DEVRY INC.
AND
GLOBAL EDUCATION INTERNATIONAL, INC.
$75,000,000 FLOATING RATE SENIOR NOTES, SERIES A, DUE APRIL 30, 2010
of DEVRY INC.
and
$50,000,000 FLOATING RATE SENIOR NOTES, SERIES B, DUE APRIL 30, 2010
of GLOBAL EDUCATION INTERNATIONAL, INC.
______________
NOTE PURCHASE AGREEMENT
_____________
Dated as of May 16, 2003
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES 1
Section 1.1. Description of Notes 1
Section 1.2. Series B Interest Rate 2
SECTION 2. SALE AND PURCHASE OF NOTES AND SECURITY THEREFOR 2
Section 2.1. Sale and Purchase of Notes 2
Section 2.2. DeVry Guaranty 3
Section 2.3. Subsidiary Guaranties 3
Section 2.4. Pledge and Intercreditor Agreement 3
Section 2.5. Release of Subsidiary Guarantor 3
SECTION 3. CLOSING 3
SECTION 4. CONDITIONS TO CLOSING 4
Section 4.1. Representations and Warranties 4
Section 4.2. Representations and Warranties of the Subsidiary
Guarantors 4
Section 4.3. Performance; No Default. 4
Section 4.4. Compliance Certificates 5
Section 4.5. Opinions of Counsel 5
Section 4.6. Purchase Permitted By Applicable Law, etc 5
Section 4.7. Sale of Other Notes 6
Section 4.8. Pledge and Intercreditor Agreement 6
Section 4.9. DeVry Guaranty 6
Section 4.10. DeVry Guaranties 6
Section 4.11. Consummation of Acquisition of Ross University 6
Section 4.12. Payment of Special Counsel Fees. 6
Section 4.13. Private Placement Number 6
Section 4.14. Changes in Corporate Structure 6
Section 4.15. Proceedings and Documents 7
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS 7
Section 5.1. Organization; Power and Authority 7
Section 5.2. Authorization, etc 7
Section 5.3. Disclosure 7
Section 5.4. Organization and Ownership of Shares of
Subsidiaries; Existing Investments; and
Affiliates 8
Section 5.5. Financial Statements 8
Section 5.6. Compliance with Laws, Other Instruments, etc 9
Section 5.7. Governmental Authorizations, etc 9
Section 5.8. Litigation; Observance of Agreements, Statutes
and Orders 9
Section 5.9. Taxes 10
Section 5.10. Title to Property; Leases 10
Section 5.11. Licenses, Permits, etc 10
Section 5.12. Compliance with ERISA 10
Section 5.13. Private Offering by the Obligors 11
Section 5.14. Use of Proceeds; Margin Regulations 11
Section 5.15. Existing Debt; Future Liens 12
Section 5.16. Foreign Assets Control Regulations, etc 12
Section 5.17. Status under Certain Statutes 12
Section 5.18. Environmental Matters 12
Section 5.19. Acquisition of Dominica Management, Inc. 13
SECTION 6. REPRESENTATIONS OF THE PURCHASER 13
Section 6.1. Purchase for Investment 13
Section 6.2. Source of Funds 13
SECTION 7. INFORMATION AS TO OBLIGORS 15
Section 7.1. Financial and Business Information 15
Section 7.2. Officer's Certificate 18
Section 7.3. Inspection 18
SECTION 8. PREPAYMENT OF THE NOTES 19
Section 8.1. Required Prepayments 19
Section 8.2. Optional Prepayments of the Notes with LIBOR
Breakage Amount 19
Section 8.3. Maturity; Surrender, etc. 20
Section 8.4. Allocation of Partial Prepayments 20
Section 8.5. Purchase of Notes 20
Section 8.6. Tax Indemnity 20
Section 8.7. Repayment 21
SECTION 9. AFFIRMATIVE COVENANTS 22
Section 9.1. Compliance with Law 22
Section 9.2. Insurance 22
Section 9.3. Maintenance of Properties 23
Section 9.4. Payment of Taxes and Claims 23
Section 9.5. Corporate Existence, etc 23
Section 9.6. Additional Guarantors 23
Section 9.7. Designation of Subsidiaries 24
SECTION 10. NEGATIVE COVENANTS 24
Section 10.1. Consolidated Debt; Priority Debt 24
Section 10.2. Consolidated Adjusted Net Worth 24
Section 10.3. Limitation on Liens 24
Section 10.4. Sales of Asset 26
Section 10.5. Merger and Consolidation 27
Section 10.6. Nature of Business 28
Section 10.7. Transactions with Affiliates 28
Section 10.8. Post Closing Items 28
SECTION 11. EVENTS OF DEFAULT 29
SECTION 12. REMEDIES ON DEFAULT, ETC 31
Section 12.1. Acceleration 31
Section 12.2. Other Remedies 32
Section 12.3. Rescission 32
Section 12.4. No Waivers or Election of Remedies,
Expenses, etc 32
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES 32
Section 13.1. Registration of Notes 32
Section 13.2. Transfer and Exchange of Notes 33
Section 13.3. Replacement of Notes 33
SECTION 14. PAYMENTS ON NOTES 34
Section 14.1. Place of Payment 34
Section 14.2. Home Office Payment 34
SECTION 15. EXPENSES, ETC 34
Section 15.2. Survival 35
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT 35
SECTION 17. AMENDMENT AND WAIVER 35
Section 17.1. Requirements 35
Section 17.2. Solicitation of Holders of Notes 36
Section 17.3. Binding Effect, etc 36
Section 17.4. Notes Held by Obligors, etc 37
SECTION 18. NOTICES 37
SECTION 19. REPRODUCTION OF DOCUMENTS 37
SECTION 20. CONFIDENTIAL INFORMATION 38
SECTION 21. SUBSTITUTION OF PURCHASER 39
SECTION 22. MISCELLANEOUS 39
Section 22.1. Successors and Assigns 39
Section 22.2. Payments Due on Non-Business Days 39
Section 22.3. Severability 39
Section 22.4. Construction 39
Section 22.5. Counterparts 40
Section 22.6. Governing Law 40
Section 22.7. Consent to Jurisdiction; Service of Process;
Judgement Currency; Waiver of Jury Trial 40
Section 22.8. Service of Process Upon Agent 41
Section 22.9. Obligations of DeVry 42
Signature 43
SCHEDULE A - INFORMATION RELATING TO PURCHASERS
SCHEDULE B - DEFINED TERMS
SCHEDULE 5.4 - Subsidiaries of the Obligors and Ownership of
Subsidiary Stock
SCHEDULE 5.5 - Financial Statements
SCHEDULE 5.11 - Patents, etc.
SCHEDULE 5.15 - Existing Debt
SCHEDULE 10.3 - Existing Liens
SCHEDULE 10.7 - Existing Investments
EXHIBIT 1(A) - Form of Floating Rate Senior Note, Series A, due
April 30, 2010 of DeVry
EXHIBIT 1(B) - Form of Floating Rate Senior Note, Series B, due
April 30, 2010 of GEI
EXHIBIT 2 - Form of Pledge and Intercreditor Agreement
EXHIBIT 3 - Form of DeVry Guaranty Agreement
EXHIBIT 4(A) - Form of U.S. Subsidiary Guaranty Agreement
EXHIBIT 4(B) - Form of Offshore Subsidiary Guaranty Agreement
EXHIBIT 5(A) - Form of Opinion of Counsel for the Obligors
EXHIBIT 5(B) - Form of Opinion of Barbados Counsel for GEI
EXHIBIT 5(C) - Form of Opinion of Special Counsel for the Purchasers
DEVRY INC.
One Tower Lane
Oakbrook Terrace, IL 60181
AND
GLOBAL EDUCATION INTERNATIONAL, INC.
c/o DeVry Inc.
One Tower Lane
Oakbrook Terrace, IL 60181
$75,000,000 FLOATING RATE SENIOR NOTES, SERIES A, DUE APRIL 30, 2010
of DEVRY INC.
and
$50,000,000 FLOATING RATE SENIOR NOTES, SERIES B, DUE APRIL 30, 2010
of GLOBAL EDUCATION INTERNATIONAL, INC.
May 16, 2003
TO THE PURCHASERS LISTED IN THE
ATTACHED SCHEDULE A WHICH ARE
SIGNATORIES OF THIS AGREEMENT:
Ladies and Gentlemen:
DEVRY INC., a Delaware corporation ("DeVry") and GLOBAL EDUCATION
INTERNATIONAL, INC., a Barbados corporation ("GEI") (DeVry and GEI are
hereinafter referred to individually as an "Obligor" and collectively as the
"Obligors"), each agree with each Purchaser as follows:
SECTION 1. AUTHORIZATION OF NOTES.
Section 1.1. Description of Notes. (a) DeVry will authorize the issue and
sale of $75,000,000 aggregate principal amount of its Floating Rate Senior
Notes, Series A, due April 30, 2010 (the "DeVry Notes", such term to include
any such notes issued in substitution therefor pursuant to Section 13 of this
Note Purchase Agreement (this "Agreement"). The DeVry Notes shall be
substantially in the form set out in Exhibit 1(a), with such changes
therefrom, if any, as may be approved by each Purchaser and DeVry.
(b) GEI will authorize the issue and sale of $50,000,000 aggregate
principal amount of its Floating Rate Senior Notes, Series B, due April 30,
2010 (the "GEI Notes", such term to include any such notes issued in
substitution therefor pursuant to Section 13 of this Agreement. The GEI Notes
shall be substantially in the form set out in Exhibit 1(b), with such changes
therefrom, if any, as may be approved by each Purchaser and GEI.
The DeVry Notes and the GEI Notes shall be collectively referred to as
the "Notes". Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement.
(c) The payment obligations of the Obligors set forth in this
Agreement and the Notes shall be made in the lawful currency of the United
States of America.
Section 1.2. Interest Rate. (i) The Notes shall bear interest (computed
on the basis of a 360-day year and actual days elapsed) on the unpaid
principal thereof from the date of issuance at a floating rate equal to the
Adjusted LIBOR Rate from time to time, payable quarterly on the last day of
January, April, July and October and at maturity, commencing on July 31, 2003,
until such principal sum shall have become due and payable (whether at
maturity, upon notice of prepayment or otherwise) (each such date being
referred to herein as an "Interest Payment Date") and interest (so computed)
on any overdue principal from the due date thereof (whether by acceleration or
otherwise) at the Default Rate until paid.
(ii) The Adjusted LIBOR Rate for the Notes shall be determined by the
Obligors, and notice thereof shall be given to the holders of the Notes,
within three Business Days after the beginning of each Interest Period,
together with a copy of the relevant screen used for the determination of
LIBOR, a calculation of Adjusted LIBOR Rate for such Interest Period, the
number of days in such Interest Period, the date on which interest for such
Interest Period will be paid and the amount of interest to be paid to each
holder of Notes on such date. In the event that the holders of more than 50%
in aggregate principal amount of the outstanding Notes do not concur with such
determination by the Obligors, within ten Business Days after receipt by such
holders of the notice delivered by the Obligors pursuant to the immediately
preceding sentence, such holders of the Notes shall provide notice to the
Obligors, together with a copy of the relevant screen used for the
determination of LIBOR, a calculation of Adjusted LIBOR Rate for such Interest
Period, the number of days in such Interest Period, the date on which interest
for such Interest Period will be paid and the amount of interest to be paid to
each holder of Notes on such date, and any such determination made in
accordance with the provisions of this Agreement, shall be presumptively
correct absent manifest error.
SECTION 2. SALE AND PURCHASE OF NOTES AND SECURITY THEREFOR.
Section 2.1. Sale and Purchase of Notes. Subject to the terms and
conditions of this Agreement, each Obligor will issue and sell to each
Purchaser and each Purchaser will purchase from each Obligor, at the Closing
provided for in Section 3, the DeVry Notes and the GEI Notes in the principal
amount specified opposite their respective name in Schedule A at the purchase
price of 100% of the principal amount thereof. Each Purchaser's obligations
hereunder are several and not joint obligations, and no Purchaser shall have
any obligation or liability to any Person for the performance or
nonperformance by any other Purchaser hereunder.
Section 2.2. DeVry Guaranty. The payment by GEI of all amounts due with
respect to the GEI Notes and the performance by GEI of its obligations under
this Agreement will be unconditionally guaranteed by DeVry pursuant to the
DeVry Guaranty and otherwise in accordance with Section 9.6 hereof.
Section 2.3. Subsidiary Guaranties. (a) The payment by DeVry of all
amounts due with respect to the DeVry Notes and the performance by DeVry of
its obligations under this Agreement will be unconditionally guaranteed by the
U.S. Subsidiary Guarantors pursuant to the U.S. Subsidiary Guaranty and
otherwise in accordance with Section 9.6 hereof.
(b) The payment by GEI of all amounts due with respect to the GEI
Notes and the performance by GEI of its obligations under this Agreement will
be unconditionally guaranteed by the U.S. Subsidiary Guarantors pursuant to
the U.S. Subsidiary Guaranty and by the Offshore Subsidiary Guarantors
pursuant to the Offshore Subsidiary Guaranty and otherwise in accordance with
Section 9.6 hereof.
Section 2.4. Pledge and Intercreditor Agreement. (a) The payment of all
amounts due with respect to the Notes and the performance by Obligors and the
Guarantors of their respective obligations under this Agreement and the
Guaranties will be secured in accordance with the terms of the Pledge and
Intercreditor Agreement, which shall be substantially in the form of Exhibit 2
attached hereto. The enforcement of the rights and benefits in respect of the
Pledge and Intercreditor Agreement and the allocation of proceeds thereof and
of the Guaranties shall be governed by the terms of the Pledge and
Intercreditor Agreement.
(b) If at any time the Obligors or any Subsidiary Guarantor shall grant
to any one or more of the Collateral Agent, the Banks or any other holder of
Senior Lender Obligations additional security or collateral of any kind
pursuant to the requirements of the Bank Agreement, then the Obligors or such
Subsidiary Guarantor shall grant to the holders of the Notes the same security
or collateral so that the holders of the Notes shall at all times be pari
passu with the Banks or any other holder of Senior Lender Obligations and
shall be secured on an equal and ratable basis with the Banks and any other
holder of Senior Lender Obligations.
Section 2.5. Release of Subsidiary Guarantor. The parties to this
Agreement agree that, if all of the capital stock of any Subsidiary Guarantor
is sold or otherwise disposed of in accordance with the terms of this
Agreement to a Person who is not an Affiliate of DeVry or any Restricted
Subsidiary, such Subsidiary Guarantor shall be released from all of its
obligations under the related Subsidiary Guaranty; provided that, at such time
and after giving effect thereto, no Default or Event of Default shall exist
and be continuing and such Subsidiary Guarantor shall be simultaneously
released from all of its obligations under the Bank Agreement.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by the Purchasers shall
occur at the offices of Chapman and Cutler, 111 West Monroe Street, Chicago,
Illinois 60603, at 11:00 A.M. Chicago time, at a closing (the "Closing") on
May 16, 2003. At the Closing, the Obligors will deliver to each Purchaser the
Notes to be purchased by such Purchaser in the form of a single Note (or such
greater number of Notes in denominations of at least $1,000,000 as such
Purchaser may request) dated the date of the Closing and registered in such
Purchaser's name (or in the name of its nominee), against delivery by such
Purchaser to the Obligors or their order of immediately available funds in the
amount of the purchase price therefor by wire transfer of immediately
available funds, in the case of DeVry, to account number 7366701195 at Bank of
America, Chicago, IL (ABA# 071000039) (SWIFT No. BOFAUS44), and, in the case
of GEI, to account number 800051 at Bank One International Corporation, 153
West 51st Street, 4th, New York, N.Y. (ABA# 026009797) (SWIFT BIC: FNBCUS33)
(CHIPS ABA 0979), 1058682 for further credit to The Bank of Nova Scotia,
Offshore Banking Unit, Bridgetown, Barbados, Transit No. 82925 (SWIFT Address:
NOSCBBBBBOB) for further credit to Global Education International, Inc.,
Account # 800051. If, at the Closing, the Obligors shall fail to tender such
Notes to any Purchaser as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to such
Purchaser's satisfaction, such Purchaser shall, at its election, be relieved
of all further obligations under this Agreement, without thereby waiving any
rights it may have by reason of such failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be sold
to such Purchaser at the Closing is subject to the fulfillment to its
satisfaction, prior to or at the Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and
warranties of the Obligors in this Agreement shall be correct when made and at
the time of the Closing (except for such representations and warranties made
as of a specific date).
Section 4.2. Representations and Warranties of the Subsidiary Guarantors.
The representations and warranties of the Subsidiary Guarantors in the
Subsidiary Guaranties shall be correct when made and at the time of Closing
(except for such representations and warranties made as of a specific date).
Section 4.3. Performance; No Default. Each Obligor and each Guarantor
shall have performed and complied in all material respects with all agreements
and conditions contained in this Agreement and the other Operative Agreements
required to be performed or complied with by it prior to or at the Closing,
and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Section 5.14), no
Default or Event of Default shall have occurred and be continuing. Neither
Obligor nor any Restricted Subsidiary shall have entered into any transaction
since the date of the Memorandum that would have been prohibited by the
covenants contained in Section 10 hereof had such covenants applied since such
date.
Section 4.4. Compliance Certificates.
(a) Officer's Certificate of the Obligors. Each Obligor shall have
delivered to such Purchaser an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1, 4.3 and
4.13 have been fulfilled.
(b) Secretary's Certificate of the Obligors. Each Obligor shall have
delivered to such Purchaser a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes, this Agreement and the
other Operative Agreements to which it is a party.
(c) Officer's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser an Officer's
Certificate, dated the date of the Closing, certifying that the conditions
specified in Sections 4.2, 4.3 and 4.13 have been fulfilled.
(d) Secretary's Certificate of the Subsidiary Guarantors. Each
Subsidiary Guarantor shall have delivered to such Purchaser a certificate
certifying as to the resolutions attached thereto and other corporate
proceedings relating to the authorization, execution and delivery of the
applicable Subsidiary Guaranty and the other Operative Agreements to which it
is a party.
Section 4.5. Opinions of Counsel. Such Purchaser shall have received
opinions in form and substance reasonably satisfactory to such Purchaser,
dated the date of the Closing (a) from (i) Marilynn Cason, General Counsel to
the Obligors, and (ii) Mayer, Brown, Rowe & Maw, special counsel for the
Obligors, covering the matters set forth in Exhibit 5(a) and covering such
other matters incident to the transactions contemplated hereby as such
Purchaser or its counsel may reasonably request (and the Obligors hereby
instruct their counsel to deliver such opinion to such Purchaser), (b) from
Clarke Gittens & Farmers, Barbados counsel for GEI, covering the matters set
forth in Exhibit 5(b) and covering such other matters incident to the
transactions contemplated hereby as such Purchaser or such Purchaser's counsel
may reasonably request (and GEI hereby instruct its counsel to deliver such
opinion to such Purchaser), and (c) from Chapman and Cutler, special counsel
to the Purchasers in connection with such transactions, substantially in the
form set forth in Exhibit 5(c) and covering such other matters incident to
such transactions as such Purchaser may reasonably request.
Section 4.6. Purchase Permitted By Applicable Law, etc. On the date of
the Closing each Purchaser's purchase of Notes shall (a) be permitted by the
laws and regulations of each jurisdiction to which such Purchaser is subject,
without recourse to provisions (such as Section 1405(a)(8) of the New York
Insurance Law) permitting limited investments by insurance companies without
restriction as to the character of the particular investment, (b) not violate
any applicable law or regulation (including, without limitation, Regulation T,
U or X of the Board of Governors of the Federal Reserve System) and (c) not
subject any Purchaser to any tax, penalty or liability under or pursuant to
any applicable law or regulation, which law or regulation was not in effect on
the date hereof. If requested by any Purchaser, such Purchaser shall have
received an Officer's Certificate certifying as to such matters of fact as
such Purchaser may reasonably specify to enable such Purchaser to determine
whether such purchase is so permitted.
Section 4.7. Sale of Other Notes. Contemporaneously with the Closing, the
Obligors shall sell to the each Purchaser, and each Purchaser shall purchase,
the aggregate principal amount of the Notes to be purchased by it at the
Closing as specified in Schedule A.
Section 4.8. Pledge and Intercreditor Agreement. The Pledge and
Intercreditor Agreement, substantially in the form of Exhibit 2 hereto, shall
have been duly authorized, executed and delivered by the respective parties
thereto, shall be in full force and effect and such Purchaser shall have
received a true, correct and complete copy thereof.
Section 4.9. DeVry Guaranty. The DeVry Guaranty, substantially in the
form of Exhibit 3 hereto, shall have been duly authorized, executed and
delivered by DeVry, shall be in full force and effect and such Purchaser shall
have received a true, correct and complete copy thereof.
Section 4.10. Subsidiary Guaranties. The Subsidiary Guaranties,
substantially in the forms of Exhibit 4(a) and Exhibit 4(b) hereto, shall have
been duly authorized, executed and delivered by the Subsidiary Guarantors,
shall be in full force and effect and such Purchaser shall have received a
true, correct and complete copy thereof.
Section 4.11. Consummation of Acquisition of Ross University.
Contemporaneously with the Closing, DeVry shall have consummated the
acquisition of Dominica Management, Inc. (the owner of all outstanding capital
stock of Ross University).
Section 4.12. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Obligors shall have paid, on or before the
Closing, the reasonable fees, charges and disbursements of the Purchasers'
special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Obligors at least one Business Day
prior to the Closing.
Section 4.13. Private Placement Number. A Private Placement Number issued
by Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for each of the DeVry Notes and the GEI Notes.
Section 4.14. Changes in Corporate Structure. Neither of the Obligors nor
any Subsidiary Guarantor shall have changed their jurisdiction of
incorporation or been a party to any merger or consolidation and shall not
have succeeded to all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent financial statements
referred to in Schedule 5.5 other than DeVry Canada, Inc., a Canadian
corporation which was reincorporated as DeVry Canada, LLC, a Delaware
corporation.
Section 4.15. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
reasonably satisfactory to such Purchaser and its special counsel, and such
Purchaser and its special counsel shall have received all such counterpart
originals or certified or other copies of such documents as such Purchaser or
such Purchaser's special counsel may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
Each Obligor represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. Such Obligor is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation 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.
Such Obligor has the corporate 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
Agreement, the other Operative Agreements to which it is a party and the Notes
issued by such Obligor and to perform the provisions hereof and thereof.
Section 5.2. Authorization, etc. This Agreement, the other Operative
Agreements and the Notes issued by such Obligor have been duly authorized by
all necessary corporate action on the part of such Obligor, and this Agreement
and the other Operative Agreements to which it is a party constitute, and upon
execution and delivery thereof each Note issued by such Obligor will
constitute, a legal, valid and binding obligation or contract of such Obligor
enforceable against it in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
Section 5.3. Disclosure. The Obligors, through their agent, Banc of
America Securities, LLC, have delivered to each Purchaser a copy of a Private
Placement Memorandum, dated April, 2003 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Obligors and their Subsidiaries. This Agreement, the other Operative
Agreements, the Memorandum, the documents, certificates or other writings
delivered to the Purchasers by or on behalf of the Obligors in connection with
the transactions contemplated hereby (excluding financial projections and
forecasts prepared by either of the Obligors) and the financial statements
listed in Schedule 5.5, taken as a whole, do not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
they were made. Since December 31, 2002 there has been no change in the
financial condition, business, assets, regulatory or tax status, results of
operations or prospects of DeVry and its Restricted Subsidiaries taken as a
whole (after giving effect to the acquisition) except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to any Obligor that could
reasonably be expected to have a Material Adverse Effect that has not been set
forth herein or in the Memorandum or in the other documents, certificates and
other writings delivered to the Purchasers by or on behalf of the Obligors
specifically for use in connection with the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Existing Investments; and Affiliates. (a) After giving effect to the Closing
and the Reorganization in connection therewith, Schedule 5.4 contains (except
as noted therein) complete and correct lists (i) of the Obligors'
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class
of its capital stock or similar equity interests outstanding owned by the
Obligors and each other Subsidiary, and whether such Subsidiary is a
designated as a Restricted Subsidiary or an Unrestricted Subsidiary, (ii) of
the Obligors' Affiliates, other than Subsidiaries, and (iii) of the Obligors'
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Restricted Subsidiary shown in Schedule 5.4 as being owned
by the Obligors and its Subsidiaries have been validly issued, are fully paid
and nonassessable and are (or, with respect to those Subsidiaries being
acquired on the date of the Closing, will be) owned by the Obligors or another
Subsidiary free and clear of any Lien, except pursuant to the Pledge and
Intercreditor Agreement or as set forth on Schedule 5.4.
(c) Each Restricted Subsidiary identified in Schedule 5.4 is a
corporation 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 or other 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. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than this Agreement, the Operative
Agreements, the Bank Agreement and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay dividends out
of profits or make any other similar distributions of profits to the Obligors
or any of its Subsidiaries that owns outstanding shares of capital stock or
similar equity interests of such Subsidiary which will remain in effect after
the Closing.
Section 5.5. Financial Statements. The Obligors have delivered to each
Purchaser copies of the financial statements of DeVry and its Subsidiaries
listed on Schedule 5.5 and of Dominica Management, Inc. and its Subsidiaries
(without giving effect to the acquisition). All of said financial statements
(including in each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of the Obligors and its
Subsidiaries as of the respective dates specified in such financial statements
and the consolidated results of their operations and cash flows for the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the notes thereto (subject, in the case of any interim financial statements,
to normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, etc. The execution,
delivery and performance by each Obligor of this Agreement, the other
Operative Agreements to which it is a party and the Notes issued by such
Obligor will not (a) 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 Obligor or any Restricted Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other agreement or instrument to which any Obligor
or any Restricted Subsidiary is bound or by which any Obligor or any
Restricted Subsidiary or any of their respective properties may be bound or
affected which will remain in effect after the Closing, (b) 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 any Obligor or any Restricted Subsidiary or (c) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to any Obligor or any Restricted Subsidiary.
Section 5.7. Governmental Authorizations, etc. Other than filings in
connection with the Pledge and Intercreditor Agreement which filings have been
made or which filings will be made contemporaneously with the consummation of
the acquisition of Dominica Management, Inc., 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 Obligor of this Agreement, the other Operative
Agreements to which it is a party or any Notes issued by such Obligor.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) There are no actions, suits or proceedings pending or, to the
knowledge of any Obligor, threatened against or affecting any Obligor or any
Restricted Subsidiary or any property of any Obligor or any Restricted
Subsidiary in any court or before any arbitrator of any kind or before or by
any Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither of the Obligors nor any Restricted Subsidiary is in default
under any term of any agreement or instrument to which it is a party or by
which it is bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation Environmental
Laws) of any Governmental Authority, which default or violation, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section 5.9. Taxes. The Obligors and their Subsidiaries have filed all Tax
Returns that are required to have been filed in any jurisdiction, and have
paid all Taxes shown to be due and payable on such returns and all other Taxes
levied upon them or their properties, assets, income or franchises, to the
extent such Taxes have become due and payable and before they have become
delinquent, except for any Taxes (a) the amount of which is not individually
or in the aggregate Material or (b) the amount, applicability or validity of
which is currently being contested in good faith by appropriate proceedings
and with respect to which an Obligor or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. None of the Obligors
knows of any basis for any other Tax that could reasonably be expected to have
a Material Adverse Effect. The charges, accruals and reserves on the books of
the Obligors and its Restricted Subsidiaries in respect of Federal, state or
other Taxes for all fiscal periods are adequate, as calculated in accordance
with GAAP. The Federal income tax liabilities of DeVry and its U.S.
Subsidiaries have been determined by the Internal Revenue Service and paid for
all fiscal years up to and including the fiscal year ended June 30, 1999.
Section 5.10. Title to Property; Leases. The Obligors and their Restricted
Subsidiaries have good and sufficient title to their respective properties
which the Obligors and their Restricted Subsidiaries own or purport to own
that individually or in the aggregate are Material, including all such
properties reflected in the most recent audited balance sheets referred to in
Section 5.5 or purported to have been acquired by any Obligor or any
Restricted Subsidiary after said date (except as sold or otherwise disposed of
in the ordinary course of business), in each case free and clear of Liens
prohibited by this Agreement. All leases that individually or in the
aggregate are Material are valid and subsisting and are in full force and
effect in all material respects.
Section 5.11. Licenses, Permits, etc. Except as disclosed in
Schedule 5.11,
(a) the Obligors and their Restricted Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents,
copyrights, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without
known conflict with the rights of others, except for those conflicts
that, individually or in the aggregate, would not have a Material
Adverse Effect;
(b) to the best knowledge of each Obligor, no product of any
Obligor or any Restricted Subsidiary infringes in any Material respect
any license, permit, franchise, authorization, patent, copyright,
service mark, trademark, trade name or other right owned by any other
Person; and
(c) to the best knowledge of each Obligor, there is no material
violation by any Person of any right of any Obligor or any Restricted
Subsidiary with respect to any patent, copyright, service mark,
trademark, trade name or other right owned or used by any Obligor or
any Restricted Subsidiary.
Section 5.12. Compliance with ERISA. (a) The Obligors and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result in a Material
Adverse Effect. None of the Obligors nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as defined in
Section 3 of ERISA), and no event, transaction or condition has occurred or
exists that could reasonably be expected to result in the incurrence of any
such liability by any Obligor or any ERISA Affiliate, or in the imposition of
any Lien on any of the rights, properties or assets of any Obligor or any
ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such
penalty or excise tax provisions or to Section 401(a)(29) or 412 of the Code,
other than such liabilities or Liens as would not be individually or in the
aggregate Material.
(b) None of the Obligors nor any ERISA Affiliate is a party to,
participates in or has any liability with respect to a Plan which is subject
to Title IV of ERISA.
(c) None of the Obligors nor any of their ERISA Affiliates has incurred
withdrawal liabilities (or is subject to contingent withdrawal liabilities)
under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of
the last day of each Obligor's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of DeVry and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the other
Operative Agreements and the issuance and sale of the Notes hereunder will not
involve any transaction that is subject to the prohibitions of section 406 of
ERISA or in connection with which a tax could be imposed on the Obligors or
any of their ERISA Affiliates pursuant to section 4975(c)(1)(A)-(D) of the
Code. The representation by the Obligors in the first sentence of this
Section 5.12(e) is made in reliance upon and subject to the accuracy of the
Purchasers representations in Section 6.2 as to the sources of the funds used
to pay the purchase price of the Notes to be purchased by each Purchaser.
Section 5.13. Private Offering by the Obligors. Neither of the Obligors
nor anyone acting on their behalf has offered the Notes or any similar
securities for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any Person other
than the Purchasers and not more than 19 other Institutional Investors, each
of which has been offered the Notes at a private sale for investment. Neither
of the Obligors nor anyone acting on their behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the
registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Obligors will apply
the proceeds of the sale of the Notes to finance the acquisition of Dominica
Management, Inc., the owner of all of the outstanding capital stock of Ross
University, and for general corporate purposes. No part of the proceeds from
the sale of the Notes hereunder will be used, directly or indirectly, for the
purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System (12 CFR
221), or for the purpose of buying or carrying or trading in any securities
under such circumstances as to involve any Obligor in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in
a violation of Regulation T of said Board (12 CFR 220). Neither of the
Obligors nor any Subsidiary beneficially owns any margin stock or has any
present intention to acquire beneficial ownership of any margin stock. As
used in this Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 sets forth a
complete and correct list of all outstanding Debt of the Obligors and their
Restricted Subsidiaries as of March 31, 2003, since which date there has been
no Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Obligors or their Restricted
Subsidiaries. Neither of the Obligors nor any Restricted Subsidiary is in
default and no waiver of default is currently in effect, in the payment of any
principal or interest on any Debt of any Obligor or such Restricted Subsidiary
and no event or condition exists with respect to any Debt of any Obligor or
any Restricted Subsidiary that would permit (or that with notice or the lapse
of time, or both, would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before its regularly
scheduled dates of payment.
(b) None of the Obligors nor any Restricted Subsidiary has agreed or
consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or hereafter
acquired, to be subject to a Lien not permitted by Section 10.3.
Section 5.16. Foreign Assets Control Regulations,etc. Neither the sale of
the Notes by the Obligors hereunder nor the use of the proceeds thereof by the
Obligors will violate the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto, or Executive Order
No. 13,224, 66 Fed. Reg. 49,079 (September 25, 2001) (Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten, or
Support Terrorism) (collectively referred to as "Foreign Asset Control Laws").
To the knowledge of the Obligors, the Sellers will not use the sale proceeds
received by the Sellers in connection with the sale of Dominica Management,
Inc. to the Obligors in violation of any Foreign Asset Control Laws.
Section 5.17. Status under Certain Statutes. Neither of the Obligors nor
any Subsidiary is an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or is subject
to regulation under the Public Utility Holding Company Act of 1935, as
amended, the ICC Termination Act of 1995, as amended, or the Federal Power
Act, as amended.
Section 5.18. Environmental Matters. Neither of the Obligors nor any
Restricted Subsidiary has actual knowledge of any claim or has received any
written notice of any claim, and, to the knowledge of the Obligors, no
proceeding has been instituted against either Obligor or any Restricted
Subsidiary or any of their respective real properties now or formerly owned,
leased or operated by any of them or other assets, alleging any violation of
any Environmental Laws, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect. Except as otherwise
disclosed to the Purchasers in writing:
(a) neither of the Obligors nor any Restricted Subsidiary has
actual knowledge of any facts which would give rise to any claim,
public or private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or
to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect;
(b) to the knowledge of the Obligors, neither of the Obligors
nor any Restricted Subsidiary has stored any Hazardous Materials on
real properties now or formerly owned, leased or operated by any of
them or has disposed of any Hazardous Materials in a manner contrary to
any Environmental Laws in each case in any manner that could reasonably
be expected to result in a Material Adverse Effect; and
(c) to the knowledge of the Obligors, all buildings on all real
properties now owned, leased or operated by any Obligor or any
Restricted Subsidiary are in compliance with applicable Environmental
Laws, except where failure to comply could not reasonably be expected
to result in a Material Adverse Effect.
Section 5.19. Acquisition of Dominica Management, Inc.. As of the end of
the Closing Date, the Obligors will have consummated the acquisition of
Dominica Management, Inc., the owner of all of the outstanding capital stock
of Ross University.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. Each Purchaser represents that such
Purchaser is an Institutional Investor and that it is purchasing the Notes for
its own account or in a fiduciary capacity for one or more separate accounts
maintained by such Purchaser or for the account of one or more pension or
trust funds and not with a view to the distribution thereof, provided that the
disposition of such Purchaser's property shall at all times be within its
control. Each Purchaser understand that the Notes have not been registered
under the Securities Act and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from registration is
available, except under circumstances where neither such registration nor such
an exemption is required by law, and that the Obligors are not required to
register the Notes.
Section 6.2. Source of Funds. Each Purchaser represents that at least one
of the following statements is an accurate representation as to each source of
funds (a "Source") to be used by it to pay the purchase price of the Notes to
be purchased by such Purchaser hereunder:
(a) if such Purchaser is an insurance company, the Source is an
"insurance company general account" within the meaning of Department of
Labor Prohibited Transaction ("PTE") Exemption 95-60 (issued July 12,
1995) and there is no "employee benefit plan" (within the meaning of
Section 3(3) of ERISA or Section 4975(e)(1) of the Code), treating as a
single plan, all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account
reserves and liabilities for all contracts held by or on behalf of such
plan, exceed ten percent (10%) of the total reserves and liabilities of
such general account (exclusive of separate account liabilities) plus
surplus, as set forth in the NAIC Annual Statement filed with such
Purchaser's state of domicile; or
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as any Purchaser has
disclosed to the Obligors in writing pursuant to this paragraph (b) at
least five Business Days prior to such Purchaser's purchase of the
Notes, no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than 10%
of all assets allocated to such pooled separate account or collective
investment fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part I (c) and (g) of
the QPAM Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the definition of
"control" in Section V(e) of the QPAM Exemption) owns a 5% or more
interest in any Obligor and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Obligors in writing pursuant
to this paragraph (c) at least five Business Days prior to such
Purchaser's purchase of the Notes; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Obligors in
writing pursuant to this paragraph (e) at least five Business Days
prior to such Purchaser's purchase of the Notes; or
(f) the Source does not include assets of any employee benefit
plan, other than a plan exempt from the coverage of ERISA.
The Obligors shall deliver a certificate prior to the date of the
Closing, with respect to the Purchasers and prior to the date of any transfer
of any Notes, with respect to any subsequent prospective transferee of such
Notes, which certificate shall identify any plan disclosed by Purchaser
pursuant to Section 6.2 with respect to which (i) any of the Obligors is
either a "party in interest" (as defined in Title I, Section 3(14) of ERISA)
or a "disqualified person" (as defined in Section 4975(e)(2) of the Code), or
(ii) any of the Obligors or any "affiliate" (as defined in Section V(c) of the
QPAM Exemption) has within the one-year period ending with the date of such
certificate exercised the authority to appoint or terminate said QPAM as
manager of the assets of any plan identified in writing pursuant to paragraph
(c) above or to negotiate the terms of said QPAM's management agreement on
behalf of any such identified plans (as "Prohibited Plan"). If an Obligor
identifies a Source which includes assets of a Prohibited Plan, such Purchaser
or transferee shall not use assets of such Source to purchase Notes.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA and the term
"QPAM Exemption" means the Prohibited Transaction Class Exemption 84-14 issued
by the United States Department of Labor.
SECTION 7. INFORMATION AS TO OBLIGORS.
Section 7.1. Financial and Business Information. DeVry shall deliver to
each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements - within 60 days after the end of each
quarterly fiscal period in each fiscal year of DeVry (other than the
last quarterly fiscal period of each such fiscal year), duplicate
copies of:
(i) a consolidated balance sheet of DeVry and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of DeVry and its
Subsidiaries for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
<PAGE
Officer of DeVry as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results
of operations and cash flows, subject to changes resulting from year-
end adjustments, provided that delivery within the time period
specified above of copies of DeVry's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements - within 90 days after the end of each
fiscal year of DeVry, duplicate copies of,
(i) a consolidated balance sheet of DeVry and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of DeVry and its
Subsidiaries, for such year,
setting forth in each case in comparative form the consolidated figures
for the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied
(A) by an opinion thereon of independent certified
public accountants of recognized national standing, which
opinion shall state that such financial statements present
fairly, in all material respects, the financial position of
the companies being reported upon and their results of
operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has
been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis
for such opinion in the circumstances, and
(B) a certificate of such accountants stating that
they have reviewed this Agreement and stating further
whether, in making their audit, they have become aware of
any condition or event that then constitutes a Default or an
Event of Default, and, if they are aware that any such
condition or event then exists, specifying the nature and
period of the existence thereof (it being understood that
such accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of any
Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards or did
not make such an audit),
provided that the delivery within the time period specified above of
DeVry's Annual Report on Form 10-K for such fiscal year (together with
DeVry's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with the accountant's certificate described in
clause (B) above, shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c) SEC and Other Reports - promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by any Obligor or any Restricted Subsidiary to
public securities holders generally, and (ii) each regular or periodic
report, each registration statement (without exhibits except as
expressly requested by such holder), and each prospectus and all
amendments thereto filed by any Obligor or any Restricted Subsidiary
with the Securities and Exchange Commission containing information of a
financial nature and of all press releases and other statements made
available generally by any Obligor or any Restricted Subsidiary to the
public concerning developments that are Material;
(d) Notice of Default or Event of Default-promptly, and in any
event within five days after a Responsible Officer becoming aware of
the existence of any Default or Event of Default or that any Person has
given any notice or taken any action with respect to a claimed default
hereunder or that any Person has given any notice or taken any action
with respect to a claimed default of the type referred to in
Section 11(f), a written notice specifying the nature and period of
existence thereof and what action the Obligors are taking or proposes
to take with respect thereto;
(e) ERISA Matters - promptly, and in any event within fifteen
days after a Responsible Officer becoming aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Obligors or an ERISA Affiliate propose to take
with respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant
to such regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Obligors or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan; or
(iii) the incurrence of any liability by the Obligors or any
ERISA Affiliate pursuant to Title I or IV of ERISA or the
imposition of a penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any
Lien on any of the rights, properties or assets of the Obligors or
any ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability, penalty, tax
or Lien, taken together with any other such liabilities, penalty,
tax or Liens then existing, could reasonably be expected to have a
Material Adverse Effect;
(f) Notices from Governmental Authority - promptly, and in any
event within 30 days of receipt thereof, copies of any notice to the
Obligors or any Restricted Subsidiary from any Federal or state
Governmental Authority relating to any order, ruling, statute or other
law or regulation that could reasonably be expected to have a Material
Adverse Effect; and
(g) Requested Information - with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Obligors or
any of their Restricted Subsidiaries or relating to the ability of the
Obligors to perform its obligations hereunder, under any other
Operative Agreement and under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer of
the Obligors setting forth:
(a) Covenant Compliance - the information (including detailed
calculations) required in order to establish whether the Obligors were
in compliance with the requirements of Section 10.1 through Section
10.5 hereof, inclusive, during the quarterly or annual period covered
by the statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
(b) Event of Default - a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Obligors and their Restricted Subsidiaries from the
beginning of the quarterly or annual period covered by the statements
then being furnished to the date of the certificate and that such
review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default
or, if any such condition or event existed or exists (including,
without limitation, any such event or condition resulting from the
failure of the Obligors or any Restricted Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence
thereof and what action the Obligors shall have taken or propose to
take with respect thereto.
Section 7.3. Inspection. The Obligors shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default - if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior notice to the
Obligors, to visit the principal executive offices of the Obligors, to
discuss the affairs, finances and accounts of the Obligors and their
Restricted Subsidiaries with the Obligors' officers, and (with the
consent of the Obligors, which consent will not be unreasonably
withheld) their independent public accountants, and (with the consent
of the Obligors, which consent will not be unreasonably withheld) to
visit the other offices and properties of the Obligors and their
Restricted Subsidiaries, all upon reasonable advance notice, at such
reasonable times during normal business hours and as often as may be
reasonably requested in writing; and
(b) Default - if a Default or Event of Default then exists, at
the expense of the Obligors and upon reasonable prior notice to visit
and inspect any of the offices or properties of the Obligors or any
Restricted Subsidiary, to examine all their respective books of
account, financial records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Obligors authorize said
accountants to discuss the affairs, finances and accounts of the
Obligors and their Subsidiaries), all at such reasonable times during
normal business hours and as often as may be reasonably requested in
writing; provided that all such meetings with independent public
accountants, a representative of the Obligors is entitled to, but need
not, be in attendance and that the holders shall use reasonable efforts
to provide notice to the Obligors and its Restricted Subsidiaries and
to coordinate their activities so as to not be unreasonably burdensome
to the Obligors and its Restricted Subsidiaries.
SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments. (a) The entire unpaid principal
amount of the DeVry Notes shall become due and payable on April 30, 2010.
(b) The entire unpaid principal amount of the GEI Notes shall become
due and payable on April 30, 2010.
Section 8.2. Optional Prepayments of the Notes with LIBOR Breakage
Amount. (a) Either Obligor may, at its option, upon notice as provided below,
prepay at any time on or after, but not before, the 1st annual anniversary
date of the Closing Date, all, or from time to time thereafter any part of,
the Notes issued by such Obligor, in an amount not less than $1,000,000 in the
case of a partial prepayment, at 100% of the principal amount so prepaid, plus
the LIBOR Breakage Amount (unless the date specified for prepayment is an
Interest Payment Date) and the Prepayment Premium, if any, determined for the
prepayment date with respect to such principal amount. The Obligor will give
each holder of Notes issued by such Obligor written notice of each optional
prepayment under this Section 8.2 not less than 15 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall
specify such date, the aggregate principal amount of the Notes issued by such
Obligor to be prepaid on such date, the principal amount of each such Note
held by such holder to be prepaid, and the interest to be paid on the
prepayment date with respect to such principal amount being prepaid, the
Prepayment Premium, if any, and shall state that the LIBOR Breakage Amount
will be payable if such prepayment is not on the next scheduled Interest
Payment Date and that such holder is required to calculate such amount and
submit such calculation in reasonable detail to such Obligor not less than two
Business Days prior to the date of prepayment.
(b) The term "LIBOR Breakage Amount" shall mean any loss, cost or
expense (other than lost profits) actually incurred by any holder of a Note as
a result of any payment or prepayment of any Note on a day other than a
regularly scheduled Interest Payment Date for such Note or at the scheduled
maturity (whether voluntary, mandatory, automatic, by reason of acceleration
or otherwise), and any loss or expense arising from the liquidation or
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained. Each holder shall determine the
LIBOR Breakage Amount with respect to the principal amount of its Notes then
being paid or prepaid (or required to be paid or prepaid) by written notice to
the Obligor that issued such Note setting forth such determination in
reasonable detail not less than two Business Days prior to the date of
prepayment in the case of any prepayment pursuant to Section 8.2(a) and not
less than one Business Day in the case of any payment required by
Section 12.1. Each such determination shall be presumptively correct absent
manifest error.
Section 8.3. Maturity; Surrender, etc. In the case of each
prepayment of Notes pursuant to this Section 8, the principal amount of each
Note to be prepaid shall mature and become due and payable on the date fixed
for such prepayment, together with interest on such principal amount accrued
to such date and the applicable LIBOR Breakage Amount, if any, and Prepayment
Premium, if any. From and after such date, unless the relevant Obligor shall
fail to pay such principal amount when so due and payable, together with the
interest and LIBOR Breakage Amount, if any, and Prepayment Premium, if any, as
aforesaid, interest on such principal amount shall cease to accrue. Any Note
paid or prepaid in full shall be surrendered to the respective Obligor and
cancelled and shall not be reissued, and no Note shall be issued in lieu of
any prepaid principal amount of any Note.
Section 8.4. Allocation of Partial Prepayments. All partial prepayments
of the DeVry Notes shall be applied on all outstanding DeVry Notes ratably in
accordance with the unpaid principal amounts thereof and all partial
prepayments of the GEI Notes shall be applied on all outstanding GEI Notes
ratably in accordance with the unpaid principal amounts thereof.
Section 8.5. Purchase of Notes. Neither Obligor will, nor will it permit
any Affiliate to, purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes issued by such Obligor except
(a) upon the payment or prepayment of the Notes issued by such Obligor in
accordance with the terms of this Agreement and such Notes, or (b) pursuant to
an offer to purchase made by an Obligor or an Affiliate pro rata to the
holders of all Notes issued by such Obligor at the time outstanding upon the
same terms and conditions. Each Obligor will promptly cancel all Notes
acquired by such Obligor or any Affiliate pursuant to any payment, prepayment
or purchase of Notes pursuant to any provision of this Agreement and no Notes
may be issued in substitution or exchange for any such Notes.
Section 8.6. Tax Indemnity. All payments whatsoever under the GEI Notes
will be made by GEI 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) Barbados 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 GEI pursuant to the terms
of the GEI Notes (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, GEI
will pay such additional amounts as may be necessary in order that the net
amounts paid to each holder pursuant to the terms of the GEI Notes 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 the GEI Notes; 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 holder (or between a
shareholder of, or possessor of a power over, such holder, if such
holder is an estate, trust, partnership or corporation, or any Person
other than the holder to whom the relevant GEI Note or any amount
payable thereon is attributable for the purposes of such Tax,
assessment or charge) and the Taxing Jurisdiction, other than the mere
holding of the relevant GEI Note;
(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 the GEI Notes, except that GEI 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
holder of a GEI Note and the Taxing Jurisdiction (or some other special
circumstance of the holder) is instead collected by such Taxing
Jurisdiction directly from such holder unless such Tax is of a nature
that is otherwise not subject to the payment of additional amounts
under this Section 8.6; 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 any GEI Note held by (x) any holder who is a
fiduciary or a partnership or a beneficial owner who 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 the holder of such GEI Note or (y) any holder who
is not a resident of the United States.
In connection with the transfer of any GEI Note, GEI will furnish the
transferee of such GEI Note with copies of all applicable forms then required.
GEI will also furnish the holders of the GEI Notes, 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 8.7. Repayment. If GEI has made a payment pursuant to this
Section 8.6 of additional amounts in respect of any GEI Notes, to the extent a
holder receives a tax credit or refund in respect of any payment made by GEI
on the GEI Notes which has the net effect of paying to such holder an amount
greater than the amounts due and payable on the GEI Notes which such holder
would have received in the absence of any payment being required under
Section 8.6, such holder agrees to repay to GEI reasonably promptly after the
receipt thereof by such holder such amount as will put the holder in no better
or worse position as such holder would have been in had no additional amount
been required to be paid pursuant to Section 8.6 (which determinations shall
be made by such holder in good faith).
SECTION 9. AFFIRMATIVE COVENANTS.
The Obligors jointly and severally covenant that so long as any of the
Notes are outstanding:
Section 9.1. Compliance with Law. (a) Each Obligor will, and will cause
each Restricted Subsidiary to, comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws and ERISA, and will obtain and maintain
in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to
the extent necessary to ensure that non-compliance with such laws, ordinances
or governmental rules or regulations or failures to obtain or maintain in
effect such licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Without limiting the generality of the provisions of
Section 9.1(a), DeVry will, and will cause (to the extent applicable) each
Restricted Subsidiary to, comply with (i) all laws, ordinances or governmental
rules or regulations, the violations of which would terminate or materially
impair the eligibility of DeVry or any Restricted Subsidiary for participation
(if applicable) in student financial assistance programs under Title IV,
(ii) the federal Truth-in-Lending Act, 15 U.S.C. S1601 et seq., and all other
consumer credit laws applicable to DeVry or any Restricted Subsidiary in
connection with the advancing of student loans, except for such laws,
ordinances or governmental rules or regulations the violation of which, in the
aggregate, will not result in the assessment of penalties and damages claims
against DeVry or any Restricted Subsidiary which could have a Material Adverse
Effect, (iii) all statutory and regulatory requirements for authorization to
provide post-secondary education in the jurisdictions in which its educational
facilities are located except for such requirements the violation of which
could not in the aggregate have a Material Adverse Effect, and (iv) if
applicable, all requirements for continuing its accreditation from the North
Central Association of Schools and Colleges except for such requirements the
violation of which could not in the aggregate have a Material Adverse Effect.
Section 9.2. Insurance. Each Obligor will, and will cause each Restricted
Subsidiary to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated.
Section 9.3. Maintenance of Properties. Each Obligor will, and will cause
each Restricted Subsidiary to, maintain and keep, or cause to be maintained
and kept, their respective properties in good repair, working order and
condition (other than ordinary wear and tear), so that the business carried on
in connection therewith may be properly conducted at all times, provided that
this Section shall not prevent any Obligor or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its business and such
Obligor or such Restricted Subsidiary has concluded that such discontinuance
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. Each Obligor will, and will
cause each Subsidiary to, file all Material Tax Returns required to be filed
in any jurisdiction and to pay and discharge all Taxes shown to be due and
payable on such returns and all other Taxes imposed on it or any of its
properties, assets, income or franchises, to the extent such Taxes have become
due and payable and before they have become delinquent and all claims for
which sums have become due and payable that have or might become a Lien on
properties or assets of such Obligor or any Subsidiary not permitted by
Section 10.3, provided that neither an Obligor nor any Subsidiary need pay any
such Tax or claims if (i) the amount, applicability or validity thereof is
contested by such Obligor or such Subsidiary on a timely basis in good faith
and in appropriate proceedings, and such Obligor or such Subsidiary has
established reserves therefore in accordance with GAAP, reasonably deemed by
it to be adequate, on the books of such Obligor or such Subsidiary with
respect thereto or (ii) the nonpayment of all such Taxes in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, etc. Subject to Section 10.5, each
Obligor will at all times preserve and keep in full force and effect its
corporate existence and will at all times preserve and keep in full force and
effect the corporate existence of each Restricted Subsidiary and all rights
and franchises of DeVry and such Restricted Subsidiary unless, in the good
faith judgment of DeVry, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 9.6. Additional Guarantors. Each Obligor will cause any Person
which is required by the terms of the Bank Agreement to become a party to the
Bank Agreement as an obligor thereunder or otherwise guarantee the
Indebtedness outstanding under the Bank Agreement, to execute and deliver a
Guaranty Joinder substantially in the form of Exhibit A to the applicable
Subsidiary Guaranty and deliver to each of the holders of the Notes
(concurrently with the incurrence of any such obligation pursuant to the Bank
Agreement), a certificate signed by the President, a Vice President or another
authorized Responsible Officer of such Person (or an authorized
attorney-in-fact of any such officer) making representations and warranties to
the effect of those contained in Sections 5.1, 5.2, 5.4, 5.6 and 5.7, with
respect to such Person and the Guaranty, as applicable.
Section 9.7. Designation of Subsidiaries. The Obligors may from time to
time cause any Restricted Subsidiary to be designated as an Unrestricted
Subsidiary or an Unrestricted Subsidiary to be designated as a Restricted
Subsidiary, provided, however, that, at the time of such designation and
immediately after giving effect thereto, (a) no Default or Event of Default
would exist under the terms of this Agreement, and (b) the Obligors and its
Restricted Subsidiaries would be in compliance with all of the covenants set
forth in this Section 9 and Section 10 if tested on the date of such action
and provided, further, that, once a Restricted Subsidiary has been designated
as an Unrestricted Subsidiary, it shall not thereafter be re-designated as a
Restricted Subsidiary on more than one occasion. Within ten (10) days
following any designation described above, the Obligors will deliver to each
holder of a Note a notice of such designation accompanied by a certificate
signed by a Senior Financial Officer of the Obligors certifying compliance
with all requirements of this Section 9.7 and setting forth all information
required in order to establish such compliance.
SECTION 10. NEGATIVE COVENANTS.
DeVry covenants that so long as any of the Notes are outstanding:
Section 10.1. Consolidated Debt; Priority Debt. (a) As of the end of each
fiscal quarter of DeVry, DeVry shall not permit the ratio of Consolidated Debt
to Adjusted Consolidated EBITDA as of such date to be greater than 3.0 to 1.0.
(b) DeVry shall not at any time permit Priority Debt to exceed 20% of
Consolidated Adjusted Net Worth.
Section 10.2. Consolidated Adjusted Net Worth. DeVry will not, at any time,
permit Consolidated Adjusted Net Worth to be less than the sum of
(a) $310,000,000, plus (b) an aggregate amount equal to 25% of Consolidated
Net Income (but, in each case, only if a positive number) for each completed
fiscal year beginning with the fiscal year ended June 30, 2003.
Section 10.3. Limitation on Liens. DeVry will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly create, incur,
assume or permit to exist (upon the happening of a contingency or otherwise)
any Lien on or with respect to any property or asset (including, without
limitation, any document or instrument in respect of goods or accounts
receivable) of DeVry or any such Restricted Subsidiary, whether now owned or
held or hereafter acquired, or any income or profits therefrom, or assign or
otherwise convey any right to receive income or profits, except:
(a) Liens for Taxes which are not yet due and payable or
payment of which is not at the time required by Section 9.4;
(b) any attachment or judgment Lien, unless the judgment it
secures (i) shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after the expiration of any such stay (or
such lesser period to time as applicable law allows a judgment creditor
to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due
and payable or the payment of which is not at the time required by
Section 9.4;
(d) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (i) in connection with
workers' compensation, unemployment insurance and other types of social
security or retirement benefits, or (ii) to secure (or to obtain letters
of credit that secure) the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other than
Capital Leases), performance bonds, purchase, construction or sales
contracts and other similar obligations, in each case not incurred or
made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property;
(e) Liens on property or assets of Restricted Subsidiaries
securing Debt owing to any Obligor or to any of its Restricted
Subsidiaries;
(f) the Lien of the Pledge and Intercreditor Agreement with
respect to the collateral referred to therein and such other collateral
as may be subjected thereto for the equal and ratable benefit of the
holders of Notes and the Banks (and such other Persons as may from time
to time be party to the Pledge and Intercreditor Agreement);
(g) Liens existing on the date of this Agreement and securing
the Debt of DeVry and its Restricted Subsidiaries referred to in
Schedule 10.3;
(h) Liens incidental to minor survey exceptions and similar
Liens on property of DeVry and its Restricted Subsidiaries, provided
that such Liens do not, in the aggregate, Materially detract from the
value of such property;
(i) leases or subleases granted to others, easements, rights-of-
way, restrictions and other similar charges or encumbrances, in each
case incidental to, and not interfering with, the ordinary conduct of
the business of DeVry or any of its Restricted Subsidiaries, provided
that such Liens do not, in the aggregate, materially detract from the
value of such property;
(j) any Lien existing (i) on property at the time such property
is acquired or completion or construction and not created in
contemplation thereof; (ii) on property created contemporaneously with
its acquisition or within 365 days of the acquisition or completion or
construction or improvement thereof to secure the purchase price or cost
of construction or improvement thereof; or (iii) existing on property of
a Person at the time such Person is consolidated with or merged into any
Obligor or a Restricted Subsidiary and not created in contemplation
thereof; provided that (i) no such Lien shall have been created or
assumed in contemplation of such consolidation or merger or such
Person's becoming a Restricted Subsidiary or such acquisition of
property, (ii) each such Lien shall extend solely to the item or items
of property so acquired, and (iii) the aggregate principal amount of all
Debt secured by any such Lien at the time such Lien is granted shall not
exceed the lesser of (y) the cost of the acquisition, or (z) the Fair
Market Value of such property (as determined in good faith by one or
more officers of the Obligors to whom authority to enter into the
transaction has been delegated by the boards of directors of such
Obligors);
(k) Liens on stock of Unrestricted Subsidiaries securing Debt of
an Unrestricted Subsidiary, provided that DeVry or such Restricted
Subsidiary granting such Lien has no liability for such Debt;
(l) Liens on cash held in trust for 30 days following the sale
of Stafford Loans originated under the Stafford Loan Program to secure
fees and the repurchase obligations of DeVry and its Restricted
Subsidiaries for Stafford Loans made in violation of such Stafford Loan
Program;
(m) any Lien renewing, extending or refunding any Lien permitted
by subparagraphs (e), (g), (j) or (k) of this Section 10.3, provided
that (i) the principal amount of Debt secured by such Lien immediately
prior to such extension, renewal or refunding is not increased or the
maturity thereof reduced, (ii) such Lien is not extended to any other
property, and (iii) immediately after such extension, renewal or
refunding no Default or Event of Default would exist; or
(n) in addition to the Liens permitted above, any Lien securing
Priority Debt, provided that such Priority Debt is permitted by
Section 10.1(b).
Section 10.4. Sales of Assets. The Obligors will not, and will not permit
any Restricted Subsidiary to, sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of the DeVry and its
Restricted Subsidiaries; provided, however, that any Obligor or any Restricted
Subsidiary may sell, lease or otherwise dispose of assets constituting a
substantial part of the assets of the Obligors and their Restricted
Subsidiaries if such assets are sold in an arms length transaction and, at
such time and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing and an amount equal to the Net Proceeds
received from such sale, lease or other disposition shall be used within 365
days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on
the business of the Obligors and their Restricted Subsidiaries and
having a value at least equal to the value of such assets sold, leased
or otherwise disposed of; and/or
(2) to prepay or retire Senior Debt of the Obligors and/or its
Restricted Subsidiaries.
If any prepayment of DeVry Notes or GEI Notes are made pursuant to this
Section 10.4, such prepayment shall be made by DeVry or GEI, or both, in
accordance with the provisions of Section 8.2 hereof.
As used in this Section 10.4, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of DeVry and
its Restricted Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by
DeVry and its Restricted Subsidiaries during the period of 12 consecutive
months ending on the date of such sale, lease or other disposition, exceeds
15% of the book value of Consolidated Total Assets, determined as of the end
of the fiscal year immediately preceding such sale, lease or other
disposition; provided that there shall be excluded from any determination of a
"substantial part" any (i) sale or disposition of assets in the ordinary
course of business of DeVry and its Restricted Subsidiaries, (ii) any
transfer of assets from any Obligor to any Restricted Subsidiary or from any
Restricted Subsidiary to any Obligor or another Restricted Subsidiary, and
(iii) any Excluded Sale and Leaseback Transaction.
Section 10.5. Merger and Consolidation . The Obligors will not, and will
not permit any of their Restricted Subsidiaries to, consolidate with or merge
with any other corporation or convey, transfer or lease substantially all of
its assets in a single transaction or series of transactions to any Person;
provided that:
(1) a Restricted Subsidiary of the Obligors may consolidate with
or merge with, or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to, the
Obligors or another Restricted Subsidiary so long as in any merger or
consolidation involving any Obligor,such Obligor shall be the surviving
or continuing corporation (and in any merger or consolidation involving
DeVry and GEI, DeVry shall be the surviving or continuing corporation);
provided that immediately before, and immediately after giving effect
to, each such transaction, no Default or Event of Default would exist;
and
(2) the foregoing restriction does not apply to the
consolidation or merger of any Obligor with,or the conveyance, transfer
or lease of substantially all of the assets of such Obligor in a single
transaction or series of transactions to, any Person so long as such
Obligor is the surviving corporation, or, if such Obligor is not the
surviving corporation:
(a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of any Obligor
as an entirety, as the case may be, shall be a solvent corporation
organized and, in the case of DeVry, existing under the laws of
the United States of America, any State thereof or the District of
Columbia, and, in the case of GEI, existing under the laws of
Barbados or a jurisdiction acceptable to the GEI Required Holders;
(b) such surviving corporation shall have executed and
delivered to each holder of Notes issued by such Obligor its
assumption of the due and punctual performance and observance of
each covenant and condition of this Agreement and the Notes issued
by such Obligor and the other Operative Agreements (pursuant to
such agreements and instruments as shall be reasonably
satisfactory to the Required Holders, in the case of a transaction
(or series of transactions) involving DeVry, and the GEI Required
Holders in the case of a transaction (or series of transactions)
involving GEI), and such surviving corporation shall have caused
to be delivered to each holder of Notes issued by such Obligor an
opinion of nationally recognized independent counsel, to the
effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and
comply with the terms hereof;
(c) in the case of a transaction (or series of
transactions) involving GEI, (1) such successor or surviving
corporation shall be a Restricted Subsidiary, and (2) DeVry shall
ratify in writing that the DeVry Guaranty is in full force and
effect after giving effect to such transaction or series of
transactions; and
(d) immediately after giving effect to such transaction no
Default or Event of Default would exist.
Section 10.6. Nature of Business. Neither any Obligor nor any Restricted
Subsidiary will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Obligors and their Restricted Subsidiaries would be substantially changed
from the general nature of the business engaged in by the Obligors and their
Restricted Subsidiaries on the date of this Agreement.
Section 10.7. Transactions with Affiliates. The Obligors will not, and
will not permit any Restricted Subsidiary to, enter into, directly or
indirectly, any transaction or group of related transactions with any
Affiliate (other than an Obligor or another Restricted Subsidiary) which,
individually or in the aggregate, are Material (including without limitation
the purchase, lease, sale or exchange of properties of any kind or the
rendering of any service), except in the ordinary course and pursuant to the
reasonable requirements of the Obligor's or such Restricted Subsidiary's
business and upon fair and reasonable terms no less favorable to the Obligors
or such Restricted Subsidiary than would be obtainable in a comparable arm's-
length transaction with a Person not an Affiliate.
Section 10.8. Post Closing Items. Within 45 days after the Closing Date,
GEI will furnish to the Holders of GEI Notes, opinions of local counsel in the
jurisdictions of Dominica, St. Kitts and St. Lucia with respect to the
perfection and validity of the pledge of capital stock of certain Offshore
Subsidiaries, which opinions shall be in form and substance satisfactory to
such Holders and their special counsel.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) any Obligor defaults in the payment of any principal,
Prepayment Premium or LIBOR Breakage Amount, if any, on any Note when
the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise; or
(b) any Obligor defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) any Obligor defaults in the performance of or compliance
with any term contained in Section 10; or
(d) any Obligor defaults in the performance of or compliance
with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) any Obligor
receiving written notice of such default from any holder of a Note (any
such written notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on
behalf of any Obligor or any Subsidiary Guarantor or by any officer of
any Obligor or any Subsidiary Guarantor in this Agreement or in any
other Operative Agreement or in any writing furnished in connection
with the transactions contemplated hereby or thereby proves to have
been false or incorrect in any material respect on the date as of which
made; or
(f) (i) any Obligor or any Restricted Subsidiary is in default
(as principal or as guarantor or other surety) in the payment of any
principal of or premium or interest on any Debt that is outstanding in
an aggregate principal amount greater than 5% of Consolidated Adjusted
Net Worth beyond any period of grace provided with respect thereto, or
(ii) any Obligor or any Restricted Subsidiary is in default in the
performance of or compliance with any term of any evidence of any Debt
with aggregate principal amount exceeding 5% of Consolidated Adjusted
Net Worth or of any mortgage, indenture or other agreement relating
thereto or any other condition exists, and as a consequence such Debt
has become or has been declared due and payable, or (iii) as a
consequence of the occurrence or continuation of any event or condition
(other than the passage of time or the right of the holder of Debt of
such Person to convert such Debt into equity interests in such Person),
any Obligor or any Restricted Subsidiary has become obligated to
purchase or repay Debt before its regular maturity or before its
regularly scheduled dates of payment in an aggregate principal amount
exceeding 5% of Consolidated Adjusted Net Worth; or
(g) any Obligor or any Material Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of
the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by any Obligor or any
Material Subsidiary, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief
or approving a petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of any Obligor or any Material
Subsidiary, or any such petition shall be filed against any Obligor or
any Material Subsidiary and such petition shall not be dismissed within
60 days; or
(i) a final judgment or judgments for the payment of money
aggregating an amount equal to at least 5% of Consolidated Adjusted Net
Worth are rendered against one or more of the Obligors or any of their
Restricted Subsidiaries and which judgment or judgments are not, within
60 days after entry thereof, bonded,discharged or stayed pending appeal
(or such lesser period of time as applicable law or rules of court
allow a judgment creditor to levy on such judgments), or are not
discharged
within 60 days after the expiration of such stay (or such lesser period
of time as applicable law or rules of court allow a judgment creditor
to levy on such judgments); or
(j) default shall occur in the observance or performance of any
covenant or agreement contained in any other Operative Agreement and
continuance of such default after the expiration of any grace or cure
period provided for therein; or
(k) the DeVry Guaranty or any Subsidiary Guaranty ceases to be a
legally valid, binding and enforceable obligation or contract of DeVry
or a Subsidiary Guarantor, as the case may be, or the Lien intended to
be created by the Pledge and Intercreditor Agreement ceases to be or is
not a valid first priority perfected Lien, or any Obligor or any
Subsidiary Guarantor or any party by, through or on account of any such
Person, challenges the validity, binding nature or enforceability of
the DeVry Guaranty or any such Subsidiary Guaranty or such Lien; or
(l) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii)a notice of intent
to terminate any Plan shall have been or is reasonably expected to be
filed with the PBGC or the PBGC shall have instituted proceedings under
ERISA section 4042 to terminate or appoint a trustee to administer any
Plan or the PBGC shall have notified any Obligor or any ERISA Affiliate
that a Plan may become a subject of any such proceedings, (iii) the
aggregate "amount of unfunded benefit liabilities" (within the meaning
of section 4001(a)(18) of ERISA) under all Plans, determined in
accordance with Title IV of ERISA, shall exceed an amount equal to 5%
of Consolidated Adjusted Net Worth, (iv) any Obligor or any ERISA
Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, (v) any
Obligor or any ERISA Affiliate withdraws from any Multiemployer Plan,
or (vi) any Obligor or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Obligors
or any Subsidiary thereunder; and any such event or events described in
clauses (i) through (vi) above, either individually or together with
any other such event or events, could reasonably be expected to have a
Material Adverse Effect.
As used in Section 11(l), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect to any
Obligor described in paragraph (g) or (h) of Section 11 has occurred, all the
Notes then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 50% of the outstanding principal amount of the
Notes at the time outstanding may at any time at its or their option, by
notice or notices to any Obligor, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any holder or holders of Notes at
the time outstanding affected by such Event of Default may at any time, at its
or their option, by notice or notices to any Obligor, declare all the Notes
held by it or them to be immediately due and payable.
Upon any Note's becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Note will forthwith mature and
the entire unpaid principal amount of such Note, plus (x) all accrued and
unpaid interest thereon together with any LIBOR Breakage Amount and (y) the
Prepayment Premium determined in respect of such principal amount (to the full
extent permitted by applicable law), shall all be immediately due and payable,
in each and every case without presentment, demand, protest or further notice,
all of which are hereby waived. The Obligors acknowledge, and the parties
hereto agree, that each holder of a Note has the right to maintain its
investment in the Notes free from repayment by the Obligors (except as herein
specifically provided for), and that the provision for payment of a Prepayment
Premium by the Obligors in the event that the Notes are prepaid or are
accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become
or have been declared immediately due and payable under Section 12.1, the
holder of any Note at the time outstanding may proceed to protect and enforce
the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or (c) of Section 12.1, the holder or
holders of more than 50% in aggregate principal amount of the Notes then
outstanding, by written notice to the Obligors, may rescind and annul any such
declaration and its consequences if (a) the Obligors have paid all overdue
interest on the Notes, all principal of and Prepayment Premium, if any, on any
Notes that are due and payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal at the Default Rate
and any LIBOR Breakage Amount, (b) all Events of Default and Defaults, other
than non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and
(c) no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this
Section 12.3 will extend to or affect any subsequent Event of Default or
Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, etc. No course
of dealing and no delay on the part of any holder of any Note in exercising
any right, power or remedy shall operate as a waiver thereof or otherwise
prejudice such holder's rights, powers or remedies. No right, power or remedy
conferred by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Obligors under Section 15, the
Obligors will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. Each Obligor shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes it issued. The name and address of each holder of one or
more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due
presentment for registration of transfer, the Person in whose name any Note
shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Obligors shall not be affected by any
notice or knowledge to the contrary. The Obligors shall give to any holder of
a Note that is an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note
at the principal executive office of such Obligor for registration of transfer
or exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by
the registered holder of such Note or its attorney duly authorized in writing
and accompanied by the address for notices of each transferee of such Note or
part thereof), such Obligor shall execute and deliver, at such Obligor's
expense (except as provided below), one or more new Notes (as requested by the
holder thereof) in exchange therefor, in an aggregate principal amount equal
to the unpaid principal amount of the surrendered Note. Each such new Note
shall be payable to such Person as such holder may request and shall be
substantially in the form of Exhibit 1. Each such new Note shall be dated and
bear interest from the date to which interest shall have been paid on the
surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. Any Obligor may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations
of less than $500,000, provided that if necessary to enable the registration
of transfer by a holder of its entire holding of Notes, one Note may be in a
denomination of less than $500,000. Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to
have made the representation set forth in Section 6.2, provided that such
holder may (in reliance upon information provided by the Obligors, which shall
not be unreasonably withheld) make a representation to the effect that the
purchase by such holder of any Note will not constitute a non-exempt
prohibited transaction under Section 406(a) of ERISA.
Section 13.3. Replacement of Notes. Upon receipt by any Obligor of
evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of any Note issued by such Obligor (which
evidence shall be, in the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft, destruction or
mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to them (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or another holder
of a Note with a net worth of at least $50,000,000, such Person's own
unsecured agreement of indemnity shall be deemed to be satisfactory),
or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
such Obligor at its own expense shall execute and deliver, in lieu thereof, a
new Note, dated and bearing interest from the date to which interest shall
have been paid on such lost, stolen, destroyed or mutilated Note or dated the
date of such lost, stolen, destroyed or mutilated Note if no interest shall
have been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Prepayment Premium, if any, and interest and any LIBOR Breakage
Amount becoming due and payable on the Notes shall be made in New York, New
York at the principal office of Bank of America, N.A. in New York, NY. The
Obligors may at any time, by notice to each holder of a Note, change the
place of payment of the Notes so long as such place of payment shall be either
the principal office of an Obligor in such jurisdiction or the principal
office of a bank or trust company in such jurisdiction.
Section 14.2. Home Office Payment. So long as any Purchaser or its nominee
shall be the holder of any Note, and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Obligors will pay all sums
becoming due on such Note for principal, Prepayment Premium, if any, and
interest and LIBOR Breakage Amount by the method and at the address specified
for such purpose below its name in Schedule A, or by such other method or at
such other address as such Purchaser shall have from time to time specified to
the Obligors in writing for such purpose, without the presentation or
surrender of such Note or the making of any notation thereon, except that upon
written request of the Obligors made concurrently with or reasonably promptly
after payment or prepayment in full of any Note, such Purchaser shall
surrender such Note for cancellation, reasonably promptly after any such
request, to the Obligors at their principal executive office or at the place
of payment most recently designated by the Obligors pursuant to Section 14.1.
Prior to any sale or other disposition of any Note held by a Purchaser or its
nominee, such Purchaser will, at its election, either endorse thereon the
amount of principal paid thereon and the last date to which interest has been
paid thereon or surrender such Note to the relevant Obligor in exchange for a
new Note or Notes pursuant to Section 13.2. The Obligors will afford the
benefits of this Section 14.2 to any Institutional Investor that is the direct
or indirect transferee of any Note purchased by any Purchaser under this
Agreement and that has made the same agreement relating to such Note as such
Purchaser have made in this Section 14.2.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Obligors will pay all reasonable
costs and expenses (including reasonable attorneys' fees of one special
counsel and, if reasonably required, local or other counsel) incurred by each
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of
this Agreement, any other Operative Agreement or the Notes (whether or not
such amendment, waiver or consent becomes effective), including, without
limitation: (a) the reasonable costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights
under this Agreement, any other Operative Agreements or the Notes or in
responding to any subpoena or other legal process or informal investigative
demand by any Governmental Authority issued in connection with this Agreement,
any other Operative Agreement or the Notes, or by reason of being a holder of
any Note, and (b) the reasonable costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of
any Obligor or any Restricted Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by the Notes. The
Obligors will pay, and will save the Purchasers and each other holder of a
Note harmless from, all claims in respect of any reasonable fees, costs or
expenses, if any, of brokers and finders (other than those retained by the
Purchasers).
Section 15.2. Survival. The obligations of the Obligors under this
Section 15 will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement, any other Operative
Agreement or the Notes, and the termination of this Agreement and any of the
Operative Agreements.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or
transfer by any Purchaser of any Note or portion thereof or interest therein
and the payment of any Note, and may be relied upon by any subsequent holder
of a Note, regardless of any investigation made at any time by or on behalf of
such Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of any Obligor
pursuant to this Agreement shall be deemed representations and warranties of
the Obligors under this Agreement. Subject to the preceding sentence, this
Agreement, the Pledge and Intercreditor Agreement and the Notes embody the
entire agreement and understanding between the Purchasers and the Obligors and
supersede all prior agreements and understandings relating to the subject
matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. (a) This Agreement and the Notes may be
amended, and the observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the written
consent of the Obligors and the Required Holders, except that (a) no amendment
or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof,
or any defined term (as it is used therein), will be effective as to any
Purchaser unless consented to by such Purchaser in writing, and (b) no such
amendment or waiver may, without the written consent of the holder of each
Note at the time outstanding affected thereby, (i) subject to the provisions
of Section 12 relating to acceleration or rescission, change the amount or
time of any prepayment or payment of principal of, or reduce the rate or
change the time of payment or method of computation of interest or of the
Prepayment Premium on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such
amendment or waiver, or (iii) amend any of Section 8, 11(a), 11(b), 12, 17 or
20.
(b) The DeVry Guaranty or the Offshore Subsidiary Guaranty may be
amended, and the observance of any term thereof may be waived (either
retroactively or prospectively), with (and only with) the written consent of
DeVry, in the case of the DeVry Guaranty, and the Offshore Subsidiary
Guarantors, in the case of the Offshore Subsidiary Guaranty, and the GEI
Required Holders, except that (1) no amendment or waiver of any of the
provisions of Section 2, 3 or 4 of the DeVry Guaranty or the Offshore
Subsidiary Guaranty, or any defined term (as it is used therein), will be
effective as to any Holder of the GEI Notes unless consented to by such Holder
in writing, and (2) no such amendment or waiver may, without the written
consent of each Holder of the GEI Notes, change the percentage of the
principal amount of the GEI Notes the Holders of which are required to consent
to any such amendment or waiver.
(c) The U.S. Subsidiary Guaranty may be amended, and the observance of
any term thereof may be waived (either retroactively or prospectively), with
(and only with) the written consent of the U.S. Subsidiary Guarantors and the
Required Holders, except that (1) no amendment or waiver of any of the
provisions of Section 2, 3 or 4 of the U.S. Subsidiary Guaranty, or any
defined term (as it is used therein), will be effective as to any Holder of
any Notes unless consented to by such Holder in writing, and (2) no such
amendment or waiver may, without the written consent of each Holder of any
Notes, change the percentage of the principal amount of the Notes the Holders
of which are required to consent to any such amendment or waiver.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Obligors will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required,
to enable such holder to make an informed and considered decision with respect
to any proposed amendment, waiver or consent in respect of any of the
provisions hereof, any Operative Agreement or of the Notes. The Obligors will
deliver executed or true and correct copies of each amendment, waiver or
consent effected pursuant to the provisions of this Section 17 to each holder
of outstanding Notes promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite holders of
Notes.
(b) Payment. No Obligor will directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes of any waiver or amendment of any of the terms and provisions hereof or
any Operative Agreement unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such waiver or
amendment.
Section 17.3. Binding Effect, etc. Any amendment or waiver consented to as
provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the
Obligors without regard to whether such Note has been marked to indicate such
amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course of
dealing between the Obligors and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any holder of such Note. As used herein, the term "this
Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4. Notes Held by Obligors, etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by any Obligor or any of its Affiliates shall be deemed not
to be outstanding.
SECTION 18. 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 registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or its
nominee at the address specified for such communications in Schedule A,
or at such other address as such Purchaser or its nominee shall have
specified to the Obligors in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Obligors in
writing, or
(iii) if to the Obligors, to the Obligors at their address set
forth at the beginning hereof to the attention of Chief Financial
Officer, or at such other address as the Obligors shall have specified
to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually
received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by the Purchasers at the Closing (except the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to the Purchasers, may be
reproduced by the Purchasers by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and the Purchasers
may destroy any original document so reproduced. Each Obligor agrees and
stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Purchasers in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
This Section 19 shall not prohibit any Obligor or any other holder of Notes
from contesting any such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate the inaccuracy of
any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of any Obligor or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement, provided that such term does not include
information that (a) was publicly known or otherwise known to any Purchaser
prior to the time of such disclosure, (b) subsequently becomes publicly known
through no act or omission by such Purchaser or any Person acting on its
behalf, (c) otherwise becomes known to such Purchaser other than through
disclosure by such Obligor or any Subsidiary or (d) constitutes financial
statements delivered to such Purchaser under Section 7.1 that are otherwise
publicly available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such
Purchaser in good faith to protect confidential information of third parties
delivered to such Purchaser, provided that such Purchaser may deliver or
disclose Confidential Information to (i) its directors, officers, employees,
agents, attorneys and affiliates (to the extent such disclosure reasonably
relates to the administration of the investment represented by its Notes),
(ii) its financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which such Purchaser sells or offers to sell such
Note or any part thereof or any participation therein (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (v) any Person from which such
Purchaser offers to purchase any security of any Obligor (if such Person has
agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over any Purchaser, (vii) the
National Association of Insurance Commissioners or any similar organization,
or any nationally recognized rating agency that requires access to information
about its investment portfolio or (viii) any other Person to which such
delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to such
Purchaser, (x) in response to any subpoena or other legal process, (y) in
connection with any litigation to which such Purchaser is a party or (z) if an
Event of Default has occurred and is continuing, to the extent such Purchaser
may reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and
remedies under its Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 20 as though it were a party to this
Agreement. On reasonable request by any Obligor in connection with the
delivery to any holder of a Note of information required to be delivered to
such holder under this Agreement or requested by such holder (other than a
holder that is a party to this Agreement or its nominee), such holder will
enter into an agreement with the Obligors embodying the provisions of this
Section 20.
SECTION 21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its
Affiliates as the purchaser of the Notes that it has agreed to purchase
hereunder, by written notice to the Obligors, which notice shall be signed by
such Purchaser and such Affiliate, shall contain such Affiliate's agreement to
be bound by this Agreement and shall contain a confirmation by such Affiliate
of the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word "Purchaser" is used
in this Agreement (other than in this Section 21), such word shall be deemed
to refer to such Affiliate in lieu of such Purchaser. In the event that such
Affiliate is so substituted as a purchaser hereunder and such Affiliate
thereafter transfers to such Purchaser all of the Notes then held by such
Affiliate, upon receipt by the Obligors of notice of such transfer, wherever
the word "Purchaser" is used in this Agreement (other than in this
Section 21), such word shall no longer be deemed to refer to such Affiliate,
but shall refer to such Purchaser, and such Purchaser shall have all the
rights of an original holder of the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 22.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or Prepayment Premium or interest or LIBOR Breakage Amount on any
Note that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement 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.
Section 22.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the express
requirements of this Agreement.
Section 22.5. Counterparts. This Agreement 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.
Section 22.6. Governing Law. This Agreement 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 excluding choice-of-law principles of the
law of such State that would require the application of the laws of a
jurisdiction other than such State.
Section 22.7. Consent to Jurisdiction; Service of Process; Judgement
Currency; Waiver of Jury Trial. (a) GEI irrevocably submits to the
nonexclusive in personam jurisdiction of any New York State or federal court
sitting in New York City, over any suit, action or proceeding arising out of
or relating to this Agreement or the GEI Notes. To the fullest extent it may
effectively do so under applicable law, GEI 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) GEI 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 22.7 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) GEI consents to process being served in any suit, action or
proceeding of the nature referred to in paragraph (a) of this Section 22.7 by
mailing a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to the address of GEI specified in Section 18 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 22.8. GEI 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 22.7 shall affect the right of any holder
of GEI Notes to serve process in any manner permitted by law, or limit any
right that the holders of any of the GEI Notes may have to bring proceedings
against GEI 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) Any payment on account of an amount that is payable hereunder or
under the GEI Notes by GEI in United States Dollars which is made to or for
the account of any holder of GEI Notes in currency of any other jurisdiction,
or in the lawful currency of any other country, whether as a result of any
judgment or order or the enforcement thereof or the realization of any
security or the liquidation of such party, shall constitute a discharge of
such party's obligation under this Agreement or the GEI Notes only to the
extent of the amount of United States Dollars which such holder could purchase
in the foreign exchange markets with the amount of the currency of such other
jurisdiction, or other currency, as the case may be, in accordance with normal
banking procedures at the rate of exchange prevailing on the Business Day
following receipt of the payment first referred to above. If the amount of
United States Dollars that could be so purchased is less than the amount of
United States Dollars originally due to such holder, GEI agrees, to the full
extent permitted by law, to indemnify and save harmless such holder from and
against all loss or damage arising out of or as a result of such deficiency.
This indemnity shall, to the fullest extent permitted by law, constitute an
obligation separate and independent from the other obligations contained in
this Agreement and the GEI Notes, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence
granted by such holder from time to time and, shall continue in full force and
effect notwithstanding any judgment or order for a liquidated sum in respect
of an amount due hereunder or the GEI Notes or under any judgment or order.
(f) GEI waives trial by jury in any action brought on or with respect
to this Agreement, the Subsidiary Guaranty Agreement or the GEI Notes or any
other document executed in connection herewith or therewith.
Section 22.8. Service of Process Upon Agent. GEI hereby irrevocably
designates, appoints and empowers DeVry, and successors as the designee,
appointee and agent of GEI to receive, accept and acknowledge, for and on
behalf of GEI and its properties, service of any and all legal process,
summons, notices and documents which may be served in such action, suit or
proceeding relating to this Agreement or the Notes in any Federal or New York
State court sitting 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. GEI agrees to take any and all action necessary to continue
such designation in full force and effect and should such designee, appointee
and agent become unavailable for this purpose for any reason, GEI will
forthwith irrevocably designate a new designee, appointee and agent, which
shall irrevocably agree to act as such, with the powers and for purposes
specified in this Section 22.8. GEI further irrevocably consents and agrees to
service of any and all legal process, summons, notices and documents out of
any of the aforesaid courts in any such action, suit or proceeding relating to
the GEI Notes or this Agreement delivered to GEI in accordance with this
Section 22.8 or to its then designee, appointee or agent for service. If
service is made upon such designee, appointee and agent, a copy of such
process, summons, notice or document shall also be provided to GEI at the
address specified in Section 18 by registered or certified mail, or overnight
express air courier; provided that failure of such holder to provide such copy
to GEI shall not impair or affect in any way the validity of such service or
any judgment rendered in such action or proceedings. GEI agrees that service
upon GEI or any such designee, appointee and agent as provided for herein
shall constitute valid and effective personal service upon GEI with respect to
matters contemplated in this Section 22.8 and that the failure of any such
designee, appointee and agent to give any notice of such service to GEI shall
not impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon. Nothing herein shall, or
shall be construed so as to, limit the right of the holders of GEI Notes to
bring actions, suits or proceedings with respect to the obligations and
liabilities of GEI under, or any other matter arising out of or in connection
with, this Agreement, or for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding, in the courts of whatever
jurisdiction in which the respective offices of the holders of the GEI Notes
may be located or assets of GEI may be found or as otherwise shall to the
holders of the GEI Notes seem appropriate, or to affect the right to service
of process in any jurisdiction in any other manner permitted by law.
Section 22.9. Obligations of DeVry. Notwithstanding anything contained
herein or in the other Operative Agreements, in no event shall GEI or any
Offshore Guarantor be liable for any of the Obligations of DeVry.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to
the Obligors, whereupon the foregoing shall become a binding agreement between
you and the Obligors.
Very truly yours,
DEVRY INC.
By
Name:
Title:
GLOBAL EDUCATION INTERNATIONAL, INC.
By
Name:
Title:
The foregoing is hereby agreed
to as of the date thereof.
[VARIATION]
By
Name:
Title:
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
SUNAMERICA LIFE INSURANCE
COMPANY $15,000,000 $0
c/o AIG Global Investment Corporation
P. O. Box 3247
Houston, Texas 77253-3247
Attention: Private Placement Department, A36-04
Facsimile Number: (713) 831-1072
Overnight Mailing Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest) to:
ABA #021-001-033
Bankers Trust Company
New York, N.Y.
Re: SunAmerica Life Insurance Company
Account Number: 99-911-145
For further credit to account #099530
OBI=PPN# and description of payment
P $____________, I $__________
Notices
All notices of payment on or in respect of the Notes and written confirmation
of each such payment, to be addressed to:
Deutsche Bank
Attn: James Germain
648 Grassmere Business Park, MS 7204
Nashville, Tennessee 37211
Phone: (615) 835-2465
Fax: (615) 835-2493
All other notices and communications including monthly reports to be addressed
as first provided above with a copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, Texas 77019-2155
Facsimile Number: (713) 831-2328
Name of Nominee in which Notes are to be issued: OKGBD
& Co.
Taxpayer I.D. Number for OKGBD & Co.: 13-3020293
Taxpayer I.D. Number for SunAmerica Life Insurance Company: 52-0502540
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
AIG SUNAMERICA LIFE ASSURANCE $0 $10,000,000
COMPANY
c/o AIG Global Investment Corporation
P. O. Box 3247
Houston, Texas 77253-3247
Attention: Private Placement Department, A36-04
Facsimile Number: (713) 831-1072
Overnight Mailing Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Global Education International, Inc., Floating Rate Senior Notes, Series B,
due April 30, 2010, PPN P4764* AA 9", principal, premium or interest) to:
ABA #021-001-033
Bankers Trust Company
New York, N.Y.
Re: AIG SunAmerica Life Assurance Company
Account Number: 99-911-145
For further credit to account #099527
OBI=PPN# and description of payment
P $____________, I $__________
Notices
All notices of payment on or in respect of the Notes and written confirmation
of each such payment, to be addressed to:
Deutsche Bank
Attn: James Germain
648 Grassmere Business Park, MS 7204
Nashville, Tennessee 37211
Phone: (615) 835-2465
Fax: (615) 835-2493
All other notices and communications including monthly reports to be addressed
as first provided above with a copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, Texas 77019-2155
Facsimile Number: (713) 831-2328
Name of Nominee in which Notes are to be issued: OKGBD
& Co.
Taxpayer I.D. Number for OKGBD & Co.: 13-3020293
Taxpayer I.D. Number for AIG SunAmerica Life Assurance Company: 86-0198983
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
ALLSTATE LIFE INSURANCE $13,200,000 $8,800,000
COMPANY
3075 Sanders Road, STE G5D
Northbrook, Illinois 60062-7127
Attention: Private Placements Department
Telephone Number: (847) 402-7117
Telecopier Number: (847) 402-3092
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = DeVry Inc, Floating Rate Senior Notes, Series A, due April 30,
2010 and
Global Education International, Inc., Floating Rate Senior
Notes,
Series B, due April 30, 2010
OBI = DPP - (Enter Private Placement Number, if available)
Payment Due Date (MM/DD/YY) - P ______ (Enter "P" and the
amount of principal being remitted, for example, P5000000.00) -
I ______ (Enter "I" and the amount of interest being remitted,
for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such
payment, to be addressed:
Allstate Insurance Company
Investment Operations-Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-6672 Private Placements
Telecopy: (847) 326-7032
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-2554642
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
JOHN HANCOCK LIFE INSURANCE $8,250,000 $5,500,000
COMPANY $3,000,000 $2,000,000
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, not later than 12 noon, Boston
time, (identifying each payment as "DeVry Inc., Floating Rate Senior Notes,
Series A, due April 30, 2010, PPN 251893 A* 4", principal, premium or interest
and/or as "Global Education International, Inc., Floating Rate Senior Notes,
Series B, due April 30, 2010, PPN P4764* AA 9", principal, premium or
interest) to:
Fleet Boston
ABA #011000138
Boston, Massachusetts 02110
Account of: John Hancock Life Insurance Company
Private Placement Collection Account
Account No.: 00541-55417
On Order of: DeVry Inc, Floating Rate Senior Notes, Series A, due
April 30, 2010 and
Global Education International, Inc., Floating Rate
Senior Notes,
Series B, due April 30, 2010
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the
full name, interest rate and maturity date of the Notes or other obligations;
(2) allocation of payment between principal and interest and any special
payment; and (3) name and address of Bank (or Trustee) from which wire
transfer was sent, shall be faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Accounting Division, B-3
Fax: (617) 572-0628
and
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: S. Daye/K. Boyce, T-57
Fax: (617) 572-5495
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall also be faxed and
mailed as set forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
A copy of any notices relating to change in issuer's name, address or
principal place of business or location of collateral and a copy of any legal
opinions shall be faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Law Division, T-30
Fax: (617) 572-9269
Name in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1414660
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
JOHN HANCOCK VARIABLE LIFE $1,750,000 $1,170,000
INSURANCE COMPANY
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, not later than 12 noon, Boston
time, (identifying each payment as "DeVry Inc., Floating Rate Senior Notes,
Series A, due April 30, 2010, PPN 251893 A* 4", principal, premium or interest
and/or as "Global Education International, Inc., Floating Rate Senior Notes,
Series B, due April 30, 2010, PPN P4764* AA 9", principal, premium or
interest) to:
Fleet Boston
ABA #011000318
Boston, Massachusetts 02110
Account of: John Hancock Life Insurance Company
Private Placement Collection Account
Account No.: 00541-55417
On Order of: DeVry Inc, Floating Rate Senior Notes, Series A, due
April 30, 2010 and
Global Education International, Inc., Floating Rate
Senior Notes,
Series B, due April 30, 2010
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the
full name, interest rate and maturity date of the Notes or other obligations;
(2) allocation of payment between principal and interest and any special
payment; and (3) name and address of Bank (or Trustee) from which wire
transfer was sent, shall be faxed and mailed to:
John Hancock Variable Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Accounting Division, B-3
Fax: (617) 572-0628
and
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: S. Daye/K. Boyce, T-57
Fax: (617) 572-5495
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall also be faxed and
mailed as set forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
A copy of any notices relating to change in issuer's name, address or
principal place of business or location of collateral and a copy of any legal
opinions shall be faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Law Division, T-30
Fax: (617) 572-9269
Name in which Notes are to be issued: None
Taxpayer I.D. Number: 04-2664016
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
INVESTORS PARTNER LIFE $200,000 $130,000
INSURANCE COMPANY
John Hancock Place
200 Clarendon Street
Boston, Massachusetts 02117
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, not later than 12 noon, Boston
time, (identifying each payment as "DeVry Inc., Floating Rate Senior Notes,
Series A, due April 30, 2010, PPN 251893 A* 4", principal, premium or interest
and/or as "Global Education International, Inc., Floating Rate Senior Notes,
Series B, due April 30, 2010, PPN P4764* AA 9", principal, premium or
interest) to:
Fleet Boston
ABA #011000138
Boston, Massachusetts 02110
Account of: John Hancock Life Insurance Company
Private Placement Collection Account
Account No.: 00541-55417
On Order of: DeVry Inc, Floating Rate Senior Notes, Series A, due
April 30, 2010 and
Global Education International, Inc., Floating Rate
Senior Notes,
Series B, due April 30, 2010
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the
full name, interest rate and maturity date of the Notes or other obligations;
(2) allocation of payment between principal and interest and any special
payment; and (3) name and address of Bank (or Trustee) from which wire
transfer was sent, shall be faxed and mailed to:
Investors Partner Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Accounting Division, B-3
Fax: (617) 572-0628
and
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: S. Daye/K. Boyce, T-57
Fax: (617) 572-5495
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall also be faxed and
mailed as set forth immediately above.
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
A copy of any notices relating to change in issuer's name, address or
principal place of business or location of collateral and a copy of any legal
opinions shall be faxed and mailed to:
John Hancock Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Investment Law Division, T-30
Fax: (617) 572-9269
Name in which Notes are to be issued: None
Taxpayer I.D. Number: 13-3072894
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
JACKSON NATIONAL LIFE $6,000,000 $4,000,000
INSURANCE COMPANY
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606-1228
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc. Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest) to:
The Bank of New York
ABA #021-000-018
BNF Account #IOC566
FBO: Jackson National Life
Ref: Security Description, CUSIP/PPN, and Breakdown (P&I)
Notices
Payment notices should be sent to:
Jackson National Life Insurance Company
c/o The Bank of New York
Attn: P&I Department
P.O. Box 19266
Newark, New Jersey 07195
Telephone: (212) 437-3054
Fax: (212) 437-6466
Original documents and copies of notices, waivers, amendments, consents, and
financial information should be sent to:
PPM America Inc.
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606-1228
Attention: Private Placements - Mark Staub
Telephone: (312) 634-1212
Fax: (312) 634-0054
and
Jackson National Life Insurance Company
225 West Wacker Drive, Suite 1500
Chicago, Illinois 60606-1228
Attention: Investment Accounting - Mark Stewart
Telephone: (312) 338-5832
Fax: (312) 634-0048
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 38-1659835
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
JACKSON NATIONAL LIFE $2,400,000 $1,600,000
INSURANCE COMPANY OF
NEW YORK
c/o Jackson National Life Insurance
Company
5901 Executive Drive
Lansing, Michigan 48911
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Global Education International, Inc., Floating Rate Senior Notes, Series B,
due April 30, 2010, PPN P4764* AA 9", principal, premium or interest) to:
The Bank of New York
ABA #021-000-018
BNF Account #: IOC566
FBO: Jackson National Life
Ref: Security Description, CUSIP, PPN, Breakdown (P&I)
Notices
Payment notices should be sent to:
Jackson National Life Insurance Company
c/o The Bank of New York
P.O. 19266
Newark, New Jersey 07195
Attention: P&I Department
Telephone: (212) 437-3054
Fax: (212) 437-6466
Original documents and copies of notes and certificates, notices (other than
payment notices), waivers, amendments, consents, and financial information
should be sent to:
PPM America Inc.
225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606-1228
Attention: Private Placements - Mark Staub
Telephone: (312) 634-1212
Fax: (312) 634-0054
and
Jackson National Life Insurance Company
225 West Wacker Drive, Suite 1500
Chicago, Illinois 60606-1228
Attention: Investment Accounting - Mark Stewart
Telephone: (312) 338-5832
Fax: (312) 634-0048
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 13-3873709
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
GENERAL ELECTRIC CAPITAL $7,500,000 $5,000,000
ASSURANCE COMPANY
c/o GE Asset Management
Account: General Electric Capital Assurance Company
601 Union Street, Suite 2200
Seattle, Washington 98101
Attention: Private Placements
Phone Number: (206) 516-4515
Fax Number: (206) 516-4578
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, not later than 12 noon, Boston
time, (identifying each payment as "DeVry Inc., Floating Rate Senior Notes,
Series A, due April 30, 2010, PPN 251893 A* 4", principal, premium or interest
and/or as "Global Education International, Inc., Floating Rate Senior Notes,
Series B, due April 30, 2010, PPN P4764* AA 9", principal, premium or
interest) to:
Deutsche Bank
14 Wall Street
New York, New York 10005
SWIFT Code: BKTR US 33
ABA #021001033
Account Number 99-911-145
FCC: #097833
Ref: security description, coupon, maturity, PPN #, identify principal
or interest
Notices
All notices with respect to payments and written confirmation of each such
payment, to be addressed:
GE Asset Management
Account: General Electric Capital Assurance Company
3003 Summer Street
Stamford, Connecticut 06904
Attention: Investment Accounting (Private Placement Event)
Phone Number: (203) 356-2734
Fax Number: (203) 356-3023
Notices with respect to payment date changes and floating interest rate
changes should be addressed as above with additional copies addressed to the
following:
GE Asset Management
Account: General Electric Capital Assurance Company
3003 Summer Street
Stamford, Connecticut 06904
Attn: Trade Operations - Data Integrity
Phone Number: (203) 921-2126
Fax Number: (203) 326-4288
All other notices and communications (including original note agreement,
conformed copy of the note agreement, amendment requests, financial
statements) to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: Salkeld & Co.
Taxpayer I.D. Number: 91-6027719
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
THE TRAVELERS INSURANCE $7,500,000 $5,000,000
COMPANY
242 Trumbull Street
P. O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Private Placement Group
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds, not later than 12 noon, Boston
time, (identifying each payment as "DeVry Inc., Floating Rate Senior Notes,
Series A, due April 30, 2010, PPN 251893 A* 4", principal, premium or interest
and/or as "Global Education International, Inc., Floating Rate Senior Notes,
Series B, due April 30, 2010, PPN P4764* AA 9", principal, premium or
interest) to:
JP Morgan Chase Bank
ABA #021000021
For credit to: Account No. 910-2-587434
Ref: security description, coupon, maturity, PPN #,identify principal,
premium or interest
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed:
The Travelers Insurance Company
242 Trumbull Street
P. O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Cashier
Name of Nominee in which Notes are to be issued: TRAL & CO.
Taxpayer I.D. Number: 06-0566090 (a Connecticut corporation)
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
MASSACHUSETTS MUTUAL LIFE $2,344,740 $1,705,260
INSURANCE COMPANY
c/o David L. Babson & Company Inc.
1500 Main Street, Suite 2800
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual Long Term Pool
Account Number 30510669
Re: Description of security, cusip, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1889 or (413) 226-
1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department, S431.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
MASSACHUSETTS MUTUAL LIFE $1,563,160 $1,136,840
INSURANCE COMPANY
c/o David L. Babson & Company Inc.
1500 Main Street, Suite 2800
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual Spot Priced Contract
Account Number 30510597
Re: Description of security, cusip, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1807 or (413) 226-
1839.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department, S431.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
MASSACHUSETTS MUTUAL LIFE $521,050 $378,950
INSURANCE COMPANY
c/o David L. Babson & Company Inc.
1500 Main Street, Suite 2800
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
For MassMutual IFM Non-Traditional
Account Number 30510589
Re: Description of security, cusip, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1839 or (413) 226-
1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department, S431.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 04-1590850
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
C.M. LIFE INSURANCE COMPANY $521,050 $378,950
C/O MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
c/o David L. Babson & Company Inc.
1500 Main Street, Suite 2800
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
Citibank, N.A.
111 Wall Street
New York, New York 10043
ABA #021000089
For CM Life Segment 43 - Universal Life
Account Number 30510546
Re: Description of security, cusip, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1839 or (413) 226-
1803.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed: Suite 800, Attention:
Securities Custody and Collection Department, S431.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 06-1041383
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
MASSMUTUAL ASIA LIMITED $450,000 $0
c/o David L. Babson & Company Inc.
1500 Main Street, Suite 2800
Springfield, Massachusetts 01115
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest) to:
Gerlach & Co.
c/o Citibank, N.A
111 Wall Street
New York, New York 10043
ABA #021000089
Concentration Account Number 36112805
Attn: Judy Rock
Re: MassMutual Asia
Re: Description of security, cusip, principal and interest split
With telephone advice of payment to the Securities Custody and Collection
Department of David L. Babson & Company Inc. at (413) 226-1807 or (413) 226-
1839.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments to be addressed Suite 800, Attention:
Securities Custody and Collection Department, S431.
Name of Nominee in which Notes are to be issued: Gerlach & Co.
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
NAME AND ADDRESS OF DEVRY NOTES OF GEI NOTES TO BE
OF PURCHASERS TO BE PURCHASED PURCHASED
UNITED OF OMAHA LIFE INSURANCE $4,800,000 $3,200,000
COMPANY
Mutual of Omaha Plaza
Omaha, Nebraska 68175-1011
Attention: 4-Investment Loan Administration
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"DeVry Inc., Floating Rate Senior Notes, Series A, due April 30, 2010,
PPN 251893 A* 4", principal, premium or interest and/or as "Global Education
International, Inc., Floating Rate Senior Notes, Series B, due April 30, 2010,
PPN P4764* AA 9", principal, premium or interest) to:
JP Morgan Chase Bank
ABA #021-000-021
Private Income Processing
For credit to: United of Omaha Life Insurance Company
Account Number 900-9000200
a/c G07097
PPN:
Interest Amount:
Principal Amount:
Notices
All notices of payments, on or in respect of the Notes and written
confirmation of each such payment, corporate actions and reorganization
notifications to:
JPMorgan Chase Bank
14201 Dallas Parkway - 13th Floor
Dallas, Texas 75254-2917
Attention: Income Processing-G. Ruiz
a/c: G07097
All other notices and communications (i.e., quarterly/annual reports, tax
filings, modifications, waivers regarding the indenture) to be addressed as
first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 47-0322111
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Adjusted Consolidated EBITDA" shall mean, for any period, the sum of
(without duplication), (i) Consolidated EBITDA for such period of DeVry and
its Restricted Subsidiaries, plus (ii) Consolidated EBITDA for such period of
any Person (a) which has been acquired by DeVry and/or its Restricted
Subsidiaries during such period and such Person has become a Restricted
Subsidiary, or (b) which DeVry and/or its Restricted Subsidiaries have
acquired all or substantially of such Person's operating assets and such
Consolidated EBITDA is attributable to such operating assets so acquired, and
minus (iii) Consolidated EBITDA of any Restricted Subsidiary whose capital
stock has been sold, transferred or otherwise disposed of by DeVry and/or its
Restricted Subsidiaries or a substantial part of such Restricted Subsidiaries
operating assets have been sold, transferred or otherwise disposed of and such
Consolidated EBITDA is attributable to such operating assets so disposed,
determined in accordance with GAAP.
"Adjusted LIBOR Rate" for each Interest Period shall be a rate per
annum equal to LIBOR for such Interest Period plus 1.25%.
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any other Person beneficially owning or holding,
directly or indirectly, 10% or more of any class of voting or equity interests
of such first Person or any other Person of which such first Person
beneficially owns or holds, in the aggregate, directly or indirectly, 10% or
more of any class of voting or equity interests. As used in this definition,
"Control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. Unless
the context otherwise clearly requires, any reference to an "Affiliate" is a
reference to an Affiliate of the Obligors.
"Banks" shall mean the banks or financial institutions party to the
Bank Agreement.
"Bank Agreement" means that certain Credit Agreement dated as of May 16,
2003 by and among the Obligors, Bank of America, N.A., as Administrative
Agent, Letter of Credit Issuer and lender, and the other financial
institutions which are party thereto, as such agreement may be amended,
renewed or restated from time to time and any successor credit facility which
constitutes the primary bank credit facility of DeVry.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which commercial banks in Chicago, Illinois and New York, New York are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Net Worth" means, as of the date of any
determination thereof, Consolidated Net Worth less the total amount of
Restricted Investments in excess of 10% of Consolidated Net Worth.
"Consolidated Debt" means, as of any date of determination, the total
amount of all Debt of DeVry and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of (without
duplication) Consolidated Net Income for such period, plus (to the extent
deducted in determining Consolidated Net Income) (i) Interest Expense for such
period, (ii) all income tax expense during such period, and (iii) all
depreciation and amortization expense during such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean net income before extraordinary
items of DeVry and its Restricted Subsidiaries for such period, as determined
in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any time, the total amount of
shareholders' equity of DeVry and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Assets" means, as of the date of any determination
thereof, the total amount of all assets of DeVry and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Debt" means with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance
with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (e) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP. For purposes of all
calculations of Debt under this Agreement, Debt of any Person shall not
include undrawn amounts under letters of credit issued for the benefit of such
Person or its affiliates.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Default Rate" as of any date, means that rate of interest that is the
greater of (i) 2.0% per annum above the Adjusted LIBOR Rate for the Notes for
which a determination is then being made or (ii) 2.0% per annum over the rate
of interest publicly announced by Bank of America, N.A. in Chicago, IL as its
"base" or "prime" rate.
"DeVry" means DeVry Inc., a Delaware corporation.
"DeVry Guaranty" shall mean the Guaranty Agreement executed and
delivered on the Closing Date by DeVry, substantially in the form of Exhibit 3
attached hereto.
"DeVry Notes" is defined in Section 1(a).
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
but not limited to those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with any Obligor
under section 414 of the Code, excluding Subsidiaries organized under the laws
of a jurisdiction other than the United States (or any jurisdiction therein)
that operate and administer employee benefit plans that are subject to the
laws of a jurisdiction other than the United States and that are not subject
to ERISA.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Sale and Leaseback Transaction" shall mean any sale or
transfer of property acquired by any Obligor or any Restricted Subsidiary
after the date of this Agreement to any Person within 180 days following the
acquisition or construction of such property by any Obligor or any Restricted
Subsidiary if any Obligor or a Restricted Subsidiary shall concurrently with
such sale or transfer, lease such property, as lessee.
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell), as reasonably
determined in good faith by one or more of the Obligors or a Restricted
Subsidiary, as the case may be.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GEI" means Global Education International, Inc., a Barbados
corporation.
"GEI Notes" is defined in Section 1(b).
"GEI Required Holders" means, at any time, the holders of more than 50%
in aggregate principal amount of the GEI Notes at the time outstanding
(exclusive of GEI Notes then owned by the Obligors or any of their
Affiliates).
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any jurisdiction in which any Obligor or any
Restricted Subsidiary conducts all or any part of its business,
or which asserts jurisdiction over any properties of any
Obligor or any Restricted Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Guaranties" shall mean the DeVry Guaranty and the Subsidiary
Guaranties.
"Guarantor" shall mean DeVry as a guarantor of the GEI Notes and the
Subsidiary Guarantors as guarantors of the Notes.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing
any Debt, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Debt or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Debt or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Debt or
obligation of the ability of any other Person to make payment of the
Debt or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any
Guaranty, the Debt or other obligations that are the subject of such Guaranty
shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety,
the removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation,
transfer, use, disposal, release, discharge, spillage, seepage, or filtration
of which is or shall be restricted, prohibited or penalized by any applicable
law (including, without limitation, asbestos, urea formaldehyde foam
insulation and polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Obligors pursuant to
Section 13.1.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note or Notes aggregate in an original principal amount of
$2,000,000 or more, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer or broker-dealer, or any
other similar financial institution or entity, regardless of legal form.
"Interest Expense" shall mean, for any period, the aggregate amount of
all interest charges and expense and all amortization of debt discount and
expense on any particular Debt for which such calculations are being made,
determined in accordance with GAAP.
"Interest Payment Date" shall have the meaning assigned thereto in
Section 1.2(a) of this Agreement.
"Interest Period" shall mean the period commencing on the Closing Date
and continuing up to, but not including, the first Interest Payment Date and,
thereafter, the period commencing on the next succeeding Interest Payment Date
and continuing up to, but not including, the next Interest Payment Date.
"Investment" means all investments, in cash or by delivery of property
made, directly or indirectly in any Person, whether by acquisition of shares
of capital stock, indebtedness or other obligations or Securities or by loan,
advance, capital contribution or otherwise.
"LIBOR" shall mean, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in United States Dollars for a 90-day period
which appears on the Telerate Access Service Page 3750 (or if such page is not
available, the Reuters Screen LIBO Page) as of 11:00 a.m. (London, England
time) on the date 2 Business Days before the commencement of such Interest
Period (or three (3) Business Days prior to the beginning of the first
Interest Period). "Reuters Screen LIBO Page" means the display designated as
the "LIBO" page on the Reuters Monitory Money Rates Service (or such other
page as may replace the LIBO page on that service or such other service as may
be nominated by the British Bankers' Association as the information vendor for
the purpose of displaying British Banker's Association Interest Settlement
Rates for United States Dollar deposits).
"LIBOR Breakage Amount" is defined in Section 8.2(b).
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of
any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or Capital Lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Material" means material in relation to the business, operations,
affairs, financial condition, assets or properties of DeVry and its Restricted
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of
DeVry and its Restricted Subsidiaries taken as a whole, or (b) the ability of
the Obligors to perform their respective obligations under any Operative
Agreement, or (c) the validity or enforceability of any Operative Agreement.
"Material Subsidiary" means any Subsidiary which accounts for more than
(i) 5% of the Consolidated Total Assets of DeVry and its Restricted
Subsidiaries or (ii) 5% of consolidated revenue of DeVry and its Restricted
Subsidiaries.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds" means with respect to any sale of property by any Person
an amount equal to (a) the aggregate amount of the consideration received by
such Person in respect of such sale (valued at the Fair Market Value of such
consideration at the time of such sale), minus (b) the sum of (i) all
out-of-pocket costs and expenses actually incurred by such Person in
connection with such sale, and (ii) all state, federal and foreign taxes
incurred, or to be incurred, by the seller in connection with such sale.
"Notes" is defined in Section 1.
"Obligors" is defined in the introduction paragraph of this Agreement.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Obligor whose responsibilities extend
to the subject matter of such certificate.
"Offshore Subsidiary Guarantors" shall mean the Subsidiaries of GEI
which are guarantors under the Offshore Subsidiary Guaranty.
"Offshore Subsidiary Guaranty" shall mean the Offshore Subsidiary
Guaranty Agreement executed and delivered by the Offshore Subsidiary
Guarantors, substantially in the form attached to this Agreement as Exhibit
4(b).
"Operative Agreements" means the Note Purchase Agreement, the Pledge and
Intercreditor Agreement, the DeVry Guaranty and the Subsidiary Guaranties.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Subsidiary Guarantor Debt" means any Debt of any Subsidiary
evidenced by a Guaranty (including, without limitation, the Subsidiary
Guaranties or the Subsidiary Bank Guaranties), provided that each of the
beneficiaries or parties thereto shall have become party to the Pledge and
Intercreditor Agreement.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means a United States "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five years, has been
established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the Obligors
or any ERISA Affiliate or with respect to which the Obligors or any ERISA
Affiliate may have any liability.
"Pledge and Intercreditor Agreement" means the Pledge and Intercreditor
Agreement referred to in Section 2.2, as such agreement may be amended or
modified from time to time.
"Prepayment Premium" means, in connection with any optional prepayment
of the Notes pursuant to Section 8.2 or acceleration of the Notes pursuant to
Section 12.1, an amount equal to the applicable percentage of the principal
amount of the Notes so prepaid or accelerated set forth opposite the
respective period below:
IF PREPAID DURING THE PERIOD APPLICABLE PERCENTAGE
Closing Date through May 16, 2005 1%
After May 16, 2005 0%
"Priority Debt" means (without duplication) the sum of (a) unsecured
Debt of Restricted Subsidiaries other than (i) Debt owed to any Obligor or any
other Restricted Subsidiary, (ii) Debt outstanding at the time such Person
became a Restricted Subsidiary, provided that (1) such Debt shall not have
been incurred in contemplation of such person becoming a Restricted
Subsidiary, and (2) the exclusion from Priority Debt contained in this clause
(ii) shall not apply to Unrestricted Subsidiaries being designated as
Restricted Subsidiaries pursuant to Section 9.7, and (iii) Permitted
Subsidiary Guarantor Debt, and (b) Debt of the Obligors and their Subsidiaries
secured by a Lien other than those permitted by paragraphs (a) through (m) of
Section 10.3. For purposes of this Agreement, Debt evidenced by the Notes and
Debt outstanding under the Bank Agreement shall not be Priority Debt.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, choate or
inchoate.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Reorganization" means the transfer of the proceeds of the GEI Notes and
GEI loans under the Bank Agreement by GEI and the exchange and/or issuance
shares by GEI and other Subsidiaries on the Closing in connection with the
acquisition of Dominica Management, Inc. which results in Ross University
Management, Inc. being a wholly-owned Subsidiary of GEI.
"Required Holders" means, at any time, the holders of more than 50% in
aggregate principal amount of the Notes at the time outstanding (exclusive of
Notes then owned by the Obligors or any of their Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of any Obligor, with responsibility for the administration of the
relevant portion of this agreement.
"Restricted Investments" means all Investments, other than the
following:
(a) Investments by the Obligors and their Restricted
Subsidiaries in and to Restricted Subsidiaries, including any Investment
in an entity which, after giving effect to such Investment, will become
a Restricted Subsidiary;
(b) Investments in commercial paper maturing in 270 days or less
from the date of issuance which, at the time of acquisition by any
Obligor or any Restricted Subsidiary, are rated "A1" or better by S & P,
"P1" or better by Moody's or "R-1" or better by Dun and Bradstreet
Rating Service or the local equivalent;
(c) Investments in direct obligations of the government of the
United States of America or Canada or any agency or instrumentality of
the United States of America or Canada, the payment or guarantee of
which constitutes a full faith and credit obligation of the United
States of America or Canada or any province of Canada, in either case,
maturing within one year from the date of acquisition thereof;
(d) Investments in certificates of deposit or bankers
acceptances maturing within one year from the date of issuance thereof,
issued by any commercial bank or trust company organized under the laws
of the United States or any state thereof, having capital, surplus and
undivided profits aggregating at least $500,000,000 and whose long-term
certificates of deposit are, at the time of acquisition thereof by any
Obligor or a Restricted Subsidiary, rated A-1 or better by S & P, or
rated A+ or better by Moody's or the local equivalent;
(e) Investments in money market instruments, at the time of
acquisition by any Obligor or any Restricted Subsidiary, are rated "A"
or better by S & P or Moody's, and are classified as "current assets" in
accordance with GAAP;
(f) Investments in property to be used in the ordinary course of
business of any Obligor and its Restricted Subsidiaries;
(g) Investments arising from the sale of goods and services in
the ordinary course of business;
(h) Investments of the Obligors and their Restricted
Subsidiaries existing as of the date of this Agreement and described on
Schedule 10.7;
(i) Investments arising from making Stafford Loans by DeVry and
its Restricted Subsidiaries in the ordinary course of its business
pursuant to the Stafford Loan Program, which Stafford Loans are required
to be purchased from DeVry or its Restricted Subsidiaries within 30 days
of the making of such Stafford Loans in accordance with such Stafford
Loan Program;
(j) Investments in capital stock of the Obligors and their
Restricted Subsidiaries which is held as treasury stock and is restored
to unissued status or is eliminated from authorized shares, or options
in respect thereof;
(k) Investments in tax-exempt obligations of any state of the
United States of America, or any municipality of any such state with
short term ratings in each case of at least "A-1" or better by S&P or
"P-1" or better by Moody's or an equivalent rating by any other credit
rating agency of recognized national standing, provided that such
obligations mature within 365 days from the date of acquisition thereof;
and
(l) Investments in Repurchase Agreements.
As used in this definition of "Restricted Investments"
"Acceptable Bank" means any bank or trust company (i) which is
organized under the laws of the United States of America or any State
thereof, (ii) which has capital, surplus and undivided profits
aggregating at least $500,000,000, and (iii) whose short-term unsecured
debt obligations (or the short-term unsecured debt obligations of the
bank holding company owning all of the capital stock of such bank or
trust company) shall have been given a rating of "A-1" or better by S&P
or "P-1" or better by Moody's.
"Acceptable Broker-Dealer" means any Person other than a natural
person (i) which is registered as a broker or dealer pursuant to the
Exchange Act and (ii) whose short-term unsecured debt obligations shall
have been given a rating of "A-1" or better by S&P or "P-1" or better by
Moody's.
"Moody's" means Moody's Investors Service, Inc.
"Repurchase Agreement" means any written agreement
(a) that provides for (i) the transfer of one or more
United States Governmental Securities in an aggregate principal
amount at least equal to the amount of the Transfer Price (defined
below) to any Obligor or any of its Restricted Subsidiaries from
an Acceptable Bank or an Acceptable Broker-Dealer against a
transfer of funds (the "Transfer Price") by such Obligor or such
Restricted Subsidiary to such Acceptable Bank or Acceptable
Broker-Dealer, and (ii) a simultaneous agreement by any Obligor or
such Restricted Subsidiary, in connection with such transfer of
funds, to transfer to such Acceptable Bank or Acceptable
Broker-Dealer the same or substantially similar United States
Governmental Securities for a price not less than the Transfer
Price plus a reasonable return thereon at a date certain not later
than 365 days after such transfer of funds,
(b) in respect of which any Obligor or such Restricted
Subsidiary shall have the right, whether by contract or pursuant
to applicable law, to liquidate such agreement upon the occurrence
of any default thereunder, and
(c) in connection with which any Obligor or such
Restricted Subsidiary, or an agent thereof, shall have taken all
action required by applicable law or regulations to perfect a Lien
in such United States Governmental Securities.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"United States Governmental Security" means any direct obligation
of, or obligation guaranteed by, the United States of America, or any
agency controlled or supervised by or acting as an instrumentality of
the United States of America pursuant to authority granted by the
Congress of the United States of America, so long as such obligation or
guarantee shall have the benefit of the full faith and credit of the
United States of America which shall have been pledged pursuant to
authority granted by the Congress of the United States of America.
In valuing any Investments for the purpose of applying the limitations
set forth in this Agreement, such Investments shall be taken at the original
cost thereof, without allowance for any subsequent write-offs or appreciation
or depreciation therein, but less any amount repaid or recovered on account of
capital or principal.
"Restricted Subsidiary" means any Subsidiary which: (i) at least a
majority of the voting securities are owned by the Obligors and/or one or more
Wholly-owned Restricted Subsidiaries, and (ii) the Obligors have not
designated as an Unrestricted Subsidiary in accordance with Section 9.7. All
of the Obligors Subsidiaries existing on the Closing Date shall be Restricted
Subsidiaries.
"Ross University" shall mean Ross University Services, Inc. and Ross
University Management, Inc.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Sellers" shall mean shareholders and option holders of Dominica
Management, Inc. who sold their respective interests in the capital stock and
options in Dominica Management, Inc. to the Obligors.
"Senior Debt" means all Consolidated Debt, other than Subordinated Debt.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of any Obligor, as the case may
be.
"Senior Lender Obligations" shall mean any obligation and liability
owed to a bank or lender party to the Bank Agreement.
"Stafford Loans" means (a) loans for which the interest rate is governed
by Section 427A(a), Section 427A(d), Section 427A(e), Section 427A(f),
Section 427A(g), Section 427A(j)(1), Section 427A(j)(2), Section 427A(k)(1),
or Section 427A(k)(2) of the Higher Education Act of 1965, as amended from
time to time, and all regulations and directives promulgated thereunder from
time to time (the "Act"), and (b) loans made under Section 428H of the Act
authorized under Section 427 of the Act.
"Stafford Loan Program" means Stafford Loans which are initially made by
DeVry to graduate students and ultimately sold to the Student Loan Marketing
Association pursuant to (a) the Exports Agreement dated as of April 1, 2003,
among the Student Loan Marketing Association, The Northern Trust Company
("Northern"), as eligible lender trustee for DeVry ("School ELT"), Northern,
in its individual capacity ("NTC") and Northern, as eligible lender trustee on
behalf of NTC ("Bank ELT") and (b) the Eligible Lender Trust Agreement dated
as of April 1, 2003, among DeVry, the School ELT, NTC and the Bank ELT, as
such agreements may be amended, modified or restated from time to time.
"Subordinated Debt" means all unsecured Debt of the Obligors which shall
contain or have applicable thereto subordination provisions providing for the
subordination thereof to other Debt of the Obligors (including, without
limitation, the Notes).
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if
more than a 50% interest in the profits or capital thereof is owned by such
Person or one or more of its Subsidiaries or such Person and one or more of
its Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of any Obligor.
"Subsidiary Bank Guaranty" shall mean a Guaranty by the Subsidiaries of
the Debt outstanding under the Bank Agreement.
"Subsidiary Guaranties" shall mean the U.S. Subsidiary Guaranty and the
Offshore Subsidiary Guaranty.
"Subsidiary Guarantors" shall mean the U.S. Subsidiary Guarantors and
the Offshore Subsidiary Guarantors.
"Taxes" shall mean any United States federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental, customs duties,
capital stock, franchise, profits, withholding, social security, unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, or other tax, fee,
assessment or charge of any kind whatsoever, whether computed on a separate or
consolidated, unitary or combined basis or in any other manner, including any
interest, penalty, or addition thereto, whether disputed or not.
"Tax Returns" shall mean returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Title IV" means Title IV of the Higher Education Act of 1965, as
amended, 20 U.S.C.A. (S) 1070, and any amendments or successor statutes
thereto.
"Unrestricted Subsidiary" means any Subsidiary so designed by the
Obligors in accordance with the terms of Section 9.7.
"U.S. Subsidiaries" shall mean Subsidiaries which are organized under
the laws of the Untied States of American or any jurisdiction hereof.
"U.S. Subsidiary Guarantors" shall mean the U.S. Subsidiaries which are
guarantors under the U.S. Subsidiaries Guaranty.
"U.S. Subsidiary Guaranty" shall mean the U.S. Subsidiary Guaranty
Agreement executed and delivered by the U.S. Subsidiary Guarantors,
substantially in the form attached to this Agreement as Exhibit 4(a).
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests of which are owned by any one or more
of any Obligor and such Obligor's other Wholly-Owned Subsidiaries at such
time.
I. SUBSIDIARIES
(After giving effect to the acquisition of
Dominica Management, Inc. and the Reorganization)
RESTRICTED SUBSIDIARIES OF DEVRY INC
NAME OF SUBSIDIARY JURISDICTION CAPITAL STOCK OWNERSHIP STOCKHOLDER
DeVry University, Inc. Illinois Common Shares 100% DeVry Inc.
DeVry/New York Inc. Delaware Common Shares 100% DeVry Inc.
DeVry Educational
Products, Inc. Delaware Common Shares 100% DeVry Inc.
DeVry Leasing
Corporation Delaware Common Shares 100% DeVry Inc.
DeVry/Becker
Educational
Development Corp. Delaware Common Shares 100% DeVry Inc.
Becker CPA Review
Corp. Delaware Common Shares 100% DeVry Inc.
* Dominica
Management, Inc. New York Common Shares 100% DeVry Inc.
Class A Preferred
Shares
Class B Preferred
Shares
DeVry Educational
Development Corp. Delaware Common Shares 100% DeVry
University,
Inc.
DeVry Canada LLC Delaware Membership 100% DeVry
Interests University,
Inc.
DeVry Florida LLC Florida Membership 100% DeVry
Interests University,
Inc.
+ Missouri Institute
of Technology, Inc. Missouri Common Shares 100% DeVry
University,
Inc.
+ DeVry Institute of
Technology, Inc. Delaware Common Shares 100% DeVry
University,
Inc.
+ Provost &
Associates, Inc. Illinois Common Shares 100% DeVry
University,
Inc.
+ DeVry Colorado LLC [Delaware] Membership 100% DeVry
Interest University,
Inc.
+ Newton Becker Ltd. Hong Kong Common Shares 100% DeVry/
Becker
Educational
Development
Corp.
+ Becker CPA Review Israel Common Shares 100% DeVry/
Becker
Ltd. Educational
Development
Corp.
+ Becker CPA Review [Delaware] Common Shares 100% Becker CPA
Inc. Review Corp.
+ Becker CD LLC [Delaware] Common Shares 100% Becker CPA
Review Corp.
* Ross University Delaware 1,000 Common 100% Dominica
Services, Inc. Shares Management
Inc.
**International
Education
Holdings, Inc. Delaware Common Shares 30% DeVry Inc.
70% Ross
University
Services
Inc.
**Global Education
International,
Inc. Barbados Common Shares 100% Interna-
tional
Education
Holdings,
Inc.
UNRESTRICTED SUBSIDIARIES OF DEVRY INC.
None
RESTRICTED SUBSIDIARIES OF GLOBAL EDUCATION INTERNATIONAL
* Ross University
Management, Inc. St. Lucia Ordinary Shares 100% GEI
* Ross University
School of Medicine
School of
Veterinary
Medicine Limited Dominica Voting Stock 100% Ross
University
Management,
Inc.
* Ross University
School of Medicine
School of
Veterinary
Medicine (St.
Kitts) Limited St. Kitts Voting Stock 100% Ross
University
Management,
Inc.
UNRESTRICTED SUBSIDIARIES OF GLOBAL EDUCATION INTERNATIONAL, INC.
None
* Being acquired on the Closing Date.
+ Dormant Subsidiaries.
** Formed in connection with the Acquisition of Dominica Management Inc.
II. AFFILIATES
(Other than Subsidiaries)
None
III. DIRECTORS AND SENIOR OFFICERS OF DEVRY
NAME POSITION
Charles A. Bowsher Director
David S. Brown Director
Dennis J. Keller Director, Chairman and Co-Chief
Executive Officer
Frederick A. Krehbiel Director
Thurston E. Manning Director
Robert S. McCormack Director
Julie A. McGee Director
Hugo J. Melvoin Director
Harold T. Shapiro Director
Ronald L. Taylor Director, President and Co-
Chief Executive Officer
Daniel Hamburger Executive VP
O. John Skubiak Executive VP
Marilynn J. Cason Senior VP, Corporate Secretary
and General Counsel
Norman M. Levine Senior VP and Chief Financial
Officer
Michael Alexander VP
Thomas Babel VP
Jack L. Calabro VP
Jerry R. Dill VP
Rose Marie Dishman VP
James A. Dugan VP
George W. Fisher VP
Galen Graham VP
Jerome E. Hellmann VP
Cecil Horst VP
James W. Kho VP
Bruno R. LaCaria VP
Donna M. Loraine VP
Patrick L. Mayers VP
Gerald A. Murphy VP
Timothy H. Ricordati VP
Kenneth Rutkowski VP
Edward J. Steffes VP
Sharon Thomas Parrott VP
Thomas J. Vucinic VP
Gerald J. Wawrzynek VP
Fred Weber VP
David W. Goodman Asst. Treasurer
Timothy Joyce Controller and Asst. Treasurer
Kimberly A. Tupper Asst. Secretary
DIRECTORS AND SENIOR OFFICERS OF GEI
Directors:
Dennis J. Keller
Ronald L. Taylor
Officers:
Ronald L. Taylor - President
Dennis J. Keller - Vice President
Norman M. Levine - Secretary
FINANCIAL STATEMENTS
1. DeVry Inc. Quarterly Reports for the fiscal quarters ended
September 30, 2002, December 31, 2002 and March 31, 2003.
2. DeVry Inc. Annual Reports for the fiscal years ended June 30, 2002,
June 30, 2001, June 30, 2000, June 30, 1999, June 30, 1998.
3. Dominica Management, Inc. Audited Financial Statements for the
fiscal years ended December 31, 2002, December 31, 2001, December 31, 2000,
December 31, 1999 and December 31, 1998.
EXCEPTIONS TO OWNERSHIP, INFRINGEMENT
OR VIOLATION OF INTELLECTUAL PROPERTY
5.11(a)- Ownership: None
5.11(b)- Infringement: None
5.11(c)- Violation: None
SCHEDULE OF CONSOLIDATED DEBT AND PRIORITY DEBT
at March 31, 2003
(in thousands)
As at March 31, 2003 DeVry University Inc. is a party to an Amended and
Restated Credit Agreement dated as of June 12, 1996, as amended among DeVry
University, Inc., various financial institutions and Bank of America, N.A., as
Administrative Agent which is guaranteed by DeVry and certain of its
Subsidiaries. As at March 31, 2003 $3,192,127 in letters of credit were
outstanding. This Credit Agreement will be paid off at Closing and the Credit
Agreement and guarantees will be terminated, however letters of credit in the
amount of $3,483,032 outstanding at Closing will become outstanding under the
Bank Agreement.
Ross University Services, Inc. and Ross University Management, Inc which
are to be acquired on the date of Closing had $37,615,061 outstanding
principal amount under that certain Credit Agreement dated as of April 13,
2000, as amended and assumed, among Ross University Services, Inc., Ross
University Management, Inc., various financial institutions and Bank of
America, N.A., as Administrative Agent which Credit Agreement is guaranteed by
Dominica Management, Inc. and is secured by certain capital stock of
Subsidiaries of Dominica Management, Inc. and other assets. The obligations
under this Credit Agreement will be paid off at the Closing, the Credit
Agreement and guarantees will be terminated and all Liens will be released,
however letters of credit in the amount of $37,271 outstanding at Closing will
become outstanding under the Bank Agreement.
Ross University School of Medicine School of Veterinary Medicine Limited
is a party to a capital lease pursuant to agreement dated September 12, 1994
with the Government of the Commonwealth of Dominica for the land and buildings
known as the Portsmouth Campus which expires on December 31, 2042. The
outstanding amount under such Capital Lease as of December 31, 2002 was
$1,968,000.
EXISTING LIENS
(in thousands)
After giving effect to the application of the net proceeds from the
issuance of the Notes on the Closing Date:
1. Liens on land and buildings securing the Capital Lease described on
Schedule 5.15.
2. Lien of the Pledge and Intercreditor Agreement.
INVESTMENTS AND JOINT VENTURES
as of March 31, 2003
None.
[FORM OF NOTE]
DEVRY INC.
FLOATING RATE SENIOR NOTE, SERIES A, DUE APRIL 30, 2010
No. [_________] [Date]
$[____________] PPN 251893 A*4
FOR VALUE RECEIVED, the undersigned, DEVRY INC., a corporation organized
and existing under the laws of the State of Delaware (herein called the
"Company"), hereby promises to pay to [________________], or registered
assigns, the principal sum of [________________] DOLLARS on April 30, 2010,
with interest (computed on the basis of a 360 day year and actual days
elapsed) (a) on the principal amount from time to time remaining unpaid hereon
at a floating rate equal to the Adjusted LIBOR Rate (as defined in the Note
Purchase Agreement referred to below) from the date thereof until maturity,
payable quarterly on the last day of each January, April, July and October in
each year commencing on July 31, 2003 and at maturity, until the principal
hereof shall have become due and payable, and (b) to the extent permitted by
law on any overdue payment (including any overdue prepayment) of principal,
payable quarterly as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the Default
Rate (as defined in the Note Purchase Agreement).
Payments of principal of, interest on and any Prepayment Premium with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A., in New York, New
York or at such other place as the Obligors shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued by the Company pursuant to the Note Purchase Agreement, dated as of
May 16, 2003 (as from time to time amended, the "Note Purchase Agreement"),
between the Company, Global Education International, Inc., a corporation
organized and existing under the laws of the Barbados, and the Purchasers
named therein and is entitled to the benefits thereof. Each holder of this
Note will be deemed, by its acceptance hereof, to have made the representation
set forth in Section 6.2 of the Note Purchase Agreement, provided that such
holder may (in reliance upon information provided by the Company, which shall
not be unreasonably withheld) make a representation to the effect that the
purchase by such holder of any Note will not constitute a non-exempt
prohibited transaction under Section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Company will not be affected by any notice
to the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
Pursuant to Subsidiary Guaranty Agreements dated as of May 16, 2003,
certain of the Company's subsidiaries have absolutely and unconditionally
guaranteed payment in full of the principal of, Prepayment Premium, if any,
and interest on this Note and the performance by the Company of all its
obligations contained in the Note Purchase Agreement all as more fully set
forth in said Subsidiary Guaranty Agreement.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including the
LIBOR Breakage Amount and any applicable Prepayment Premium) and with the
effect provided in the Note Purchase Agreement.
This Note 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
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
DEVRY INC.
By
Name:
Title:
[FORM OF NOTE]
GLOBAL EDUCATION INTERNATIONAL, INC.
FLOATING RATE SENIOR NOTE, SERIES B, DUE APRIL 30, 2010
No. [_________] [Date]
$[____________] PPN P4764*AA9
FOR VALUE RECEIVED, the undersigned, GLOBAL EDUCATION INTERNATIONAL, INC.,
a corporation organized and existing under the laws of the Barbados (herein
called the "Company"), hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] DOLLARS on
April 30, 2010, with interest (computed on the basis of a 360 day year and
actual days elapsed) (a) on the principal amount from time to time remaining
unpaid hereon at a floating rate equal to the Adjusted LIBOR Rate (as defined
in the Note Purchase Agreement referred to below) from the date thereof until
maturity, payable quarterly on the last day of each January, April, July and
October in each year commencing on July 31, 2003 and at maturity, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, at a rate per annum from time to time equal to the Default Rate (as
defined in the Note Purchase Agreement).
Payments of principal of, interest on and any Prepayment Premium with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A., in New York, New
York or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement
referred to below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued by the Company pursuant to the Note Purchase Agreement, dated as of
May 16, 2003 (as from time to time amended, the "Note Purchase Agreement"),
between the Company, DeVry Inc., a corporation organized and existing under
the laws of the Delaware ("DeVry"), and the Purchasers named therein and is
entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, to have made the representation set forth in
Section 6.2 of the Note Purchase Agreement, provided that such holder may (in
reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase
by such holder of any Note will not constitute a non-exempt prohibited
transaction under Section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Company will not be affected by any notice
to the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement, but not otherwise.
Pursuant to Guaranty Agreement dated as of May 16, 2003, DeVry has
absolutely and unconditionally guaranteed payment in full of the principal of,
Prepayment Premium, if any, and interest on this Note and the performance by
the Company of all its obligations contained in the Note Purchase Agreement
all as more fully set forth in said Guaranty Agreement.
Pursuant to Subsidiary Guaranty Agreement dated as of May 16, 2003,
certain of DeVry's subsidiaries have absolutely and unconditionally guaranteed
payment in full of the principal of, Prepayment Premium, if any, and interest
on this Note and the performance by the Company of all its obligations
contained in the Note Purchase Agreement all as more fully set forth in said
Subsidiary Guaranty Agreement.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including the
LIBOR Breakage Amount and any applicable Prepayment Premium) and with the
effect provided in the Note Purchase Agreement.
This Note 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
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
GLOBAL EDUCATION INTERNATIONAL, INC.
By
Name:
Title:
FORM OF PLEDGE AND INTERCREDITOR AGREEMENT
FORM OF DEVRY GUARANTY AGREEMENT
FORM OF SUBSIDIARY GUARANTY AGREEMENT
FORM OF OPINION OF COUNSEL
TO THE OBLIGORS
The closing opinion of _______________, counsel to the Obligors, which
is called for by Section 4.5 of the Note Purchase Agreement, shall be dated
the date of Closing and addressed to the Purchasers, shall be reasonably
satisfactory in scope and form to each Purchaser and shall be to the effect
that:
1. DeVry is a corporation, duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, has the corporate power and the corporate authority to
execute and perform each Operative Agreement to which it is a party and
to issue the DeVry Notes, and has the full corporate power and the
corporate authority to conduct the activities in which it is now
engaged and is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary except
in jurisdictions where the failure to be so qualified or licensed would
not have a material adverse affect on the business of DeVry.
2. Each Subsidiary organized under the laws of the United
States or any jurisdiction thereof is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and is duly licensed or qualified and is
in good standing in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary except
in jurisdictions where the failure to be so qualified or licensed would
not have a material adverse effect on the business of such Subsidiary,
and all of the issued and outstanding shares of capital stock of each
such Subsidiary have been duly issued, are fully paid and non-
assessable and are owned by the Obligors, by one or more Subsidiaries,
or by the Obligors and one or more Subsidiaries.
3. Each Operative Agreement to which DeVry is a party has been
duly authorized by all necessary corporate action on the part of DeVry,
has been duly executed and delivered by DeVry and constitutes the
legal, valid and binding contract of DeVry enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
4. Assuming the due authorization, execution and delivery of
each Operative Agreement by GEI to which it is a party and that each
such Operative Agreement constitutes a legal, valid and binding
contract of GEI, each such Operative Agreement is enforceable against
GEI in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity
or at law).
5. Assuming the due authorization, execution and delivery of
the GEI Notes by GEI and that the GEI Notes constitute legal, valid and
binding obligations of GEI, the GEI Notes are enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
6. The DeVry Notes have been duly authorized by all necessary
corporate action on the part of DeVry, and the DeVry Notes being
delivered on the date hereof have been duly executed and delivered by
DeVry and constitute the legal, valid and binding obligations of DeVry
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
7. Each Operative Agreement to which a Guarantor is a party has
been duly authorized by all necessary corporate action on the part of
such Guarantor, has been duly executed and delivered by such Guarantor
and constitutes the legal, valid and binding contract of such Guarantor
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
8. The issuance and sale of the Notes and the execution,
delivery and performance by each Obligor of the Operative Agreements to
which it is a party do not conflict with or result in any breach of any
of the provisions of or constitute a default under or result in the
creation or imposition of any Lien upon any of the property of the
Obligors under any law or pursuant to the provisions of the
Certificates or Articles of Incorporation or By-laws of the Obligors or
any agreement or other instrument known to such counsel to which the
Obligors is a party or by which the Obligors may be bound.
9. The execution, delivery and performance by each Guarantor of
the Operative Agreements to which it is a party do not conflict with or
result in any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any Lien upon
any of the property of the Guarantors under any law or pursuant to the
provisions of the Certificates or Articles of Incorporation or By-laws
of the Guarantors or any agreement or other instrument known to such
counsel to which the Guarantors is a party or by which the Guarantors
may be bound.
10. There are no actions, suits or proceedings pending or, to
the knowledge of such counsel after due inquiry, threatened against or
affecting the Obligors or any Subsidiary in any court or before any
governmental authority or arbitration board or tribunal which, if
adversely determined, would have a materially adverse effect on the
properties, business, prospects, profits or condition, (financial or
otherwise) of the Obligors and its Subsidiaries or the ability of the
Obligors to perform its obligations under the Operative Agreements or
on the legality, validity or enforceability of the obligations under
the Operative Agreements. To the knowledge of such counsel, neither
the Obligors nor any Subsidiary is in default with respect to any court
or governmental authority, or arbitration board or tribunal.
11. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body, Federal or state, is necessary in connection with
the execution, delivery and performance of the Operative Agreements.
12. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreement and the
execution and delivery of the Operative Agreements do not, under
existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
13. Neither the issuance of the Notes nor the application of
the proceeds of the sale of the Notes in accordance with the provisions
of the Note Purchase Agreement will violate or result in a violation of
Section 7 of the Securities Exchange Act of 1934, as amended, or any
regulation issued pursuant thereto, including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
14. All necessary uniform commercial code financing statements
and similar notices have been filed for record in all public offices
wherein such filing is necessary to perfect the security interest
created by the Pledge and Intercreditor Agreement. The Pledge and
Intercreditor Agreement constitutes a valid perfected security interest
on the collateral described therein.
15. None of the Obligors is an "investment company" or a
company "controlled" by an "investment company," within the meaning
of the Investment Company Act of 1940, as amended
With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and other officers of the Obligors.
FORM OF OPINION OF BARBADOS COUNSEL
TO THE OBLIGORS
The closing opinion of _______________, Barbados counsel to the
Obligors, which is called for by Section 4.5 of the Note Purchase Agreement,
shall be dated the date of Closing and addressed to the Purchasers, shall be
satisfactory in scope and form to each Purchaser and shall be to the effect
that:
1. GEI is a corporation, duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, has the corporate power and the corporate authority to
execute and perform each Operative Agreement to which it is a party and
to issue the GEI Notes, and has the full corporate power and the
corporate authority to conduct the activities in which it is now
engaged and is duly licensed or qualified and is in good standing as a
foreign corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary except
in jurisdictions where the failure to be so qualified or licensed would
not have a material adverse affect on the business of GEI.
2. Each Subsidiary organized under the laws of Barbados or any
jurisdiction thereof is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good standing
in each jurisdiction in which the character of the properties owned or
leased by it or the nature of the business transacted by it makes such
licensing or qualification necessary except in jurisdictions where the
failure to be so qualified or licensed would not have a material
adverse affect on the business of such Subsidiary, and all of the
issued and outstanding shares of capital stock of each such Subsidiary
have been duly issued, are fully paid and non-assessable and are owned
by the Obligors, by one or more Subsidiaries, or by the Obligors and
one or more Subsidiaries.
3. Each Operative Agreement to which GEI is a party has been
duly authorized by all necessary corporate action on the part of GEI,
has been duly executed and delivered by GEI and constitutes the legal,
valid and binding contract of GEI enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The GEI Notes have been duly authorized by all necessary
corporate action on the part of GEI, and the GEI Notes being delivered
on the date hereof have been duly executed and delivered by GEI and
constitute the legal, valid and binding obligations of GEI enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity
or at law).
5. Each Operative Agreement to which GEI is a party has been
duly authorized by all necessary corporate action on the part of GEI,
has been duly executed and delivered by GEI and constitutes the legal,
valid and binding contract of GEI enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally, and
general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
6. Each Operative Agreement to which any Offshore Subsidiary
Guarantor is a party has been duly authorized by all necessary
corporate action on the part of such Offshore Subsidiary Guarantor,
has been duly executed and delivered by such Offshore Subsidiary
Guarantor and constitutes the legal, valid and binding contract of such
Offshore Subsidiary Guarantor enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
7. The issuance and sale of the GEI Notes and the execution,
delivery and performance by GEI of the Operative Agreements to which it
is a party do not conflict with or result in any breach of any of the
provisions of or constitute a default under or result in the creation
or imposition of any Lien upon any of the property of the Obligors
under any law or pursuant to the provisions of the Certificates or
Articles of Incorporation or By-laws of GEI or any agreement or other
instrument known to such counsel to which GEI is a party or by which
GEI may be bound.
8. The execution, delivery and performance by each Offshore
Subsidiary Guarantor of the Operative Agreements to which it is a party
do not conflict with or result in any breach of any of the provisions
of or constitute a default under or result in the creation or
imposition of any Lien upon any of the property of such Offshore
Subsidiary Guarantor under any law or pursuant to the provisions of the
Certificates or Articles of Incorporation or By-laws of such Offshore
Subsidiary Guarantor or any agreement or other instrument known to such
counsel to which such Offshore Subsidiary Guarantor is a party or by
which such Offshore Subsidiary Guarantor may be bound.
9. There are no actions, suits or proceedings pending or, to
the knowledge of such counsel after due inquiry, threatened against or
affecting GEI or any such Offshore Subsidiary Guarantor in any court or
before any governmental authority or arbitration board or tribunal
which, if adversely determined, would have a materially adverse effect
on the properties, business, prospects, profits or condition,
(financial or otherwise) of GEI and its such Offshore Subsidiary
Guarantors or the ability of GEI or any such Offshore Subsidiary
Guarantor to perform its obligations under the Operative Agreements or
on the legality, validity or enforceability of the obligations under
the Operative Agreements. To the knowledge of such counsel, neither
GEI nor any such Offshore Subsidiary Guarantor is in default with
respect to any court or governmental authority, or arbitration board or
tribunal.
10. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body of Barbados, is necessary in connection with the
execution, delivery and performance of the GEI Notes or the Operative
Agreements to which the Offshore Subsidiary Guarantors are a party.
11. The issuance, sale and delivery of the GEI Notes under the
circumstances contemplated by the Note Purchase Agreement and the
execution and delivery of the Operative Agreements of GEI and the
Offshore Subsidiary Guarantors do not, under existing law, require the
registration of the Notes under any laws of Barbados.
(12) A final judgment against GEI or any Offshore Subsidiary
Guarantor obtained in an New York court may be enforced in Barbados by
the commencement of a fresh action before the Barbados courts based on
the judgment of the New York court. Summary judgment against such
party may be granted by the Barbados court provided that the Barbados
court is satisfied:
(a) as to the jurisdiction of the New York court,
(b) that the New York judgment was not impeachable for
fraud and was not contrary to Barbados rules of natural justice,
and
(c) that the enforcement of such judgment would not be
contrary to public policy in the Barbados (and such counsel
considers this to be the case).
(13) The Barbados Courts will rank the obligations of GEI or any
Offshore Subsidiary Guarantor under the GEI Notes or the Subsidiary
Guaranty Agreement at least pari passu with all unsecured and
unsubordinated indebtedness of the GEI or such Offshore Subsidiary
Guarantor in the event the Persons become insolvent or bankrupt and a
custodian, liquidator, trustee or receiver is appointed for the major
part of the property of such entities.
(14) The GEI Notes and the Operative Agreements is not subject
to Barbados stamp duty.
(15) Neither GEI nor the Offshore Subsidiary Guarantors is
required to deduct or withhold any taxes or other charges imposed by
Barbados from any payment to become due under the GEI Notes or any
Operative Agreement to which it is a party.
(16) The consent to jurisdiction and service of process by GEI
and the Offshore Subsidiary Guarantors set forth in the Note Purchase
Agreement or the Subsidiary Guaranty Agreement constitutes an effective
submission by such Persons to the jurisdiction of the courts specified
therein and service of process in the manner specified therein will
constitute effective service of process in respect of any action
arising out of or relating to the Note Purchase Agreement or the
Subsidiary Guaranty Agreement.
The opinion of _____________ shall cover such other matters relating to
the sale of the Notes as each Purchaser may reasonably request. With respect
to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and other
officers of the Obligors.
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Chapman and Cutler, special counsel to the
Purchasers, called for by Section 4.5 of the Note Purchase Agreement, shall be
dated the date of Closing and addressed to each Purchaser, shall be
satisfactory in form and substance to each Purchaser and shall be to the
effect that:
1. DeVry is a corporation, validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power and the corporate authority to execute and deliver the Note
Purchase Agreement and to issue the Notes.
2. The Note Purchase Agreement has been duly authorized by all
necessary corporate action on the part of DeVry, has been duly executed
and delivered by DeVry and constitutes the legal, valid and binding
contract of DeVry enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
3. The DeVry Notes have been duly authorized by all necessary
corporate action on the part of DeVry, and the DeVry Notes being
delivered on the date hereof have been duly executed and delivered by
DeVry and constitute the legal, valid and binding obligations of DeVry
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding
in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreement do not, under
existing law, require the registration of the Notes under the Securities
Act of 1933, as amended, or the qualification of an indenture under the
Trust Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of
________________, counsel to the Obligors, is satisfactory in scope and form
to Chapman and Cutler and that, in their opinion, the Purchasers are justified
in relying thereon.
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials
and officers of the Obligors and upon representations of the Obligors and the
Purchasers delivered in connection with the issuance and sale of the Notes.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Certificates of Incorporation certified by, and a
certificate of good standing of the Obligors from, the Secretary of State of
the State of Delaware, the By-laws of the Obligors and the general business
corporation law of the State of Delaware. The opinion of Chapman and Cutler
is limited to the laws of the State of New York, the general business
corporation law of the State of Delaware and the Federal laws of the United
States.