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EXHIBIT 4
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SECOND AMENDMENT DATED AS OF SEPTEMBER 30, 2005
TO CREDIT AGREEMENT DATED AS OF MAY 16, 2003
This Amendment ("Amendment") is entered into as of
September 30, 2005, among DeVry Inc., a Delaware corporation
("DeVry"), Global Education International, Inc., a Barbados
corporation ("GEI" and together with DeVry a "Borrower" and
collectively the "Borrowers"), the lenders party hereto
(collectively, the "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender
and L/C Issuer.
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Lenders and Bank of
America, N.A., as Administration Agent, Swing Line Lender and L/C
Issuer are parties to that certain Credit Agreement, dated as of
May 16, 2003 as amended (the "Credit Agreement") (terms defined
in the Credit Agreement shall have the same respective meanings
when used herein);
WHEREAS, the Borrowers have requested that the Lenders
agree to amend the Credit Agreement so as to (i) change the
definition of "Consolidated EBITDA", and (ii) change the net
worth covenant, all as more fully hereinafter set forth; and
WHEREAS, the Lenders are willing to amend the Credit
Agreement on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein contained and other good and valuable
consideration (the receipt, adequacy and sufficiency of which is
hereby acknowledged), the parties hereto, intending legally to be
bound, hereby agree as follows:
ARTICLE I
AMENDMENTS
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The Credit Agreement is hereby amended as follows:
1.1 Section 1.1 of the Credit Agreement is amended so that the
definition of "Consolidated EBITDA" shall read in its entirety as
follows:
"Consolidated EBITDA" means, for any period, for
DeVry and its Subsidiaries on a consolidated basis, an
amount equal to Consolidated Net Income for such
period, plus
(a) the following to the extent deducted in
calculating such Consolidated Net Income: (i)
Consolidated Interest Charges for such period, (ii) the
provision for federal, state, local and foreign income
taxes based on or measured by income used or included
in the determination of such Consolidated Net Income,
(iii) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net
Income, (iv) all non-cash expenses incurred for the
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issuance of employee stock options and other stock
based compensation in accordance with Financial
Accounting Standards Board Statement No. 123 (revised
2004), and (v) all non-cash and nonrecurring charges,
minus
(b) to the extent included in such Consolidated
Net Income, all nonrecurring and extraordinary gains
for such period.
1.2 Section 7.15(a) of the Credit Agreement is amended to read
in its entirety as follows:
(a) Consolidated Net Worth. Permit Consolidated
Net Worth at any time to be less than the sum of (a)
$375,000,000, (b) an amount equal to 50% of the
Consolidated Net Income earned in each full fiscal
quarter ending after March 31, 2004 (with no deduction
for a net loss in any such fiscal quarter), plus (c) an
amount equal to 100 % of the aggregate increases in
Shareholders' Equity of DeVry and its Subsidiaries
after the date hereof by reason of the issuance and
sale of capital stock or other equity interests of
DeVry or any Subsidiary (other than issuances to DeVry
or a wholly-owned Subsidiary), including upon any
conversion of debt securities of DeVry into such
capital stock or other equity interests, less (d) the
aggregate net adjustment, as of June 30, 2005, to
Consolidated Net Worth arising from the adjustments to
retained earnings and additional paid in capital as a
result of the adoption of Financial Accounting
Standards Board Statement No. 123 (revised 2004).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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Each Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that:
2.1 Each Loan Party is a corporation, partnership or limited
liability company duly organized or formed, validly existing and
in good standing under the Laws of the jurisdiction of its
incorporation or organization.
2.2 The execution, delivery and performance by each Loan Party
of this Amendment have been duly authorized by all necessary
corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person's Organization
Documents; (b) conflict with or result in any breach or
contravention of (i) any Contractual Obligation to which such
Person is a party or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law.
2.3 No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental
Authority or any other Person not previously obtained or made is
necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this
Amendment.
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2.4 This Amendment has been duly executed and delivered by each
Loan Party that is party to the Credit Agreement. This Amendment
constitutes a legal, valid and binding obligation of each Loan
Party, enforceable against each Loan Party, that is party hereto
in accordance with its terms, except as such enforceability may
be limited by (i) applicable Debtor Relief Laws and (ii) general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
2.5 The representations and warranties of the Borrower set forth
in Article V of the Credit Agreement are true and correct as of
the date hereof as though made on the date hereof and as though
applied to the Credit Agreement as amended by this Amendment
(except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for
purposes of this Section 2.5, the representations and warranties
contained in Section 5.5(a) and (b) of the Credit Agreement shall
be deemed to refer to the most recent statements furnished
pursuant to Section 6.1 (a) and (b) of the Credit Agreement).
2.6 No Default or Event of Default has occurred and is
continuing.
ARTICLE III
GENERAL
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3.1 This Amendment shall become effective as of the date hereof,
subject, however, to the receipt by the Administrative Agent of
counterparts of this Amendment, executed by the Borrowers, the
other Loan Parties whose signatures are provided for hereinbelow,
and the Required Lenders.
3.2 As amended or modified by this Amendment, the Loan Documents
shall remain in full force and effect. References to the Credit
Agreement in any of the Loan Documents shall be deemed to include
a reference to the Credit Agreement as amended or modified
hereby, whether or not reference is made to this Amendment.
Section headings used in this Amendment are for convenience of
reference only, and shall not affect the construction of this
Amendment.
3.3 This Amendment may be executed in any number of counterparts
(each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument).
3.4 Each of the Borrowers agrees to pay to or reimburse the
Administrative Agent, upon demand, for all costs and expenses
incurred (including legal expenses) in connection with the
development, preparation, negotiation, execution and delivery of
this Amendment and the other Loan Documents.
3.5 All obligations of the Borrowers and rights of the
Administrative Agent and the Lenders, that are expressed herein,
shall be in addition to and not in limitation to those provided
by applicable law. This Amendment shall be a contract made under
and governed by the internal laws of the State of New York,
without giving effect to principles of conflicts of laws.
Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under
applicable law; but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
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invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.
3.6 Each of the Borrowers acknowledges and agrees that the
execution and delivery by the Administrative Agent and the
Lenders of this Amendment shall not be deemed to create a course
of dealing or otherwise obligate the Lenders to forbear or
execute similar amendments under the same or similar
circumstances in the future.
3.7 This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. No third party beneficiaries are intended in connection
with this Amendment.
3.8 This Amendment, together with the Credit Agreement, contains
the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This
Amendment supercedes all prior drafts and communications with
respect hereto. This Amendment may not be amended except in
accordance with the provisions of Section 11.1 of the Credit
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused the
execution and delivery hereof by their respective representatives
as of the date hereof.
DEVRY INC.
By:____________________________
Name:__________________________
Title:_________________________
GLOBAL EDUCATION INTERNATIONAL,
INC.
By:____________________________
Name:__________________________
Title:_________________________
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ACKNOWLEDGEMENT
The undersigned hereby acknowledges and agrees to the foregoing
Amendment and confirms that its Loan Documents remain in full
force and effect and are hereby reaffirmed.
Pledgors
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DeVry University, Inc.
Dominica Management, Inc.
Ross University Services, Inc.
International Education Holdings,
Inc.
Ross University Management, Inc.
By:__________________________________
Title:_____________________________
U.S. Guarantors
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DeVry Educational Products, Inc.
DeVry Leasing Corporation
DeVry/Becker Educational
Development Corp.
DeVry Educational Development
Corp.
DeVry Florida LLC
DeVry Canada LLC
Ross University Services, Inc.
DeVry University, Inc.
Becker CPA Review Corp.
International Education Holdings,
Inc.
Dominica Management, Inc.
DeVry/New York, Inc.
By:__________________________________
Title:_____________________________
Offshore Guarantors
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Ross University Management, Inc.
Ross University School of Medicine
School of Veterinary Medicine
Limited
Ross University School of Medicine
School of Veterinary Medicine (St.
Kitts) Limited
By:__________________________________
Title:_____________________________