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CHI99 4102240-4.025605.0117
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