-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OKYRAvXExX/nVz5Dg5jxPKnnzmUSIKAX8OmzxP+jl07CGPicSXnDwC45Da2t6+Gf gEPdVRahuYktKYV/w0yalA== 0000730464-03-000011.txt : 20030602 0000730464-03-000011.hdr.sgml : 20030602 20030602131752 ACCESSION NUMBER: 0000730464-03-000011 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20030516 ITEM INFORMATION: Acquisition or disposition of assets FILED AS OF DATE: 20030602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DEVRY INC CENTRAL INDEX KEY: 0000730464 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 363150143 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13988 FILM NUMBER: 03727655 BUSINESS ADDRESS: STREET 1: ONE TOWER LN STREET 2: SUITE 1000 CITY: OAKBROOK TERRACE STATE: IL ZIP: 60181 BUSINESS PHONE: 6305717700 MAIL ADDRESS: STREET 1: ONE TOWER LANE CITY: OAKBROOK STATE: IL ZIP: 60181 8-K 1 r58k.txt FORM 8-K DATED MAY 16, 2003 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) May 16, 2003 ----------------- DeVRY INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) DELAWARE 012751 36-3150143 - ----------------------------------------------------------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation File Number) Identification No.) ONE TOWER LANE, OAKBROOK TERRACE, IL 60181 - ----------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (630)571-7700 --------------------- Total number of pages: 359 Exhibit Index is located on page 5 2 DEVRY INC. FORM 8-K INDEX Page No. -------- ITEM 2. Acquisition of Assets Description of the acquisition of Dominica Management, Inc. 3 SIGNATURES 4 EXHIBIT INDEX 5 EXHIBITS 6 - 359 3 ITEM 2 - ACQUISITION OF ASSETS - ------------------------------ On May 16, 2003, DeVry Inc., the Company completed the acquisition all of the outstanding shares of capital stock of Dominica Management, Inc. Dominica Management, Inc. owns and operates Ross University School of Medicine and Ross University School of Veterinary Medicine. With campuses located in the Caribbean countries of Dominica and St. Kitts/Nevis, Ross University is one of the world's largest providers of medical and veterinary education with more than 2,500 students. Funding for the purchase was obtained using cash from the Company's current operations, $125 million of senior notes due 2010 privately placed with institutional investors and a revolving line of credit of $175 million from a group of banks led by Bank of America, N.A. The stock of certain of the subsidiaries of the Company is pledged as collateral to secure borrowings under the notes and the revolving credit facility. This foregoing description is not necessarily complete and is qualified in its entirety by reference to the Credit Agreement (revolving line of credit), the U.S. Subsidiary Guaranty, the Offshore Subsidiary Guaranty, the Note Purchase Agreement and the Pledge and Intercreditor Agreement which are attached hereto as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, respectively, and incorporated herein by reference. 4 Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. DEVRY INC. ---------- (REGISTRANT) Date: May 30, 2003 /s/Dennis J. Keller ------------------- Dennis J. Keller Chairman Date: May 30, 2003 /s/Norman M. Levine ------------------------- Norman M. Levine Senior Vice President and Chief Financial Officer 5 EXHIBIT INDEX Exhibit Number Description - ------ --------------------------------------------- 4.1 Credit Agreement, dated May 16, 2003, between DeVry Inc. and Global Education International, Inc., as the Borrowers, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and The Other Lenders Party Hereto (the "Credit Agreement"). [The schedules and exhibits to the Credit Agreement have been omitted in accordance with the instructions to Item 601(b)(2) of Regulation S-K. The registrant hereby undertakes to provide a copy of the schedules and exhibits to the staff of the Securities and Exchange Commission upon request.] 4.2 U.S. Subsidiary Guaranty, dated May 15, 2003, regarding the Credit Agreement 4.3 Offshore Subsidiary Guaranty, dated May 16, 2003, regarding the the Credit Agreement 4.4 Note Purchase Agreement, dated May 16, 2003 4.5 Pledge and Intercreditor Agreement, dated May 16, 2003, by and Among DeVry Inc. and Global Education International, Inc. and Certain of Their Subsidiaries, as the Grantors, the Banks Party Hereto, the Noteholders Party Hereto, and Bank of America, N.A., as Collateral Agent. [The schedules and exhibits to the Pledge and Intercreditor Agreement have been omitted in accordance with the instructions to Item 601(b)(2) of Regulation S-K. The registrant hereby undertakes to provide a copy of the schedules and exhibits to the staff of the Securities and Exchange Commission upon request.] EX-4 3 ca1.txt EXHIBIT 4.1 TO FORM 8-K CREDIT AGREEMENT Dated as of May 16, 2003 among DeVry Inc. and Global Education International, Inc., as the Borrowers, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, The Other Lenders Party Hereto BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and Sole Book Manager, THE NORTHERN TRUST COMPANY, as Syndication Agent and LASALLE BANK NATIONAL ASSOCIATION and HARRIS TRUST AND SAVINGS BANK, as Co-Documentation Agents ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1 1.1. Defined Terms 1 1.2. Other Interpretive Provisions 23 1.3. Accounting Terms 24 1.4. Rounding 24 1.5. References to Agreements and Laws 24 1.6. Times of Day 25 1.7. Letter of Credit Amounts 25 ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS 25 2.1. Revolving Loans 25 2.2. Borrowings, Conversions and Continuations of Revolving Loans 25 2.3. Letters of Credit 27 2.4. Swing Line Loans 34 2.5. Prepayments 38 2.6. Termination or Reduction of Commitments 38 2.7. Repayment of Loans 39 2.8. Interest 39 2.9. Fees 40 2.10. Computation of Interest and Fees 41 2.11. Evidence of Debt 41 2.12. Payments Generally 42 2.13. Sharing of Payments 43 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 44 3.1. Taxes 44 3.2. Illegality 45 3.3. Inability to Determine Rates 45 3.4. Increased Cost and Reduced Return; Capital Adequacy 46 3.5. Funding Losses 46 3.6. Matters Applicable to all Requests for Compensation 47 3.7. Survival 47 ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 47 4.1. Conditions of Initial Credit Extension 47 4.2. Conditions to all Credit Extensions 50 ARTICLE V REPRESENTATIONS AND WARRANTIES 50 5.1. Existence, Qualification and Power; Compliance with Laws 50 5.2. Authorization; No Contravention 51 5.3. Governmental Authorization; Other Consents 51 5.4. Binding Effect 51 5.5. Financial Statements; No Material Adverse Effect 51 5.6. Litigation 52 5.7. No Default 52 5.8. Ownership of Property; Liens 52 5.9. Environmental Compliance 53 5.10. Insurance 53 5.11. Taxes 53 5.12. ERISA Compliance 53 5.13. Subsidiaries 54 5.14. Margin Regulations; Investment Company Act; Public Utility Holding Company Act 54 5.15. Dominica Purchase Agreement 54 5.16. Disclosure 55 5.17. Compliance with Laws 55 5.18. Intellectual Property; Licenses, Etc. 55 5.19. Guaranties 56 5.20. Pledge Documents 56 5.21. Solvency 56 5.22. Existing Indebtedness 56 5.23. Pari-Passu Obligations 56 ARTICLE VI AFFIRMATIVE COVENANTS 57 6.1. Financial Statements 57 6.2. Certificates; Other Information 57 6.3. Notices 59 6.4. Payment of Obligations 59 6.5. Preservation of Existence, Etc. 59 6.6. Maintenance of Properties 60 6.7. Maintenance of Insurance 60 6.8. Compliance with Laws 60 6.9. Books and Records 60 6.10. Inspection Rights 61 6.11. Use of Proceeds 61 6.12. Additional Guarantors 61 6.13. Pledgors 62 6.14. Pari-Passu Obligations 62 ARTICLE VII NEGATIVE COVENANTS 62 7.1. Liens 63 7.2. Investments 64 7.3. Indebtedness 64 7.4. Fundamental Changes 65 7.5. Dispositions 66 7.6. Restricted Payments 67 7.7. Change in Nature of Business 67 7.8. Transactions with Affiliates 67 7.9. Burdensome Agreements 67 7.10. Use of Proceeds 68 7.11. Dominica Purchase Agreement 68 7.12. Sale and Leaseback. 68 7.13. ERISA. 68 7.14. Subsidiaries. 68 7.15. Financial Covenants 69 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 70 8.1. Events of Default 70 8.2. Remedies Upon Event of Default 71 8.3. Application of Funds 72 ARTICLE IX ADMINISTRATIVE AGENT 73 9.1. Appointment and Authorization of Administrative Agent 73 9.2. Delegation of Duties 74 9.3. Liability of Administrative Agent 74 9.4. Reliance by Administrative Agent 74 9.5. Notice of Default 75 9.6. Credit Decision; Disclosure of Information by Administrative Agent 75 9.7. Indemnification of Administrative Agent 76 9.8. Administrative Agent in its Individual Capacity 76 9.9. Successor Administrative Agent 76 9.10. Administrative Agent May File Proofs of Claim 77 9.11. Collateral and Guaranty Matters 78 9.12. Other Agents; Arrangers and Managers 79 ARTICLE X CONTINUING GUARANTY 79 10.1. Guaranty 79 10.2. No Termination 79 10.3. Waiver of Notices 79 10.4. Subrogation 79 10.5. Waiver of Suretyship Defenses 80 10.6. Exhaustion of Other Remedies Not Required 80 10.7. Reinstatement 80 10.8. Subordination 81 10.9. Stay of Acceleration 81 10.10. Condition of GEI 81 ARTICLE XI MISCELLANEOUS 81 11.1. Amendments, Etc. 81 11.2. Notices and Other Communications; Facsimile Copies 83 11.3. No Waiver; Cumulative Remedies 84 11.4. Attorney Costs, Expenses and Taxes 84 11.5. Indemnification by the Borrowers 84 11.6. Payments Set Aside 86 11.7. Successors and Assigns 86 11.8. Confidentiality 89 11.9. Set-off 90 11.10. Interest Rate Limitation 91 11.11. Counterparts 91 11.12. Integration 91 11.13. Survival of Representations and Warranties 91 11.14. Severability 91 11.15. Tax Forms 92 11.16. Replacement of Lenders. 93 11.17. Governing Law 94 11.18. Service of Process on GEI 94 11.19. Waiver of Right to Trial by Jury 96 11.20. Judgements In Foreign Currency 96 SCHEDULES 1.1 Existing Letters of Credit 2.1 Commitments and Pro Rata Shares 5.5 Supplement to Interim Financial Statements 5.6 Litigation 5.9 Environmental Matters 5.13 Subsidiaries and Other Equity Investments 5.18 Intellectual Property 5.20 Filings Pursuant to the Pledge Agreement 5.22 Existing Indebtedness to be Repaid at Closing 7.1 Existing Liens 7.3 Existing Indebtedness Not to be Repaid at Closing 11.2 Administrative Agent's Office, Certain Addresses for Notices EXHIBITS Form of A Revolving Loan Notice B Swing Line Loan Notice C-1 DeVry Note C-2 GEI Note D Compliance Certificate E Assignment and Assumption F-1 U.S. Subsidiary Guaranty F-2 Offshore Subsidiary Guaranty G Pledge Agreement H Opinion Matters CREDIT AGREEMENT This CREDIT AGREEMENT ("Agreement") is entered into as of May 16, 2003, among DeVry Inc., a Delaware corporation ( "DeVry"), Global Education International, Inc., a Barbados corporation ("GEI" and together with DeVry a "Borrower" and collectively the "Borrowers"), each lender from time to time party hereto (collectively, the "Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. DeVry has entered into the Dominica Purchase Agreement (hereinafter defined) providing for, among other things, the acquisition of Dominica. In connection therewith, the Borrowers have requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1.1. Defined Terms. ------------- "Acquired Entity" means any Person or assets, as the case may be, acquired through an Acquisition. "Acquisition" means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary before giving effect to such merger or consolidation, provided that DeVry or the Subsidiary is the surviving entity). "Acquisition Certificate" has the meaning specified in Section 4.1(a)(xii). "Administrative Agent" means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. "Administrative Agent's Office" means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 11.2, or such other address or account as the Administrative Agent may from time to time notify the Borrowers and the Lenders. "Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Administrative Agent. "Affiliate" means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent. "Agent-Related Persons" means the Administrative Agent, together with its Affiliates (including, in the case of Bank of America in its capacity as the Administrative Agent, the Arranger), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates. "Aggregate Commitments" means the Commitments of all the Lenders. "Aggregate DeVry Commitments" means the Commitments of all Lenders to DeVry. "Aggregate GEI Commitments" means the Commitments of all Lenders to GEI. "Agreement" has the meaning specified in the introductory paragraph hereto. "Applicable Rate" means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.2(b): Applicable Rate - ------------------------------------------------------------------------------- Eurodollar Rate Loans Pricing Consolidated Leverage and Letters Level Ratio Commitment Fee Of Credit Base Rate Loans - ------------------------------------------------------------------------------- 1 > 2.00:1 35 bps 175 bps 25 bps 2 > 1.50:1 but < 2.00:1 30 bps 150 bps 0 bps 3 > 1:00:1 but < 1.50:1 25 bps 125 bps 0 bps 4 > 0.50:1 but < 1.00:1 20 bps 100 bps 0 bps 5 < 0.50:1 17.5 bps 75 bps 0 bps - ------------------------------------------------------------------------------- Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.2(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the Closing Date through the date upon which the initial Compliance Certificate is delivered pursuant to Section 6.2(b), shall be determined based upon Pricing Level 2. "Approved Fund" has the meaning specified in Section 11.7(g). "Arranger" means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager. "Asset Sale" shall mean any sale, transfer or other disposition by DeVry or any of its Subsidiaries to any Person (including by way of redemption by such Person) other than to DeVry or a Wholly-Owned Subsidiary of DeVry of any asset (including, without limitation, any capital stock or other securities of, or equity interests in, another Person); provided, however, that the term Asset Sale shall not include (i) Dispositions permitted under Section 7.5, or (ii) Sale and Leasebacks permitted under Section 7.12. "Assignment and Assumption" means an Assignment and Assumption substantially in the form of Exhibit E. "Attorney Costs" means and includes all fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the allocated cost of internal legal services and all expenses and disbursements of internal counsel. "Attributable Indebtedness" means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. "Audited Financial Statements" means the audited consolidated balance sheet of DeVry and its Subsidiaries for the fiscal year ended June 30, 2002, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year of DeVry and its Subsidiaries, including the notes thereto. "Auto-Renewal Letter of Credit" has the meaning specified in Section 2.3(b)(iii). "Availability Period" means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.6, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.2. "Bank of America" means Bank of America, N.A. and its successors. "Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. S 101, et. seq.). "Base Rate" means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its "prime rate." The "prime rate" is a rate set by Bank of America based upon various factors including Bank of America's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. "Base Rate Revolving Loan" means a Revolving Loan that is a Base Rate Loan. "Base Rate Loan" means a Loan that bears interest based on the Base Rate. "Borrower" means DeVry or GEI, as the context may require. "Borrowers" has the meaning specified in the introductory paragraph hereto. "Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as the context may require. "Business Day" means (i) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in Chicago, Illinois and the state where the Administrative Agent's Office is located, and (ii) if such day relates to any Eurodollar Rate Loan, any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market. "Cash Collateralize" means to pledge and deposit with or deliver to the Collateral Agent, as collateral for the L/C Obligations, cash or deposit account balances pursuant to the Pledge Agreement. Derivatives of such term have corresponding meanings. "Change of Control" means, with respect to any Person, an event or series of events by which: (a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have "beneficial ownership" of all securities that such person or group has the right to acquire (such right, an "option right"), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing that to the extent not in contravention of GAAP, Consolidated Capital Expenditures shall not include expenditures made in connection with the replacement, substitution or restoration of assets to the extent made from (i) insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (ii) awards of compensation arising from the taking by seizure, compulsory purchase, eminent domain or condemnation of the assets being replaced. "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 and (iv) 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. "Consolidated EBITDAR" means, for any period, for DeVry and its Subsidiaries on a consolidated basis, an amount equal to Consolidated EBITDA for such period, plus Consolidated Rental Payments for such period to the extent deducted in the determination of Consolidated Net Income for such period. "Consolidated Fixed Charge Coverage Ratio" means as of any date of determination, the ratio of: (a) Consolidated EBITDAR for the period of the four fiscal quarters then most recently ended, less (i) Consolidated Capital Expenditures for such period, less (ii) the amount of all taxes based on or measured by income used or included in the determination of Consolidated Net Income, paid or required to be paid in cash by DeVry and its Subsidiaries on a consolidated basis during such period, to (b) the sum of (i) Consolidated Interest Charges paid or required to be paid during such period, plus (ii) all scheduled payments of principal made or required to be made with respect to all Consolidated Funded Indebtedness (including the principal portion of capital leases) of DeVry and its Subsidiaries on a consolidated basis during such period, plus (iii) all scheduled Consolidated Rental Payments of DeVry and its Subsidiaries during such period. After the Closing Date, the Consolidated Fixed Charge Coverage Ratio shall be determined as if the Dominica Acquisition occurred at the beginning of the period of the four consecutive fiscal quarters most recently ended before the Closing Date for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.1. "Consolidated Funded Indebtedness" means, as of any date of determination, for DeVry and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all obligations (whether direct or contingent) arising under standby letters of credit, bankers' acceptances, bank guaranties, surety bonds (but only to the extent such surety bonds exceed $10,000,000 in the aggregate) and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than DeVry or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which DeVry or a Subsidiary is a general partner or joint ventures, unless such Indebtedness is expressly made non-recourse to DeVry or such Subsidiary. "Consolidated Interest Charges" means, for any period, for DeVry and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses of DeVry and its Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of DeVry and its Subsidiaries with respect to such period under capital leases that is treated as interest in accordance with GAAP. "Consolidated Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended for which DeVry has delivered financial statements pursuant to Section 6.1(a) or (b). After the Closing Date, the Consolidated Leverage Ratio shall be determined as if the Dominica Acquisition occurred at the beginning of the period of the four consecutive fiscal quarters most recently ended before the Closing Date for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.1. "Consolidated Net Income" means, for any period, for DeVry and its Subsidiaries on a consolidated basis, the net income of DeVry and its Subsidiaries (excluding extraordinary gains but including extraordinary losses) for that period. "Consolidated Net Worth" means, as of any date of determination, for DeVry and its Subsidiaries on a consolidated basis, Shareholders' Equity of DeVry and its Subsidiaries on that date. "Consolidated Rental Payments" means, for any period, for DeVry and its Subsidiaries, all payments under all operating leases (including subleases but excluding payments under (i) Synthetic Leases and (ii) leases of student housing so long as the terms thereof do not exceed 18 months, and the aggregate payments under all such student housing leases do not exceed $5,000,000 in any period of four consecutive fiscal quarters). "Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "Control" has the meaning specified in the definition of "Affiliate." "Credit Extension" means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. "Debtor Relief Laws" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions (including any applicable foreign jurisdictions) from time to time in effect and affecting the rights of creditors generally. "Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. "Default Rate" means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws. "DeVry Guaranty" means the guaranty of DeVry pursuant to Article X. "DeVry Letter of Credit Sublimit" means an amount equal to $25,000,000. The DeVry Letter of Credit Sublimit is part of, and not in addition to, the Aggregate DeVry Commitments. "DeVry Note" means a promissory note made by DeVry in favor of a Lender, substantially in the form of Exhibit C-1. "Disposition" or "Dispose" means the sale, transfer, license, lease or other disposition (excluding any Sale and Leaseback transactions) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. "DOE" means the United States Department of Education and any successor agency administering federal student financial assistance under Title IV. "DOE Ratio" means DeVry's composite score as of any fiscal year end, as determined by the Secretary of the DOE pursuant to Section 668.172 of 34 C.F.R. "Dollar" and "$" mean lawful money of the United States. "Dominica" means Dominica Management, Inc. "Dominica Acquisition" means the acquisition by DeVry of all of the shares of the stock of Dominica pursuant to the Dominica Purchase Agreement and the consummation of the transactions related thereto pursuant to the Dominica Acquisition Documents (including, without limitation, the acquisition of subsidiaries of Dominica). "Dominica Acquisition Documents" means the Dominica Purchase Agreement and all other documents provided for therein or delivered in connection therewith. "Dominica Purchase Agreement" means the Stock Purchase Agreement dated as of March 19, 2003, as amended by Amendment No. 1 to the Stock Purchase Agreement dated as of March 26, 2003 and Amendment No. 2 to the Stock Purchase Agreement dated as of May , 2003, among Dominica, its stockholders and optionholders, RUSI, RUMI, and DeVry, as the same may be amended or modified with any necessary consent of the Administrative Agent. "Dormant Subsidiary" means, as of any date of determination, any Subsidiary which (i) conducts no business, (ii) is not the obligor of any Indebtedness, (iii) has assets which (together with the assets of all other Dormant Subsidiaries) do not exceed 3% of the consolidated assets of DeVry and its Subsidiaries at such time, and (iv) has EBITDA which (together with EBITDA of its Subsidiaries, if any, and EBITDA of all other Dormant Subsidiaries) does not exceed 3% of the Consolidated EBITDA of DeVry and its Subsidiaries at such time. "EBITDA" means, in the case of a Subsidiary, for any period, 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 and (iv) 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. "Eligible Assignee" has the meaning specified in Section 11.7(g). "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 those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of DeVry, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "ERISA" means the Employee Retirement Income Security Act of 1974. "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with DeVry within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). "Eurodollar Base Rate" has the meaning set forth in the definition of Eurodollar Rate. "Eurodollar Rate" means for any Interest Period with respect to any Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula: Eurodollar Rate = Eurodollar Base Rate ------------------------- 1.00 - Eurodollar Reserve Percentage Where, "Eurodollar Base Rate" means, for such Interest Period: (a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Telerate screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or (b) if the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or (c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America's London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the first day of such Interest Period. "Eurodollar Rate Loan" means a Revolving Loan that bears interest at a rate based on the Eurodollar Rate. "Eurodollar Reserve Percentage" means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage. "Event of Default" has the meaning specified in Section 8.1. "Existing Credit Agreement" means that certain Credit Agreement dated as of June 12, 1996 among DeVry University, Inc., Bank of America, as agent, and a syndicate of lenders, as amended or modified. "Existing Indebtedness" means all Funded Indebtedness listed in Schedule 5.22. "Existing Letters of Credit" means the Letters of Credit listed in Schedule 1.1 regardless of whether or not the account party is DeVry (it being understood that for purposes of this Agreement, DeVry shall be deemed to be the account party with respect to all Existing Letters of Credit, provided that, with respect to the Letter of Credit designated in Schedule 1.1 as the "Ross University Letter of Credit" DeVry shall become the account party of such Letter of Credit upon, but not before, consummation of the Dominica Acquisition). "Federal Funds Rate" means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent. "Fee Letter" means the letter agreement, dated March 19, 2003 among DeVry, the Administrative Agent and the Arranger. "Foreign Lender" has the meaning specified in Section 11.15(a)(i). "FRB" means the Board of Governors of the Federal Reserve System of the United States. "Fund" has the meaning specified in Section 11.7(g). "GAAP" means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. "GEI Letter of Credit Sublimit" means an amount equal to $2,000,000. The GEI Letter of Credit Sublimit is part of, and not in addition to, the Aggregate GEI Commitments. "GEI Note" means a promissory note made by GEI in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C- 2. "Governmental Authority" means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "Guarantor" means any U.S. Guarantor and any Offshore Guarantor. "Guaranty" means any U.S. Subsidiary Guaranty and any Offshore Subsidiary Guaranty. "Guarantee" means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith; provided, however, with respect to any Guarantee described in clause (b) above, to the extent the Indebtedness or obligation secured thereby has not been assumed by the guarantor or is nonrecourse to the guarantor, the amount of such Guarantee shall be deemed to be an amount equal to the lesser of the fair market value of the assets subject to such Lien or the Indebtedness or obligation secured thereby. The term "Guarantee" as a verb has a corresponding meaning. "Guaranteed Obligations" has the meaning specified in Section 10.1. "Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. "Honor Date" has the meaning specified in Section 2.3(c)(i). "Indebtedness" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds (but only to the extent that such surety bonds exceed $10,000,000 in the aggregate) and similar instruments; (c) net obligations of such Person under any Swap Contract; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) capital leases and Synthetic Lease Obligations; and (g) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any Indebtedness described in clause (e), if such Indebtedness has not been assumed or is limited in recourse to the property subject to such Lien, shall be deemed to be an amount equal to the lesser of the fair market value of the such property or the Indebtedness secured thereby. Notwithstanding anything contained herein to the contrary, and subject to Section 7.2(g), the obligation to repurchase Stafford Loans in accordance with the Stafford Loan Program shall not constitute Indebtedness. "Indemnified Liabilities" has the meaning set forth in Section 11.5. "Indemnitees" has the meaning set forth in Section 11.5. "Interest Payment Date" means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date. "Interest Period" means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the applicable Borrower in its Revolving Loan Notice provided that: (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (iii) no Interest Period shall extend beyond the Maturity Date. "Investment" means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. "IP Rights" has the meaning set forth in Section 5.18. "IRS" means the United States Internal Revenue Service. "Laws" means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. "L/C Advance" means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. "L/C Borrowing" means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing. "L/C Credit Extension" means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof. "L/C Issuer" means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. "L/C Obligations" means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. "Lender" has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuer and the Swing Line Lender. "Lending Office" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent. "Letter of Credit" means any letter of credit issued hereunder and shall include the Existing Letters of Credit. "Letter of Credit Application" means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer. "Letter of Credit Expiration Date" means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day). "Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing). "Loan" means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan or a Swing Line Loan. "Loan Documents" means this Agreement, each Note, the Fee Letter, the U.S. Guaranty, the Offshore Guaranty, the Pledge Documents and any documents executed pursuant to Section 7.14. "Loan Parties" means, collectively, the Borrowers, each Guarantor and any Special Non U.S. Subsidiary. "Material Adverse Effect" means (a) a material adverse effect on the financial condition, business, assets, regulatory or tax status, results of operations or prospects of DeVry and its Subsidiaries taken as a whole (after giving effect to the Dominica Acquisition); (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. "Maturity Date" means July 1, 2006. "Moody's" means Moody's Investors Service, Inc. and any successor thereto. "Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which DeVry or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. "Net Cash Proceeds" means with respect to any Asset Sale of DeVry or any Subsidiary, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such sale (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with the sale thereof (other than Senior Debt), (B) the out-of-pocket expenses incurred by DeVry or any Subsidiary in connection with such Asset Sale, (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant Asset Sale as a result of any gain recognized in connection therewith, (D) the amount required to be paid to any Person (other than DeVry or any Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale, and (E) appropriate amounts to be provided by DeVry or any Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by DeVry or any such Subsidiary, as the case may be, after such Asset Sale (including pension and other post-employment benefit liabilities, Environmental Liabilities and liabilities under any indemnification obligations associated with such Asset Sale), provided that to the extent and at the time any such amounts are released from such reserve (and not applied to such liabilities), such amounts shall constitute Net Cash Proceeds. "Nonrenewal Notice Date" has the meaning specified in Section 2.3(b)(iii). "Note" means a promissory note made by a Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C- 1 in the case of DeVry or C-2 in the case of GEI. "Obligations" means (i) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (ii) all debts, liabilities, obligations, covenants and duties of any Loan Party arising under any Specified Swap Contract, in the case of each of clauses (i) and (ii), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. "Offshore Guarantor" means each Subsidiary of GEI which has executed and delivered to the Administrative Agent an Offshore Guaranty. "Offshore Subsidiary Guaranty" means a guaranty substantially in the form of Exhibit F-2. "Offshore Subsidiary" means any Subsidiary of GEI which is not a U.S. Subsidiary. "Organization Documents" means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any Offshore jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. "Other Taxes" has the meaning specified in Section 3.1(b). "Outstanding Amount" means (i) with respect to Revolving Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date. "Participant" has the meaning specified in Section 11.7(d). "PBGC" means the Pension Benefit Guaranty Corporation. "Pension Plan" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by DeVry or any ERISA Affiliate or to which DeVry or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years. "Permitted Acquisition" means an Acquisition which meets each of the following conditions: (i) DeVry shall have given to the Administrative Agent 30 days' notice of the proposed closing date thereof (together with a summary thereof), it being understood that promptly upon receipt of such notice the Administrative Agent shall furnish a copy thereof to the Lenders or post a copy thereof on IntraLinks/IntraAgency or another relevant website for access thereto by each Lender; (ii) such Acquisition is non-hostile (i.e., the prior, effective written consent or approval to such Acquisition of the board of directors or equivalent governing body of the Acquired Entity is obtained); (iii) the Acquired Entity represents a line of business substantially the same as or related or incidental to the lines of business carried on by DeVry and its Subsidiaries on the date hereof; (iv) if the Acquired Entity is an accredited, Title IV eligible institution and the total consideration for the Acquisition exceeds $20,000,000, such Acquired Entity is in good standing with all applicable accrediting agencies (it being understood that, for purposes hereof, an Acquired Entity shall be deemed not to be in good standing if it shall have received an order, notice or other decision from an accrediting agency in a jurisdiction in which such Acquired Entity provides post secondary education, to the effect that the authority of such Acquired Entity to provide postsecondary education in such jurisdiction is or will be withdrawn, revoked or terminated); (v) if (a) the Consolidated Leverage Ratio, determined on a proforma basis to give effect to such Acquisition as if such Acquisition occurred at the beginning of the period of four consecutive fiscal quarters then most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.1 hereof (the "Proforma Leverage Ratio") shall be less than 1.5:1.0, then the total consideration for such Acquisition (when added to the total consideration for all other Acquisitions consummated during such period) shall not exceed an amount equal to Consolidated EBITDA for such period, or (b) the Proforma Leverage Ratio is equal to or greater than 1.5:1.0, then the total consideration for such Acquisition (when added to the total consideration for all other Acquisitions consummated during such period) shall not exceed an amount equal to 50% of Consolidated EBITDA for such period (for purposes hereof, total consideration shall include all cash paid, all indebtedness assumed and all equity issued); (vi) immediately before and after giving effect to such Acquisition, (a) no Default or Event of Default shall exist, and (b) the financial tests set forth in Section 7.15, determined on a pro forma basis, shall not exceed the limits specified in Section 7.15; and (vii) DeVry shall have delivered to the Administrative Agent a certificate of a Senior Responsible Officer to the effect of the matters set forth in clauses (ii) through (vi) above (it being understood that such certificate shall include reasonable calculations supporting the matters set forth therein). "Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "Plan" means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by DeVry or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. "Pledge Agreement" means the Pledge and Intercreditor Agreement dated as of May 16, 2003 among DeVry, various Subsidiaries party thereto, and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit G, as the same may be amended, modified or supplemented from time to time. "Pledge Documents" means the Pledge Agreement and all documents executed in connection therewith or provided for therein. "Pro Rata Share" means, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments at such time; provided that if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.2, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. "Register" has the meaning set forth in Section 11.7(c). "Reorganization" means the transfer of the proceeds of Senior Debt by GEI and the exchange and/or issuance of shares by GEI and other Subsidiaries on the Closing Date in connection with the Dominica Acquisition which results in Ross University Management Inc. being a wholly owned Subsidiary of GEI. "Request for Credit Extension" means (a) with respect to a Borrowing, conversion or continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice. "Required Lenders" means, as of any date of determination, at least two Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.2, at least two Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes of this definition). "Responsible Officer" means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. "Restricted Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other equity interest of DeVry or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other equity interest or of any option, warrant or other right to acquire any such capital stock or other equity interest. "Revolving Borrowing" means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.1. "Revolving Loan" has the meaning set forth in Section 2.1. "Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a conversion of Revolving Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.2(a), which, if in writing, shall be substantially in the form of Exhibit A. "RUMI" means Ross University Management, Inc. "RUSI" means Ross University Services, Inc. "RUSOM" means Ross University School of Medicine School of Veterinary Medicine Limited. "RUSOV" means Ross University School of Medicine School of Veterinary Medicine (St. Kitts) Limited. "Sale and Leaseback" has the meaning specified in Section 7.12. "S&P" means Standard & Poor's Rating Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto. "SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. "Secured Parties" has the meaning specified in the Pledge Agreement. "Senior Debt" means the Obligations and the Senior Notes. "Senior Notes" means the $75,000,000 Floating Rate Senior Notes of DeVry due April 30, 2010, and the $50,000,000 Floating Rate Senior Notes of GEI due April 30, 2010, in each case issued pursuant to the Senior Note Purchase Agreement. "Senior Note Funding Certificate" has the meaning specified in Section 4.1(a)(xiii). "Senior Note Purchase Agreement" means the Note Purchase Agreement dated as of May 16, 2003 among the Borrowers and the note purchasers parties thereto, as the same may be amended or modified. "Senior Responsible Officer" means the chief executive officer, president or chief financial officer of DeVry. "Shareholders' Equity" means, as of any date of determination, consolidated shareholders' equity of DeVry and its Subsidiaries as of that date determined in accordance with GAAP. "Special Non-U.S. Subsidiary" has the meaning specified in Section 7.14. "Specified Swap Contract" means any Swap Contract between any Loan Party and any Lender or any Affiliate of any Lender. "Specified Swap Obligations" means Obligations in respect of any and all Specified Swap Contracts. "Stafford Loans" means (a) loans for which the interest rate is governed by Section 427A(a), Section 427A(d), 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 ExportSS 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. "Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of DeVry. "Swap Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a "Master Agreement"), including any such obligations or liabilities under any Master Agreement. "Swap Termination Value" means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). "Swing Line" means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.4. "Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to Section 2.4. "Swing Line Lender" means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder. "Swing Line Loan" has the meaning specified in Section 2.4(a). "Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant to Section 2.4(b), which, if in writing, shall be substantially in the form of Exhibit B. "Swing Line Sublimit" means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments. "Synthetic Lease Obligation" means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). "Taxes" has the meaning specified in Section 3.1(a). "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. "Title IV Programs" means the Title IV Programs as defined in Section 668.1(c) of 34 C.F.R. "Threshold Amount" means $5,000,000. "Total Outstandings" means the aggregate Outstanding Amount of all Loans and all L/C Obligations. "Total DeVry Outstandings" means the Total Outstandings of DeVry. "Total GEI Outstandings" means the Total Outstandings of GEI. "Type" means, with respect to a Revolving Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan. "United States" and "U.S." mean the United States of America. "Unreimbursed Amount" has the meaning set forth in Section 2.3(c)(i). "U.S. Guarantor" means each U.S. Subsidiary which has executed and delivered to the Administrative Agent a U.S. Guaranty. "U.S. Subsidiary" means any Subsidiary that is organized under the laws of any political subdivision of the United States; provided, however, that any Subsidiary organized under the laws of any political subdivision of the United States which is owned by GEI or any of its Subsidiaries shall be deemed an Offshore Subsidiary. "U.S. Subsidiary Guaranty" means a guaranty substantially in the form of Exhibit F-1. "Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly- Owned Subsidiaries of such Person, or by such Person and one or more Wholly- Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. 1.2. Other Interpretive Provisions. ----------------------------- With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof. (i) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears. (ii) The term "including" is by way of example and not limitation. (iii) The term "documents" includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form. (c) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including;" the words "to" and "until" each mean "to but excluding;" and the word "through" means "to and including." (d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. 1.3. Accounting Terms. ---------------- (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. (b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either DeVry or the Required Lenders shall so request, the Administrative Agent, the Lenders and DeVry shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) DeVry shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. 1.4. Rounding. -------- Any financial ratios required to be maintained by DeVry pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.5. References to Agreements and Laws. --------------------------------- Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law. 1.6. Times of Day. ------------ Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable). 1.7. Letter of Credit Amounts. ------------------------ Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor, whether or not such maximum face amount is in effect at such time. ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS 2.1. Revolving Loans. --------------- Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a "Revolving Loan") to the Borrowers or either of them from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Commitment; provided, however, that after giving effect to any Borrowing, (a) the Total Outstandings shall not exceed the Aggregate Commitments, (b) (i) the Total DeVry Outstandings shall not exceed the Aggregate DeVry Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender to DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans to DeVry, shall not exceed such Lender's Commitment to DeVry, and (c) (i) the Total GEI Outstandings shall not exceed the Aggregate GEI Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender to GEI plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of GEI, shall not exceed such Lender's Commitment to GEI. Within the limits of each Lender's Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.1, prepay under Section 2.5, and reborrow under this Section 2.1. Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. 2.2. Borrowings, Conversions and Continuations of Revolving Loans. ------------------------------------------------------------- (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the applicable Borrower's irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 10:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Revolving Loans, and (ii) on the requested date of any Borrowing of Base Rate Revolving Loans. Each telephonic notice by the applicable Borrower pursuant to this Section 2.2(a) must be confirmed promptly by delivery to the Administrative Agent of a written Revolving Loan Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.3(c) and 2.4(c), each Borrowing of or conversion to Base Rate Revolving Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Revolving Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Borrowing, a conversion of Revolving Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Loans to be borrowed, converted or continued, (iv) the Type of Revolving Loans to be borrowed or to which existing Revolving Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Revolving Loan in a Revolving Loan Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the related Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Revolving Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Revolving Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Revolving Loan available to the Administrative Agent in immediately available funds at the Administrative Agent's Office not later than 12:00 (noon) on the Business Day specified in the applicable Revolving Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.2 (and, if such Borrowing is the initial Credit Extension, Section 4.1), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided, however, that if, on the date the Revolving Loan Notice with respect to such Borrowing is given by DeVry, there are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings, second, to the payment in full of any such Swing Line Loans, and third, to DeVry as provided above. (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders. (d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America's prime rate used in determining the Base Rate promptly following the public announcement of such change. (e) After giving effect to all Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Revolving Loans. 2.3. Letters of Credit. ----------------- (a) The Letter of Credit Commitment. ------------------------------- (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.3, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of either Borrower, and to amend or renew all such Letters of Credit in accordance with subsection 2.3(b) below, and (2) to honor drafts under such Letters of Credit; and (B) the Lenders severally agree to participate in such Letters of Credit; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension: (w) the Total Outstandings would exceed the Aggregate Commitments, (x) (i) the Total DeVry Outstandings would exceed the Aggregate DeVry Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender to DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans to DeVry, would exceed such Lender's Commitment to DeVry, (y) (i) the Total GEI Outstandings would exceed the Aggregate GEI Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender to GEI, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of GEI, would exceed such Lender's Commitment to GEI, and (z) the Outstanding Amount of the L/C Obligations of DeVry would exceed the DeVry Letter of Credit Sublimit or the Outstanding Amount of the L/C Obligations of GEI would exceed the GEI Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower's ability to obtain Letters of Credit shall be fully revolving, and accordingly each Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it; (B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date (in which case the L/C Issuer shall not issue such Letter of Credit, unless all the Lenders have approved such expiry date); (C) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer; or (D) such Letter of Credit is in an initial amount less than $100,000, or is to be denominated in a currency other than Dollars. (iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (b) Procedures for Issuance and Amendment of Letters of Credit; Auto- Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 10:00 a.m. at least two Business Days (or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. (ii) Promptly after receipt of any Letter of Credit Application of a Borrower, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the requesting Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Letter of Credit. (iii) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, neither Borrower shall be required to make a specific request to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.3(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is two Business Days before the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the related Borrower that one or more of the applicable conditions specified in Section 4.2 is not then satisfied. (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements; Funding of Participations. ------------------------------------------------------ (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. Not later than 10:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an "Honor Date"), the applicable Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If such Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such Lender's Pro Rata Share thereof. In such event, such Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.2 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.2 (other than the delivery of a Revolving Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.3(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.3(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 12:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.3(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Loan to the related Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer. (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 4.2 cannot be satisfied or for any other reason, the related Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender's payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.3. (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.3(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender's Pro Rata Share of such amount shall be solely for the account of the L/C Issuer. (v) Each Lender's obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, either Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender's obligation to make Revolving Loans pursuant to this Section 2.3(c) is subject to the conditions set forth in Section 4.2 (other than delivery of a Revolving Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of either Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein. (vi) If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.3(c) by the time specified in Section 2.3(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error. (d) Repayment of Participations. --------------------------- (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender's L/C Advance in respect of such payment in accordance with Section 2.3(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the related Borrower or otherwise), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's L/C Advance was outstanding) in the same funds as those received by the Administrative Agent. (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(c)(i) is required to be returned under any of the circumstances described in Section 11.6 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. (e) Obligations Absolute. The obligation of each Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following: (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto; (ii) the existence of any claim, counterclaim, set-off, defense or other right that such Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv> any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, such Borrower. Each Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower's instructions or other irregularity, such Borrower will immediately notify the L/C Issuer. Such Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. (f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.3(e); provided, however, that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by the L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. (g) Letter of Credit Fees. Each Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Pro Rata Share a letter of credit fee for each Letter of Credit issued for the account of such Borrower, such fee to be equal to the Applicable Rate times the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is in effect under such Letter of Credit at the time such fee is payable). Such letter of credit fees shall be computed on a quarterly basis in arrears. After the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, such fees shall be due and payable one Business Day after receipt by the Borrowers of an invoice for the same. If there is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. (h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. Each Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit in the amounts and at the times specified in the Fee Letter. In addition, each Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable one Business Day after receipt by the Borrowers of an invoice for the same and are nonrefundable. (i) Conflict with Letter of Credit Application. In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control. (j) Removal of L/C Issuer. If (i) the L/C Issuer shall fail to issue any Letters of Credit by reason of the conditions specified in Section 2.3(a)(ii)(A) or (C), or (ii) the L/C Issuer shall cease to have a minimum long or short term credit rating of A or better from S&P or a long or short term rating of A-3 or better from Moody's, the Borrowers may remove the L/C Issuer by notice to the L/C Issuer, the Administrative Agent and the Lenders. No removal of the L/C Issuer shall be effective prior to the acceptance by another Lender hereunder of an appointment as L/C Issuer. Upon the acceptance of an appointment as L/C Issuer, such successor shall succeed to and become vested with all the interests, rights and obligations of the retiring L/C Issuer and the retiring L/C Issuer shall be discharged from its obligations to issue additional Letters of Credit hereunder. At the time such removal shall become effective, the Borrowers shall pay all accrued and unpaid fees pursuant to Section 2.3(g) and (h). The acceptance of an appointment as L/C Issuer hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrowers and the Administrative Agent, and, from and after the effective date of such agreement, (a) such successor Lender shall have all the rights and obligations of the previous L/C Issuer under this Agreement and the other Loan Documents, and (b) references herein and in the other Loan Documents to the term "L/C Issuer" shall be deemed to refer to such successor or to any previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall require. After the removal of the L/C Issuer hereunder, the retiring L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be required to issue additional Letters of Credit. 2.4. Swing Line Loans. ---------------- (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender shall make, in its sole discretion, loans (each such loan, a "Swing Line Loan") to DeVry from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit (notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Commitment); provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) (A) the DeVry Total Outstandings shall not exceed the Aggregate DeVry Commitments, and (B) the aggregate Outstanding Amount of the Revolving Loans of any Lender to DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of DeVry, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans, shall not exceed such Lender's Commitment to DeVry, and (iii) (A)the GEI Total Outstandings shall not exceed the Aggregate GEI Commitments, and (B) the aggregate Outstanding Amount of the Revolving Loans of any Lender to GEI, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations of GEI, shall not exceed such Lender's Commitment to GEI, and provided, further, that DeVry shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, DeVry may borrow under this Section 2.4, prepay under Section 2.5, and reborrow under this Section 2.4. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Swing Line Loan. (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon DeVry's irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 (noon) on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of DeVry. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 12:00 (noon) on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.4(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to DeVry at its office by crediting the account of DeVry on the books of the Swing Line Lender in immediately available funds. (c) Refinancing of Swing Line Loans. ------------------------------- (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of DeVry (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Revolving Loan in an amount equal to such Lender's Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Revolving Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.2, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.2. The Swing Line Lender shall furnish DeVry with a copy of the applicable Revolving Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Revolving Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent's Office not later than 12:00 (noon) on the day specified in such Revolving Loan Notice, whereupon, subject to Section 2.4(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Revolving Loan to DeVry in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing in accordance with Section 2.4(c)(i), the request for Base Rate Revolving Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender's payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.4(c)(i) shall be deemed payment in respect of such participation. (iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.4(c) by the time specified in Section 2.4(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. (iv> Each Lender's obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.4(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, DeVry or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender's obligation to make Revolving Loans pursuant to this Section 2.4(c) is subject to the conditions set forth in Section 4.2. No such funding of risk participations shall relieve or otherwise impair the obligation of DeVry to repay Swing Line Loans, together with interest as provided herein. (v) Notwithstanding the foregoing provisions of this Section 2.4, the Swing Line Lender shall not make any Swing Line Loan after the Swing Line Lender has received written notice from any Lender (which Lender shall promptly notify the Administrative Agent and the other Lenders of such notice) specifying that a Default or an Event of Default has occurred and is continuing, describing the nature thereof and stating that, as a result thereof, such Lender shall cease to make Revolving Loans or purchase participating interests with respect to Swing Line Loans, as the case may be, and no Lender will be required to make Revolving Loans or to purchase participating interests, as the case may be, with respect to any Swing Line Loan made after the Swing Line Lender has received such notice; provided, however, that the Swing Line Lender may resume making Swing Line Loans and the obligations of the Lenders to make Revolving Loans and purchase such participating interests with respect to Swing Line Loans shall be reinstated upon the earlier to occur of (x) the date upon which such Lender notifies the Swing Line Lender (with prompt written notice to the Administrative Agent and the other Lenders) that its prior notice is withdrawn and (y) the date upon which the Default or Event of Default specified in such notice is no longer continuing. (d) Repayment of Participations. --------------------------- (i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's risk participation was funded) in the same funds as those received by the Swing Line Lender. (ii>If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.6 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing DeVry for interest on the Swing Line Loans. Until each Lender funds its Base Rate Revolving Loan or risk participation pursuant to this Section 2.4 to refinance such Lender's Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender. (f) Payments Directly to Swing Line Lender. DeVry shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender. (g) Swing Loans in Administrative Agent's Discretion. Notwithstanding anything in this Agreement to the contrary (including Section 4.2), all Swing Loans shall be made at the sole discretion of the Swing Line Lender. 2.5. Prepayments. ----------- (a) The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 10:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Revolving Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Revolving Loans to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender's Pro Rata Share of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.5. Each such prepayment shall be applied to the Revolving Loans of the Lenders in accordance with their respective Pro Rata Shares. (b) DeVry may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 (noon) on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by DeVry, DeVry shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. (c) If for any reason the Total Outstandings of either Borrower at any time exceed the Aggregate Commitments then in effect to such Borrower, DeVry shall immediately prepay Loans in an aggregate amount equal to such excess; provided, however, that DeVry shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.5(c) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Aggregate Commitments then in effect. 2.6. Termination or Reduction of Commitments. --------------------------------------- (a) On June 30, 2004, the Aggregate DeVry Commitments shall be reduced by $25,000,000. (b) If DeVry or any Subsidiary (other than GEI or any Offshore Subsidiary) consummates any Asset Sale, the Aggregate DeVry Commitments shall be reduced by the amount of the Net Cash Proceeds from such Asset Sale. If GEI or any Offshore Subsidiary consummates any Asset Sale, the Aggregate GEI Commitments shall be reduced by the amount of the Net Cash Proceeds from such Asset Sale. Each reduction under this Section 2.6(b) shall be effective immediately upon receipt thereof by DeVry or any Subsidiary of the Net Cash Proceeds giving rise thereto and shall be in addition to the scheduled commitment reduction amounts set forth in Section 2.6(a). (c) Either Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments to such Borrower, or from time to time permanently reduce the Aggregate Commitments to such Borrower; provided that (i) any such notice shall be received by the Administrative Agent not later than 10:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) neither Borrower shall terminate or reduce the Aggregate Commitments to such Borrower if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings of such Borrower would exceed the Aggregate Commitments to such Borrower, (iv) if, after giving effect to any reduction of the Aggregate DeVry Commitments, the DeVry Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate DeVry Commitments, the DeVry Letter of Credit Sublimit shall be automatically reduced by the amount of such excess, and (v) if, after giving effect to any reduction of the Aggregate GEI Commitments, the GEI Letter of Credit Sublimit exceeds the amount of the Aggregate GEI Commitments, the GEI Letter of Credit Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. (d) Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Pro Rata Share. All commitment fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination. 2.7. Repayment of Loans. ------------------ (a) Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of its Revolving Loans outstanding on such date. (b) DeVry shall repay each Swing Line Loan on the earlier to occur of (i) the date five Business Days after such Loan is made and (ii) the Maturity Date. 2.8. Interest. -------- (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Revolving Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate. (b) If any principal amount payable by the Borrowers (or either of them) under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Furthermore, upon the request of the Required Lenders, while any Event of Default exists, each Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder then owing by it at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. 2.9. Fees. In addition to certain fees described in subsections (g) and (h) of Section 2.3: (a) Commitment Fee. DeVry shall pay to the Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met. The commitment fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date, provided that if DeVry has not received an invoice for such fees, such fees shall be due one Business Day after receipt of an invoice therefore. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. (b) Other Fees. (i) DeVry shall pay to the Arranger and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter (it being understood that such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever), and (ii) DeVry shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. 2.10. Computation of Interest and Fees. -------------------------------- All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America's "prime rate" shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360- day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. 2.11. Evidence of Debt. ---------------- (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to each Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of each Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, each Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender's Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. 2.12. Payments Generally. ------------------ (a) All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers (or either of them) hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. (b) If any payment to be made by the Borrower s (or either of them) shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (c) Unless either Borrower or any Lender has notified the Administra- tive Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that such Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that such Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then: (i) if such Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon DeVry, and DeVry shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or DeVry may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or DeVry with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error. (d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (e) The obligations of the Lenders hereunder to make Revolving Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Revolving Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Loan or purchase its participation. (f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. 2.13. Sharing of Payments. ------------------- If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Revolving Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Revolving Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Revolving Loans or such participations, as the case may be, pro rata with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 11.6 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender's ratable share (according to the proportion of (i) the amount of such paying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. Each Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off, but subject to Section 11.9) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 3.1. Taxes. ----- (a) Any and all payments by the Borrowers to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities with respect thereto, excluding, in the case of the Administrative Agent and each Lender, taxes imposed on or measured by its overall net income, and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the case may be, is organized or maintains a lending office (all such non- excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as "Taxes"). If either Borrower shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.1(a)), each of the Administrative Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within 30 days after the date of such payment, such Borrower shall furnish to the Administrative Agent (which shall forward the same to such Lender) the original or a certified copy of a receipt evidencing payment thereof. The Obligations of the Borrowers under this Section 3.1 are subject to the provisions of Section 11.16. (b) In addition, each Borrower agrees to pay any and all present or future stamp, court or documentary taxes and any other excise or property taxes or charges or similar levies which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter referred to as "Other Taxes"). (c) If either Borrower shall be required to deduct or pay any Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, such Borrower shall also pay to the Administrative Agent or to such Lender, as the case may be, at the time interest is paid, such additional amount that the Administrative Agent or such Lender specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have received if such Taxes or Other Taxes had not been imposed. (d) Each Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction on additional amounts payable under this Section 3.1) paid by the Administrative Agent and such Lender with respect to payments made by a Borrower hereunder, (ii) amounts payable under Section 3.1(c), and (iii) any liability (including additions to tax, penalties, interest and expenses arising therefrom or with respect thereto, but excluding penalties, interest and expenses imposed or asserted on account of the bad faith or willful neglect of the Administrative Agent or such Lender). Payment under this subsection (d) shall be made within 30 days after the date the Lender or the Administrative Agent makes a demand therefor. 3.2. Illegality. ---------- If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to the applicable Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the applicable Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the applicable Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. 3.3. Inability to Determine Rates. ---------------------------- If the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the applicable Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein. 3.4. Increased Cost and Reduced Return; Capital Adequacy. --------------------------------------------------- (a) If any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, or such Lender's compliance therewith, after the date hereof, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.1 shall govern), (ii) changes in the basis of taxation of overall net income or overall gross income by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is organized or has its Lending Office, and (iii) reserve requirements utilized in the determination of the Eurodollar Rate, then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent)), DeVry shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. (b) If any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, or compliance by such Lender (or its Lending Office) therewith, after the date hereof, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender's obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender's desired return on capital), then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent), DeVry shall pay to such Lender such additional amounts as will compensate such Lender for such reduction. 3.5. Funding Losses. -------------- Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, DeVry shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (b) any failure by either Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by such Borrower, including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. For purposes of calculating amounts payable by such Borrower to the Lenders under this Section 3.5, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. 3.6. Matters Applicable to all Requests for Compensation. --------------------------------------------------- (a) A certificate of the Administrative Agent or any Lender claiming compensation under this Article III and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and attribution methods. (b) To the extent reasonably possible, each Lender shall designate an alternate Lending Office with respect to its Eurodollar Rate Loans to reduce any liability of the Borrowers to such Lender under Sections 3.1 and 3.4 and/or to avoid suspension of such Lender's obligation to make Eurodollar Rate Loans under Section 3.2, as long as such designation is not, in the judgement of such Lender, disadvantageous to such Lender. (c) Upon any Lender's making a claim for compensation under Section 3.1 or 3.4 or any exercise by such Lender of its rights not to make Eurodollar Rate Loans under Section 3.2, the Borrowers may replace such Lender in accordance with Section 11.16. 3.7. Survival. -------- The obligations of each Borrower under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder. ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 4.1. Conditions of Initial Credit Extension. -------------------------------------- The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent (except with respect to non-material matters or items with respect to which DeVry has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date): (a) The Administrative Agent's (or in the case of items (iii), (iv) and (v) the Collateral Agent's) receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer or Senior Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement, the U.S. Subsidiary Guaranty, the Offshore Guaranty, and the Pledge Agreement, in sufficient number for distribution to the Administrative Agent, each Lender and the Borrowers; (ii) as to each Borrower, a Note executed by such Borrower in favor of each Lender requesting a Note; (iii) share certificates representing the Collateral pledged under the Pledge Agreement, together with stock powers executed in blank; (iv) evidence of the filing in the appropriate offices of UCC financing statements in the name of each Loan Party which is a pledgor under the Pledge Agreement (as debtor) and the Collateral Agent (as secured party) describing the Collateral under the Pledge Agreement;. (v) such UCC search reports as the Administrative Agent or the Collateral Agent shall have requested; (vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (viii) favorable opinions of (A) Marilynn J. Cason, General Counsel of DeVry and Mayer, Brown, Rowe & Maw special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibits H-1 and H-2 and (B) Clarke, Gittens & Farmer Barbados counsel to the Loan Parties; (ix) copies of all opinions of counsel, if any, addressed and delivered to DeVry pursuant to the Dominica Purchase Agreement, together with reliance letters to the effect that the Administrative Agent and the Lenders may rely on such opinions as if addressed to them; (x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (xi) a certificate (the "Closing Certificate") signed by a Senior Responsible Officer of DeVry to the effect that (A) the conditions specified in Sections 4.2(a) and (b) have been satisfied, (B) there has been no event or circumstance since March 31, 2003 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) attached thereto is a calculation of the financial tests set forth in Section 7.15 (such calculation to be as of the last day of the period of four consecutive fiscal quarters of DeVry most recently ended prior to the Closing Date and to be on a proforma basis as if the Dominica Acquisition had been consummated at the beginning of such period), and (D) the unutilized Aggregate Commitments shall not be less than $25,000,000 after giving effect to the consummation of the Dominica Acquisition, the incurrence of all Indebtedness under this Agreement and the Senior Notes on the Closing Date, and the repayment of the Existing Indebtedness; (xii) a certificate (the "Acquisition Certificate") signed by a Senior Responsible Officer of DeVry to the effect that concurrently therewith, (A) the conditions in Section 2.01(a) through 2.01(l) of the Dominica Purchase Agreement have been satisfied, without waiver thereof, (B) the Dominica Acquisition has been consummated substantially in accordance with the terms of the Dominica Acquisition Documents, and in compliance with applicable Laws, (C) all Existing Indebtedness has been repaid, all Liens (if any) securing such Existing Indebtedness have been released, and all commitments to extend credit pursuant to any agreement giving rise to such Existing Indebtedness have been terminated, (D) the Dominica Acquisition Documents have not been materially altered, amended or changed or supplemented or any condition therein waived, in each case in a manner adverse to the Lenders (without the prior written consent of the Administrative Agent and the Arranger), and (E) attached thereto is a copy of the Dominica Purchase Agreement (together with related schedules and exhibits); (xiii) a certificate (the "Senior Note Funding Certificate") signed by a Responsible Officer of DeVry to the effect that (A) attached thereto is a true and correct copy of the Senior Note Purchase Agreement, and (B) the Senior Notes have been issued in an aggregate principal amount of not less than $125,000,000, (C) concurrently therewith, the Borrowers have received proceeds of the Senior Notes in an amount not less than the aggregate principal amount thereof (less fees and related expenses), and (D) concurrently therewith, all fees and expenses then due and owing in connection with the issuance of the Senior Notes have been paid; (xiv) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens (if any) securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; (xv) such other evidence of the accuracy of the certifications in the Closing Certificate, the Acquisition Certificate, and the Senior Note Funding Certificate as the Administrative Agent shall have requested; and (xvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require. (b) Any and all fees and expenses required to be paid on or before the Closing Date (including any and all fees and expenses in respect of this Agreement, the Fee Letter and the Senior Note Purchase Agreement), shall have been paid. (c) Unless waived by the Administrative Agent, DeVry shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between DeVry and the Administrative Agent). 4.2. Conditions to all Credit Extensions. ----------------------------------- The obligation of each Lender to honor any Request for Credit Extension (other than a Revolving Loan Notice requesting only a conversion of Revolving Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent: (a) The representations and warranties of the Borrowers and each other Loan Party contained in Article V of this Agreement or in any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.2, the representations and warranties contained in subsections (a) and (b) of Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.1. (b) No Default shall exist, or would result from such proposed Credit Extension. (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for Credit Extension (other than a Revolving Loan Notice requesting only a conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by either Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.2(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. ARTICLE V REPRESENTATIONS AND WARRANTIES Each Borrower jointly and severally represents and warrants to the Administrative Agent and the Lenders that: 5.1. Existence, Qualification and Power; Compliance with Laws. -------------------------------------------------------- Each Loan Party (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws; except in each case referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. 5.2. Authorization; No Contravention. ------------------------------- The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person's Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Liens under the Loan Documents) under, (i) any Contractual Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. 5.3. Governmental Authorization; Other Consents. ------------------------------------------ No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person not previously obtained or made is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than filings in connection with the Pledge Agreement. 5.4. Binding Effect. -------------- This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by (i) applicable Debtor Relief Laws and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 5.5. Financial Statements; No Material Adverse Effect. ------------------------------------------------ (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of DeVry and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of DeVry and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. (b) The unaudited consolidated financial statements of DeVry and its Subsidiaries dated March 31, 2003 and the related consolidated statements of income or operations, shareholders' equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present the financial condition of DeVry and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments and (iii) except as set forth on Schedule 5.5, show all material indebtedness and other liabilities, direct or contingent, of DeVry and its consolidated Subsidiaries as of the date of such financial statements, including liabilities for taxes, material commitments and Indebtedness. (c) Since March 31, 2003 (and solely with respect to information not disclosed in DeVry's quarterly SEC filings for the quarters ended September 30, 2002, December 31, 2002 and March 31, 2003), and after giving effect to the Dominica Acquisition, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. 5.6. Litigation. ---------- Except as specifically disclosed in Schedule 5.6, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of DeVry after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against DeVry or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or the Dominica Purchase Agreement, or any of the transactions contemplated hereby, or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect. 5.7. No Default. ---------- Neither DeVry nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document. 5.8. Ownership of Property; Liens. ---------------------------- Each of DeVry and each Subsidiary has good and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of DeVry and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.1. 5.9. Environmental Compliance. ------------------------ DeVry and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof DeVry has reasonably concluded that, except as specifically disclosed in Schedule 5.9, such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 5.10. Insurance. --------- The properties of DeVry and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of DeVry, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where DeVry or the applicable Subsidiary operates. 5.11. Taxes. ----- DeVry and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against DeVry or any Subsidiary that would, if made, have a Material Adverse Effect. 5.12. ERISA Compliance. ---------------- (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of DeVry, nothing has occurred which would prevent, or cause the loss of, such qualification. (b) There are no pending or, to the best knowledge of DeVry, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. (c) None of the Borrowers, any Subsidiary, or any ERISA Affiliate is a party to, participates in or has any liability with respect to any Pension Plan or any other plan subject to Section 412 of the Code. (d) None of the Borrowers, any Subsidiary, or any ERISA Affiliate has incurred withdrawal liabilities (or is subject to contingent withdrawal liabilities) (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201, 4204 or 4243 of ERISA with respect to a Multiemployer Plan. 5.13. Subsidiaries. ------------ As of the Closing Date, DeVry has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13 and has no equity investments in any other corporation or entity other than those specifically disclosed in Part(b) of Schedule 5.13. Schedule 5.13 correctly sets forth, as of the Closing Date, (i) the percentage ownership (direct or indirect) of DeVry in each class of capital stock or other equity of each of its Subsidiaries and also identifies the direct owner thereof and (ii) the jurisdiction of organization of each such Subsidiary. Schedule 5.13 identifies (by an asterisk) each Subsidiary (if any) which is a Dormant Subsidiary. Set forth in Schedule 5.13 is a true and correct organization chart showing DeVry and its Subsidiaries after giving effect to the Dominica Acquisition and the Reorganization. 5.14. Margin Regulations; Investment Company Act; Public Utility Holding Company Act. ----------------------------------------------------------- (a) Neither Borrower is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. (b) None of DeVry, any Person Controlling DeVry, or any Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an "investment company" under the Investment Company Act of 1940. 5.15. Dominica Purchase Agreement. --------------------------- DeVry has furnished to the Administrative Agent a true and correct copy of the Dominica Purchase Agreement. 5.16. Disclosure. ---------- Each Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of (a) the Confidential Offering Memorandum or (b) any report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, as set forth in the Confidential Offering Memorandum, each Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. 5.17. Compliance with Laws. -------------------- DeVry and each Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, all of the operations of DeVry and each Subsidiary are in compliance with (i) all Laws the violation of which would terminate or materially impair the eligibility of DeVry or any Subsidiary for participation, if applicable, in student financial assistance programs under Title IV, (ii) the Federal Truth-in- Lending Act, 15 U.S.C. S 1601 et seq., and all other consumer credit laws applicable to DeVry or any Subsidiary in connection with the advancing of student loans, except for such laws and regulations the violation of which, in the aggregate, will not have a Material Adverse Effect, (iii) all statutory and regulatory requirements for authorization to provide post- secondary education in the jurisdictions in which its educational facilities are located, except for such requirements the violation of which would not have a Material Adverse Effect, and (iv) if applicable, all requirements for continuing its accreditations from the North Central Association of Schools and Colleges, except for such requirements the violation of which would not have a Material Adverse Effect. 5.18. Intellectual Property; Licenses, Etc. ------------------------------------- DeVry and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, "IP Rights") that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. To the best knowledge of DeVry, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by DeVry or any Subsidiary infringes upon any rights held by any other Person except as disclosed in Schedule 5.18. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of DeVry, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 5.19. Guaranties. ---------- Each U.S. Subsidiary (other than a Dormant Subsidiary) has executed and delivered to the Administrative Agent a U.S. Subsidiary Guaranty; and each Offshore Subsidiary (other than GEI) has duly executed and delivered to the Administrative Agent an Offshore Subsidiary Guaranty. 5.20. Pledge Documents. ---------------- Each Subsidiary which owns any capital stock or other equity interest in any other Subsidiary has duly executed and delivered the Pledge Agreement. The Pledge Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, when the Collateral is delivered to the Collateral Agent (and the appropriate filings or other action specified in Schedule 5.20 are made), the Pledge Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in right to any other person. 5.21. Solvency. -------- Immediately after the consummation of the transactions to occur on the Closing Date and immediately following the making of each Loan and after giving effect to the application of the proceeds of such Loans, (a) the fair value of the assets of the Loan Parties, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Loan Parties will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each Loan Party will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date. Subject to Section 7.2 (last sentence), the provisions of this Section 5.21 shall not apply to DeVry Canada, LLC, DeVry Leasing Corp. and DeVry Educational Products, Inc. 5.22. Existing Indebtedness. --------------------- Schedule 5.22 sets forth a complete and accurate list of all Indebtedness of DeVry or any Subsidiary, which is to be repaid on the Closing Date. 5.23. Pari-Passu Obligations. ---------------------- The Obligations of each Borrower are pari-passu in the event of insolvency with the Senior Notes issued by such Borrower and are secured on an equal and ratable basis with the holders of the Senior Notes. The Barbados Courts (or other applicable jurisdictions in the case of any Offshore Subsidiary) will rank the obligations of GEI or any Offshore Subsidiary Guarantor under the GEI Notes or the Offshore Subsidiary Guaranty at least pari passu with all unsecured and unsubordinated indebtedness of GEI or such Offshore Subsidiary Guarantor in the event such Person becomes insolvent or bankrupt and a custodian, liquidator, trustee or receiver is appointed for the major part of the property of such entity. ARTICLE VI AFFIRMATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, DeVry shall, and shall (except in the case of the covenants set forth in Sections 6.1, 6.2, 6.3 and 6.11) cause each Subsidiary to: 6.1. Financial Statements. -------------------- Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders: (a) as soon as available, but in any event within 90 days after the end of each fiscal year of DeVry, a consolidated balance sheet of DeVry and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; and (b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of DeVry, a consolidated balance sheet of DeVry and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal quarter and for the portion of DeVry's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of DeVry as fairly presenting the financial condition, results of operations, shareholders' equity and cash flows of DeVry and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes. As to any information contained in materials furnished pursuant to Section 6.2(d), DeVry shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of DeVry to furnish the information and materials described in subsections (a) and (b) above at the times specified therein. 6.2. Certificates; Other Information. ------------------------------- Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders: (a) concurrently with the delivery of the financial statements referred to in Section 6.1(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event; (b) concurrently with the delivery of the financial statements referre to in Sections 6.1(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of DeVry; (c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of DeVry by independent accountants in connection with the accounts or books of DeVry or any Subsidiary, or any audit of any of them; (d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication of a financial nature sent to the stockholders of DeVry, and copies of all annual, regular, periodic and special reports and registration statements which DeVry may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; and (e) promptly, such additional information regarding the business, financial or corporate affairs of DeVry or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 6.1(a) or (b) or Section 6.2(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which DeVry posts such documents, or provides a link thereto on DeVry's website on the Internet at the website address listed on Schedule 11.2; or (ii) on which such documents are posted on DeVry's behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) DeVry shall deliver paper copies of such documents to the Administrative Agent for any Lender that requests DeVry to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) DeVry shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance DeVry shall be required to provide paper copies of the Compliance Certificates required by Section 6.2(b) to the Administrative Agent. Promptly upon receipt of any certificate or other information pursuant to this Section 6.2, the Administrative Agent shall furnish a copy thereof to each Lender or post a copy thereof on IntraLinks/IntraAgency or another relevant website for access thereto by each Lender. 6.3. Notices. ------- Promptly notify the Administrative Agent: (a) of the occurrence of any Default; (b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of DeVry or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between DeVry or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting DeVry or any Subsidiary, including pursuant to any applicable Environmental Laws; (c) of the occurrence of any ERISA Event; (d) of any material change in accounting policies or financial reporting practices by DeVry or any Subsidiary; and (e) of the occurrence of any proposed Asset Sale pursuant to Section 2.6(b). Each notice pursuant to this Section 6.3 shall be accompanied by a statement of a Responsible Officer of DeVry setting forth details of the occurrence referred to therein and stating what action DeVry has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Promptly upon receipt of any notice pursuant to this Section 6.3, the Administrative Agent shall furnish a copy thereof to each Lender or post a copy thereof on IntraLinks/IntraAgency or another relevant website for access thereto by each Lender. 6.4. Payment of Obligations. ---------------------- Pay and discharge as the same shall become due and payable all material taxes, assessments and other material liabilities except as contested in good faith and by appropriate proceedings with respect to which reserves have been established and are being maintained in accordance with GAAP, except where the failure to pay would not have a Material Adverse Effect. 6.5. Preservation of Existence, Etc. ------------------------------- (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.4 or 7.5 (other than Dormant Subsidiaries); (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 6.6. Maintenance of Properties. ------------------------- (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities. 6.7. Maintenance of Insurance. ------------------------ Maintain with financially sound and reputable insurance companies not Affiliates of DeVry, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons. 6.8. Compliance with Laws. -------------------- Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, DeVry will, and will cause each Subsidiary to, comply with (i) all applicable Laws, the violation of which would terminate or materially impair the eligibility of DeVry or any Subsidiary for participation, if applicable, in student financial assistance programs under Title IV, (ii) the federal Truth-in-Lending Act, 15 U.S.C. S 1601 et seq., and all other consumer credit laws applicable to DeVry or any Subsidiary in connection with the advancing of student loans, except for such laws and regulations the violation of which, in the aggregate, will not result in the assessment of penalties and damages claims against DeVry or any Subsidiary which could have a Material Adverse Effect, (iii) all statutory and regulatory requirements for authorization to provide post-secondary education in the jurisdictions in which its educational facilities are located, except for such requirements the violation of which will not have a Material Adverse Effect, and (iv) if applicable, all requirements for continuing its accreditations from the North Central Association of Schools and Colleges, except for such requirements the violation of which will not have a Material Adverse Effect. 6.9. Books and Records. ----------------- (a) Maintain proper books of record and account, in which materially complete and accurate entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of DeVry or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over DeVry or such Subsidiary, as the case may be. 6.10. Inspection Rights. ----------------- Permit representatives and independent contractors of the Administrative Agent and each Lender (at their expense, so long as no Event of Default exists) to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to DeVry; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of DeVry at any time during normal business hours and without advance notice. 6.11. Use of Proceeds. --------------- Use the proceeds of the Credit Extensions to (i) finance the Dominica Acquisition, (ii) support the issuance of standby letters of credit, (iii) finance working capital and capital expenditures, and (iv) for other general corporate purposes not in contravention of any Law or of any Loan Document. In no event will the proceeds of any Credit Extension be used to prepay, redeem or defease the Senior Notes. 6.12. Additional Guarantors. --------------------- (a) Cause each U.S. Subsidiary (including any U.S. Subsidiary which converts from a Dormant Subsidiary to a non-Dormant Subsidiary) to forthwith execute and deliver a U.S. Subsidiary Guaranty; and (b) Notify the Administrative Agent at the time that any Person becomes a Subsidiary after the date hereof (such notice to specify whether such Subsidiary is a U.S. Subsidiary or an Offshore Subsidiary), and promptly thereafter (and in any event within 30 days), (i) if such Person is a U.S. Subsidiary (other than a Dormant Subsidiary) cause such Person to become a U.S. Guarantor by executing and delivering to the Administrative Agent a counterpart of the U.S. Guaranty, and (ii) if such Person is an Offshore Subsidiary, to the extent permitted by Law, cause such Person to become a Offshore Guarantor by executing and delivering to the Administrative Agent a counterpart of the Offshore Guaranty, Each Guaranty executed pursuant to this Section 6.12 is to be accompanied by such supporting documents of the types referred to in Section 4.1(a)(vi) and (vii) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of U.S. Guaranty), all in form, content and scope reasonably satisfactory to the Administrative Agent. 6.13. Pledgors. -------- (a) Cause each Subsidiary (whether now or hereafter existing) which owns any stock (or equity interest) in any Subsidiary (other than a Dormant Subsidiary of a U.S. Subsidiary) to be a party to the Pledge Agreement, and (b) pursuant to the terms of the Pledge Agreement, grant or cause to be granted to the Collateral Agent, a first priority perfected security interest in such stock (or equity interest), subject to the following: (i) 100% of the stock of (or equity interest in) each U.S. Subsidiary shall secure all Senior Debt, (ii) 65% of the stock of (or equity interest in) any first tier Offshore Subsidiary (or first tier Special Non-U.S. Subsidiary formed pursuant to Section 7.14) shall secure the Senior Debt, (iii) 100% of the stock of (or equity interest in) each Offshore Subsidiary (and each Special Non-U.S. Subsidiary) shall secure the Senior Debt of GEI (but not the Senior Debt of DeVry), and (iv) the pledge of any stock of (or equity interest in) any Offshore Subsidiary shall only be required hereunder to the extent permitted by Law. In the case of any Subsidiary created after the date hereof, DeVry shall cause the pledge of the stock (or equity interest) to be effected within 30 days of the date of creation. (b) Notwithstanding any provision of this Section 6.13 or any other provision of this Agreement to the contrary, it is understood that as of the Closing Date the capital stock of or equity interest in RUSOV (the "RUSOV Stock") shall not be required to be pledged pursuant to the Pledge Agreement, it being understood that at any time (whether or not a Default or Event of Default then exists), the Required Lenders may request that DeVry cause the RUSOV Stock to be pledged as security for the Senior Debt of GEI, whereupon within 30 days of such request DeVry shall (and hereby agrees that it will) cause all of the RUSOV Stock to be pledged as Offshore Stock (under and as defined in) the Pledge Agreement (such pledge to be accompanied by such documents and/or the taking of such action in connection therewith, as the Administrative Agent or the Collateral Agent shall require pursuant to Section 6.15(c)). (c) In connection with the pledge of stock or equity interests pursuant to the Pledge Agreement, DeVry agrees that it will from time to time upon request of the Administrative Agent, at DeVry's expense, deliver or cause to be delivered to the Collateral Agent such pledge supplements, share certificates, stock powers, opinions of counsel, and other documents, and take or cause to be taken such other action (including the action identified in Schedule 5.20, the filing of documents, and the payment of taxes and charges) as the Administrative Agent or Collateral Agent shall request. 6.14. Pari-Passu Obligations. ---------------------- If at any time the Borrowers or any Subsidiary shall grant to any one or more of the Collateral Agent or any holder of Senior Notes additional security or collateral of any kind pursuant to the requirements of the Note Purchase Agreement, then the Borrowers or such Subsidiary shall grant to the Collateral Agent the same security or collateral so that the Lenders shall at all times be pari passu with the holders of the Senior Notes and shall be secured on an equal and ratable basis with the holders of the Senior Notes. 6.15. Post Closing Items. ------------------ Within 45 days after the Closing Date, furnish to the Administrative Agent opinions of local counsel in the jurisdictions of Dominica, St. Kitts and St. Lucia with respect to the Loan Parties which are Offshore Subsidiaries, such opinions to (i) address such matters as the Administrative Agent may request (including, without limitation, the matters set forth in Sections 5.1, 5.2, 5.3, 5.4, 5.19 and 5.20 and the payment of taxes and completion of Collateral filings) and (ii) be in form and substance satisfactory to the Administrative Agent. ARTICLE VII NEGATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, DeVry shall not, nor shall it permit any Subsidiary to, directly or indirectly: 7.1. Liens. ----- Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: (a) Liens in favor of the Collateral Agent pursuant to the Pledge Agreement; (b) Liens existing on the date hereof and listed on Schedule 7.1 and any renewals or extensions thereof, provided that the property covered thereby is not increased and any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.3(b); (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person; (e) pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA; (f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.1(h) or securing appeal or other surety bonds related to such judgments; (i) Liens securing Indebtedness permitted under Section 7.3(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; and (j) Liens on bank accounts of DeVry established pursuant to the Stafford Loan Program securing obligations of DeVry to pay fees and repurchase Stafford Loans in certain instances. 7.2. Investments. ----------- Make any Investments, except: (a) Investments held by DeVry or such Subsidiary in the form of cash equivalents or short-term marketable debt securities; (b) advances to officers, directors and employees of DeVry and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes; (c) Investments of DeVry in any U.S. Guarantor which is a wholly-owned Subsidiary and Investments of any U.S. Guarantor in DeVry or in another U.S. Guarantor which is a wholly-owned Subsidiary; (d) Investments by GEI or any Offshore Subsidiary in GEI or any Offshore Subsidiary or in DeVry or any wholly owned U.S. Guarantor; (e) Investments made on the Closing Date in connection with the Reorganization; (f) Investments by DeVry or any U.S. Guarantor in GEI or any Offshore Guarantor; provided, however, that such Investments to the extent made after the Reorganization shall not at any time exceed 10% of Consolidated Net Worth; (g) Investments in Stafford Loans, provided, however, that such Investments shall not exceed $15,000,000 at any one time; (h) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; (i) Guarantees permitted by Section 7.3; (j) the Dominica Acquisition; (k) Permitted Acquisitions; and (l) other Investments not exceeding $5,000,000 in the aggregate in any fiscal year of DeVry; Notwithstanding the foregoing, in no event shall DeVry or any Subsidiary make any Investment after the Closing Date in DeVry Leasing Corp. or DeVry Educational Products, Inc. unless and until the Administrative Agent shall have received from each such Subsidiary a solvency certificate in form and substance satisfactory to the Administrative Agent. 7.3. Indebtedness. ------------ Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness comprising the Senior Debt; (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.3 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; (c) Guarantees of DeVry or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of DeVry or any wholly-owned Subsidiary; (d) Obligations (contingent or otherwise) of DeVry or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.1(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $30,000,000; and (f) Unsecured Indebtedness in an aggregate principal amount not to exceed $15,000,000 at any time outstanding. 7.4. Fundamental Changes. ------------------- Merge, dissolve, liquidate, consolidate with or into another Person, or, except as permitted under Section 7.5, Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom: (a) any U.S. Subsidiary may merge with (i) DeVry, provided that DeVry shall be the continuing or surviving Person, or (ii) any one or more other U.S. Subsidiaries, provided that when any U.S. Guarantor is merging with another Subsidiary, a U.S. Guarantor shall be the continuing or surviving Person; (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to DeVry or to another Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either be DeVry or a U.S. Guarantor; (c) any Offshore Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to DeVry or to a U.S. Guarantor wholly-owned Subsidiary or to GEI or to an Offshore Guarantor; (d) any Offshore Subsidiary may (i) merge with GEI, provided that GEI shall be the continuing or surviving person and (ii) merge with any one or more Offshore Subsidiaries, provided that when any Offshore Guarantor is merging with another Offshore Subsidiary, an Offshore Guarantor shall be the continuing or surviving person; (e) Dispositions on the Closing Date in connection with the Reorganization; and (f) Dormant Subsidiaries may be dissolved. 7.5. Dispositions. ------------ Make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions of obsolete or worn out or excess property, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of inventory in the ordinary course of business; (c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (d) Dispositions of property by any Subsidiary to DeVry or to a wholly- owned Subsidiary; provided that if the transferor of such property is a U.S. Guarantor, the transferee thereof must either be DeVry or a U.S. Guarantor; (e) Dispositions permitted by Section 7.4(b), (c), (d) or (e); (f) Non-exclusive licenses of IP Rights (i) in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years, or (ii) by any Subsidiary to DeVry or any other Subsidiary; (g) Dispositions of Stafford Loans in accordance with the Stafford Loan Program; and (h) Dispositions by DeVry and its Subsidiaries not otherwise permitted under this Section 7.5; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this clause (g) from the Closing Date shall not exceed $50,000,000 in the aggregate; provided, however, that any Disposition pursuant to clauses (a), (b), (c), (f)(i) and (g) shall be for fair market value. 7.6. Restricted Payments. ------------------- Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) Each Subsidiary may make Restricted Payments to DeVry and to wholly owned Subsidiaries (and, in the case of a Restricted Payment by a non-wholly- owned Subsidiary, to DeVry and any Subsidiary and to each other owner of capital stock or other equity interests of such Subsidiary on a pro rata basis based on their relative ownership interests); (b) DeVry and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common equity interests of such Person; (c) DeVry and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common equity interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common equity interests; and (d) DeVry may make Restricted Payments, provided that immediately before and after giving effect thereto (i) the Consolidated Leverage Ratio, determined on a proforma basis to give effect to such Restricted Payments as if such Restricted Payments occurred at the beginning of the period of four consecutive fiscal quarters then most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.1 hereof, is less than 1.5:1.0, (ii) DeVry shall be in compliance with the financial tests set forth in Section 7.15, and (iii) no Default or Event of Default shall have occurred or be continuing. 7.7. Change in Nature of Business. ---------------------------- Engage in any material line of business substantially different from those lines of business conducted by DeVry and its Subsidiaries on the date hereof or any business substantially related or incidental thereto. 7.8. Transactions with Affiliates. ---------------------------- Enter into any transaction of any kind with any Affiliate (other than a Subsidiary) of DeVry, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to DeVry or such Subsidiary as would be obtainable by DeVry or such Subsidiary at the time in a comparable arm's length transaction with a Person other than an Affiliate. 7.9. Burdensome Agreements. --------------------- Enter into any Contractual Obligation that; (a) limits the ability of any Subsidiary to make Restricted Payments to DeVry or any U.S. Guarantor or to otherwise transfer property to DeVry or any Guarantor; (b) limits the ability of any Subsidiary to Guarantee the Indebtedness of DeVry or GEI; (c) limits the ability of DeVry or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person (it being understood that this clause (c) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.3(e) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness); or (d) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person. Notwithstanding the foregoing, the provisions of this Section 7.9 shall not apply to this Agreement, the Senior Notes, the Senior Note Purchase Agreement or any Specified Swap Contract, and further provided that subsection 7.9(c) shall not apply to the Stafford Loans. 7.10. Use of Proceeds. --------------- Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 7.11. Dominica Purchase Agreement. --------------------------- Amend or modify the Dominica Purchase Agreement in any manner adverse to the Lenders. 7.12. Sale and Leaseback. ------------------ Enter into any arrangement, directly or indirectly, with any Person (other than a Borrower or a Wholly-Owned Subsidiary) whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a "Sale and Leaseback"); provided that DeVry or any Subsidiary may enter into any such transaction to the extent that the aggregate obligation of DeVry and its Subsidiaries shall not exceed $25,000,000. 7.13. ERISA. ----- (a) Become, nor permit an ERISA Affiliate to become, a party to, participate in or have any liability with respect to a Pension Plan or any other plan subject to Section 412 of the Code; or (b) Incur, nor permit an ERISA Affiliate to incur, any withdrawal liabilities (or become subject to contingent withdrawal liabilities) under Section 4201, 4204 or 4243 of ERISA with respect to a Multiemployer Plan. 7.14. Subsidiaries. ------------ Create or permit to exist any Subsidiary other than an Offshore Subsidiary or a U.S. Subsidiary; provided, however, that DeVry may create a Subsidiary organized outside the laws of the United States or any political subdivision thereof (a "Special Non-U.S. Subsidiary") so long as each of the following conditions is satisfied: (a) The stock of (or equity interest in) such Subsidiary shall be pledged to the Collateral Agent pursuant to Section 6.13. (b) Such Subsidiary shall execute and delivery an Offshore Subsidiary Guaranty (but modified to reflect that such Subsidiary is not a Subsidiary of GEI); (c) The foregoing pledge and guaranty shall be accompanied by such other assurances, certificates, documents, consents and/or opinions as the Administrative Agent shall reasonably request; and (d) Any Investment (direct or indirect) of DeVry in such Subsidiary shall comply with the limitations set forth in Section 7.2(f). 7.15. Financial Covenants. ------------------- (a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to be less than the sum of (a) $350,000,000, (b) an amount equal to 75% of the Consolidated Net Income earned in each full fiscal quarter ending after December 31, 2002 (with no deduction for a net loss in any such fiscal quarter) and (c) an amount equal to 100 % of the aggregate increases in Shareholders' Equity of DeVry and its Subsidiaries after the date hereof by reason of the issuance and sale of capital stock or other equity interests of DeVry or any Subsidiary (other than issuances to DeVry or a wholly-owned Subsidiary), including upon any conversion of debt securities of DeVry into such capital stock or other equity interests. (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of DeVry to be less than 1.75:1.0 (c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio for any period of four consecutive fiscal quarters of DeVry ending during any period set forth below to be greater than the ratio set forth below opposite such period: Period Maximum Consolidated Leverage Ratio - ------------------------------------------------------------------ Closing Date through December 31, 2003 2.25:1.0 January 1, 2004 through September 30, 2004 2.00:1.0 October 1, 2004 through June 30, 2005 1.75:1.0 July 1, 2005 and thereafter 1.50:1.0 - ------------------------------------------------------------------ (d) Composite DOE Financial Responsibility Ratio. Permit the DOE Ratio as of the end of any fiscal year of DeVry to be less than 1.50:1. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 8.1. Events of Default. ----------------- Any of the following shall constitute an Event of Default: (a) Non-Payment. DeVry or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any commitment or other fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or (b) Specific Covenants. DeVry fails to perform or observe any term, covenant or agreement contained in any of Section 6.1, 6.2, 6.3, 6.5, 6.10, 6.11 or 6.12 or Article VII; or (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of DeVry or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or (e) Cross-Default. (i) DeVry or any Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which DeVry or any Loan Party is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which DeVry or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by DeVry or such Loan Party as a result thereof is greater than the Threshold Amount; or (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) DeVry or any Loan Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or (h) Judgments. There is entered against DeVry or any Loan Party (i) a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or (j) Collateral. Any security interest created by the Pledge Documents shall cease to be, or shall be asserted by DeVry or any other Loan Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement and the Pledge Documents) security interest in the securities, assets or properties covered thereby; or (k) Change of Control. There occurs any Change of Control with respect to DeVry. 8.2. Remedies Upon Event of Default. ------------------------------ If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower; (c) require that DeVry Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof by furnishing cash collateral to the Collateral Agent for pledge under the Pledge Agreement); and (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law; provided, however, that upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of DeVry to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender. 8.3. Application of Funds. -------------------- After the exercise of remedies provided for in Section 8.2 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.2), any amounts received on account of the Obligations (including any distribution by the Collateral Agent to the Administrative Agent pursuant to the Pledge Agreement) shall be applied by the Administrative Agent in the following order (but subject to the provisions of the Pledge Agreement, including Section 10 thereof, which shall control in the event of a conflict with the terms of this Agreement). First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs and amounts payable under Article III) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the Administrative Agent for the account of the L/C Issuer, to be held by it to satisfy that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and Sixth, to payment of the Obligations arising under Specified Swap Contracts, ratably among the Lenders in proportion to the respective amounts in this clause sixth held by them; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the applicable Borrower or as otherwise required by Law. Subject to Section 2.3(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. ARTICLE IX ADMINISTRATIVE AGENT 9.1. Appointment and Authorization of Administrative Agent. ----------------------------------------------------- (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term "agent" herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term "Administrative Agent" as used in this Article IX and in the definition of "Agent-Related Person" included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer. 9.2. Delegation of Duties. -------------------- The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct. 9.3. Liability of Administrative Agent. --------------------------------- No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. 9.4. Reliance by Administrative Agent. -------------------------------- (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders. (b) For purposes of determining compliance with the condition specified in Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. 9.5. Notice of Default. ----------------- The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default and stating that such notice is a "notice of default." The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Default as may be directed by the Required Lenders in accordance with Article VIII; provided, however, that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable or in the best interest of the Lenders. 9.6. Credit Decision; Disclosure of Information by Administrative Agent. ------------------------------------------------------------ Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrowers and the other Loan Parties hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrowers and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person. 9.7. Indemnification of Administrative Agent. --------------------------------------- Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Person's own gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.7. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The undertaking in this Section 9.7 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent. 9.8. Administrative Agent in its Individual Capacity. ----------------------------------------------- Bank of America and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though Bank of America were not the Administrative Agent or the L/C Issuer hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding any Loan Party or its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to its Loans, Bank of America shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include Bank of America in its individual capacity. 9.9. Successor Administrative Agent. ------------------------------ The Administrative Agent may resign as Administrative Agent upon 45 days' notice to the Lenders; provided that any such resignation by Bank of America shall also constitute its resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor administrative agent for the Lenders, which successor administrative agent shall be consented to by DeVry at all times other than during the existence of an Event of Default (which consent of DeVry shall not be unreasonably withheld or delayed). If no successor administrative agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and DeVry, a successor administrative agent from among the Lenders. Upon the acceptance of its appointment as successor administrative agent hereunder, the Person acting as such successor administrative agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender and the respective terms "Administrative Agent," "L/C Issuer" and "Swing Line Lender" shall mean such successor administrative agent, Letter of Credit issuer and swing line lender, and the retiring Administrative Agent's appointment, powers and duties as Administrative Agent shall be terminated and the retiring L/C Issuer's and Swing Line Lender's rights, powers and duties as such shall be terminated, without any other or further act or deed on the part of such retiring L/C Issuer or Swing Line Lender or any other Lender, other than the obligation of the successor L/C Issuer to issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or to make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit. After any retiring Administrative Agent's resignation hereunder as Administrative Agent, the provisions of this Article IX and Sections 11.4 and 11.5 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. If no successor administrative agent has accepted appointment as Administrative Agent by the date which is 30 days following a retiring Administrative Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. 9.10. Administrative Agent May File Proofs of Claim. --------------------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on DeVry) shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.3(i) and (j), 2.9 and 11.4) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.9 and 11.4. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. 9.11. Collateral and Guaranty Matters. ------------------------------- The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, (a) to release or authorize the release of any Lien (if any) on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that comprises an Asset Sale consented to by the Required Lenders or that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.1, if approved, authorized or ratified in writing by the Required Lenders; and (b) to release any Guarantor from its obligations under a Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. 9.12. Other Agents; Arrangers and Managers. ------------------------------------ None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a "syndication agent," "documentation agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger" or "co-arranger" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. ARTICLE X CONTINUING GUARANTY 10.1. Guaranty. -------- DeVry hereby absolutely and unconditionally guarantees, as a guarantee of payment and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all Obligations of GEI (including all renewals, extensions and modifications thereof and all costs, attorneys' fees and expenses incurred by the Lenders in connection with the collection or enforcement thereof) (collectively, the "Guaranteed Obligations"). The books and records of the Administrative Agent and the Lenders showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon DeVry and conclusive, absent manifest error, for the purpose of establishing the amount of the Guaranteed Obligations. This guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of DeVry hereunder. 10.2. No Termination. -------------- The obligations of DeVry under this Article X constitute a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Article X are indefeasibly paid and performed in full and the Commitments of the Lenders with respect to the Guaranteed Obligations are terminated. 10.3. Waiver of Notices. ----------------- DeVry waives notice of the extension or continuation of the Guaranteed Obligations or any part thereof. DeVry further waives presentment, protest, notice, dishonor or default, demand for payment and any other notices to which DeVry might otherwise be entitled. 10.4. Subrogation. ----------- DeVry shall exercise no right of subrogation, contribution or similar rights with respect to any payments it makes in respect of this guaranty until all of the Guaranteed Obligations and any amounts payable under this Article X are indefeasibly paid and performed in full and the Commitments of the Lenders are terminated. If any amounts are paid to DeVry in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Lenders to reduce the amount of the Guaranteed Obligations, whether matured or unmatured. 10.5. Waiver of Suretyship Defenses. ----------------------------- DeVry agrees that the Administrative Agent and Lenders may, at any time and from time to time, and without notice to DeVry, make any agreement with GEI or with any other person or entity liable on any of the Guaranteed Obligations or providing collateral as security for the Guaranteed Obligations, for the extension, renewal, payment, compromise, discharge or release of the Guaranteed Obligations or any collateral (in whole or in part), or for any modification or amendment of the terms thereof or of any instrument or agreement evidencing the Guaranteed Obligations or the provision of collateral, all without in any way impairing, releasing, discharging or otherwise affecting the obligations of DeVry under this Article X. DeVry waives any defense arising by reason of any disability or other defense of GEI or any other Loan Party, or the cessation from any cause whatsoever of the liability of GEI, or any claim that DeVry's obligations exceed or are more burdensome than those of GEI and waives the benefit of any statute of limitations affecting the liability of the Administrative Agent or DeVry hereunder. DeVry waives any right to enforce any remedy which the Administrative Agent or Lenders now have or may hereafter have against GEI and waives any benefit of and any right to participate in any security now or hereafter held by the Lenders. Further, DeVry consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of DeVry under this Article X or which, but for this provision, might operate as a discharge of DeVry. 10.6. Exhaustion of Other Remedies Not Required. ----------------------------------------- The obligations of DeVry in respect of this guaranty are those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations. DeVry waives diligence by the Lenders and action on delinquency in respect of the Guaranteed Obligations or any part thereof, including, without limitation any provisions of law requiring the Lenders to exhaust any right or remedy or to take any action against GEI, or any other person, entity or property before enforcing this guaranty against DeVry. 10.7. Reinstatement. ------------- Notwithstanding anything in this Article X to the contrary, the obligations of DeVry under this Article X shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any portion of the Guaranteed Obligations is revoked, terminated, rescinded or reduced or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of GEI or any other person or entity or otherwise, as if such payment had not been made and whether or not the Lenders is in possession of or has released DeVry from the obligations of this Article X and regardless of any prior revocation, rescission, termination or reduction. 10.8. Subordination. ------------- DeVry hereby subordinates the payment of all obligations and indebtedness of GEI owing to DeVry, whether now existing or hereafter arising, including but not limited to any obligation of GEI to DeVry as subrogee of the Lenders or resulting from DeVry's performance under this Article X, to the indefeasible payment in full of all Guaranteed Obligations. If the Lenders so request, any such obligation or indebtedness of GEI to DeVry shall be enforced and performance received by DeVry as trustee for the Lenders and the proceeds thereof shall be paid over to the Lenders on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of DeVry under this Article X. 10.9. Stay of Acceleration. -------------------- In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy or reorganization of GEI or any other person or entity, or otherwise, all such amounts shall nonetheless be payable by DeVry immediately upon demand by the Administrative Agent or the Required Lenders. 10.10. Condition of GEI. ---------------- DeVry acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from GEI such information concerning the financial condition, business and operations of GEI as DeVry requires, and that neither the Administrative Agent nor the Lenders have any duty, and DeVry is not relying on the Administrative Agent or Lenders at any time, to disclose to DeVry any information relating to the business, operations or financial condition of GEI. ARTICLE XI MISCELLANEOUS 11.1. Amendments, Etc. --------------- No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by DeVry or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and DeVry or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall: (a) except as provided in Section 4.1, waive any condition set forth in Section 4.1(a), without the written consent of each Lender; (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.2), without the written consent of such Lender; (c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Aggregate Commitments hereunder or under any other Loan Document (excluding mandatory reductions of the Aggregate DeVry Commitments or Aggregate GEI Commitments arising from mandatory prepayments pursuant to Section 2.6(b)), without the written consent of each Lender directly affected thereby; (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.1) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of "Default Rate" or to waive any obligation of the Borrowers to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder; (e) change Section 2.13 or Section 8.3 in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender; (f) change any provision of this Section or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; (g) except for releases pursuant to Section 9.11(b), release any Guarantor from any Guaranty to the extent that the assets or revenues of such Guarantor (together with the assets or revenues of all other Guarantors then or theretofore released hereunder) represent all or a substantial part of the consolidated assets or consolidated revenues of DeVry, without the written consent of each Lender; or (h) release or authorize the release of all or any substantial portion of the Collateral under the Pledge Agreement without the written consent of each Lender, it being understood that to the extent that Collateral comprises assets (i) which are permitted to be sold pursuant to Section 7.5 such Collateral may be released without the consent of any of the Lenders, or (ii) which are part of an Asset Sale under Section 2.6, such Collateral may be released with the consent of the Required Lenders (in addition to any necessary consent of the holders of the Senior Debt); and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer in its capacity as such under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender in its capacity as such under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent in its capacity as such under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto directly affected thereby. 11.2. Notices and Other Communications; Facsimile Copies. -------------------------------------------------- (a) General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or (subject to subsection (c) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.2 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and (ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line Lender. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered; provided, however, that notices and other communications to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder. Each notice to GEI may be given to GEI in care of DeVry. (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually-signed originals and shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature. (c) Limited Use of Electronic Mail. Electronic mail and Internet and intranet websites may be used only to distribute routine communications, such as financial statements and other information as provided in Section 6.2, and to distribute Loan Documents for execution by the parties thereto, and may not be used for any other purpose. (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Revolving Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Each Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of such Borrower. All telephonic notices to and other communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording. 11.3. No Waiver; Cumulative Remedies. ------------------------------ No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 11.4. Attorney Costs, Expenses and Taxes. ---------------------------------- DeVry agrees (a) to pay or reimburse the Administrative Agent for all costs and expenses incurred in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated hereby or thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or reimburse the Administrative Agent and each Lender for all costs and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any "workout" or restructuring in respect of the Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs. The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative Agent and, solely in connection with a "workout", the cost of independent public accountants and other nonlegal outside experts retained by the Administrative Agent on behalf of the Lenders. All amounts due under this Section 11.4 shall be payable within ten Business Days after demand therefor. The agreements in this Section 11.4 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. 11.5. Indemnification by the Borrowers. -------------------------------- Whether or not the transactions contemplated hereby are consummated, each Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by DeVry, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to DeVry, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee have any liability for any indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due under this Section 11.5 shall be payable within ten Business Days after demand therefor. The agreements in this Section 11.5 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. 11.6. Payments Set Aside. ------------------ To the extent that any payment by or on behalf of either Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. 11.7. Successors and Assigns. ---------------------- (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section 11.7, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section 11.7, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section 11.7 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that: (i) except in the case of an assignment of the entire remainin amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, DeVry otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Obligations or the Commitments assigned (i.e., the same proportionate assignment by a Lender of its DeVry Commitment and its GEI Commitment and related Obligations), except that this clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii) any assignment of a Commitment must be approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (it being understood that pursuant to such Assignment and Assumption Agreement the assignee shall be bound by the terms of the Pledge Agreement). Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.1, 3.4, 3.5, 11.4 and 11.5 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the applicable Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person or DeVry or any of DeVry's Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender's participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.1 that directly affects such Participant. Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1, 3.4 and 3.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.9 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. (e) A Participant shall not be entitled to receive any greater payment under Section 3.1 or 3.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with such Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.1 unless such Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of such Borrower, to comply with Section 11.15 as though it were a Lender. (f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) As used herein, the following terms have the following meanings: "Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default has occurred and is continuing, DeVry (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, "Eligible Assignee" shall not include DeVry or any of DeVry's Affiliates or Subsidiaries any Person which cannot make the representations in Section 11.15(a). "Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. "Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. (h) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 11.7, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (i) Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection 11.7(b) above, Bank of America may, (i) upon 30 days' notice to DeVry and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to DeVry, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, DeVry shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by DeVry to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Revolving Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.3(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Revolving Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.4(c). 11.8. Confidentiality. --------------- Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates' directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority; (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty's or prospective counterparty's professional advisor) to any credit derivative transaction relating to obligations of the Loan Parties; (g) with the consent of DeVry; (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than DeVry; or (i) to the National Association of Insurance Commissioners or any other similar organization. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section, "Information" means all information received from any Loan Party relating to any Loan Party or its business, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Loan Party; provided that, in the case of information received from a Loan Party after the date hereof, such information is clearly identified in writing at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. 11.9. Set-off. ------- In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default, each Lender is authorized at any time and from time to time, without prior notice to DeVry or any other Loan Party, any such notice being waived by DeVry (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender to or for the credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness. Each Lender agrees promptly to notify DeVry and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. 11.10. Interest Rate Limitation. ------------------------ Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 11.11. Counterparts. ------------ This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11.12. Integration. ----------- This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. 11.13. Survival of Representations and Warranties. ------------------------------------------ All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. 11.14. Severability. ------------ If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 11.15. Tax Forms. --------- (a) (i) Each Lender that is not a "United States person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to the Administrative Agent, the date on which the first payment to such Lender is due hereunder (or upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an exemption from withholding tax on all payments to be made to such Foreign Lender by the Borrowers pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Foreign Lender by the Borrowers pursuant to this Agreement) or such other evidence satisfactory to the Borrowers and the Administrative Agent that such Foreign Lender is entitled to an exemption from U.S. withholding tax, including any exemption pursuant to Section 881(c) of the Code. Thereafter and from time to time, each such Foreign Lender shall (A) promptly submit to the Administrative Agent such additional duly completed and signed copies of one of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to avoid, or such evidence as is satisfactory to the Borrowers and the Administrative Agent of any available exemption from United States withholding taxes in respect of all payments to be made to such Foreign Lender by the Borrowers pursuant to this Agreement, (B) promptly notify the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption, and (C) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re- designation of its Lending Office) to avoid any requirement of applicable Laws that the Borrowers make any deduction or withholding for Taxes from amounts payable to such Foreign Lender. (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Loan Documents (for example, in the case of a typical participation by such Lender), shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act for its own account with respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the determination of the Administrative Agent (in the reasonable exercise of its discretion), (A) two duly signed completed copies of the forms or statements required to be provided by such Lender as set forth above, to establish the portion of any such sums paid or payable with respect to which such Lender acts for its own account that is not subject to U.S. withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any successor thereto), together with any information such Lender chooses to transmit with such form, and any other certificate or statement of exemption required under the Code, to establish that such Lender is not acting for its own account with respect to a portion of any such sums payable to such Lender. (iii) Neither Borrower shall be required to pay any additional amount to any Foreign Lender under Section 3.1 (a) with respect to any Taxes required to be deducted or withheld on the basis of the information, certificates or statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or (b) if such Lender shall have failed to satisfy the foregoing provisions of this Section 11.15(a); provided that if such Lender shall have satisfied the requirement of this Section 11.15(a) on the date such Lender became a Lender or ceased to act for its own account with respect to any payment under any of the Loan Documents, nothing in this Section 11.15(a) shall relieve either Borrower of its obligation to pay any amounts pursuant to Section 3.1 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender or other Person for the account of which such Lender receives any sums payable under any of the Loan Documents is not subject to withholding or is subject to withholding at a reduced rate. (iv) The Administrative Agent may, without reduction, withhold any Taxes required to be deducted and withheld from any payment under any of the Loan Documents with respect to which the Borrowers are not required to pay additional amounts under this Section 11.15(a). (b) Upon the request of the Administrative Agent, each Lender that is a "United States person" within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such forms, then the Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to the applicable back-up withholding tax imposed by the Code, without reduction. (c) If any Governmental Authority asserts that the Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs) of the Administrative Agent. The obligation of the Lenders under this Section shall survive the termination of the Aggregate Commitments, repayment of all other Obligations hereunder and the resignation of the Administrative Agent. 11.16. Replacement of Lenders. ---------------------- Under any circumstances set forth herein providing that the Borrowers shall have the right to replace a Lender as a party to this Agreement, the Borrowers may, upon notice to such Lender and the Administrative Agent, replace such Lender by causing such Lender to assign its Commitment (with the assignment fee to be paid by the Borrowers in such instance) pursuant to Section 11.7(b) to one or more other Lenders or Eligible Assignees procured by the Borrowers; provided, however, that if the Borrowers elect to exercise such rights with respect to any Lender pursuant to Section 3.6(c), they shall be obligated to replace all Lenders that have exercised similar rights pursuant to Sections 3.1, 3.2 or 3.4. The Borrowers shall or shall each cause the replacement Lender to (x) pay in full all principal, interest, fees and other amounts owing to such replaced Lender through the date of replacement (including any amounts payable pursuant to Section 3.5), (y) provide appropriate assurances and indemnities (which may include letters of credit) to the L/C Issuer and the Swing Line Lender as each may reasonably require with respect to any continuing obligation to fund participation interests in any L/C Obligations or any Swing Line Loans then outstanding, and (z) release such replaced Lender from its obligations under the Loan Documents. Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such Lender's Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans. 11.17. Governing Law. ------------- (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, the LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE CITY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE. 11.18. Service of Process on GEI. ------------------------- GEI hereby irrevocably designates, appoints and empowers DeVry, and successors as the designee, appointee and agent of GEI to receive, accept and acknowledge, for and on behalf of GEI and its properties, service of any and all legal process, summons, notices and documents which may be served in such action, suit or proceeding relating to this Agreement or the Loan Documents in the case of the courts of the Southern District of New York or of the courts of the State of New York sitting in the city of New York, which service may be made on any such designee, appointee and agent in accordance with legal procedures prescribed for such courts. GEI agrees to take any and all action necessary to continue such designation in full force and effect and should such designee, appointee and agent become unavailable for this purpose for any reason, GEI will forthwith irrevocably designate a new designee, appointee and agent, which shall irrevocably agree to act as such, with the powers and for purposes specified in this Section 11.18. GEI further irrevocably consents and agrees to service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding relating to the GEI Notes or this Agreement or the other Loan Documents delivered to GEI in accordance with this Section 11.18 or to its then designee, appointee or agent for service. If service is made upon such designee, appointee and agent, a copy of such process, summons, notice or document shall also be provided to GEI at the address specified in Section 11.2 by registered or certified mail, or overnight express air courier; provided that failure of such holder to provide such copy to GEI shall not impair or affect in any way the validity of such service or any judgment rendered in such action or proceedings. GEI agrees that service upon GEI or any such designee, appointee and agent as provided for herein shall constitute valid and effective personal service upon GEI with respect to matters contemplated in this Section 11.18 and that the failure of any such designee, appointee and agent to give any notice of such service to GEI shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall, or shall be construed so as to, limit the right of the Administrative Agent or the Lenders to bring actions, suits or proceedings with respect to the obligations and liabilities of GEI under, or any other matter arising out of or in connection with, this Agreement, or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, in the courts of whatever jurisdiction in which the respective offices of the Administrative Agent or the Lenders may be located or assets of GEI may be found or as otherwise shall to the Administrative Agent or the Lenders seem appropriate, or to affect the right to service of process in any jurisdiction in any other manner permitted by law. 11.19. Waiver of Right to Trial by Jury. -------------------------------- EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 11.20. Judgements In Foreign Currency. ------------------------------ Any payment on account of an amount that is payable hereunder or under the GEI Notes by GEI in Dollars which is made to or for the account of any Lender in currency of any other jurisdiction, or in the lawful currency of any other country, whether as a result of any judgment or order or the enforcement thereof or the realization of any security or the liquidation of such party, shall constitute a discharge of such party's obligation under this Agreement or the GEI Notes only to the extent of the amount of Dollars which such Lender could purchase in the foreign exchange markets with the amount of the currency of such other jurisdiction, or other currency, as the case may be, in accordance with normal banking procedures at the rate of exchange prevailing on the Business Day following receipt of the payment first referred to above. If the amount of Dollars that could be so purchased is less than the amount of Dollars originally due to such Lender, each of DeVry and GEI jointly and severally agrees, to the full extent permitted by law, to indemnify and save harmless such Lender from and against all loss or damage arising out of or as a result of such deficiency. This indemnity shall, to the fullest extent permitted by law, constitute an obligation separate and independent from the other obligations contained in this Agreement and the GEI Notes, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by such Lender from time to time and, shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or the GEI Notes or under any judgment or order. 11.21. Obligations of DeVry. -------------------- Notwithstanding anything contained herein or in the other Loan Documents, in no event shall GEI or any Offshore Guarantor be liable for any of the Obligations of DeVry. 11.22. Authorization of Pledge Agreement. --------------------------------- Each Lender hereby (i) authorizes the Administrative Agent to execute and deliver the Pledge Agreement on behalf of such Lender and (ii) agrees to be bound by the terms thereof (as a Bank and a Secured Party thereunder). IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. DEVRY INC. By: ________________________________ Name: ______________________________ Title: _______________________________ GLOBAL EDUCATION INTERNATIONAL, INC. By: ________________________________ Name: ______________________________ Title: _______________________________ BANK OF AMERICA, N.A., as Administrative Agent By: ________________________________ Name: ______________________________ Title: _______________________________ BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender By: ________________________________ Name: ______________________________ Title: _______________________________ other LENDERS By: ________________________________ Name: ______________________________ Title: _______________________________ SCHEDULE 1.1 EXISTING LETTERS OF CREDIT #7405243 Secretary of U.S. Dept. of Education $1,007,834.00 #7405717 UBS Cayman Islands LTD. (captive insurance group) $486,074.00 (1) #7408719 Secretary of U.S. Dept. of Education $364,356.00 #7408720 Secretary of U.S. Dept. of Education $201,327.00 #7408721 Secretary of U.S. Dept. of Education $353,749.00 #7408722 Secretary of U.S. Dept. of Education $420,228.00 #7409821 Secretary of U.S. Dept. of Education $178,219.00 #7409942 Magnolia Associates (rental of NY offices) $180,340.00 TOTAL $3,192,127.00 SCHEDULE 2.1 COMMITMENTS AND PRO RATA SHARES
Lender DeVry GEI Aggregate Pro Rata Share Commitment Commitment Commitments - ----------------------------------------------------------------------------- Bank of America, N.A. 35,000,000.00 14,000,000 49,000,000 28.000000% LaSalle Bank National Association 19,285,714.29 7,714,285.71 27,000,000 15.428571% The Northern Trust Company 19,285,714.29 7,714,285.71 27,000,000 15.428571% Harris Trust & Savings Bank 19,285,714.29 7,714,285.71 27,000,000 15.428571% JPMorgan Chase 10,714,285.71 4,285,714.29 15,000,000 8.571429% National City Bank of MI/IL 10,714,285.71 4,285,714.29 15,000,000 8.571429% SunTrust Bank, Inc. 10,714,285.71 4,285,714.29 15,000,000 8.571429% Total $125,000,000 $50,000,000 $175,000,000 100.000000000%
SCHEDULE 5.5 SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS SCHEDULE 5.6 LITIGATION SCHEDULE 5.9 ENVIRONMENTAL MATTERS SCHEDULE 5.13 SUBSIDIARIES AND OTHER EQUITY INVESTMENTS Part (a). Subsidiaries. Part (b). Other Equity Investments. [To be completed in conformity with Section 5.13.] SCHEDULE 5.18 INTELLECTUAL PROPERTY MATTERS SCHEDULE 5.20 FILINGS PURSUANT TO THE PLEDGE AGREEMENT SCHEDULE 5.22 EXISTING INDEBTEDNESS SCHEDULE 7.1 EXISTING LIENS SCHEDULE 7.3 EXISTING INDEBTEDNESS SCHEDULE 11.2 ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES BORROWERS: One Tower Lane Oakbrook Terrace, IL 60181 Attention: Norman Levine Tel: 630-574-1906 Fax: 630-571-0317 e-mail: nlevine@devry.com website: www.devry.com ADMINISTRATIVE AGENT: Bank of America, N.A., as Agent Bank of America, N.A. 231 South LaSalle Street Mail Code: IL1-231-08-30 Chicago, Illinois 60697 Attention: David Johanson Vice President Telephone: (312) 828-7933 Facsimile: (877) 206-8410 AGENT'S PAYMENT OFFICE: ---------------------- Bank of America, N.A. 901 Main Street Dallas, TX 75202 Attention: Denise Wolfenberger Telephone: (214) 209-3175 Facsimile: (214) 290-8373 ABA #111 000012 Account #: 129-2000-883 Account Name: Corporate Credit Services Ref: DeVry University L/C ISSUER: Bank of America, N.A. Attention: Riyaz Kaka Vice President Telephone: 312-923-5924 Facsimile: 312-987-6828 Electronic Mail: Riyaz.Kaka@bankofamerica.com SWING LINE LENDER: Bank of America, N.A. 231 South LaSalle Street Mail Code: IL1-231-08-30 Chicago, Illinois 60697 Attention: David Johanson Vice President Telephone: (312) 828-7933 Facsimile: (877) 206-8410 ABA #111 000012 Account #: 129-2000-883 Account Name: Corporate Credit Services Ref: DeVry University LENDERS: JPMorgan Chase Bank 2 Chase Manhattan Plaza, 13th Floor New York, NY 10081 Attention: Stacy Pinto Telephone: 212-552-4503 Facsimile: 212-552-1020 Electronic Mail: stacy.pinto@jpmorgan.com Lender's Bank: JPMorgan Chase Bank Account #: 2-2000002782 Ref: DeVry Inc. ABA #: 021000021 SunTrust Bank 401 North Michigan Ave., Suite 1200 Chicago, IL 60611 Attention: Molly Drennan Telephone: (312) 840-7982 Facsimile: (312) 840-7983 Electronic Mail: Molly.Drennan@suntrust.com Lender's Bank: SunTrust Bank Account #: 9088000112 Ref: Wire Clearing ABA #: 061000104 National City Bank of MI/IL 2021 Spring Road, Suite 600 Oak Brook, IL 60523 Credit: Attention: Mark R. Long Phone: (630) 954-3126 Facsimile: (630) 954-3730 E-mail: mark.long@nationalcity.com L/C: Attention: Donna Benson Phone: (630) 954-3189 Facsimile: (630) 954-5570 Electronic Mail: donna.benson@nationalcity.com Lender's Bank: National City Bank of Michigan/Illinois Account #: 072000915 Ref: DeVry Inc. ABA#: 151804 Harris Trust and Savings Bank 111 W. Monroe Street 111/10W Chicago, IL 60603 Credit: Attention: Ronald Redd Telephone: (312) 461-3128 Facsimile: (312) 293-4856 Electronic Mail: ronald.redd@harrisbank.com L/C: Attention: Donald Schuber Telephone: (312) 461-6462 Facsimile: (312) 293-4821 Electronic Mail: donald.schuber@harrisbank.com Lender's Bank: Harris Trust & Savings Bank Account #: 071000288 Ref: DeVry Inc. ABA #: 1092154 The Northern Trust Company 50 S. LaSalle St. Chicago, IL 60675 Credit: Attention: Michele Rosenbaum Telephone: (312) 557-9330 Facsimile: (312) 444-7028 Electronic Mail: MDLI@NTRS.com L/C: Attention: Margarita Soriano Telephone: (312) 557-0154 Facsimile: (312) 630-6015 Electronic Mail: MPS1@NTRS.com Lender's Bank: The Northern Trust Co. Account #: 071000152 Ref: DeVry Inc. ABA#: 5186401000 LaSalle Bank National Association 135 S. LaSalle, Suite 306 Chicago, IL 60603 Attention: Michael A. Berent Telephone: (312) 904-4307 Facsimile: (312) 606-8423 Electronic Mail: Lender's Bank: LaSalle Bank NA Account #: 071-000-505 Ref: Commercial Loans ABA #: GL 1378018/7300 EXHIBIT A FORM OF REVOLVING LOAN NOTICE Date: ___________, ____ To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of May 16, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among DeVry Inc., a Delaware corporation, and Global Education International, Inc., a Barbados corporation, as borrowers (the "Borrowers"), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The undersigned hereby requests (select one): _ A Borrowing of Revolving Loans _ A conversion or continuation of Loans 1. On ________________________________ (a Business Day) 2. In the amount of $ ________________________ 3. Comprised of ____________________________. [Type of Revolving Loan requested] 4. For Eurodollar Rate Loans: with an Interest Period of ______ months. [The Borrowing requested herein complies with the proviso to the first sentence of Section 2.1 of the Credit Agreement.] [BORROWER] By: ________________________________ Name: ______________________________ Title: _______________________________ EXHIBIT B FORM OF SWING LINE LOAN NOTICE Date: ___________, ____ To: Bank of America, N.A., as Swing Line Lender Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of May 16, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among DeVry Inc., a Delaware corporation, and Global Education International, Inc., a Barbados corporation, as borrowers (the "Borrowers"), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The undersigned hereby requests a Swing Line Loan: 1. On ____________________________ (a Business Day) 2. In the amount of $_______________________. The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.4(a) of the Credit Agreement. DEVRY INC. By: ________________________________ Name: ______________________________ Title: _______________________________ EXHIBIT C-1 FORM OF NOTE (DEVRY) ____________________ FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to _____________________ or registered assigns (the "Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of May 16, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among Global International Education, Inc., the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. Except as otherwise provided in Section 2.4(f) of the Credit Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Pledge Documents referred to in the Credit Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. DEVRY INC. By: ________________________________ Name: ______________________________ Title: _______________________________ LOANS AND PAYMENTS WITH RESPECT THERETO Principal or Outstanding End of Interest Principal Date Type of Amount of Interest Paid This Balance Notation Loan Made Loan Made Period Date This Date Made By - ------------------------------------------------------------------------------- EXHIBIT C-2 FORM OF NOTE (GEI) ____________________ FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to _____________________ or registered assigns (the "Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of May 16, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among DeVry Inc., the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Pledge Documents referred to in the Credit Agreement. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. GLOBAL EDUCATION INTERNATIONAL, INC. By: ________________________________ Name: ______________________________ Title: _______________________________ LOANS AND PAYMENTS WITH RESPECT THERETO Amount of Principal or Outstanding End of Interest Principal Type of Amount of Interest Paid This Balance Notation Date Loan Made Loan Made Period Date This Date Made By - ------------------------------------------------------------------------------ EXHIBIT D FORM OF COMPLIANCE CERTIFICATE Financial Statement Date: To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of May 16, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Credit Agreement;" the terms defined therein being used herein as therein defined), among DeVry Inc., a Delaware corporation, and Global Education International, Inc., a Barbados corporation, as borrowers (the "Borrowers"), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender. The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the ______________________________________________ of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that: [Use following paragraph 1 for fiscal year-end financial statements] 1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.1(a) of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. [Use following paragraph 1 for fiscal quarter-end financial statements] 1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.1(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year- end audit adjustments and the absence of footnotes. 2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements. 3. A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and [select one:] [to the best knowledge of the undersigned during such fiscal period, the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it.] --or-- [the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:] 4. The representations and warranties of the Borrower contained in Article V of the Credit Agreement, or which are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.5 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.1 of the Credit Agreement, including the statements in connection with which this Compliance Certificate is delivered. 5. The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Certificate. IN WITNESS WHEREOF, the undersigned has executed this Certificate as of ________________, ______________. DEVRY INC. By: ________________________________ Name: ______________________________ Title: _______________________________ For the Quarter/Year ended ___________________("Statement Date") SCHEDULE 2 to the Compliance Certificate ($ in 000's) I. Section 7.15(a) - Consolidated Net Worth. A. Actual Consolidated Net Worth at Statement Date: 1. Shareholders' Equity: $__________ B. Opening Amount $350,000,000 C. 75% of Consolidated Net Income for each full fiscal quarter ending after December 31, 2002 (no reduction for losses): $__________ D. 100% of increases in Shareholders' Equity after date of Agreement from issuance and sale of capital stock or other equity interests (including from conversion of debt securities): $__________ E. Minimum required Consolidated Net Worth (Lines I.B + I.C + I.D) for Subject Period: $__________ F. Excess (deficient) for covenant compliance (Line I.A - I.E): $__________ II. Section 7.15 (b) - Consolidated Fixed Charge Coverage Ratio. A. Consolidated EBITDA for the period of the four fiscal quarters then ending on the above date ("Subject Period"): 1. Consolidated Net Income for Subject Period: $__________ 2. Consolidated Interest Charges for Subject Period: $__________ 3. Provision for income taxes for Subject Period: $__________ 4. Depreciation expenses for Subject Period: $__________ 5. Amortization expenses for Subject Period: $__________ 6. Non-cash and nonrecurring charges for Subject Period: $__________ 7. Nonrecurring and extraordinary gains for Subject Period: $__________ 8. Consolidated EBITDA (Lines II.A.1+2+3+4 +5+6-7): $__________ B. Consolidated EBITDAR for Subject Period: 1. Consolidated EBITDA for Subject Period: $__________ 2. Consolidated Rental Payments for Subject Period: $__________ 3. Consolidated EBITDAR (Lines II.B.1+2): $__________ C. Numerator for Consolidated Fixed Charge Coverage Ratio for Subject Period: 1. Consolidated EBITDAR for the Subject Period: $__________ 2. Consolidated Capital Expenditures for the Subject Period: $__________ 3. Income taxes used in Consolidated Net Income, paid or required to be paid on a consolidated basis during the Subject Period: $__________ 4. Numerator (Line II.C.1-2-3): $__________ D. Denominator for Consolidated Fixed Charge Coverage Ratio for Subject Period: 1. Consolidated Interest Charges for the Subject Period: $__________ 2. Principal payments on Indebtedness for the Subject Period: $__________ 3. Consolidated Rental Payments for Subject Period: $__________ 4. Denominator (Line II.D.1+2+3): $__________ E. Consolidated Fixed Charge Coverage Ratio (Line II.C.4 ? Line II.D.4): __________ F. Minimum Consolidated Fixed Charge Coverage Ratio for Subject Period: 1.75:1 III. Section 7.15 (c) - Consolidated Leverage Ratio. A. Consolidated EBITDA for Subject Period (Line II.A.8 above): $__________ B. Consolidated Funded Indebtedness at Statement Date:$__________ C. Consolidated Leverage Ratio (Line III.B ? Line III.A): $__________ D. Maximum Consolidated Leverage Ratio for Subject Period: __________ IV. Section 7.15(d) - Composite DOE Financial Responsibility Ratio. A. DOE Composite Score as of end of last fiscal year: __________ B. Minimum DOE Ratio as of the end of the last fiscal year: 1.5:1.0 EXHIBIT E ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "Assignment and Assumption") is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the "Assignee"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the "Credit Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor's rights and obligations as a Lender under the Credit Agreement and any other documents or instruments, including the Pledge Agreement, delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including, without limitation, Letters of Credit, Guarantees and Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the "Assigned Interest"). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 1. Assignor: ______________________________ 2. Assignee: ______________________________ [and is an Affiliate/Approved Fund of [identify Lender] 1] 3. Borrower(s): ______________________________ 4. Administrative Agent: ______________________, as the administrative agent under the Credit Agreement [1] Select as applicable 5. Credit Agreement: [The Credit Agreement, dated as of ________, among [name of borrower(s)], the Lenders parties thereto, [and] Bank of America, N.A., as Administrative Agent[, and the other agents parties thereto]] 6. Assigned Interest: Aggregate Amount of Amount of Percentage Commitments/Loans Commitment/Loans Assigned of Facility Assigned for all Lenders* Assigned* Commitment/Loans[2] - ------------------------------------------------------------------------------ _____________ [3] $________________ $________________ ______________% _____________ $________________ $________________ ______________% _____________ $________________ $________________ ______________% [7. Trade Date: __________________] Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreed to: ` ASSIGNOR [NAME OF ASSIGNOR] By: _____________________________ Title: ASSIGNEE [NAME OF ASSIGNEE] By: _____________________________ Title: [2] Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. [3] Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. "Commitment to GEI", "Commitment to DeVry", etc.). [4] To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. [Consented to and][5] Accepted: [NAME OF ADMINISTRATIVE AGENT], as Administrative Agent By: _____________________________ Title: [Consented to:][6] By: _____________________________ Title: [5] To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. [6] To be added only if the consent of the Borrower and/or other parties (e.g. Sling Line Lender, L/C Issuer) is required by the terms of the Credit Agreement. ANNEX 1 TO ASSIGNMENT AND ASSUMPTION [___________________] STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. ------------------------------ 1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section __ thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, and (iii) agrees to be bound by the terms of the Pledge Agreement. 2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to or on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of ____________________ [confirm that choice of law provision parallels the Credit Agreement]. EXHIBIT F-1 FORM OF U.S. SUBSIDIARY GUARANTY EXHIBIT F-2 FORM OF OFFSHORE SUBSIDIARY GUARANTY EXHIBIT G PLEDGE AGREEMENT EXHIBIT H OPINION MATTERS [TO BE IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT] EX-4 4 ca2.txt EXHIBIT 4.2 TO FORM 8-K U.S. SUBSIDIARY GUARANTY U.S. SUBSIDIARIES OF DEVRY INC. Dated as of May 15, 2003 Re: Credit Agreement dated May 15, 2003, among DeVry Inc. and Global Education International, Inc. as the Borrowers, Bank of America, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer, and the Other Lenders Party Thereto TABLE OF CONTENTS (Not a part of the Agreement) SECTION HEADING PAGE Parties . 1 Recitals 1 Section 1. Definitions 1 Section 2. Guaranty of Obligations and Credit Agreement. 2 Section 3. Guaranty of Payment and Performance. 2 Section 4. General Provisions Relating to the Guaranty 3 Section 5. Representations and Warranties of the Guarantors. 8 Section 6. Amendments, Waivers and Consents 9 Section 7. Submission to Jurisdiction; Waiver of Jury Trial 10 Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial 10 Section 7.2. Service of Process Upon Guarantors 10 Section 8. Notices 11 Section 9. Miscellaneous 12 ATTACHMENTS TO U.S. SUBSIDIARY GUARANTY: EXHIBIT A - Form of Guaranty Joinder U.S. SUBSIDIARY GUARANTY Re: Credit Agreement This U.S. SUBSIDIARY GUARANTY dated as of May 15, 2003 (this "Guaranty") is entered into on a joint and several basis by each of the undersigned (which parties are hereinafter referred to individually as a "Guarantor" and collectively as the "Guarantors"). RECITALS A. Each Guarantor is a direct or indirect U.S. Subsidiary of DeVry Inc., a Delaware corporation ("DeVry"). B. In order to raise funds to finance the acquisition of Dominica Management, Inc., the parent of Ross University Services, Inc. and Ross University Management, Inc., to finance working capital and capital expenditures and for other general corporate purposes, DeVry and Global Education International, Inc. ("GEI" and, together with DeVry, the "Borrowers") have entered into the Credit Agreement dated as of May 15, 2003 (herein, as the same may be amended or modified from time to time, the "Credit Agreement") among the Borrowers, the lenders party thereto (the "Lenders"), and Bank of America, N.A. as administrative agent (the "Administrative Agent") providing for, among other things, up to $175 million in loans (the "Loans") and letters of credit (the "Letters of Credit"). C. The Administrative Agent and the Lenders have required as a condition to their obligations to make Credit Extensions under the Credit Agreement that DeVry cause each of the undersigned to enter into this Guaranty and to cause each Person which hereafter at any time becomes a U.S. Subsidiary to enter into a Guaranty Joinder in substantially the form set forth as Exhibit A hereto (a "Guaranty Joinder"), in each case as security for the Obligations under the Credit Agreement, and DeVry has agreed to cause each of the undersigned to execute this Guaranty and to cause each Person which hereafter becomes a U.S. Subsidiary to execute a Guaranty Joinder, in each case in order to induce the Lenders to enter into the Credit Agreement and thereby benefit the Borrowers and their Subsidiaries by providing funds to enable the Borrowers to finance the acquisition and for the other purposes referred to above. NOW, THEREFORE, as required by the Credit Agreement and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor does hereby covenant and agree, jointly and severally, as follows: SECTION 1. DEFINITIONS. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Credit Agreement or as the context shall otherwise require. SECTION 2. GUARANTY OF OBLIGATIONS AND CREDIT AGREEMENT. (a) Subject to the limitations set forth in Section 2(b) hereof, each Guarantor jointly and severally does hereby irrevocably, absolutely and unconditionally guarantee unto the Administrative Agent and the Lenders: (1) the full and prompt payment of all Obligations (as defined in the Credit Agreement) including, without limitation, all principal of and interest under, all Loans (whether Base Rate Loans, Eurodollar Rate Loans or Swing Line Loans), all L/C Obligations, all L/C Borrowings, all Specified Swap Obligations and all fees, expenses and other amounts, if any, from time to time outstanding, as and when such payments shall become due and payable, whether by lapse of time, upon redemption or prepayment, by extension or by acceleration or declaration or otherwise (including, to the extent legally enforceable, interest due on overdue payments of principal) in Federal or other immediately available funds of the United States of America which at the time of payment or demand therefor shall be legal tender for the payment of public and private debts, (2) the full and prompt performance and observance by the Borrowers of each and all of the obligations, covenants and agreements required to be performed or owed by the Borrowers under the terms of the Loan Documents, and (3) the full and prompt payment, upon demand by the Administrative Agent or the Lenders, of all costs and expenses, legal or otherwise (including reasonable attorneys' fees), if any, as shall have been expended or incurred in the protection or enforcement of any rights, privileges or liabilities in favor of the Administrative Agent or any Lender under or in respect of any Loan Document or in any action in connection therewith or herewith and in each and every case irrespective of the validity, regularity, or enforcement of any of the Loan Documents or any of the terms thereof or any other like circumstance or circumstances (the payment, performance and observance of all such Obligations, covenants and agreements being herein collectively called the "Guaranteed Obligations"). (b) The liability of each Guarantor under this Guaranty shall not exceed an amount equal to a maximum amount as will, after giving effect to such maximum amount and all other liabilities of such Guarantor, contingent or otherwise, be enforceable under applicable law and result in the performance of the obligations of such Guarantor hereunder and not constitute a fraudulent transfer, obligation or conveyance. (c) All amounts payable under this Guaranty by each Guarantor shall be made in the lawful currency of the United States of America. SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE. This is a guarantee of payment and performance and each Guarantor hereby waives, to the fullest extent permitted by law, any right to require that any action on or in respect of any Obligation or any Loan Document be brought against the Borrowers or any other Person or that resort be had to any direct or indirect security for the Guaranteed Obligations or any Loan Document or any other remedy. The Administrative Agent on behalf of the Lenders may, at its option, proceed hereunder against any Guarantor in the first instance to collect monies when due, the payment of which is guaranteed hereby, without first proceeding against the Borrowers or any other Person and without first resorting to any direct or indirect security for the Guaranteed Obligations or any Loan Document or any other remedy. The liability of each Guarantor hereunder shall in no way be affected or impaired by any acceptance by the Administrative Agent or any Lender of any direct or indirect security for, or other guaranties of, any debt, liability or obligation of the Borrowers or any other Person to the Administrative Agent or any Lender or by any failure, delay, neglect or omission by the Administrative Agent or any Lender to realize upon or protect any such guarantees, debt, liability or obligation or any instruments evidencing the same or any direct or indirect security therefor or by any approval, consent, waiver, or other action taken, or omitted to be taken by the Administrative Agent or any Lender. The covenants and agreements on the part of the Guarantors herein contained shall be joint and several covenants and agreements, and references to the Guarantors shall be deemed references to each of them and none of them shall be released from liability hereunder by reason of the guarantee ceasing to be binding as a continuing security on any other of them. SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Lender from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as the Administrative Agent or such Lender may deem advisable: (1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any debt, liability or obligation of the Borrowers or of any other Person secondarily or otherwise liable for any debt,liability or obligations of the Borrowers on the Guaranteed Obligations or under any Loan Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any Loan Document; (2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any Lender as direct or indirect security for the payment or performance of any debt, liability or obligation of the Borrowers or of any other Person secondarily or otherwise liable for any debt, liability or obligation of the Borrowers under any Loan Document; and/or (3) settle, adjust or compromise any claim of the Borrowers against any other Person secondarily or otherwise liable for any debt, liability or obligation of the Borrowers under any Loan Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder. (b) Each Guarantor hereby waives, to the fullest extent permitted by law: (1) notice of acceptance of this Guaranty by the Administrative Agent or the Lenders or of the creation, renewal or accrual of any liability of the Borrowers, present or future, or of the reliance of the Administrative Agent or any of the Lenders upon this Guaranty (it being understood that all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty); and (2) demand of payment by the Administrative Agent on behalf of the Lenders from the Borrowers or any other Person indebted in any manner on or for any of the Guaranteed Obligations; and (3) presentment for the payment by the Administrative Agent on behalf of the Lenders or any other Person of any Loan Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever. (c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders shall have terminated, all Letters of Credit shall have expired or terminated and all Obligations have indefeasibly been paid in full (the "Termination Date") and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor: (1) the genuineness, validity, regularity or enforceability of any of the Loan Documents or any of the terms of any thereof, the continuance of any obligation on the part of the Borrowers or any other Guarantor on or in respect of or under any Loan Document or the power or authority or the lack of power or authority of the Borrowers to execute and deliver any Loan Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of the Borrowers or any other Guarantor as a legal entity; or (2) any default, failure or delay, willful or otherwise, in the performance by the Borrowers or any other Guarantor of any obligations of any kind or character whatsoever under any Loan Document; or (3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of the Borrowers or any other Guarantor or in respect of the property of the Borrowers or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Borrowers or any other Guarantor; or (4) impossibility or illegality of performance on the part of the Borrowers or any other Guarantor of its obligations under any Loan Document; or (5) in respect of the Borrowers or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable,whether or not imputable to the Borrowers or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of the Borrowers or any other Guarantor and whether or not of the kind hereinbefore specified; or (6) any attachment, claim, demand, charge, Lien,order,process, lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against the Borrowers or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Loan Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or (7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by the Borrowers or any Guarantor of its respective obligations under or in respect of any Loan Document; or (8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or (9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Borrowers or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Loan Document, or this Guaranty or failure to resort for payment to the Borrowers or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or (10) the acceptance of any additional security or other guaranty, the advance of additional money to the Borrowers or any other Guarantor, amendments, modifications, consents or waivers with respect to any Loan Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation; or (11) any change in the ownership of any shares of the Borrowers or any Guarantor; or (12) any defense whatsoever that: (i) the Borrowers or any other Guarantor might have to the payment under any Loan Document, other than payment thereof in Federal or other immediately available funds, or (ii) the Borrowers or any other Guarantor might have to the performance or observance of any of the provisions of any Loan Document, whether through the satisfaction or purported satisfaction by the Borrowers or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or (13) any act or failure to act with regard to any Loan Document or anything which might vary the risk of any Guarantor; or (14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Loan Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Borrowers shall default under or in respect of the terms of any Loan Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Borrowers under any Loan Document shall remain in full force and effect and shall apply to each and every subsequent default. (d) All rights of the Administrative Agent or any Lender hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Borrowers. (e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Lenders to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by the Borrowers with respect to the Obligations under the Loan Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable under the Loan Documents and this Guaranty, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Lenders to be credited and applied to the amounts due or to become due with respect to all amounts payable under the Loan Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits. (f) Each Guarantor agrees that, to the extent either Borrower, any other Guarantor or any other Person makes any payment under any of the Loan Documents, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person. (g) Neither the Administrative Agent nor any Lender, shall be under any obligation: (1) to marshall any assets in favor of the Guarantors or in payment of any or all of the liabilities of the Borrowers under or in respect of the Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives. (h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor. SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS. Each Guarantor represents and warrants to the Administrative Agent and each Lender that: (a) Such Guarantor is a corporation, limited liability company, limited partnership or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation, limited liability company, limited partnership or other similar legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the ability of such Guarantor to perform its obligations under this Guaranty, or (2) the validity or enforceability of this Guaranty against such Guarantor (herein in this Section 5, a "Material Adverse Effect"). Such Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guaranty and to perform the provisions hereof. (b) This Guaranty has been duly authorized by all necessary corporate or other organizational action on the part of such Guarantor, and this Guaranty constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) The execution, delivery and performance by such Guarantor of this Guaranty will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of such Guarantor or any of its Subsidiaries under its charter documents, or except for contraventions, breaches or defaults which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, under any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, or any other agreement or instrument to which such Guarantor or any of its Subsidiaries is bound or by which such Guarantor or any of its Subsidiaries or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to such Guarantor or any of its Subsidiaries or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the such Guarantor or any of its Subsidiaries. (d) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by such Guarantor of this Guaranty. (e) Except in the case of DeVry Canada, LLC, DeVry Leasing Corp. and DeVry Educational Products Inc., such Guarantor is solvent, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has assets having a value both at fair valuation and at present fair salable value greater than the amount required to pay its debts as they become due and greater than the amount that will be required to pay its probable liability on its existing debts as they become absolute and matured. Such Guarantor does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due. Such Guarantor will not be rendered insolvent by the execution and delivery of, and performance of its obligations under, this Guaranty. Such Guarantor does not intend to hinder, delay or defraud its creditors by or through the execution and delivery of, or performance of its obligations under, this Guaranty. (f) All representations in the Credit Agreement applicable to such Guarantors (or any of them) are true and correct in all material respects. SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS. This Guaranty may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively), pursuant to the provisions of Section 11.1 of the Credit Agreement. This Guaranty may be amended by the addition of additional Guarantors pursuant to a Guaranty Joinder. SECTION 7. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. (a) Each Guarantor irrevocably submits to the nonexclusive in personam jurisdiction of any State of New York or federal court sitting in New York City, over any suit, action or proceeding arising out of or relating to this Guaranty. To the fullest extent it may effectively do so under applicable law, each Guarantor irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the in personam jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (b) Each Guarantor agrees, to the fullest extent it may effectively do so under applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in paragraph (a) of this Section 7.1 brought in any such court shall be conclusive and binding upon such party, subject to rights of appeal and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which such party is or may be subject) by a suit upon such judgment. (c) Each Guarantor consents to process being served in any suit,action or proceeding of the nature referred to in paragraph (a) of this Section 7.1 by mailing a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the address of such Guarantor specified in Section 8 or at such other address of which you shall then have been notified pursuant to said Section or to any agent for service of process appointed pursuant to the provisions of Section 7.2. Each Guarantor agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the full extent permitted by law, be taken and held to be valid personal service upon and personal delivery to such party. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service. (d) Nothing in this Section 7.1 shall affect the right of the Administrative Agent or the Lenders to serve process in any manner permitted by law, or limit any right that the Administrative Agent or the Lenders may have to bring proceedings against any Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction. (e) Each Guarantor waives trial by jury in any action brought on or with respect to this Guaranty or the Loan Documents or any other document executed in connection herewith or therewith. Section 7.2. Service of Process Upon Guarantors. Each Guarantor hereby irrevocably designates, appoints and empowers DeVry and its successors as the designee, appointee and agent for each Guarantor to receive, accept and acknowledge, for and on behalf of such Guarantor and its properties, service of any and all legal process, summons, notices and documents which may be served in such action, suit or proceeding relating to this Guaranty in the case of the New York federal and state courts located in New York City, which service may be made on any such designee, appointee and agent in accordance with legal procedures prescribed for such courts. Each Guarantor agrees to take any and all action necessary to continue such designation in full force and effect and should such designee, appointee and agent become unavailable for this purpose for any reason, each Guarantor will forthwith irrevocably designate a new designee, appointee and agent, which shall irrevocably agree to act as such, with the powers and for purposes specified in this Section 7.2. Each Guarantor further irrevocably consents and agrees to service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding relating to any Loan Document or this Guaranty delivered to such Guarantor in accordance with this Section 7.2 or to its then designee, appointee or agent for service. If service is made upon such designee, appointee and agent, a copy of such process, summons, notice or document shall also be provided to any Guarantor at the address specified in Section 8 by registered or certified mail, or overnight express air courier; provided that failure of such Lender to provide such copy to such Guarantor shall not impair or affect in any way the validity of such service or any judgment rendered in such action or proceedings. Each Guarantor agrees that service upon such Guarantor or any such designee, appointee and agent as provided for herein shall constitute valid and effective personal service upon such Guarantor with respect to matters contemplated in this Section 7.2 and that the failure of any such designee, appointee and agent to give any notice of such service to such Guarantor shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall, or shall be construed so as to, limit the right of the Administrative Agent or the Lenders to bring actions, suits or proceedings with respect to the obligations and liabilities of any Guarantor under, or any other matter arising out of or in connection with, this Agreement, or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, in the courts of whatever jurisdiction in which the respective offices of the Administrative Agent or the Lenders may be located or assets of such Guarantor may be found or as otherwise shall to Administrative Agent or the Lenders seem appropriate, or to affect the right to service of process in any jurisdiction in any other manner permitted by law. SECTION 8. NOTICES. All notices and communications provided for hereunder shall be in writing and sent (a) by telefacsimile if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent: (1) if to the Administrative Agent, to such address as listed in Schedule 11.2 of the Credit Agreement, or (2) if to any Guarantor, to such Guarantor c/o the Borrowers at One Tower Lane, Oakbrook Terrace, IL 60181, or at such other address as such Guarantor shall have specified to the Administrative Agent in writing. Notices under this Section 8 will be deemed given only when actually received. SECTION 9. MISCELLANEOUS. (a) No remedy herein conferred upon or reserved to the Administrative Agent or any Lender is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Administrative Agent or any Lender to exercise any remedy reserved to it under the Guaranty, it shall not be necessary for such Administrative Agent or Lender to physically produce the Loan Documents in any proceedings instituted by it or to give any notice, other than such notice as may be herein expressly required. (b) The Guarantors will pay all sums becoming due under this Guaranty by the method and at the address specified for such purpose in the Credit Agreement, or by such other reasonable method or at such other address as the Administrative Agent or the Lenders shall have from time to time specified to the Guarantors in writing for such purpose, without the presentation or surrender of this Guaranty or any Loan Documents. (c) Any provision of this Guaranty that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. (d) If the whole or any part of this Guaranty shall be now or hereafter become unenforceable against any one or more of the Guarantors for any reason whatsoever or if it is not executed by any one or more of the Guarantors, this Guaranty shall nevertheless be and remain fully binding upon and enforceable against each other Guarantor as if it had been made and delivered only by such other Guarantors. (e) This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Administrative Agent and each Lender and its successors and assigns whether so expressed or not, until the Termination Date. (f) This Guaranty may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. (g) This Guaranty shall be construed and enforced in accordance with, and the rights of the parties shall be governed by the law of the State of New York. (h) The Recitals are incorporated into this Guaranty by reference with the same force and effect as though set forth herein in full. (i) The Administrative Agent is authorized to enforce this Guaranty on behalf of the Lenders. IN WITNESS WHEREOF, each of the undersigned has caused this U.S. Subsidiary Guaranty to be duly executed by an authorized representative as of this 15th day of May, 2003. DEVRY UNIVERSITY, INC. By Its BECKER CPA REVIEW CORP. By Its INTERNATIONAL EDUCATION HOLDINGS, INC. By Its DOMINICA MANAGEMENT, INC. By Its DEVRY/NEW YORK, INC. By Its DEVRY EDUCATIONAL PRODUCTS, INC. By Its DEVRY LEASING CORPORATION By Its DEVRY/BECKER EDUCATIONAL DEVELOPMENT CORP. By Its DEVRY EDUCATIONAL DEVELOPMENT CORP. By Its DEVRY FLORIDA LLC By Its DEVRY CANADA LLC By Its ROSS UNIVERSITY SERVICES, INC. By Its FORM OF GUARANTY JOINDER Re: Credit Agreement This [GUARANTY JOINDER] dated as of _________, _____ (the or this "[Guaranty Joinder]") is entered into [on a joint and several basis] by [each of] the undersigned __________, a ____________ corporation [and ____________, a ___________ corporation] ([which parties are hereinafter referred to individually as] an "Additional Guarantor" [and collectively as the "Additional Guarantors"]). Terms not otherwise defined herein shall have the meaning set forth in the Credit Agreement hereinafter referred to. RECITALS A. [Each] Additional Guarantor, is presently a U.S. Subsidiary of DeVry Inc., a Delaware corporation, a Delaware corporation ("DeVry"). B. In order to raise funds to finance the acquisition of Dominica Management, Inc., the parent of Ross University Services, Inc. and Ross University Management, Inc., to finance working capital and capital expenditures and for other general corporate purposes, DeVry and Global Education International, Inc. ("GEI" and, together with DeVry, the "Borrowers") have entered into the Credit Agreement dated as of May 15, 2003 (herein, as amended and modified from time to time, the "Credit Agreement") among the Borrowers, the lenders, party thereto (the "Lenders") and Bank of America, N.A. as administrative agent (the "Administrative Agent") providing for, among other things, up to $175 million in loans (the "Loans") and Letters of Credit (the "Letters of Credit"). C. The Administrative Agent and the Lenders have required as a condition to their obligations to make Extensions of Credit under the Credit Agreement, that the U.S. Subsidiaries of the Borrowers enter into the U.S. Subsidiary Guaranty dated as of May 15, 2003 (the "Guaranty") as security for the Obligations. NOW, THEREFORE, as required by the Credit Agreement and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, [each/the] Additional Guarantor does hereby covenant and agree, [jointly and severally,] as follows: In accordance with the requirements of the Guaranty, the Additional Guarantor[s] desire to amend the definition of Guarantor (as the same may have been heretofore amended) set forth in the Guaranty attached hereto so that at all times from and after the date hereof, the Additional Guarantor[s] shall be jointly and severally liable as Guarantors as set forth in the Guaranty for the Guaranteed Obligations of the Borrowers under the Credit Agreement to the extent and in the manner set forth in the Guaranty. The undersigned is the duly elected ____________ of the Additional Guarantor[s] and is duly authorized to execute and deliver this Guaranty Joinder for the benefit of all Lenders. The execution by the undersigned of this Guaranty Joinder shall evidence its consent to and acknowledgment and approval of the terms set forth herein and in the Guaranty. By its execution hereof, the Additional Guarantor[s] shall be deemed to have made the representations and warranties set forth in Section 5 of the Guaranty in favor of the Lenders as of the date of this Guaranty Joinder. Upon execution of this Guaranty Joinder, the Guaranty shall be deemed to be amended as set forth above. The Additional Guarantor[s] hereby become[s] a Guarantor under the Guaranty and as a Guarantor thereunder, hereby Guarantees all Guaranteed Obligations. Except as amended herein, the terms and provisions of the Guaranty are hereby ratified, confirmed and approved in all respects. Any and all notices, requests, certificates and other instruments may refer to the Guaranty without making specific reference to this Guaranty Joinder, but nevertheless all such references shall be deemed to include this Guaranty Joinder unless the context shall otherwise require. [NAME OF ADDITIONAL GUARANTOR] By Its EX-4 5 ca3.txt EXHIBIT 4.3 TO FORM 8-K OFFSHORE SUBSIDIARY GUARANTY OFFSHORE SUBSIDIARIES OF GLOBAL EDUCATION INTERNATIONAL, INC. Dated as of May 16, 2003 Re: Credit Agreement dated May 16, 2003, among DeVry Inc. and Global Education International, Inc. as the Borrowers, Bank of America, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer, and the Other Lenders Party Thereto TABLE OF CONTENTS ----------------- (Not a part of the Agreement) SECTION HEADING PAGE Parties . 1 Recitals 1 Section 1. Definitions 1 Section 2. Guaranty of Obligations and Credit Agreement. 2 Section 3. Guaranty of Payment and Performance. 2 Section 4. General Provisions Relating to the Guaranty 3 Section 5. Representations and Warranties of the Guarantors. 8 Section 6. Amendments, Waivers and Consents 9 Section 7. Submission to Jurisdiction; Waiver of Jury Trial 10 Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial 10 Section 7.2. Service of Process Upon Guarantors 10 Section 7.3. Tax Indemnity 11 Section 7.4. Repayment 12 Section 8. Notices 11 Section 9. Miscellaneous 12 ATTACHMENTS TO OFFSHORE SUBSIDIARY GUARANTY: EXHIBIT A - Form of Guaranty Joinder OFFSHORE SUBSIDIARY GUARANTY Re: Credit Agreement This OFFSHORE SUBSIDIARY GUARANTY dated as of May 16, 2003 (this "Guaranty") is entered into on a joint and several basis by each of the undersigned (which parties are hereinafter referred to individually as a "Guarantor" and collectively as the "Guarantors"). RECITALS A. Each Guarantor is a direct or indirect Offshore Subsidiary of Global Education International, Inc., a Barbados corporation ("GEI"). B. In order to raise funds to finance the acquisition of Dominica Management, Inc., the parent of Ross University Services, Inc. and Ross University Management, Inc., to finance working capital and capital expenditures and for other general corporate purposes, GEI and DeVry Inc., a Delaware corporation ("Devry" and, together with GEI, the "Borrowers") have entered into the Credit Agreement dated as of May 16, 2003 (herein, as the same may be amended or modified from time to time, the "Credit Agreement") among the Borrowers, the lenders party thereto (the "Lenders"), and Bank of America, N.A. as administrative agent (the "Administrative Agent") providing for, among other things, up to $175 million in loans (the "Loans") and letters of credit (the "Letters of Credit") of which up to $50,000,000 in Loans and Letters of Credit will be initially available to GEI at any one time outstanding. C. The Administrative Agent and the Lenders have required as a condition to their obligations to make Credit Extensions under the Credit Agreement that DeVry cause each of the undersigned to enter into this Guaranty and to cause each Person which hereafter at any time becomes an Offshore Subsidiary to enter into a Guaranty Joinder in substantially the form set forth as Exhibit A hereto (a "Guaranty Joinder"), in each case as security for the Obligations of GEI under the Credit Agreement, and GEI has agreed to cause each of the undersigned to execute this Guaranty and to cause each Person which hereafter becomes an Offshore Subsidiary to execute a Guaranty Joinder, in each case in order to induce the Lenders to enter into the Credit Agreement and thereby benefit the Borrowers and their Subsidiaries by providing funds to enable the Borrowers to finance the acquisition and for the other purposes referred to above. NOW, THEREFORE, as required by the Credit Agreement and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor does hereby covenant and agree, jointly and severally, as follows: SECTION 1. DEFINITIONS. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Credit Agreement or as the context shall otherwise require. SECTION 2. GUARANTY OF OBLIGATIONS AND CREDIT AGREEMENT. (a) Subject to the limitations set forth in Section 2(b) hereof, each Guarantor jointly and severally does hereby irrevocably, absolutely and unconditionally guarantee unto the Administrative Agent and the Lenders: (1) the full and prompt payment of all Obligations (as defined in the Credit Agreement) of GEI including, without limitation, all principal of and interest under, all Loans (whether Base Rate Loans or Eurodollar Rate Loans) made to GEI, all L/C Obligations of GEI, all L/C Borrowings of GEI, all Specified Swap Obligations of GEI or its Subsidiaries and all fees, expenses and other amounts for which GEI is liable, if any, from time to time outstanding, as and when such payments shall become due and payable, whether by lapse of time, upon redemption or prepayment, by extension or by acceleration or declaration or otherwise (including, to the extent legally enforceable, interest due on overdue payments of principal) in Federal or other immediately available funds of the United States of America which at the time of payment or demand therefor shall be legal tender for the payment of public and private debts, (2) the full and prompt performance and observance by GEI of each and all of the obligations, covenants and agreements required to be performed or owed by GEI under the terms of the Loan Documents, and (3) the full and prompt payment, upon demand by the Administrative Agent or the Lenders, of all costs and expenses, legal or otherwise (including reasonable attorneys' fees), if any, as shall have been expended or incurred in the protection or enforcement of any rights, privileges or liabilities in favor of the Administrative Agent or any Lender under or in respect of GEI's Obligations under any Loan Document to which GEI or any of its Subsidiaries is a party or in any action in connection therewith or herewith and in each and every case irrespective of the validity, regularity, or enforcement of any of the Loan Documents or any of the terms thereof or any other like circumstance or circumstances (the payment, performance and observance of all such Obligations, covenants and agreements being herein collectively called the "Guaranteed Obligations"). Notwithstanding anything contained herein or in the other Loan Documents, no Guarantor hereunder shall be liable for any Obligations of DeVry. (b) The liability of each Guarantor under this Guaranty shall not exceed an amount equal to a maximum amount as will, after giving effect to such maximum amount and all other liabilities of such Guarantor, contingent or otherwise, be enforceable under applicable law and result in the performance of the obligations of such Guarantor hereunder and not constitute a fraudulent transfer, obligation or conveyance. (c) All amounts payable under this Guaranty by each Guarantor shall be made in the lawful currency of the United States of America (hereinafter referred to as "United States Dollars"). SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE. This is a guarantee of payment and performance and each Guarantor hereby waives, to the fullest extent permitted by law, any right to require that any action on or in respect of any Obligation or any Loan Document be brought against GEI or any other Person or that resort be had to any direct or indirect security for the Guaranteed Obligations or any Loan Document or any other remedy. The Administrative Agent on behalf of the Lenders may, at its option, proceed hereunder against any Guarantor in the first instance to collect monies when due, the payment of which is guaranteed hereby, without first proceeding against GEI or any other Person and without first resorting to any direct or indirect security for the Guaranteed Obligations or any Loan Document or any other remedy. The liability of each Guarantor hereunder shall in no way be affected or impaired by any acceptance by the Administrative Agent or any Lender of any direct or indirect security for, or other guaranties of, any debt, liability or obligation of GEI or any other Person to the Administrative Agent or any Lender or by any failure, delay, neglect or omission by the Administrative Agent or any Lender to realize upon or protect any such guarantees, debt, liability or obligation or any instruments evidencing the same or any direct or indirect security therefor or by any approval, consent, waiver, or other action taken, or omitted to be taken by the Administrative Agent or any Lender. The covenants and agreements on the part of the Guarantors herein contained shall be joint and several covenants and agreements, and references to the Guarantors shall be deemed references to each of them and none of them shall be released from liability hereunder by reason of the guarantee ceasing to be binding as a continuing security on any other of them. SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY. (a) Each Guarantor hereby consents and agrees that the Administrative Agent and/or any Lender from time to time, with or without any further notice to or assent from any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as the Administrative Agent or such Lender may deem advisable: (1) extend in whole or in part (by renewal or otherwise), modify, increase, change, compromise, release or extend the duration of the time for the performance or payment of any debt, liability or obligation of GEI or of any other Person secondarily or otherwise liable for any debt, liability or obligations of GEI on the Guaranteed Obligations or under any Loan Document, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of any Loan Document; (2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever received, held by, or for the benefit of, the Administrative Agent or any Lender as direct or indirect security for the payment or performance of any debt, liability or obligation of GEI or of any other Person secondarily or otherwise liable for any debt, liability or obligation of GEI under any Loan Document; and/or (3) settle, adjust or compromise any claim of GEI against any other Person secondarily or otherwise liable for any debt, liability or obligation of GEI under any Loan Document. Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement, adjustment or compromise and agrees that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder. (b) Each Guarantor hereby waives, to the fullest extent permitted by law: (1) notice of acceptance of this Guaranty by the Administrative Agent or the Lenders or of the creation, renewal or accrual of any liability of GEI, present or future, or of the reliance of the Administrative Agent or any of the Lenders upon this Guaranty (it being understood that all Guaranteed Obligations described in Section 2 hereof shall conclusively be presumed to have been created, contracted or incurred in reliance upon the execution of this Guaranty); and (2) demand of payment by the Administrative Agent on behalf of the Lenders from GEI or any other Person indebted in any manner on or for any of the Guaranteed Obligations; and (3) presentment for the payment by the Administrative Agent on behalf of the Lenders or any other Person of any Loan Document or any other instrument, protest thereof and notice of its dishonor to any party thereto and to such Guarantor. The obligations of each Guarantor under this Guaranty and the rights of the Administrative Agent to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not be subject to any reduction, limitation, impairment or termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim), recoupment or termination whatsoever. (c) The obligations of each Guarantor hereunder shall be binding upon such Guarantor and its successors and assigns, and shall remain in full force and effect until the date on which all Commitments of the Lenders to GEI shall have terminated, all Letters of Credit pursuant to the GEI Commitment shall have expired or terminated and all Obligations of GEI have indefeasibly been paid in full (the "Termination Date") and such obligations shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of any Guarantor: (1) the genuineness, validity, regularity or enforceability of any of the Loan Documents or any of the terms of any thereof, the continuance of any obligation on the part of GEI or any other Guarantor on or in respect of or under any Loan Document or the power or authority or the lack of power or authority of GEI to execute and deliver any Loan Document or of any other Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or the existence or continuance of GEI or any other Guarantor as a legal entity; or (2) any default, failure or delay, willful or otherwise, in the performance by GEI or any other Guarantor of any obligations of any kind or character whatsoever under any Loan Document; or (3) any creditors' rights, bankruptcy, receivership or other insolvency proceeding of GEI or any other Guarantor or in respect of the property of GEI or any other Guarantor or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of GEI or any other Guarantor; or (4) impossibility or illegality of performance on the part of GEI or any other Guarantor of its obligations under any Loan Document; or (5) in respect of GEI or any other Guarantor, any change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to GEI or any other Guarantor, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond the control of GEI or any other Guarantor and whether or not of the kind hereinbefore specified; or (6) any attachment, claim, demand, charge, Lien, order, process,lien or any other happening or event or reason, similar or dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against GEI or any Guarantor or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by any Guarantor, or against any sums payable in respect of or under any Loan Document, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or (7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political sub- division thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way adversely affect, the performance by GEI or any Guarantor of its respective obligations under or in respect of any Loan Document; or (8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty; or (9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of GEI or any other Guarantor to keep and perform any obligation, covenant or agreement under the terms of any Loan Document or this Guaranty or failure to resort for payment to GEI or any other Guarantor or to any other guaranty or to any property, security, Liens or other rights or remedies; or (10) the acceptance of any additional security or other guaranty, the advance of additional money to GEI or any other Guarantor, amendments, modifications, consents or waivers with respect to any Loan Document, or the sale, release, substitution or exchange of any security for any Guaranteed Obligation of GEI; or (11) any change in the ownership of any shares of GEI or any Guarantor; or (12) any defense whatsoever that: (i) GEI or any other Guarantor might have to the payment under any Loan Document, other than payment thereof in Federal or other immediately available funds, or (ii) GEI or any other Guarantor might have to the performance or observance of any of the provisions of any Loan Document, whether through the satisfaction or purported satisfaction by GEI or any other Guarantor of its debts due to any cause such as bankruptcy, insolvency, receivership, merger, consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or (13) any act or failure to act with regard to any Loan Document or anything which might vary the risk of any Guarantor; or (14) any other circumstance which might otherwise constitute a defense available to, or a discharge of any Guarantor in respect of the obligations of any Guarantor under this Guaranty; provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this Guaranty that the obligations of each Guarantor shall be absolute, irrevocable and unconditional and shall not be discharged, impaired or varied except by the payment of all Obligations of GEI in accordance with their respective terms whenever the same shall become due and payable and all other sums due and payable under any Loan Document, at the place specified in and all in the manner and with the effect provided in the Credit Agreement, as may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, GEI shall default under or in respect of the terms of any Loan Document and that notwithstanding recovery hereunder for or in respect of any given default or defaults by GEI under any Loan Document shall remain in full force and effect and shall apply to each and every subsequent default. (d) All rights of the Administrative Agent or any Lender hereunder may be transferred or assigned at any time and shall be considered to be transferred or assigned at any time or from time to time upon the appointment of a successor to the Administrative Agent or any permitted transfer by a Lender of its rights under the Credit Agreement, whether with or without the consent of or notice to the Guarantors under this Guaranty or to GEI. (e) To the extent of any payments made under this Guaranty, each Guarantor shall be subrogated to the rights of the Administrative Agent and/or the Lenders to whom such payment was made, but such Guarantor covenants and agrees that such right of subrogation shall be subordinate in right of payment to the prior indefeasible final payment in cash in full of all amounts due and owing by GEI with respect to the Obligations of GEI under the Loan Documents and by the Guarantors under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until the Termination Date. If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the indefeasible payment in cash in full of all amounts payable by GEI under the Loan Documents and this Guaranty, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Administrative Agent and the Lenders to be credited and applied to the amounts due or to become due with respect to all amounts payable by GEI under the Loan Documents and this Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has received direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waiver set forth in this paragraph (e) is knowingly made as a result of the receipt of such benefits. (f) Each Guarantor agrees that, to the extent GEI, any other Guarantor or any other Person makes any payment under any of the Loan Documents with respect to GEI's Obligations, which payment or any part thereof is subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors' obligations hereunder, as if said payment had not been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to the Administrative Agent or any Lender from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity, or fraud asserted by any account debtor or by any other Person. (g) Neither the Administrative Agent nor any Lender, shall be under any obligation: (1) to marshall any assets in favor of the Guarantors or in payment of any or all of the liabilities of GEI under or in respect of the Loan Documents or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the Guarantors' burden, any right to which each Guarantor hereby expressly waives. (h) The obligations of each Guarantor under this Guaranty rank pari passu in right of payment with all other Indebtedness of such Guarantor which is not secured or which is not expressly subordinated in right of payment to any other Indebtedness of such Guarantor. SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS. Each Guarantor represents and warrants to the Administrative Agent and each Lender that: (a) Such Guarantor is a corporation, limited liability company, limited partnership or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation, limited liability company, limited partnership or other similar legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the ability of such Guarantor to perform its obligations under this Guaranty, or (2) the validity or enforceability of this Guaranty against such Guarantor (herein in this Section 5, a "Material Adverse Effect"). Such Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guaranty and to perform the provisions hereof. (b) This Guaranty has been duly authorized by all necessary corporate or other organizational action on the part of such Guarantor, and this Guaranty constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) The execution, delivery and performance by such Guarantor of this Guaranty will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of such Guarantor or any of its Subsidiaries under its charter documents, or except for contraventions, breaches or defaults which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, under any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, or any other agreement or instrument to which such Guarantor or any of its Subsidiaries is bound or by which such Guarantor or any of its Subsidiaries or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to such Guarantor or any of its Subsidiaries or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the such Guarantor or any of its Subsidiaries. (d) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by such Guarantor of this Guaranty. (e) Such Guarantor is solvent, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has assets having a value both at fair valuation and at present fair salable value greater than the amount required to pay its debts as they become due and greater than the amount that will be required to pay its probable liability on its existing debts as they become absolute and matured. Such Guarantor does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due. Such Guarantor will not be rendered insolvent by the execution and delivery of, and performance of its obligations under, this Guaranty. Such Guarantor does not intend to hinder, delay or defraud its creditors by or through the execution and delivery of, or performance of its obligations under, this Guaranty. (f) All representations in the Credit Agreement applicable to such Guarantors (or any of them) are true and correct in all material respects. SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS. This Guaranty may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively), pursuant to the provisions of Section 11.1 of the Credit Agreement. This Guaranty may be amended by the addition of additional Guarantors pursuant to a Guaranty Joinder. SECTION 7. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. Section 7.1. Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. (a) Each Guarantor irrevocably submits to the nonexclusive in personam jurisdiction of any State of New York or federal court sitting in New York City, over any suit, action or proceeding arising out of or relating to this Guaranty. To the fullest extent it may effectively do so under applicable law, each Guarantor irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the in personam jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (b) Each Guarantor agrees, to the fullest extent it may effectively do so under applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in paragraph (a) of this Section 7.1 brought in any such court shall be conclusive and binding upon such party, subject to rights of appeal and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which such party is or may be subject) by a suit upon such judgment. (c) Each Guarantor consents to process being served in any suit,action or proceeding of the nature referred to in paragraph (a) of this Section 7.1 by mailing a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the address of such Guarantor specified in Section 8 or at such other address of which you shall then have been notified pursuant to said Section or to any agent for service of process appointed pursuant to the provisions of Section 7.2. Each Guarantor agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the full extent permitted by law, be taken and held to be valid personal service upon and personal delivery to such party. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service. (d) Nothing in this Section 7.1 shall affect the right of the Administrative Agent or the Lenders to serve process in any manner permitted by law, or limit any right that the Administrative Agent or the Lenders may have to bring proceedings against any Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction. (e) Each Guarantor waives trial by jury in any action brought on or with respect to this Guaranty or the Loan Documents or any other document executed in connection herewith or therewith. (f) Any payment on account of any amount that is payable hereunder by any Guarantor in United States Dollars which is made to or for the account of the Administrative Agent or any Lender in currency of any other jurisdiction, or in the lawful currency of any other country, whether as a result of any judgment or order or the enforcement thereof or the realization of any security or the liquidation of such party, shall constitute a discharge of such party's obligation under this Guaranty only to the extent of the amount of United States Dollars which such Lender could purchase in the foreign exchange markets with the amount of currency of such other jurisdiction, or other currency, as the case may be, in accordance with normal banking procedures at the rate of exchange prevailing on the Business Day following receipt of the payment first referred to above. If, the amount of United States Dollars that could be so purchased is less than the amount of United States Dollars originally due to the Administrative Agent and/or such Lender, each Guarantor agrees, to the full extent permitted by law, to indemnify and save harmless the Administrative Agent and/or such Lender from and against all loss or damage arising out of or as a result of such deficiency. This indemnity shall, to the fullest extent permitted by law, constitute an obligation separate and independent from the other obligations contained in this Guaranty, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent and such Lender from time to time and, shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under any judgment or order. Section 7.2. Service of Process Upon Guarantors. Each Guarantor hereby irrevocably designates, appoints and empowers DeVry and its successors as the designee, appointee and agent for each Guarantor to receive, accept and acknowledge, for and on behalf of such Guarantor and its properties, service of any and all legal process, summons, notices and documents which may be served in such action, suit or proceeding relating to this Guaranty in the case of the New York federal and state courts located in New York City, which service may be made on any such designee, appointee and agent in accordance with legal procedures prescribed for such courts. Each Guarantor agrees to take any and all action necessary to continue such designation in full force and effect and should such designee, appointee and agent become unavailable for this purpose for any reason, each Guarantor will forthwith irrevocably designate a new designee, appointee and agent, which shall irrevocably agree to act as such, with the powers and for purposes specified in this Section 7.2. Each Guarantor further irrevocably consents and agrees to service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding relating to any Loan Document or this Guaranty delivered to such Guarantor in accordance with this Section 7.2 or to its then designee, appointee or agent for service. If service is made upon such designee, appointee and agent, a copy of such process, summons, notice or document shall also be provided to any Guarantor at the address specified in Section 8 by registered or certified mail, or overnight express air courier; provided that failure of such Lender to provide such copy to such Guarantor shall not impair or affect in any way the validity of such service or any judgment rendered in such action or proceedings. Each Guarantor agrees that service upon such Guarantor or any such designee, appointee and agent as provided for herein shall constitute valid and effective personal service upon such Guarantor with respect to matters contemplated in this Section 7.2 and that the failure of any such designee, appointee and agent to give any notice of such service to such Guarantor shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall, or shall be construed so as to, limit the right of the Administrative Agent or the Lenders to bring actions, suits or proceedings with respect to the obligations and liabilities of any Guarantor under, or any other matter arising out of or in connection with, this Agreement, or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, in the courts of whatever jurisdiction in which the respective offices of the Administrative Agent or the Lenders may be located or assets of such Guarantor may be found or as otherwise shall to Administrative Agent or the Lenders seem appropriate, or to affect the right to service of process in any jurisdiction in any other manner permitted by law. Section 7.3. Tax Indemnity. All payments whatsoever under this Guaranty will be made by any Guarantor free and clear of, and without liability for withholding or deduction for or on account of, any present or future Tax imposed or levied by or on behalf of (i) its jurisdiction of organization or (ii) any jurisdiction other than the United States (or any political subdivision or taxing authority of or in the United States) from or through which any amount is paid by any Guarantor pursuant to the terms of this Guaranty (hereinafter, a "Taxing Jurisdiction"), unless the withholding or deduction of such Tax is compelled by law. If any deduction or withholding or payment for any tax shall at any time be compelled by law, each Guarantor will pay such additional amounts as may be necessary in order that the net amounts paid to each Lender pursuant to the terms of this Guaranty after such deduction or withholding (including, without limitation, any required deduction, withholding or other payment of Tax on or with respect to such additional amount) shall be not less than the amounts then due and payable under the terms of this Guaranty; provided, however, that no payment of any additional amounts shall be required to be made for or on account of: (i) in case of a tax imposed or levied on behalf of Barbados, any Tax that would not have been imposed but for the existence of any present or former connections between such Lender (or between a shareholder of, or possessor of a power over, such Lender, if such Lender is an estate, trust, partnership or corporation, or any Person other than the Lender to which any amount payable under any Obligation or under this Guaranty is attributable for the purposes of such Tax, assessment or charge) and the Taxing Jurisdiction, (ii) any estate, inheritance, gift, sale, transfer, personal property or similar tax or duty; (iii)any Tax that is payable otherwise than by withholding from payments under this Guaranty, except that such Guarantor shall be required to make payments for or on account of any Tax that would have been payable through withholding but which because of a connection between the Lender and the Taxing Jurisdiction (or some other special circumstance of the Lender) is instead collected by such Taxing Jurisdiction directly from such Lender unless such Tax is of a nature that is otherwise not subject to the payment of additional amounts under this Section 7.3; or (iv) any combination of clauses (i), (ii) and (iii) above; provided further, however, that no such additional amounts shall be payable in respect of this Guaranty to (x) any Lender which is a fiduciary or a partnership or a beneficial owner which is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such additional amounts had it been in the position of such Lender or (y) any Lender which is not a resident of the United States. In connection with the transfer of rights under the Credit Agreement, each Guarantor will furnish the Administrative Agent and the transferee of such with copies of all tax forms then required. Each Guarantor will also furnish the Administrative Agent and the Lenders, within the period of payment permitted by applicable law, an official receipt, if any, issued by the relevant taxation or other authorities involved for all amounts deducted or withheld as aforesaid. Section 7.4. Repayment. If any Guarantor has made a payment pursuant to Section 7.3 of additional amounts to any Lender, to the extent a Lender receives a tax credit or refund in respect of any payment made by any Guarantor on the Obligations which has the net effect of paying to such Lender an amount greater than the amounts due and payable on any Obligation or under this Guaranty which such Lender would have received in the absence of any payment being required under Section 7.3, such Lender agrees to repay to such Guarantor reasonably promptly after the receipt thereof by such Lender such amount as will put such Lender in no better or worse position as such Lender would have been in had no additional amount been required to be paid pursuant to Section 7.3 (which determinations shall be made by such Lender in good faith). SECTION 8. NOTICES. All notices and communications provided for hereunder shall be in writing and sent (a) by telefacsimile if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent: (1) if to the Administrative Agent, to such address as listed in Schedule 11.2 of the Credit Agreement, or (2) if to any Guarantor, to such Guarantor c/o the Borrowers at One Tower Lane, Oakbrook Terrace, IL 60181, or at such other address as such Guarantor shall have specified to the Administrative Agent in writing. Notices under this Section 8 will be deemed given only when actually received. SECTION 9. MISCELLANEOUS. (a) No remedy herein conferred upon or reserved to the Administrative Agent or any Lender is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Administrative Agent or any Lender to exercise any remedy reserved to it under the Guaranty, it shall not be necessary for such Administrative Agent or Lender to physically produce the Loan Documents in any proceedings instituted by it or to give any notice, other than such notice as may be herein expressly required. (b) The Guarantors will pay all sums becoming due under this Guaranty by the method and at the address specified for such purpose in the Credit Agreement, or by such other reasonable method or at such other address as the Administrative Agent or the Lenders shall have from time to time specified to the Guarantors in writing for such purpose, without the presentation or surrender of this Guaranty or any Loan Documents. (c) Any provision of this Guaranty that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. (d) If the whole or any part of this Guaranty shall be now or hereafter become unenforceable against any one or more of the Guarantors for any reason whatsoever or if it is not executed by any one or more of the Guarantors, this Guaranty shall nevertheless be and remain fully binding upon and enforceable against each other Guarantor as if it had been made and delivered only by such other Guarantors. (e) This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Administrative Agent and each Lender and its successors and assigns whether so expressed or not, until the Termination Date. (f) This Guaranty may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. (g) This Guaranty shall be construed and enforced in accordance with, and the rights of the parties shall be governed by the law of the State of New York. (h) The Recitals are incorporated into this Guaranty by reference with the same force and effect as though set forth herein in full. (i) The Administrative Agent is authorized to enforce this Guaranty on behalf of the Lenders. IN WITNESS WHEREOF, each of the undersigned has caused this Offshore Subsidiary Guaranty to be duly executed by an authorized representative as of this 15th day of May, 2003. ROSS UNIVERSITY MANAGEMENT, INC. By ------------------------------ Its ----------------------------- ROSS UNIVERSITY SCHOOL OF MEDICINE SCHOOL OF VETERINARY MEDICINE LIMITED By ----------------------------- Its ----------------------------- ROSS UNIVERSITY SCHOOL OF MEDICINE SCHOOL OF VETERINARY MEDICINE (ST. KITTS) LIMITED By ------------------------------ Its ----------------------------- FORM OF GUARANTY JOINDER ------------------------ Re: Credit Agreement This [GUARANTY JOINDER] dated as of _________, _____ (the or this "[Guaranty Joinder]") is entered into [on a joint and several basis] by [each of] the undersigned __________, a ____________ corporation [and ____________, a ___________ corporation] ([which parties are hereinafter referred to individually as] an "Additional Guarantor" [and collectively as the "Additional Guarantors"]). Terms not otherwise defined herein shall have the meaning set forth in the Credit Agreement hereinafter referred to. RECITALS A. [Each] Additional Guarantor, is presently an Offshore Subsidiary of Global Education International, Inc., a Barbados corporation, ("GEI"). B. In order to raise funds to finance the acquisition of Dominica Management, Inc., the parent of Ross University Services, Inc. and Ross University Management, Inc., to finance working capital and capital expenditures and for other general corporate purposes, GEI and DeVry, Inc. a Delaware corporation ("DeVry" and, together with GEI, the "Borrowers") have entered into the Credit Agreement dated as of May 16, 2003 (herein, as amended and modified from time to time, the "Credit Agreement") among the Borrowers, the lenders, party thereto (the "Lenders") and Bank of America, N.A. as administrative agent (the "Administrative Agent") providing for, among other things, up to $175 million in loans (the "Loans") and Letters of Credit (the "Letters of Credit") of which up to $50,000,000 in Loans and Letters of Credit will be available to GEI C. The Administrative Agent and the Lenders have required as a condition to their obligations to make Extensions of Credit under the Credit Agreement, that the Offshore Subsidiaries of the Borrowers enter into the Offshore Subsidiary Guaranty dated as of May 16, 2003 (the "Guaranty") as security for the Obligations of GEI. NOW, THEREFORE, as required by the Credit Agreement and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, [each/the] Additional Guarantor does hereby covenant and agree, [jointly and severally,] as follows: In accordance with the requirements of the Guaranty, the Additional Guarantor[s] desire to amend the definition of Guarantor (as the same may have been heretofore amended) set forth in the Guaranty attached hereto so that at all times from and after the date hereof, the Additional Guarantor[s] shall be jointly and severally liable as Guarantors as set forth in the Guaranty for the Guaranteed Obligations of GEI under the Credit Agreement to the extent and in the manner set forth in the Guaranty. The undersigned is the duly elected ____________ of the Additional Guarantor[s] and is duly authorized to execute and deliver this Guaranty Joinder for the benefit of all Lenders. The execution by the undersigned of this Guaranty Joinder shall evidence its consent to and acknowledgment and approval of the terms set forth herein and in the Guaranty. By its execution hereof, the Additional Guarantor[s] shall be deemed to have made the representations and warranties set forth in Section 5 of the Guaranty in favor of the Lenders as of the date of this Guaranty Joinder. Upon execution of this Guaranty Joinder, the Guaranty shall be deemed to be amended as set forth above. The Additional Guarantor[s] hereby become[s] a Guarantor under the Guaranty and as a Guarantor thereunder, hereby guarantees all Guaranteed Obligations. Except as amended herein, the terms and provisions of the Guaranty are hereby ratified, confirmed and approved in all respects. Any and all notices, requests, certificates and other instruments may refer to the Guaranty without making specific reference to this Guaranty Joinder, but nevertheless all such references shall be deemed to include this Guaranty Joinder unless the context shall otherwise require. [NAME OF ADDITIONAL GUARANTOR] By ----------------------------- Its ---------------------------- CHI99 4102240-4.025605.0117 CHI99 4102240-4.025605.0117 CHI99 4102240-4.025605.0117 CHI99 4102240-1.025605.0117 - -2- CHI99 4102240-4.025605.0117 CHI99 4102240-1.025605.0117 A-2 CHI99 4102240-1.025605.0117 EX-4 6 sn1.txt EXHIBIT 4.4 TO FORM 8-K 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 (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. EX-4 7 sn2.txt EXHIBIT 4.5 TO FORM 8-K PLEDGE AND INTERCREDITOR AGREEMENT Dated as of May 16, 2003 By and Among DEVRY INC. AND GLOBAL EDUCATION INTERNATIONAL, INC. AND CERTAIN OF THEIR SUBSIDIARIES as the Grantors THE BANKS PARTY HERETO, THE NOTEHOLDERS PARTY HERETO, And BANK OF AMERICA, N.A., as Collateral Agent TABLE OF CONTENTS SECTION HEADING PAGE Section 1. Defined Terms 2 Section 2.1. U.S. Pledged Stock 11 Section 2.2. Offshore Pledged Stock 12 Section 2.3. Letter of Credit Cash Collateral. 13 Section 3. Representations and Warranties 13 Section 4. Covenants 14 Section 5. Collateral Agent May Perform 16 Section 6.1. Administration of Pledged Stock 16 Section 7. Power of Attorney 17 Section 8. Grantors Indemnification 18 Section 9. Defaults and Remedies 18 Section 10.1. Application of Proceeds of U.S. Pledged Stock 20 Section 10.2. Application of Proceeds of Offshore Pledged Stock and GEI Restricted Stock 21 Section 10.3. Letters of Credit 22 Section 10.4. Payments 22 Section 11. Preferential Payments and Special Trust Account 23 Section 12. Invalidated Payments 24 Section 13. Appointment of Collateral Agent 24 Section 14. Decisions Relating to Administration and Exercise of Remedies Vested in the Required GEI Secured Parties and the Required Secured Parties 24 Section 15. Information 26 Section 16. Additional Parties 28 Section 17. Disclaimers, Indemnity, Successor Collateral Agent, Etc. 28 Section 18. Continuing Agreement 30 Section 19. Miscellaneous 31 Section 20. Grantors' Waivers and Consents 33 Section 21. Intercreditor Provisions 36 Section 22.1. Consent to Jurisdiction; Service of Process; Judgement Currency; Waiver of Jury Trial 36 Section 22.2. Service of Process upon Agent 37 Exhibit A - U.S. Pledged Stock Exhibit B - Offshore Pledged Stock Exhibit C-1 - Form of Acknowledgment to Pledge and Intercreditor Agreement for Additional Lender under an Additional Bank Credit Agreement Exhibit C-2 - Form of Acknowledgment to Pledge and Intercreditor Agreement for Additional Noteholders under an Additional Note Agreement Exhibit D - Pledge and Intercreditor Agreement Joinder PLEDGE AND INTERCREDITOR AGREEMENT THIS PLEDGE AND INTERCREDITOR AGREEMENT (as the same may be amended or modified from time to time, this "Agreement") is dated as of May 16, 2003, by and among DeVry Inc., a Delaware corporation ("DeVry"), Global Education International, Inc. a Barbados corporation ("GEI", and, together with DeVry, the "Obligors"), certain subsidiaries of the Obligors party hereto or who may become a party hereto by executing and delivering a Pledge and Intercreditor Agreement Joinder (a "Joinder") as hereinafter defined (such subsidiaries, the Obligors and any other Person which grants any Collateral to the Collateral Agent hereunder or any other security document securing the Secured Obligations, are collectively referred to as the "Grantors"), the Bank of America, N.A., in its capacity as Bank Agent, the Noteholders, and Bank of America, N.A., in its capacity as Collateral Agent hereunder. RECITALS: A. Pursuant to the terms of that certain Credit Agreement dated as of even date herewith (as amended, restated, superseded or otherwise modified from time to time, the "Bank Credit Agreement") among the Obligors, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the banks and other lenders or institutions from time to time party thereto (together with any Additional Lenders, the "Banks"), the Banks are extending credit to the Obligors on the terms provided therein. The obligations of DeVry under the Bank Credit Agreement are unconditionally guaranteed by certain U.S. Subsidiaries of DeVry, and the obligations of GEI under the Bank Credit Agreement are unconditionally guaranteed by DeVry, by certain U.S. Subsidiaries of DeVry and by certain Offshore Subsidiaries of GEI. B. Pursuant to the terms of that certain Note Purchase Agreement dated as of even date herewith (as amended, restated, superseded or otherwise modified from time to time, the "Note Agreement"), among the Obligors and the several Purchasers named in Schedule A thereto (together with any successors and assigns, the "Noteholders"), DeVry is selling, and the Noteholders are purchasing from DeVry, its $75,000,000 Floating Rate Senior Notes, Series A, due April 30, 2010 (the "DeVry Notes"), and GEI is selling, and the Noteholders are purchasing from GEI, its $50,000,000 Floating Rate Senior Notes, Series B, Due April 30, 2010 (the "GEI Notes" and, together with the DeVry Notes, are collectively referred to as the "Senior Notes"). The obligations of DeVry under the DeVry Notes and the Note Agreement are unconditionally guaranteed by certain U.S. Subsidiaries of DeVry, and the obligations of GEI under the GEI Notes and the Note Agreement are unconditionally guaranteed by DeVry, by certain U.S. Subsidiaries of DeVry and by certain Offshore Subsidiaries of GEI. C. As a condition to the extension of financial accommodations to be given under the Bank Credit Agreement by the Banks, and as a condition precedent to the purchase of the Senior Notes by the Noteholders pursuant to the Note Agreement, the Secured Parties (as defined below) are requiring that the Obligors and the other Grantors and the Collateral Agent enter into this Agreement to secure the obligations of each Grantor in respect of the Financing Agreements, and to appoint the Collateral Agent as collateral agent for and on behalf of the Secured Parties, as otherwise more particularly set forth herein. D. The Banks or other financial institutions (collectively, the "Additional Lenders") may from time to time enter into one or more Additional Bank Credit Agreements with one or more of the Obligors. E. One or more of the Obligors may from time to time enter into one or more agreements either refinancing all or any portion of the Senior Note Obligations or selling one or more additional series of senior notes (the "Additional Senior Notes") to certain purchasers (collectively, the "Additional Noteholders"). F. The Grantors have determined that the execution and delivery of this Agreement is in furtherance of their corporate purposes and in their best interest and that they will derive substantial benefit, whether directly or indirectly, from the execution of this Agreement, having regard for all relevant facts and circumstances. NOW, THEREFORE, in consideration of the premises and for the purpose of inducing the purchase and acceptance of the Senior Notes by the Noteholders and the extension of financial accommodations by the Banks pursuant to the Bank Credit Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby covenant and agree as follows: Section 1. Defined Terms. As used in this Agreement, the following terms have the meanings indicated below, all such definitions to be equally applicable to singular and plural forms of the terms defined: "Acceleration Premium Obligations" means all obligations of any Obligors to pay a "Prepayment Premium" (as defined in the Note Agreement) to the Noteholders as a result of the acceleration of the Senior Note Obligations payable under Section 12.1 of the Note Agreement and all obligations of any Obligor to pay a prepayment premium or make-whole amount under any Additional Note Agreement. "Additional Bank Credit Agreement" means any agreement entered into from time to time by any Obligor pursuant to which some or all of the Banks or other financial institutions agree to extend credit to such Obligor(s); provided that each Additional Lender thereunder or an agent acting on behalf of all such Additional Lenders has executed an acknowledgment to this Agreement in the form attached hereto as Exhibit C-1. "Additional Grantor" means any Grantor that has executed a joinder to this Agreement in the form of Exhibit D hereto. "Additional Lenders" has the meaning ascribed to that term in the recitals hereto. "Additional Note Agreement" means any agreement pursuant to which any Obligor issues and sells one or more series of Additional Senior Notes; provided that each Additional Noteholder purchasing such Additional Senior Notes issued pursuant thereto has executed an acknowledgment to this Agreement in form attached hereto as Exhibit C-2. "Additional Noteholders" has the meaning ascribed to that term in the recitals hereto. "Additional Noteholders Documents" means, with respect to any Additional Note Agreement, such Additional Note Agreement, the Additional Senior Notes issued pursuant to such Additional Note Agreement and any Guaranty of a Grantor of the obligations thereunder. "Additional Senior Debt" means debt for borrowed money, other than debt evidenced by the Senior Notes and debt under the Bank Credit Agreement, which is not subordinated in right of payment to any other obligation of Grantors. "Additional Senior Notes" has the meaning ascribed to that term in the recitals hereto. "Affiliate" as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, "control" (including with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. "Bank of America" means Bank of America, N.A.. "Banks" has the meaning ascribed to that term in recitals hereto. "Bank Agent" means Bank of America, N.A. in its capacity as Administrative Agent under the Bank Credit Agreement, together with any successors as administrative agent under the Bank Credit Agreement. "Bank Credit Agreement" has the meaning ascribed to that term in recitals hereto. "Bank Credit Obligations" has the meaning ascribed to the term "Obligations" in the Bank Credit Agreement and any analogous term in any Additional Bank Credit Agreement. "Bank Documents" has the meaning ascribed to the term "Loan Documents" in the Bank Credit Agreement or any analogous term in any Additional Bank Credit Agreement, any Guaranty of a Grantor of the obligations of any Obligor thereunder, any documents delivered pursuant to a Hedging Transaction with a Bank and any other collateral document given to a Bank or the Collateral Agent. "Bank Outstandings" means the sum, without duplication of, (i) the aggregate principal amount of all outstanding loans (whether revolving loans or swing line loans or base rate loans or eurodollar rate loans) made under the Bank Credit Agreement or any Additional Bank Credit Agreement, plus (ii) all outstanding Letter of Credit Usage. "Bankruptcy Proceeding" means, with respect to any Person, a general assignment by such Person for the benefit of its creditors, or the institution by or against such Person of any proceeding seeking relief as debtor, or seeking to adjudicate such Person as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of such Person or its debts, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for such Person or for any substantial part of its property. "Code" means the Uniform Commercial Code as the same may from time to time be in effect in any applicable jurisdiction. "Collateral" means the U.S. Pledged Stock, the Offshore Pledged Stock, the GEI Restricted Stock, Letter of Credit Cash Collateral, any additional collateral granted pursuant to Section 19(b) and any other collateral held or received by any Secured Party to secure payment of any Secured Obligation. "Collateral Agent" means Bank of America, N.A. in its capacity as collateral agent hereunder and any successor collateral agent appointed pursuant to Section 17(g). "Collateral Agent-Related Persons" means the directors, officers, employees and agents of the Collateral Agent. "Default Rate" has the meaning ascribed to that term in Section 5. "DeVry Notes" has the meaning ascribed to such term in the Recitals. "DeVry Obligations" means the obligations of DeVry under (i) the Bank Credit Agreement, (ii) any Additional Bank Credit Agreement, (iii) the Note Agreement, (iv) any Additional Note Agreement, (v) the DeVry Notes, (vi) any Additional Senior Notes issued by DeVry after the date of this Agreement, and (vii) any Interest Rate Protection/Currency Swap Agreement entered into by DeVry or any U.S. Subsidiary. "Directing Party" means, with respect to any particular instruction given to the Collateral Agent, each Party that has given such instruction to the Collateral Agent. "Enforcement" means the commencement of enforcement, collection (including judicial or non-judicial foreclosure) or similar proceedings with respect to the Collateral. "Equity Interests" means, (i) with respect to any corporation, any capital stock of such corporation, (ii) with respect to any partnership or limited partnership, any partnership or limited partnership interest in such partnership or limited partnership, (iii) with respect to any limited liability company, any membership interest in such limited liability company, and (iv) with respect to any other business entity, any equity or ownership interest in such business entity. "Event of Default" has the meaning ascribed to such term in Section 9. "Fees and Charges" means any fees, indemnities or other expenses the payment of which is required by the Bank Credit Agreement, any Additional Bank Credit Agreement, the Note Agreement or any Additional Note Agreement. "Financing Agreements" means the Bank Documents, the Noteholder Documents, any Additional Noteholder Documents, this Agreement, each other security document securing the Secured Obligations, and any other instruments, documents or agreements entered into in connection with any Secured Obligation or Financing Agreement. "GAAP" means generally accepted accounting principles applicable from time to time in the United States of America. "GEI" has the meaning assigned thereto in the recitals hereto. "GEI Notes" has the meaning ascribed to such term in the Recitals. "GEI Obligations" means the obligations of GEI under (i) the Bank Credit Agreement, (ii) any Additional Bank Credit Agreement, (iii) the Note Agreement, (iv) any Additional Note Agreement, (v) the GEI Notes, (vi) any Additional Senior Notes issued by GEI after the date of this Agreement and (vii) any Interest Rate Protection/Currency Swap Agreement entered into by GEI or any Offshore. Subsidiary. "GEI Restricted Stock" has the meaning assigned thereto in Section 2.1(b). "GEI Secured Parties" means any Secured Party who is the holder of any indebtedness, obligations and liabilities of GEI under the Bank Documents, the Noteholder Documents or any Additional Noteholder Documents. "Grantors" has the meaning assigned thereto in the introductory paragraph hereto. "Guaranty" means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such indebtedness or other obligation of the payment or performance of such indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any indebtedness or other obligation of any other Person, whether or not such indebtedness or other obligation is assumed by such Person. "Hedging Exposure" means, on any date of determination for any Hedging Transaction, the amount, as calculated in good faith and in a commercially reasonable manner by the Bank that is a Grantor's counterparty for such Hedging Transaction, which such Bank would pay to a third party (such amount being expressed as a negative number) or received from a third party (such amount being expressed as a positive number) in an arm's length transaction as consideration for the third party's entering into a new transaction with such Bank in which: (a) such Bank holds the same position in the Hedging Transaction as it currently holds; (b) the third party holds the same position as a Grantor currently holds; and (c) the new transaction has economic and other terms and conditions identical in all respects to such Hedging Transaction except that (i) the date of calculation shall be deemed to be the date of commencement of the new transaction and (ii) all period end dates shall correspond to all period end dates, if any, for such Hedging Transaction. For purposes of clarification, Hedging Exposure shall include, without duplication, all Specified Swap Obligations. "Hedging Transaction" means Specified Swap Contracts and each interest rate swap transaction, basis swap transaction, forward rate transaction, commodity swap transaction, equity transaction, equity index transaction, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction or any other similar transaction (including any option with respect to any of these transactions and any combination of any of the foregoing) entered into by any Grantor from time to time pursuant to an Interest Rate Protection/Currency Swap Agreement; provided that such transaction is entered into for purposes of protection from price, interest rate, or currency fluctuations posed by debt, contract or purchase order obligations and not for speculative purposes. "Intercreditor Provisions" has the meaning ascribed to that term in Section 21. "Interest Rate Protection/Currency Swap Agreement" means any interest rate swap, cap, floor, collar, forward rate agreement, or other rate protection transaction, or any combination of such transactions or agreements or any option with respect to any such transactions or agreements now existing or hereafter entered into between any Grantor and any Bank. "International Holdings" means International Education Holdings, Inc., a Delaware corporation, the owner of 100% of the outstanding capital stock of GEI. "Issuing Bank" means Bank of America, N.A. or any other lender in its capacity as an issuer of Letters of Credit, and any successor issuers thereto. "Joinder" shall have the meaning assigned thereto in the introductory paragraph hereto in the form of Exhibit D or such other form that is acceptable to the Collateral Agent. "Letter of Credit Cash Collateral" means any cash collateral furnished to the Collateral Agent pursuant to section 8.2 of the Bank Credit Agreement or deposited with or held by the Bank Agent, any Bank or the Collateral Agent as collateral security for any Letters of Credit. "Letter of Credit Usage" means, as at any date of determination, without duplication, the sum of (i) the Maximum Available Amount plus (ii) the aggregate amount of all drawings under the Letters of Credit honored by the Banks and not theretofore reimbursed by Obligor. "Letters of Credit" means the letters of credit issued pursuant to the Bank Credit Agreement or any Additional Bank Credit Agreement. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest). "Maximum Available Amount" means, as of any date of determination, the amount that may be drawn under the Letters of Credit (whether or not the beneficiary thereof shall have presented, or shall be entitled at such time to present, the drafts or other documents required to draw under the Letters of Credit). "Non-Directing Party" means, with respect to any particular instruction given to the Collateral Agent, each Party that has not given or agreed with such instruction given to the Collateral Agent. "Note Agreement" has the meaning ascribed to the term in recitals hereto. "Noteholder Documents" means the Note Agreement, the Senior Notes and any Guaranty of a Grantor of the obligations thereunder. "Noteholders" has the meaning ascribed to the term in recitals hereto. "Obligors" has the meaning ascribed to such term in the introductory paragraph of this Agreement. "Obligations Secured by Offshore Grantors" has the meaning assigned thereto in Section 2.2(b). "Obligations Secured by U.S. Grantors" has the meaning assigned thereto in Section 2.1(c). "Offshore Grantor" means GEI, and any of its Offshore Subsidiaries and any Person organized under the laws of a jurisdiction outside the United States who grants any Collateral to the Collateral Agent hereunder or any other security document securing the Offshore Secured Obligations. "Offshore Pledged Stock" has the meaning assigned thereto in Section 2.2(a). "Offshore Subsidiary" means a Subsidiary of GEI organized under the laws of a jurisdiction located outside the United States. "Opinion of Counsel" means a written opinion of an attorney or firm of attorneys which in the case of any Person may be an employee thereof, a copy of which opinion is furnished to each Secured Party. "Party" means a Bank, the Issuing Bank, the Bank Agent, a Noteholder or any Additional Noteholder. "Permitted Investments" means interest bearing demand deposits invested by the Collateral Agent in a federally insured account with the Collateral Agent or any other instrument consented to by the Required Secured Parties. "Permitted Liens" means (i) judgment Liens, unless the judgment it secures 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), or (ii) statutory Liens on property or assets of any Person in which the amount, applicability or validity thereof is contested by such Person on a timely basis in good faith and in appropriate proceedings, and such Person has established reserves therefore in accordance with generally accepted accounting principles applicable in the United States of America, reasonably deemed by it to be adequate, on the books of such Person with respect thereto "Person" means any individual, corporation, partnership, limited liability company, trust or other entity. "Pledged Stock" means the Offshore Pledged Stock and the U.S. Pledged Stock. "Preferential Payment" means any payments (including any payment received pursuant to any Guaranty) or Proceeds from any Grantor or any other source with respect to the Secured Obligations (including from the exercise of any set-off) which are: (i) received by a Secured Party within 90 days prior to the commencement of a Bankruptcy Proceeding with respect to any Grantor, or the acceleration of the Senior Notes, any Additional Senior Notes or any Bank Outstandings, and which payment reduces the amount of the Secured Obligations owed to such Secured Party below the amount owed to such Secured Party as of the 90th day prior to such occurrence, or (ii) received by a Secured Party (A) within 90 days prior to the occurrence of any Event of Default (other than an Event of Default arising as a result of the commencement of a Bankruptcy Proceeding) which has not been waived or cured within 45 days after the occurrence thereof and which payment reduces the amount of the Secured Obligations owed to such Secured Party below the amount owed to such Secured Party as of the 90th day prior to the occurrence of such Event of Default or (B) within 45 days after the occurrence of such Event of Default, or (iii) received by a Secured Party after the occurrence of a Special Event of Default except as provided in Sections 10.1(b) and 10.2(b). "Proceeds" has the meaning assigned to it under the Code and, in any event, includes, but is not limited to, (a) any and all proceeds of any collection, sale or other disposition of the Collateral, (b) any and all amounts from time to time paid or payable under or in connection with any of the Collateral and (c) amounts collected by the Collateral Agent or any Secured Party by way of set-off, deduction or counterclaim. "Related Equity Rights" means, with respect to any Pledged Stock of a Subsidiary, all rights, authority, powers and privileges of the owner of such Pledged Stock, and all moneys and property and claims for moneys and property due and to become due to such owner under all dividends, distributions, declarations, profits, accounts, contract rights, voting rights, general intangibles, proceeds and any and all other interests and property rights relating to and/or due from such Subsidiary "Required Additional Noteholders" means, with respect to each series of Additional Senior Notes outstanding, the Additional Noteholders holding more than 50% of the aggregate principal amount of the outstanding Additional Senior Notes of such series. "Required Banks" means, for purposes of the Bank Credit Agreement, the Required Lenders as defined therein, and, for purposes of any Additional Bank Credit Agreement, means those Banks having aggregate percentages of the commitments under such Additional Bank Credit Agreement entitled to act or refrain from acting thereunder in the applicable situation. "Required Noteholders" means, the Noteholders holding at least 51% of the aggregate principal amount of the outstanding Senior Notes. "Required GEI Secured Parties" means: (a) more than 50% of the aggregate amount of the commitments to GEI under the Bank Credit Agreement and any Additional Bank Credit Agreement (taken as a whole), or, if any such commitments have terminated or expired, more than 50% of the aggregate principal amount of the Bank Outstandings owed by GEI, and (b) more than 50% of the aggregate principal amount of the GEI Notes and Additional Senior Notes issued by GEI outstanding, each voting as a separate class, provided that, if either (A) at any time the aggregate principal amount of the Bank Outstandings owed by GEI, or (B) the aggregate outstanding principal amount of the GEI Notes and any Additional Senior Notes issued by GEI outstanding, represents more than 90% of the sum of the aggregate principal amount of the Bank Outstandings owed by GEI, the GEI Notes and the Additional Senior Notes issued by GEI outstanding, then "Required GEI Secured Parties" shall mean GEI Secured Parties, considered as a single class, holding more than 66-2/3% of the sum of (i) the aggregate principal amount of the Bank Outstandings owed by GEI, (ii) the aggregate principal amount of the GEI Notes outstanding, plus (iii) the aggregate principal amount of the Additional Senior Notes issued by GEI outstanding. "Required Secured Parties" means: (a) more than 50% of the aggregate amount of the commitments under the Bank Credit Agreement and any Additional Bank Credit Agreement (taken as a whole), or, if any such commitments have terminated or expired, more than 50% of the aggregate principal amount of the Bank Outstandings, and (b) more than 50% of the aggregate principal amount of the Senior Notes and Additional Senior Notes outstanding, each voting as a separate class, provided that, if either (A) at any time the aggregate principal amount of the Bank Outstandings, or (B) the aggregate outstanding principal amount of the Senior Notes and any Additional Senior Notes outstanding, represents more than 90% of the sum of the aggregate principal amount of the Bank Outstandings, the Senior Notes and the Additional Senior Notes outstanding, then "Required Secured Parties" shall mean Secured Parties, considered as a single class, holding more than 66-2/3% of the sum of (i) the aggregate principal amount of the Bank Outstandings, (ii) the aggregate principal amount of the Senior Notes outstanding, plus (iii) the aggregate principal amount of the Additional Senior Notes outstanding. "Secured Obligations" means the Obligations Secured by Offshore Grantors and the Obligations Secured by U.S. Grantors. "Secured Parties" means the holders, from time to time, of the Secured Obligations. "Senior Note Obligations" means all outstanding and unpaid obligations of every nature of all Grantors from time to time to the Noteholders under the Noteholder Documents, and to Additional Noteholders under the Additional Noteholder Documents, including, without limitation, the Acceleration Premium Obligations, LIBOR breakage costs and all Fees and Charges otherwise accruing under the Noteholder Documents and the Additional Noteholder Documents. "Senior Notes" has the meaning ascribed to that term in the recitals hereto. "Special Event of Default" means: (i) the commencement of a Bankruptcy Proceeding with respect to any Grantor, (ii) any other Event of Default which has not been waived or cured within 45 days after the occurrence thereof, or (iii) the acceleration of the Senior Notes, any Additional Senior Notes or any Bank Outstandings. "Special Trust Account" means that certain interest bearing trust account maintained by or on behalf of the Collateral Agent for the purpose of receiving and holding Preferential Payments. "Specified Swap Contract" shall have the meaning assigned thereto in the Bank Credit Agreement. "Specified Swap Obligations" shall have the meaning assigned thereto in the Bank Credit Agreement. "Subsidiary" means any corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by DeVry or GEI. "U.S. Grantor" means DeVry, and any of its U.S. Subsidiaries and any other Person organized under the laws of a jurisdiction located within the United States who grants any Collateral to the Collateral Agent hereunder or any other security document securing any Secured Obligations. "U.S. Pledged Stock" has the meaning assigned thereto in Section 2.1(a). "U.S. Subsidiary" means a Subsidiary of DeVry organized under the laws of one of the states of the United States of America provided however that any Subsidiary organized under the laws of any political subdivision of the U.S. which is owned by GEI or any of its Subsidiaries shall be deemed to be an Offshore Subsidiary. SECTION 2. COLLATERAL; SECURED OBLIGATIONS. Section 2.1. U.S. Pledged Stock. (a) Subject to the limitations contained in Section 2.1(b), each U.S. Grantor hereby pledges, charges, assigns, transfers and sets over to the Collateral Agent, for the ratable benefit of the Secured Parties, and hereby pledges, charges, assigns, transfers and grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all of such U.S. Grantor's interest and property rights, whether now existing or hereafter acquired or arising, in and to, all of its Equity Interests in each of its Subsidiaries described in Exhibit A hereto and any U.S. Subsidiary formed or acquired after the date hereof, together with all Related Equity Rights other than the GEI Restricted Stock (all such interests and property rights being collectively referred to as the "U.S. Pledged Stock"). (b) Limited Pledge. Notwithstanding anything to the contrary contained elsewhere in this Agreement, International Holdings and DeVry shall pledge, charge, assign, transfer and set over to the Collateral Agent only for the ratable benefit of the GEI Secured Parties, Stock Certificate No. 3 representing 35 shares of common stock of GEI (the "GEI Restricted Stock") constituting 35% of its Equity Interests of GEI together with the Related Stock Rights of such Equity Interests to secure International Holdings' obligations under the Guaranties of International Holdings in favor of the Banks, the Noteholders and any Additional Noteholders pursuant to which International Holdings guaranteed or will guaranty the GEI Obligations, and such GEI Restricted Stock shall not under any circumstances be pledged or charged to the Collateral Agent to secure the DeVry Obligations or any Guaranty thereof. (c) Obligations Secured by U.S. Pledged Stock. The lien, charge and security interest granted by a Grantor pursuant to Section 2.1(a) to the Collateral Agent for the ratable benefit of the Secured Parties is made and given to secure, and shall secure, subject to the limitations contained in Section 2.1(b), the prompt payment and performance in full when due (whether by lapse of time, acceleration or otherwise) of (i) any and all indebtedness, obligations and liabilities of such Grantor to the Bank Agent, the Issuing Bank or the Banks under or in connection with or evidenced by the Bank Documents (including, without limitation, all "Obligations" as such term is defined under the Bank Credit Agreement) or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (ii) all indebtedness, obligations and liabilities of such Grantor to the Noteholders under or in connection with or evidenced by the Noteholder Documents or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (iii) all indebtedness, obligations and liabilities of such Grantor to any Additional Noteholders under or in connection with or evidenced by each Additional Note Documents or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and however evidenced, held or acquired, (iv) all indebtedness, obligations and liabilities of such Grantor to the Collateral Agent under or in connection with or evidenced by this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (v) all Hedging Exposure and other obligations of such Grantor under or arising in connection with any Interest Rate Protection/Currency Swap Agreement, and (vi) any and all expenses and charges, legal or otherwise, suffered or incurred by any Secured Party in collecting or enforcing any of such indebtedness, obligations and liabilities or in realizing on or protecting or preserving any security therefor, including, without limitation, the lien and security interest granted hereby (all of the indebtedness, obligations, liabilities, expenses and charges described in clauses (i) through (vi), inclusive, above being referred to herein as the "Obligations Secured by U.S. Grantors"). Section 2.2. Offshore Pledged Stock. (a) Each Offshore Grantor hereby pledges, charges, assigns, transfers and sets over unto the Collateral Agent, for the ratable benefit of the GEI Secured Parties, and hereby pledges, charges, assigns, transfers and grants to the Collateral Agent, for the ratable benefit of the GEI Secured Parties, a continuing security interest in all of such Offshore Grantor's interest and property rights, whether now existing or hereafter acquired or arising, in and to, all of its Equity Interests in each of its Subsidiaries described in Exhibit B hereto, and, to the extent permitted by applicable law, any Offshore Subsidiary of GEI formed or acquired after the date hereof, together with all Related Equity Rights and the GEI Restricted Stock (all such interests and property rights being collectively referred to as the "Offshore Pledged Stock"). (b) Obligations Secured Offshore Pledged Stock. The lien, charge and security interest granted by such Offshore Guarantor pursuant to Section 2.2(a) to the Collateral Agent for the ratable benefit of the GEI Secured Parties is made and given to secure, and shall secure, the prompt payment and performance in full when due (whether by lapse of time, acceleration or otherwise) of (i) any and all indebtedness, obligations and liabilities of such Offshore Grantor to the Bank Agent, the Issuing Bank or the Banks under or in connection with or evidenced by the Bank Documents (including, without limitation, all "Obligations" as such term is defined under the Bank Credit Agreement of GEI thereunder) or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (ii) all indebtedness, obligations and liabilities of such Offshore Grantor to the Noteholders under or in connection with or evidenced by the Noteholder Documents or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (iii) all indebtedness, obligations and liabilities of such Offshore Grantors to any Additional Noteholders under or in connection with or evidenced by each Additional Note Documents or this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy, including fees and interest which accrued after such filing of bankruptcy or other similar proceeding regardless of whether such fees and interest are allowed claims in such proceeding), due or to become due, direct or indirect, absolute or contingent, and however evidenced, held or acquired, (iv) all indebtedness, obligations and liabilities of such Offshore Grantor to the Collateral Agent under or in connection with or evidenced by this Agreement, in each case whether now existing or hereafter arising (and whether arising before or after the filing of a petition in bankruptcy), due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, (v) all Hedging Exposure and other obligations of such Offshore Grantor under or arising in connection with any Interest Rate Protection/Currency Swap Agreement, and (vi) any and all expenses and charges, legal or otherwise, suffered or incurred by any Secured Party in collecting or enforcing any of such indebtedness, obligations and liabilities or in realizing on or protecting or preserving any security therefor, including, without limitation, the lien and security interest granted hereby (all of the indebtedness, obligations, liabilities, expenses and charges described in clauses (i) through (vi), inclusive, above being referred to herein as the "Obligations Secured by Offshore Grantors"). (c) Notwithstanding any provision of this Section 2.2 or any other provision of this Agreement to the contrary, it is understood that as of the date hereof, the Equity Interest in Ross University School of Medicine School of Veterinary Medicine (St. Kitts) Limited shall not be pledged pursuant to this Agreement unless and until such pledge is required under the Bank Agreement. Section 2.3. Letter of Credit Cash Collateral. Each Bank hereby agrees to promptly remit any Letter of Credit Cash Collateral to the Collateral Agent to be held and distributed pursuant to Section 10.1. Each Obligor agrees to furnish to the Collateral Agent any and all Letter of Credit Cash Collateral required to be furnished pursuant to Section 8.2 of the Bank Credit Agreement. Section 2.4. Each Secured Party agrees to promptly deliver to the Collateral Agent any other Collateral that it receives or holds, accompanied by documentation acceptable to the Collateral Agent, to be held as security for the Secured Obligations in accordance with the terms of this Agreement. Section 3. Representations and Warranties. Each Grantor represents and warrants with respect to itself and and the Collateral pledged and charged by such Grantor to, the Secured Parties that: (a) It is (or, in the case of the stock in GEI being pledged by International Holdings, upon recordation and adjudication of the stock transfer in the appropriate recording office in Barbados will be) the owner of the Pledged Stock pledged and charged pursuant to this Agreement, and all rights incident thereto free and clear of any Lien other than the pledge and charge made hereunder and Permitted Liens. (b) It has deposited with the Collateral Agent the Pledged Stock pledged by such Grantor, together with a stock power duly endorsed in blank or accompanied by an assignment or assignments sufficient to transfer title thereto except to the extent that applicable law requires the same, such forms must be executed by the purchaser and/or notarized in order for such stock power or transfer to be recorded. (c) This Agreement creates a valid security interest in the Collateral pledged by such Grantor securing payment and performance of the Secured Obligations and all filings and other action necessary to perfect such security interest under all applicable jurisdictions have been or will be taken contemporaneously with the initial funding under the Notes and the Bank Credit Agreement. (d) Each share of Pledged Stock is adequately described in and is subject to the lien of this Agreement. The Collateral Agent has a valid first lien upon and (upon filing of certain documents in foreign jurisdictions) prior perfected security interest in the Pledged Stock subject to no equal or prior lien on the Pledged Stock. No effective financing statement or other instrument similar in effect covering all or any part of the Pledge Stock is on file in any recording office, except such as may have been filed in favor of the Collateral Agent with respect to this Agreement. (e) Each Grantor represents and warrants that the representations and warranties made with respect to such Grantor set forth in the Financing Agreements are true and correct and such representations and warranties are incorporated herein by reference with the same force and effect as though set forth herein in full. Section 4. Covenants. Each Grantor, with respect to itself and the Collateral pledged and charged by it hereunder, covenants and agrees with the Secured Parties that: (a) Such Grantor will pay promptly when due all taxes, assessments, and governmental charges and levies upon or against the Collateral in each case before the same become delinquent and before penalties accrue thereon, unless (1) the validity, applicability or amount thereof is being contested in good faith by appropriate actions or proceedings which will prevent the forfeiture or sale of such Collateral or any material interference with the use thereof by such Grantor and (2) such Grantor shall have set aside on its books, reserves deemed by it to be adequate with respect thereto in accordance with and as required by GAAP. (b) It will not, without the Collateral Agent's prior written consent, sell, assign, mortgage, lease or otherwise dispose of or otherwise permit a Lien (other than Permitted Liens) to exist on the Collateral or any interest therein, provided that such Grantor may sell, assign or otherwise dispose of any Collateral or interest therein if such sale, assignment or other disposition is permitted by all of the Financing Agreements. (c) It will not will change its name, or except as aforesaid, transact business under any trade name, in each case without first giving the Collateral Agent 30 days' prior written notice of its intent to do so, provided that in the case of any acquisition by such Grantor of any business entity or operation giving rise to the requirement to give notice to the Collateral Agent of the use of a new trade name pursuant to the foregoing, such notice shall be given to the Collateral Agent within 30 days following the date such acquisition is finalized. (d) The Collateral Agent agrees to prepare, and such Grantor agrees to cooperate with the Collateral Agent to execute and deliver to the Collateral Agent, such further agreements and assignments or other instruments and to do all such other things necessary or reasonably appropriate to assure the Collateral Agent its security interest hereunder, including such financing statement or statements, continuation statements or amendments thereof or supplements thereto or other instruments as may from time to time be required in order to comply with the Code. (e) In the event for any reason the law of any jurisdiction other than the State of New York becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, each Grantor agrees to execute and deliver all such instruments and to do all such other things as the Collateral Agent in its sole discretion reasonably deems necessary or appropriate to preserve, protect and enforce the security interest of the Collateral Agent as set forth herein under the law of such other jurisdiction to at least the same extent as such security interest would be protected under the Code. If any Collateral is in the possession or control of any of such Grantor's agents or processors and the Collateral Agent so requests, such Grantor agrees to notify such agents or processors in writing of the Collateral Agent's security interest therein and, upon the occurrence and continuance of an Event of Default hereunder and at the Collateral Agent's request, instruct all agents and processors in possession of Collateral to hold all such Collateral for the Collateral Agent's account and subject to the Collateral Agent's instructions. (f) It shall respond promptly to all reasonable requests of the Collateral Agent for information concerning the conduct of all lawsuits brought by such Grantor (or in which such Grantor participates) against any other Person. Each Grantor will warrant and defend the Collateral pledged by it hereunder against any claims and demands of all persons at any time claiming the same or any interest in such Collateral adverse to the Collateral Agent. (g) Each Grantor shall remain liable to the Secured Parties under the Financing Agreements to which it is a party for any deficiency resulting after the sale of its Collateral. Any surplus remaining after the full payment and satisfaction of the Secured Obligations shall be returned to the applicable Grantor or to whomsoever the Collateral Agent reasonably determines is lawfully entitled thereto. (h) The Collateral and every part thereof will be free and clear of all security interests, liens (including without limitation mechanics', laborers' and statutory liens), attachments, levies and encumbrances of every kind, nature and description, whether voluntary or involuntary, other than the security interest granted hereunder and Permitted Liens. Section 5. Collateral Agent May Perform. On failure of any Grantor to perform any of the covenants and agreements herein contained, the Collateral Agent may, at its option, perform the same and in so doing may expend such sums as the Collateral Agent may reasonably deem advisable in the performance thereof, including without limitation the payment of any insurance premiums, the payment of any taxes, liens and encumbrances, expenditures made in defending against any adverse claim and all other expenditures which the Collateral Agent may be compelled to make by operation of law or which the Collateral Agent may make by agreement or otherwise for the protection of the security hereof. All such sums and amounts so expended shall be repayable by the applicable Grantor immediately without notice or demand, shall constitute so much additional Secured Obligations and shall bear interest from the date said amounts are expended at the rate per annum (computed on the basis of a 360-day year for the actual number of days elapsed) determined by adding 2% to the rate per annum from time to time announced by Bank of America, N.A. in New York, New York, as its prime commercial rate with any change in such rate per annum as so determined by reason of a change in such prime commercial rate to be effective on the date of such change in said prime commercial rate (such rate per annum as so determined being hereinafter referred to as the "Default Rate"). No such performance of any covenant or agreement by the Collateral Agent on behalf of the Grantors, and no such advancement or expenditure therefor, shall relieve the Grantors of any default under the terms of this Agreement. The Collateral Agent, in making any payment hereby authorized may do so according to any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim. The Collateral Agent, in performing any act hereunder, shall be the sole judge in reasonably determining whether the Grantors are required to perform the same under the terms of this Agreement. Section 6.1. Administration of Pledged Stock. (a) Until an Event of Default has occurred and is continuing and the Collateral Agent instructs the Grantors otherwise, the Grantors shall be entitled: (a) To vote all or any part of the Pledged Stock at any and all meetings of shareholders relating to such Pledged Stock and to execute consents in respect thereof, and to consent to ratify or waive notice of any or all meetings of the shareholders relating to such Pledged Stock with the same force and effect as if this Agreement had not been made, and, if necessary, upon the receipt of the written request from the applicable Grantor, the Collateral Agent shall from time to time execute and deliver to the applicable Grantor appropriate proxies for that purpose; and (b) To receive,collect or have paid over all dividends declared or paid on the Pledged Stock, except (i) dividends or distributions constituting stock dividends, (ii) dividends or distributions in kind, or (iii) liquidating dividends (either partial or complete), any and all such excepted dividends and distributions to constitute and be additional security for the purposes aforesaid and to be paid over and/or pledged and deposited with the Collateral Agent, and the Collateral Agent shall have in respect thereof all of the powers and rights as are herein provided in respect of the initial Pledged Stock. Section 6.2. Each Grantor agrees that it shall pay over to the Collateral Agent, immediately upon receipt, any money or other distribution upon or in respect of the Pledged Stock or any part thereof, other than dividends which such Grantor is entitled to receive or retain under Section 6.1 above. Section 6.3. (a) Each U.S. Grantor agrees that it shall deliver to the Collateral Agent, for the ratable benefit of the Secured Parties, immediately upon receipt, all shares of capital stock issued to such U.S. Grantor by any of its Subsidiaries (other than dormant Subsidiaries) pledged hereunder, together with stock powers endorsed in blank or accompanied by an assignment or assignments sufficient to transfer title thereto, and such further documentation as the Collateral Agent may request pursuant to Section 4(e) hereof; provided, however, that in no event shall more than 65% of the capital stock of GEI be pledged to the Collateral Agent to secured the DeVry Obligations (b) Each Offshore Grantor agrees that it shall deliver to the Collateral Agent, for the ratable benefit of the GEI Secured Parties, immediately upon receipt, all shares of capital stock issued to such Offshore Grantor by any of its Subsidiaries pledged hereunder, together with stock powers endorsed in blank or accompanied by an assignment or assignments sufficient to transfer title thereto, and such further documentation as the Collateral Agent may request pursuant to Section 4(e) hereof. Section 6.4. All payments or other distributions received by such Grantor upon or in respect of the Pledged Stock other than which such Grantor is entitled to receive and retain under Section 6.1 or Section 6.3 shall be held in trust for the Collateral Agent and forthwith delivered by such Grantor in the form received, with such Grantor's endorsement in blank for transfer or accompanied by an assignment or assignments sufficient to transfer title thereto, and shall constitute part of the Pledged Stock. Section 7. Power of Attorney. Each Grantor hereby appoints the Collateral Agent the attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing or completing any instruments which the Collateral Agent may deem reasonably necessary or advisable to accomplish the purpose hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest; provided, however, that the Collateral Agent shall have no duty or obligation to any Grantor to collect or enforce payment of any of the Pledged Stock whether by way of presentment, demand, protest, notice of dishonor or otherwise. Without limiting the generality of the foregoing, after the happening, but only during the continuance, of any Event of Default, the Collateral Agent shall have the right and power to receive, endorse and collect all checks made payable to the order of any Grantor representing payments of dividends or any other distribution or payment in respect of the Pledged Stock or any part thereof and to give full discharge for the same. Section 8. Grantors Indemnification. Whether or not the transactions contemplated hereby are consummated, the U.S. Grantors and the Offshore Grantors, shall indemnify, defend and hold each Secured Party and each GEI Secured Party, and any Collateral Agent-Related Person, and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including attorney costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to any investigation, litigation or proceeding (including any insolvency proceeding or appellate proceeding) related to or arising out of this Agreement or the Secured Obligations or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided, that the Grantors shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the gross negligence or willful misconduct of such Indemnified Person. The agreements in this Section shall survive payment of all other Obligations. Section 9. Defaults and Remedies. (a) The occurrence of any of the following events, or the existence of any of the following conditions, shall constitute an "Event of Default" hereunder: (1) the occurrence of any event or the existence of any condition which is specified as an Event of Default under the Bank Credit Agreement, any Additional Bank Credit Agreement, the Note Agreement or any Additional Note Agreement; or (2) any representation or warranty made by any Grantor herein, or in any written statement or certificate furnished by it pursuant hereto, or in connection with this Agreement shall be untrue in any material respect as of the date of the issuance or making thereof; or (3) default in the observance or performance by any Grantor of any provision of this Agreement, and such default continues for five days. (b) With respect to all of the Collateral other than cash, upon the occurrence and during the continuation of any Event of Default hereunder, the Collateral Agent shall have, in addition to all other rights provided herein or by law, the rights and remedies of a secured party under the Code (regardless of whether the Code is the law of the jurisdiction where the rights or remedies are asserted and regardless of whether the Code applies to the affected Collateral), and further the Collateral Agent may, without demand and without advertisement, except with respect to a public sale, hearing or process of law, all of which each Grantor hereby waives, at any time or times, sell and deliver any or all Collateral (other than cash) held by or for it at public or private sale, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its sole discretion, provided that said disposition complies with any and all mandatory legal requirements. In addition to all other sums due any Secured Party, the Grantors shall pay the Collateral Agent all costs and expenses incurred by it, including a reasonable allowance for attorneys' fees and court costs, in obtaining, liquidating or enforcing payment of Collateral or Secured Obligations or in the prosecution or defense of any action or proceeding by or against the Collateral Agent concerning any matter arising out of or connected with this Agreement, the Collateral or Secured Obligations, including without limitation any of the foregoing arising in, arising under or related to a case under the United States Bankruptcy Code (or any successor statute). Any requirement of reasonable notice shall be met if such notice is personally served on or mailed, postage prepaid, to the Grantors in accordance with Section 19(b) at least 10 days before the time of sale or other event giving rise to the requirement of such notice; however, no notification need be given to the Grantors if the Grantors have signed, after an Event of Default hereunder has occurred, a statement renouncing any right to notification of sale or other intended disposition, provided that the Grantors are not hereby agreeing to sign such a statement. The Collateral Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by law, the Collateral Agent, any Bank, any Noteholder or any Additional Noteholders may be the purchaser at any such sale. To the extent permitted by applicable law, the Grantors hereby waive all of their rights of redemption from any such sale. Subject to the provisions of applicable law, the Collateral Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, be made at the time and place to which the sale was postponed or the Collateral Agent may further postpone such sale by announcement made at such time and place. (c) With respect to cash, upon the occurrence and during the continuation of any Event of Default hereunder, the Collateral Agent shall have, in addition to all other rights provided herein or by law, the rights and remedies of a secured party under the Code (regardless of whether the Code is the law of the jurisdiction where the rights or remedies are asserted and regardless of whether the Code applies to the affected Collateral), the right to exercise exclusive control over any proceeds of Collateral in its possession or held at any bank or in any lockbox, including cash, including without limitation the right to collect, withdraw and receive all amounts due or to become due or payable under each such deposit account, and shall have the right to apply such amounts in reduction of the Secured Obligations as contemplated by Section 10. (d) Failure by the Collateral Agent to exercise any right, remedy or option under this Agreement or any other agreement among the Grantors and the Collateral Agent or provided by law, or delay by the Collateral Agent in exercising the same, shall not operate as a waiver; no waiver hereunder shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated. Neither the Collateral Agent nor any party acting as attorney for the Collateral Agent shall be liable hereunder for any acts or omissions or for any error of judgment or mistake of fact or law other than their gross negligence or willful misconduct. The rights and remedies of the Secured Parties under this Agreement shall be cumulative and not exclusive of any other right or remedy which the Secured Parties may have. Section 10.1. Application of Proceeds of U.S. Pledged Stock. (a) Any and all Proceeds received by the Collateral Agent in connection with an Enforcement relating to any U.S. Pledged Stock and any Preferential Payments received from any U.S. Grantor which are required to be paid to all Secured Parties in accordance with the provisions of Section 11, together with any Letter of Credit Cash Collateral, shall be applied promptly by the Collateral Agent, as follows: FIRST: To the payment of the reasonable costs and expenses of such sale, collection or other realization, including, without duplication, fees and expenses of counsel (including the allocated cost of in-house counsel) to the Collateral Agent evidenced by reasonable and customary computer back-up detail, unpaid collateral agency fees, and all reasonable expenses, liabilities and advances made or incurred by the Collateral Agent in connection therewith; SECOND: To the ratable payment of the Secured Obligations to Secured Parties, calculated in accordance with the provisions of Section 10.1(b); THIRD: To the ratable payment of the Fees and Charges to Secured Parties and any other Secured Obligations, if any; and FOURTH: After payment in full of all Secured Obligations, to the payment to or upon the order of the Grantors, or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, of any surplus then remaining from such Proceeds. Until such Proceeds, Preferential Payments and Letter of Credit Cash Collateral are so applied, the Collateral Agent shall hold such Proceeds, Preferential Payments and Letter of Credit Cash Collateral in its custody in accordance with its regular procedures for handling deposited funds, and the Collateral Agent shall invest such Proceeds and Preferential Payments in Permitted Investments pending distribution pursuant to Section 10.1. (b) Any Proceeds received by the Collateral Agent in respect of the U.S. Pledged Stock (net of any amounts applied in accordance with Section 10.1(a) FIRST), shall be applied in accordance with the priority set forth in Section 10.1(a) SECOND so that each Secured Party shall receive payment of its proportionate amount of all such Proceeds, as the case may be. Payment shall be based upon the proportion which the amount of such Secured Obligations of such Secured Party bears to the total amount of all Secured Obligations of all such Secured Parties. For purposes of determining the proportionate amounts of all Secured Obligations sharing in any such distribution: (i) the amount of the outstanding Bank Credit Obligations shall be deemed to be the sum of the principal amount of the Bank Outstandings (including, subject to Section 10.3, the Maximum Available Amount) and all accrued interest, letter of credit fees and commitment fees and LIBOR breakage costs with respect thereto and including Hedging Exposure but excluding Fees and Charges other than letter of credit fees and commitment fees, and (ii) the amount of the outstanding Senior Note Obligations shall be deemed to be the principal amount of the Senior Notes and all Additional Senior Notes plus all accrued interest and LIBOR breakage costs with respect thereto, and including the Acceleration Premium Obligations but excluding Fees and Charges. In the event the Proceeds received by the Collateral Agent shall be insufficient to pay in full the whole amount so due and owing upon the Secured Obligations to all Secured Parties, then such Proceeds shall be shared ratably according to the aggregate of such principal and the accrued interest and fees with respect thereto including the Maximum Available Amount subject to Section 10.3, any Acceleration Premium Obligation and all Hedging Exposure but excluding Fees and Charges, with the application of such Proceeds to be made by each Secured Party as directed in the applicable Bank Documents, Note Agreement or Additional Note Agreement, or if not so directed, as determined by each Secured Party in its sole discretion. In the event any Secured Party receives more than its proportionate share of any Proceeds or Preferential Payments, such Secured Party shall immediately return such excess amount to the Collateral Agent to be distributed in accordance with Section 10.1(b). Section 10.2. Application of Proceeds of Offshore Pledged Stock and GEI Restricted Stock. (a) Any and all Proceeds received by the Collateral Agent in connection with an Enforcement relating to any Offshore Pledged Stock (including any GEI Restricted Stock), and any Preferential Payments received from any Offshore Grantor or any Preferential Payments relating to any GEI Restricted Stock which are required to be paid to all GEI Secured Parties in accordance with the provisions of Section 11, shall be applied promptly by the Collateral Agent, as follows: FIRST: To the payment of the reasonable costs and expenses of such sale, collection or other realization, including, without duplication, fees and expenses of counsel (including the allocated cost of in-house counsel) to the Collateral Agent evidenced by reasonable and customary computer back-up detail, unpaid collateral agency fees, and all reasonable expenses, liabilities and advances made or incurred by the Collateral Agent in connection therewith; SECOND: To the ratable payment of the Obligations Secured by Offshore Grantors to GEI Secured Parties, calculated in accordance with the provisions of Section 10.2(b); THIRD: To the ratable payment of the Fees and Charges and any other Secured Obligations, if any, which are owed by GEI or any Offshore Grantor to the GEI Secured Parties; and FOURTH: After payment in full of all Obligations Secured by Offshore Grantors, to the payment to or upon the order of the applicable Grantor, or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, of any surplus then remaining from such Proceeds. Until such Proceeds and such Preferential Payments are so applied, the Collateral Agent shall hold such Proceeds and such Preferential Payments in its custody in accordance with its regular procedures for handling deposited funds and the Collateral Agent shall invest such Proceeds and Preferential Payments in Permitted Investments pending distribution pursuant to Section 10.2. (b) Any Proceeds received by the Collateral Agent in respect of any Offshore Pledged Stock (net of any amounts applied in accordance with Section 10.2(a) FIRST) and Proceeds relating to any GEI Restricted Stock shall be applied in accordance with the priority set forth in Section 10.2(a) SECOND so that each GEI Secured Party shall receive payment of its proportionate amount of all such Proceeds, as the case may be. Payment shall be based upon the proportion which the amount of such Obligations Secured by Offshore Grantors of such Secured Party bears to the total amount of all Obligations Secured by Offshore Grantors of all such GEI Secured Parties. For purposes of determining the proportionate amounts of all Obligations Secured by Offshore Grantors sharing in any such distribution: (i) the amount of the outstanding Bank Credit Obligations owed by GEI shall be deemed to be the sum of the principal amount of the Bank Outstandings (including, subject to Section 10.3, the Maximum Available Amount) and all accrued interest, LIBOR breakage costs and letter of credit fees and commitment fees with respect thereto, and including Hedging Exposure but excluding Fees and Charges other than letter of credit fees and commitment fees, and (ii) the amount of the outstanding Senior Note Obligations owed by GEI shall be deemed to be the principal amount of the GEI Notes and all Additional Senior Notes issued by GEI plus all accrued interest and LIBOR breakage costs with respect thereto and including the Acceleration Premium Obligations but excluding Fees and Charges. In the event the Proceeds received by the Collateral Agent shall be insufficient to pay in full the whole amount so due and owing upon the Obligations Secured by Offshore Grantors to all GEI Secured Parties, then such Proceeds shall be shared ratably according to the aggregate of such principal and the accrued interest and fees with respect thereto including the Maximum Available Amount subject to Section 10.3, any Acceleration Premium Obligation and all Hedging Exposure but excluding Fees and Charges, with the application of such Proceeds to be made by each GEI Secured Party as directed in the applicable Bank Documents, Note Agreement or Additional Note Agreement, or if not so directed, as determined by each GEI Secured Party in its sole discretion. In the event any Secured Party receives more than its proportionate share of any Proceeds or Preferential Payments, such Secured Party shall immediately return such excess amount to the Collateral Agent to be distributed in accordance with Section 10.2(b). Section 10.3. Letters of Credit. Notwithstanding anything herein to the contrary, any amounts distributed for application to any Grantor's liabilities with respect to any such undrawn Letters of Credit shall be held by the BankAgent and the Banks as collateral security for such liabilities until a drawing thereon, at which time such collateral shall be applied to such liabilities. If Letters of Credit constituting part of the Bank Credit Obligations expire without having been drawn upon in full, the undrawn portion shall be excluded from the Bank Credit Obligations for purposes of Sections 10.1 and 10.2, all as though such undrawn portion had never existed. If distributions have previously been made under Sections 10.1 and 10.2 with respect to Letters of Credit constituting part of the Bank Credit Obligations which expire without having been drawn upon in full, the amounts due each Secured Party out of such distribution shall be redetermined by excluding the undrawn amount of such expired Letters of Credit from the calculations under such Sections and if a redetermination reveals that there has been an overpayment to any Secured Party, each Secured Party which received such an overpayment shall pay to those other Secured Parties who were underpaid in respect of such distribution the amount of the underpayment. Section 10.4. Payments. Payments by the Collateral Agent in respect of (i) the Bank Credit Obligations shall be made to the Banks in accordance with the Bank Credit Agreement or any Additional Bank Credit Agreement, as applicable; (ii) the Senior Note Obligations shall be made as directed in writing by the Noteholder or the Additional Noteholder, as the case may be, to whom such Senior Note Obligations are owed; and (iii) Hedging Exposure shall be made as directed by the Bank to which such is owed. Section 11. Preferential Payments and Special Trust Account. (a) The Collateral Agent shall give each Secured Party a written notice (a "Notice of Special Default") promptly after being notified in writing by a Secured Party that a Special Event of Default has occurred. After the receipt of such Notice of Special Default, all Preferential Payments other than those payments received pursuant to Section 11(b) shall be deposited into the Special Trust Account. The Collateral Agent shall establish separate sub-accounts within the Special Trust Account and shall credit Preferential Payments received with respect to the DeVry Obligations into a sub-account entitled "DeVry Preferential Payments" and shall credit Preferential Payments received with respect to the GEI Obligations into a sub-account entitled "GEI Preferential Payments." Each Secured Party agrees that no Event of Default shall occur as a result of payments so made on a timely basis to the Collateral Agent. (b) If (i) such Special Event of Default is waived by the Required Banks under the Bank Credit Agreement or any Additional Bank Credit Agreement or the Required Noteholders or the Required Additional Noteholders, if any, or both, as the case may be, and if no other Event of Default has occurred and is continuing, (ii) such Special Event of Default is cured by the Grantors or by any amendment of the Bank Credit Agreement, any Additional Bank Credit Agreement, the Note Agreement or any Additional Note Agreement, as the case may be, and if no other Event of Default has occurred and is continuing, or (iii) none of the Secured Obligations has been accelerated and neither the Required Secured Parties nor the Required GEI Secured Parties have instructed the Collateral Agent to seek the appointment of a receiver, commence litigation against any Grantor, liquidate the Collateral, commence a Bankruptcy Proceeding against any Grantor, seize Collateral, or exercise other remedies of similar character prior to the 90th day following such Special Event of Default, the Collateral Agent thereupon shall return all amounts, together with their pro rata share of interest earned thereon, held in the Special Trust Account representing payment of any Secured Obligations to the Secured Party initially entitled thereto, and no payments thereafter received by a Secured Party shall constitute a Preferential Payment by reason of such cured or waived Special Event of Default. No payment returned to a Secured Party for which such Secured Party has been obligated to make a deposit into the Special Trust Account shall thereafter ever be characterized as a Preferential Payment. (c) Each Secured Party agrees that, upon the occurrence of a Special Event of Default, it shall (i) promptly notify the Collateral Agent of the receipt of any Preferential Payments, (ii) hold such amounts in trust for the Secured Parties and act as agent of the Secured Parties during the time any such amounts are held by it, and (iii) deliver to the Collateral Agent such amounts for deposit into the Special Trust Account. (d) If (i) an Event of Default has occurred and has not been waived or cured within 90 days after the occurrence thereof, (ii) the Secured Obligations have been accelerated or (iii) the Required Secured Parties or the Required GEI Secured Parties have instructed the Collateral Agent to seek the appointment of a receiver, commence litigation against any Grantor, liquidate any Collateral, commence a Bankruptcy Proceeding against any Grantor, seize Collateral, or exercise other remedies of similar character, then all funds, together with interest earned thereon, held in the DeVry Preferential Payment sub-account in the Special Trust Account and all subsequent Preferential Payments with respect to the DeVry Obligations shall be applied in accordance with the provisions of Section 10.1 above and all funds, together with interest earned thereon, held in the GEI Preferential Payment sub account in the Special Trust Account and all subsequent Preferential Payments with respect to the GEI Obligations shall be applied in accordance with the provisions of Section 10.2 above. Any Secured Party which is aware of the same, shall give the Collateral Agent written notice of any Event of Default which has occurred and which has not been waived or cured within 90 days after the occurrence thereof, provided that failure to give any such notice shall not modify, amend or otherwise prejudice or affect the rights of any Secured Party hereunder. Section 12. Invalidated Payments. If any amount distributed by the Collateral Agent to a Secured Party in accordance with the provisions of this Agreement is subsequently required to be returned or repaid by the Collateral Agent or such Secured Party to any Grantor or any Affiliate thereof or their respective representatives or successors in interest, whether by court order, settlement or otherwise (a "Repayment Event"), the Collateral Agent shall thereafter apply Proceeds received in a manner consistent with the terms of this Agreement such that all Secured Parties receive such proportion of the Proceeds as would have been received had the original payment which gave rise to such Repayment Event not occurred. If a Repayment Event occurs which results in the Collateral Agent being required to return or repay any amount distributed by it under this Agreement, the Secured Party to which such amount was distributed shall, promptly upon its receipt of a notice thereof from the Collateral Agent, pay the Collateral Agent such amount; provided that, if any Secured Party shall fail to promptly pay such amount to the Collateral Agent, the Collateral Agent may deduct such amount from any amounts payable thereafter to such Secured Party under this Agreement. Section 13. Appointment of Collateral Agent. Each Secured Party hereby (subject to Section 17(g)) appoints, designates and authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with any Bank, any Noteholder or Additional Noteholders, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Collateral Agent. Section 14. Decisions Relating to Administration and Exercise of Remedies Vested in the Required GEI Secured Parties and the Required Secured Parties. (a) The Collateral Agent agrees that it will not release Liens or Collateral or commence Enforcement without the direction of the Required Secured Parties; provided, however, that the Collateral Agent shall release the Lien granted to the Collateral Agent on any Collateral held by it if no Event of Default has occurred and is continuing and such Collateral is sold or otherwise disposed by the Grantor who owns such Collateral in accordance with the terms of the Financing Agreements. The Collateral Agent agrees to administer this Agreement and the Collateral and to make such demands and give such notices under this Agreement as the Required Secured Parties, or the Required GEI Secured Parties in the case of the Offshore Pledged Stock, may request, and to take such action to enforce this Agreement and to realize upon, collect and dispose of the Collateral or any portion thereof as may be directed by the Required Secured Parties or as may be directed by the Required GEI Secured Parties in the case of the Offshore Pledged Stock. The Collateral Agent shall not be required to take any action that is in the Opinion of Counsel contrary to law or to the terms of this Agreement, or that would in the Opinion of Counsel subject it or any of its officers, employees, agents or directors to liability, and the Collateral Agent shall not be required to take any action under this Agreement, unless and until the Collateral Agent shall be indemnified to its reasonable satisfaction by one or more of the Secured Parties against any and all loss, cost, expense or liability in connection therewith. (b) Each Party agrees that the Collateral Agent shall act as the Required Secured Parties may request, or as the Required GEI Secured Parties may request in the case of the Offshore Pledged Stock (regardless of whether any individual Party or Secured Party agrees, disagrees or abstains with respect to such request), that the Collateral Agent shall have no liability for acting in accordance with such request and that no Directing Party or Non-Directing Party shall have any liability to any Non-Directing Party or Directing Party, respectively, for any such request. The Collateral Agent shall give prompt notice to the Non-Directing Parties of action taken pursuant to the instructions of the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) to enforce this Agreement; provided, however, that the failure to give any such notice shall not impair the right of the Collateral Agent to take any such action or the validity or enforceability under this Agreement of the action so taken. Notwithstanding anything herein to the contrary, the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) shall agree to release the Collateral from the security interests granted for the benefit of any Non-Directing Party only if the Collateral Agent is concurrently releasing the security interest granted with respect to such Collateral for all Secured Parties (or all GEI Secured Parties in the case of the Offshore Pledged Stock) having a security interest in such Collateral. (c) Each Party agrees that the only right of a Non-Directing Party under this Agreement is for Secured Obligations held by such Non-Directing Party to be secured by the Collateral for the period and to the extent provided therein and in this Agreement and to receive a share of the proceeds of the Collateral, if any, to the extent and at the time provided in this Agreement. (d) The Collateral Agent may at any time request directions from the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) as to any course of action or other matter relating hereto or relating to this Agreement. Except as otherwise provided in this Agreement, directions given by the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) to the Collateral Agent hereunder shall be binding on all Secured Parties, including all Non-Directing Parties, for all purposes. (e) Nothing contained in this Agreement shall affect the rights of any Party to give any other Party notice of any default, accelerate or make demand for payment of their respective Secured Obligations under the Financing Agreements or collect payment thereof other than through a realization on or in respect of the Collateral or any part or portion thereof, nor shall anything contained in this Agreement be deemed or construed to affect the rights of any Party to administer, modify, waive or amend any term or provision of any Financing Agreement to which it and any Grantor is a party, other than this Agreement or any other security document securing the Secured Obligations. If the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) instruct the Collateral Agent to take any action, commence any proceedings or otherwise proceed against the Collateral or enforce this Agreement, and such action or proceedings are or may be defective without the joinder of other Parties as parties, then all other Parties shall join in such actions or proceedings. Each Party agrees not to take any action to enforce any term or provision of this Agreement or to enforce any of its rights in respect of the Collateral except through the Collateral Agent in accordance with this Agreement. (f) Any Secured Party, which has actual knowledge of an Event of Default, or facts which indicate that an Event of Default has occurred, shall deliver to the Collateral Agent a written statement describing such Event of Default or facts. Failure to do so, however, does not constitute a waiver of such Event of Default by the Secured Parties. Section 15. Information. If the Collateral Agent proceeds to enforce this Agreement or to collect, sell, otherwise dispose of or take any other action with respect to any of such agreements or the Collateral or any portion thereof or proposes to take any other action pursuant to or contemplated by this Agreement, the Parties hereto agree as follows: (a) The Bank Agent shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the outstanding Bank Credit Obligations owing to the Issuing Bank, the Bank Agent and the Banks as at such date as the Collateral Agent may specify; and (ii) promptly from time to time thereafter notify the Collateral Agent of any payment received by the Banks to be applied to satisfy Bank Credit Obligations. The Banks shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. (b) The Additional Lenders (or any agent acting on behalf of such Additional Lenders) shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the outstanding Bank Credit Obligations owing to such Additional Lenders as at such date as the Collateral Agent may specify; and (ii) promptly from time to time thereafter notify the Collateral Agent of any payment received by such Additional Lenders to be applied to satisfy Bank Credit Obligations. The Additional Lenders shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. (c) Each Noteholder shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the outstanding Senior Note Obligations owed to such Noteholder as at such date as the Collateral Agent may specify; (ii) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the amount that would be payable as a "Prepayment Premium" under the Note Agreement if necessary for a payment relating to the sharing of Proceeds and (iii) promptly from time to time thereafter, notify the Collateral Agent of any payment received thereafter by such Noteholder to be applied to the principal of or interest or "Prepayment Premium" on the Senior Note Obligations owing to such Noteholder. Each Noteholder shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. If any Noteholder fails to certify to the Collateral Agent any amounts owed to such Noteholder as described above after 10 business days prior written request from such Noteholder, the Collateral Agent shall be entitled to conclusively rely upon a certification of such amount from any Grantor. (d) Each Additional Noteholder shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the outstanding Senior Note Obligations owed to such Additional Noteholder as at such date as the Collateral Agent may specify; (ii) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the amount that would be payable as a prepayment premium or make whole amount under any Additional Note Agreement if necessary for a payment relating to the sharing of Proceeds and (iii) promptly from time to time thereafter, notify the Collateral Agent of any payment received thereafter by such Additional Noteholder to be applied to the principal of or interest or make whole amount or prepayment premium on the Senior Note Obligations owing to such Additional Noteholder. Each Additional Noteholder shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. If any Additional Noteholder fails to certify to the Collateral Agent any amounts owed to such Additional Noteholder as described above after 10 business days prior written request from such Additional Noteholder, the Collateral Agent shall be entitled to conclusively rely upon a certification of such amount from any Grantor. (e) Each Bank party to a Hedging Transaction shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the notional amount under such Hedging Transaction and the amount payable by the Obligor or Guarantor party to such Hedging Transaction upon early termination of such Hedging Transaction at the date of termination as fixed by such Interest Rate Protection/Currency Swap Agreement and (ii) promptly from time to time thereafter notify the Collateral Agent of any payment received by such Bank to be applied to amounts due upon early termination of such Hedging Transaction. Such Bank shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. (f) Each Bank party to any Letter of Credit shall (i) promptly from time to time, upon the written request of the Collateral Agent, notify the Collateral Agent of the Letter of Credit Usage applicable to such Letter of Credit and (ii) promptly from time to time thereafter notify the Collateral Agent of any payment received by such Bank to be applied to amounts due under such Letter of Credit. Such Bank shall certify as to such amounts and the Collateral Agent shall be entitled to rely conclusively upon such certification. Section 16. Additional Parties. Provided that it is permitted to do so by the terms of the Bank Credit Agreement, any Additional Bank Credit Agreement, the Note Agreement and any Additional Note Agreements, any Grantor may enter into one or more Additional Bank Credit Agreements or Additional Note Agreements and, pursuant thereto, incur additional Additional Senior Debt. The Additional Senior Debt outstanding under such Additional Bank Credit Agreements or Additional Note Agreements, as the case may be, shall be secured by the Collateral as provided herein; provided that, at the time any Grantor enters into any such Additional Bank Credit Agreements or Additional Note Agreements, each Additional Lender party to such Additional Bank Credit Agreement, or the agent on behalf of all such Additional Lenders to such Additional Bank Credit Agreement, and each Additional Noteholder party to such Additional Note Agreements, as the case may be, shall sign an acknowledgment in the form of Exhibit C-1 or Exhibit C-2, respectively, attached to this Agreement, by which each such Additional Lender or each such Additional Noteholder, as the case may be, agrees to be bound by the terms of this Agreement, and by delivering a signed acknowledgment hereof executed by any Grantor and each Grantor to the Collateral Agent; and provided further that at the time of the incurrence of such additional Senior Debt and after giving effect thereto, no Default or Event of Default shall have occurred. Section 17. Disclaimers, Indemnity, Successor Collateral Agent, Etc. (a) The Collateral Agent may execute any of its duties under this Agreement by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel (including in-house counsel) concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care. (b) Neither the Collateral Agent nor any of its employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own or their gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Secured Parties for any recital, statement, representation or warranty made by any Grantor, or any officer thereof, contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or the validity, effectiveness, genuineness, enforceability, sufficiency of this Agreement or for any failure of any Grantor to perform its obligations hereunder or thereunder. Neither the Collateral Agent nor any of its employees shall be under any obligation to any Bank, the Issuing Bank, any Noteholder or any Additional Noteholders to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or to inspect the properties, books or records, of any Grantor. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, statement or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (but not including counsel to any Grantor), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first receive such advice or concurrence by the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) customarily and reasonably acceptable to the Collateral Agent. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request or consent of the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties. (d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Special Event of Default, unless the Collateral Agent shall have received written notice from a Bank, a Noteholder, any Additional Noteholders or any Grantor referring to this Agreement, describing such Event of Default or Special Event of Default, and stating that such notice is a "notice of default." The Collateral Agent shall take such action with respect to such Event of Default or Special Event of Default as may be requested by the Required Secured Parties (or the Required GEI Secured Parties in the case of the Offshore Pledged Stock) in accordance with Section 11; provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Special Event of Default, as it shall deem advisable or in the best interest of the Secured Parties. (e) Each Bank and each Noteholder acknowledges that none of the Collateral Agent-Related Persons has not made any representation or warranty to it, and that no act by the Collateral Agent hereinafter taken, including any review of the affairs of any Grantor and its Subsidiaries, shall be deemed to constitute any representation or warranty by the Collateral Agent to any Bank or Noteholder. Each Bank and each Noteholder acknowledges that it has, independently and without reliance upon the Collateral Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of any Grantor and its Subsidiaries, and made its own decision to enter into this Agreement and to extend credit to any Grantor hereunder. Each Bank and Noteholder also represents that it will, independently and without reliance upon the Collateral Agent-Related Persons and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of any Grantor. Except for notices, reports and other documents expressly herein required to be furnished to the Secured Party by the Collateral Agent, the Collateral Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Grantor which may come into the possession of any of the Collateral Agent-Related Persons. (f) The Bank Agent and its affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with any Grantor and its Subsidiaries and Affiliates as though the Bank Agent were not the Collateral Agent hereunder and without notice to or consent of the Secured Parties. The Secured Parties acknowledge that, pursuant to such activities, the Bank Agent or its subsidiaries may receive information regarding any Grantor or its Subsidiaries (including information that may be subject to confidentiality obligations in favor of any Grantor or such Subsidiary) and acknowledge that the Collateral Agent shall be under no obligation to provide such information to them. With respect to its loans to any Grantor, the Bank Agent shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Collateral Agent, and the terms "Bank" and "Banks" and "Issuing Bank" include Bank of America in its individual capacity. (g) (i) The Collateral Agent may resign at any time by giving at least 30 days' notice thereof to the Parties and the Grantors (such resignation to take effect upon the acceptance by a successor Collateral Agent of any appointment as the Collateral Agent hereunder) and the Collateral Agent may be removed as the Collateral Agent at any time with or without cause by any of (1) the Required Banks, (2) the Required Noteholders or (3) the Required Additional Noteholders, in each case with notice to the Grantors. In the event of any such resignation or removal of the Collateral Agent, the Required Secured Parties (with the approval of DeVry unless an Event of Default has occurred and is continuing which approval shall not be unreasonably withheld or delayed) shall thereupon have the right to appoint a successor Collateral Agent which is not a Secured Party. If no successor Collateral Agent shall have been so appointed by the Required Secured Parties and shall have accepted such appointment within 30 days after the notice of the intent of the Collateral Agent to resign or the removal of the Collateral Agent, then the retiring Collateral Agent may, on behalf of the other Parties, appoint a successor Collateral Agent. Any successor Collateral Agent appointed pursuant to this clause shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof having (1) a combined capital and surplus of at least $250,000,000 and (2) a rating upon its long-term senior unsecured indebtedness of "A-2" or better by Standard & Poor's better by Moody's Investors Service, Inc. or "A" or Corporation. (ii) Upon the acceptance by a successor Collateral Agent of any appointment as the Collateral Agent hereunder, such successor Collateral Agent shall thereupon succeed to and, become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent. The retiring or removed Collateral Agent shall be discharged from its duties and obligations hereunder upon the appointment of the successor Collateral Agent. After any retiring or removed Collateral Agent's resignation or removal hereunder as the Collateral Agent, the provisions of this Section 17 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent. Section 18. Continuing Agreement. This Agreement shall be a continuing agreement in every respect and shall remain in full force and effect until all of the Secured Obligations, principal, premium, if any, and interest, and all other amounts then due and payable under any of the Financing Agreements have been fully paid and satisfied in cash, all outstanding Letters of Credit have either terminated or expired, and any commitments of any Secured Party to extend any credit to any Grantor under the Bank Credit Agreement and any Additional Bank Credit Agreement shall have terminated. Upon such termination of this Agreement, the Collateral Agent shall, upon the request and at the expense of the Grantors, forthwith release all its liens, charges and security interests hereunder. Section 19. Miscellaneous. (a) Subject to Section 21, the provisions of this Agreement may be amended, waived or modified from time to time only pursuant to a written agreement signed by the Collateral Agent and the Required Secured Parties, provided, however, that no such amendment, waiver or modification shall (i) amend, waive or modify any provision of this Section 19, or reduce the percentages specified in the definition of Required Secured Parties, or amend, waive or modify Sections 10, without in each case the written consent of each Secured Party whose rights would be adversely affected thereby, or (ii) increase the obligations of any Grantor without the written consent of such Grantor. (b) Pursuant to a supplement acceptable to the Collateral Agent, any present or future Grantor may from time to time pledge additional collateral to the Collateral Agent whereupon such additional collateral shall automatically become Collateral hereunder. The Collateral Agent shall promptly notify the Secured Parties of the execution an any such supplement, it being understood that the execution thereof by the Secured Parties and/or any other Grantors shall not be required in order for such supplement to be effective. Pursuant to a Joinder, any Person may become a Grantor hereunder and pledge collateral to the Collateral Agent as described in Exhibit A to the Joinder whereupon such collateral shall automatically become Collateral hereunder. The Collateral Agent shall promptly notify the Secured Parties of the execution an any such Joinder, it being understood that the execution thereof by the Secured Parties, the Collateral Agent and/or any other Grantors shall not be required in order for such supplement to be effective. (c) This Agreement shall create a continuing security interest in the Collateral and shall be binding upon the Grantors, their successors and assigns and shall inure, together with the rights and remedies of the Secured Parties hereunder, to the benefit of the Secured Parties and their respective successors and assigns which are permitted under the Note Agreement, the Additional Note Agreements, the Bank Credit Agreement and any Additional Bank Credit Agreements; provided, however, that no Grantor may assign its rights or delegate its duties hereunder without the Collateral Agent's prior written consent. Each Grantor hereby releases the Collateral Agent from any liability for any act or omission relating to the Collateral or this Agreement, except the Collateral Agent's gross negligence or willful misconduct. (d) Except as otherwise specified herein, all notices hereunder shall be in writing (including telecopy) and shall be given to the relevant party at its address or telecopier number set forth below, or such other address or telecopier number as such party may hereafter specify by notice to the other given by United States certified or registered mail, by overnight air courier, by telecopy or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices given by telecopy shall be confirmed in writing within 24 hours by overnight air courier at the address for the relevant party provided below. Notices hereunder shall be addressed: To the Grantors at: c/o DeVry Inc. One Tower Lane Oakbrook Terrace, IL 60181 Attention: Chief Financial Officer Telephone: (630)574-1906 Telecopier: (630) 571-0317 To the Collateral Agent at: Bank of America, N.A., as Agent Bank of America, N.A. 231 South LaSalle Street Mail Code: ILI-231-08-30 Chicago, IL 60697 Attention: David Johanson Vice President Telephone: (312) 828-7933 Telecopier: (877) 206-8410 To the Agent and the Banks at their respective addresses and telecopy numbers set forth in the Bank Credit Agreement. To the holders of any Bank Credit Obligations under any Additional Bank Credit Agreements, at their respective addresses and telecopy numbers set forth in such Additional Bank Credit Agreements. To the Noteholders at their respective addresses for notices set forth in the Note Agreement. To the Additional Noteholders, at their respective addresses for notices set forth in the Additional Note Agreements. Each such notice, request or other communication shall be effective upon receipt. (e) In the event that any provision hereof shall be deemed to be invalid by reason of the operation of any law or by reason of the interpretation placed thereon by any court, this Agreement shall be construed as not containing such provision, but only as to such jurisdictions where such law or interpretation is operative, and the invalidity of such provision shall not affect the validity of any remaining provision hereof, and any and all other provisions hereof which are otherwise lawful and valid shall remain in full force and effect. (f) This Agreement shall be deemed to have been made in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. All terms which are used in this Agreement which are defined in the Code shall have the same meanings herein as said terms do in the Code unless this Agreement shall otherwise specifically provide. The headings in this instrument are for convenience of reference only and shall not limit or otherwise affect the meaning of any provision hereof. (g) The Collateral Agent hereby disclaims any representation or warranty to the Secured Parties concerning the perfection of the security interest granted hereunder or in the value of any of the Collateral. (h) Each of the Grantors and the Collateral Agent hereby, to the fullest extent permitted by law, waives trial by jury in any action brought under or in connection with this Agreement or any of the documents or instruments executed in connection herewith. (i) This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each constituting an original, but all together one and the same instrument. Section 20. Grantors' Waivers and Consents. (a) Each Grantor agrees that no Secured Party shall have any responsibility to inquire into the apportionment, allocation or disposition of any Proceeds as among the Grantors. (b) For the purpose of implementing the Financing Agreements, each Grantor hereby irrevocably appoints each other Grantor as its agent and attorney-in-fact for all purposes of the Financing Agreements, including without limitation the giving and receiving of notices and other communications. (c) Each Grantor acknowledges that the handling of the Collateral on a joint basis as set forth in this Agreement is solely an accommodation to Grantors and is done at their request. Each Grantor agrees that no Secured Party shall incur any liability to any Grantor as a result thereof. To induce the Secured Parties to enter into this Agreement, and in consideration thereof, each Grantor hereby agrees to indemnify each Secured Party and hold each Secured Party harmless from and against any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against any Secured Party by any Grantor or by any other Person arising from or incurred by reason of the structuring of this Agreement as herein provided, reliance by any Secured Party on any requests or instructions from any Grantor, or any other action taken by any Secured Party hereunder, except to the extent resulting from the gross negligence or willful misconduct of any Secured Party. This Section shall survive termination of this Agreement. (d) Each Grantor represents and warrants to the Secured Parties that the request for joint handling of the Collateral hereunder was made because the Grantors are engaged in related operations. Each Grantor expects to derive benefit, directly or indirectly, from such availability because the successful operation of Grantors is dependent on the continued successful performance of the functions of the group. (e) Each Grantor represents and warrants to the Secured Parties that (i) it has established adequate means of obtaining from each other Grantor on a continuing basis financial and other information pertaining to the business, operations and condition (financial and otherwise) of each other Grantors and their respective property, and (ii) each Grantor now is and hereafter will be completely familiar with the business, operations and condition (financial and otherwise) of each other Grantor, and its property. Each Grantor hereby waives and relinquishes any duty on the part of any Secured Party to disclose to such Grantor any matter, fact or thing relating to the business, operations or condition (financial or otherwise) of any other Grantor, or the property of any other Grantor, whether now or hereafter known by any Secured Party during the life of this Agreement. (f) Each Grantor acknowledges that its Secured Obligations may derive from value provided directly to another Person and, in full recognition of that fact, each Grantor consents and agrees that the any Secured Party may, at any time and from time to time, without notice to, or demand on, or the agreement of, such Grantor, and without affecting the enforceability or security of the Financing Agreements: (i) with the agreement of any other Grantor, supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (ii) with the agreement of any other Grantor, supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Secured Obligations or any part thereof or any of the Financing Agreements or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder; (iii) with the agreement of any other Grantor, accept new or additional instruments, documents or agreements in exchange for or relative to any of the Financing Agreements or the Secured Obligations or any part thereof, (iv) accept partial payments on the Secured Obligations; (v) with the agreement of any other Grantor, receive and hold additional security or guaranties for the Secured Obligations or any part thereof, (vi) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security or guaranties, and apply any security and direct the order or manner of sale thereof as the Secured Parties in their sole and absolute discretion may determine; (vii) release any party or any guarantor from any personal liability with respect to the Secured Obligations or any part thereof; (viii) settle, release on terms satisfactory to the Secured Parties and any other Grantor or by operation of applicable laws or otherwise liquidate or enforce any Secured Obligations and any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; and/or (ix) consent to the merger, change or any other restructuring or termination of the corporate existence of any other Grantor or any other Person, and correspondingly restructure the Secured Obligations, continuing existence of any Lien under any other Financing Agreement to which any Grantor is a party or the enforceability hereof or thereof with respect to all or any part of the Secured Obligations. Each Grantor expressly waives any right to require any Secured Party to marshal assets in favor of any Grantor, any other Party or any other Person or to proceed against any other Grantor or any other Party or any Collateral provided by any other Grantor or any other Party, and agrees that any Secured Party may proceed against Grantors and/or the Collateral in such order as they shall determine in their sole and absolute discretion. Any Secured Party may file a separate action or actions against any Grantor, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Grantor agrees that any Secured Party and any other Grantor may deal with each other in connection with the Secured Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them, in any manner whatsoever, all without in any way altering or affecting the obligations of such Grantor under the Financing Agreements. Each Grantor expressly waives any and all defenses now or hereafter arising or asserted by reason of (a) any disability or other defense of any other Grantor or any other Party with respect to any Secured Obligations, (b) the unenforceability or invalidity as to any other Grantor or any other Party of the Secured Obligations, (c) the unenforceability or invalidity of any security or guaranty for the Secured Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Secured Obligations, (d) the cessation for any cause whatsoever of the liability of any Grantor or any other Party (other than by reason of the full payment and performance of all Secured Obligations), (e) to the extent permitted by law, any failure of any Secured Party to give notice of sale or other disposition to any Grantor or any defect in any notice that may be given in connection with any sale or disposition, (f) to the extent permitted by law, any failure of any Secured Party to comply with applicable laws in connection with the sale or other disposition of any Collateral or other security for any Secured Obligation, including without limitation any failure of any Secured Party to conduct a commercially reasonable sale or other disposition of any Collateral or other security for any obligation, (g) any act or omission of any Secured or others that directly or indirectly results in or aids the discharge or release of any Grantor or any other Person or the Secured Obligations or any other security or guaranty therefor by operation of law or otherwise, (h) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or guarantor's obligation in proportion to the principal obligation, (i) any failure of any Secured Party to file or enforce a claim in any bankruptcy or other proceeding with respect to any other Grantor, (j) the election by any Secured Party, in any bankruptcy proceeding of any other Grantor, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or the grant of any Lien under Section 364 of the United States Bankruptcy Code in connection with the bankruptcy of any other Grantor, (l) any use of cash collateral under Section 363 of the United States Bankruptcy Code, or (m) any agreement or stipulation with any other Grantor with respect to the provision of adequate protection in any bankruptcy proceeding of any Person. (g) In the event that all or any part of the Secured Obligations at any time are secured by any one or more deeds of trust or mortgages creating or granting liens on any interests in real property, each Grantor authorizes any Secured Party, upon the occurrence of and during the continuance of any Default or Event of Default, at their sole option, without notice or demand and without affecting any Secured Obligations or the validity or enforceability of any Liens of any Secured Party on any Collateral, to foreclose any or all of such deeds of trust or mortgages by judicial or nonjudicial sale. Each Grantor expressly waives any defenses to the enforcement of the Financing Agreements or any Liens created or granted under the Financing Agreements or to the recovery by any Secured Party against any other Grantor or any guarantor or any other Person liable therefor of any deficiency after a judicial or nonjudicial foreclosure or sale, even though such a foreclosure or sale may impair the subrogation rights of a Grantor and may preclude a Grantor from obtaining reimbursement or contribution from any Grantor. (h) To the extent that any Collateral pledged by a Grantor is sold hereunder and applied as payment of such Grantor's obligations under its Guaranty of the Secured Obligations, such Grantor's rights of subrogation shall be as set forth in such Guaranty. Section 21. Intercreditor Provisions. The Grantors are only acknowledging, and not agreeing to, Sections 10 through 16, inclusive, of this Agreement (the "Intercreditor Provisions"). The Secured Parties may, without notice to, or the consent, of the Grantors amend, modify or waive such Intercreditor Provisions from time to time. Each Grantor hereby acknowledges the foregoing Intercreditor Provisions. Each Grantor agrees to be bound by the provisions thereof as they relate to the relative rights of the Secured Parties as among such Secured Parties; provided, however, that, nothing in the Intercreditor Provisions shall amend, modify, change or supersede the respective terms of the Financing Agreements as between the Secured Parties or any of them and any Grantor or any other provisions of this Agreement. In the event of any conflict or inconsistency between the Intercreditor Provisions and the Financing Agreements, the Financing Agreements shall govern as between the respective Secured Parties thereto and each Grantor. Each Grantor further agrees that the Intercreditor Provisions shall not give any Grantor any substantive rights vis a vis any Secured Party or the Collateral Agent and that it shall not use the violation of any Intercreditor Provisions by any of the Parties hereto as a defense to the enforcement by any Secured Party under any Financing Agreement or any other section of this Agreement, nor assert such violation as a counterclaim or basis for set-off or recoupment against any of them. Each Grantor further acknowledges and agrees that the scope of the agency granted by the Intercreditor Provisions to the Collateral Agent hereunder is strictly limited by this Agreement. By its execution hereof, each Grantor hereby represents to each of the Secured Parties and the Collateral Agent that the execution, delivery and performance by such Grantor of the Note Agreement and the other Noteholder Documents does not constitute a violation of any of the provisions of the Bank Credit Agreement, any Additional Bank Credit Agreements or this Agreement. Section 22.1. Consent to Jurisdiction; Service of Process; Judgement Currency; Waiver of Jury Trial. (a) Each Grantor 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. To the fullest extent it may effectively do so under applicable law, each Grantor irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the in personam jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. (b) Each Grantor 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 22.1 brought in any such court shall be conclusive and binding upon such party, subject to rights of appeal and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which such party is or may be subject) by a suit upon such judgment. (c) Each Grantor consents to process being served in any suit, action or proceeding of the nature referred to in paragraph (a) of this Section 22.1 by mailing a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the address of such Grantor specified in Section 19 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 22.2. Each Grantor 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 22.1 shall affect the right of the Collateral Agent to serve process in any manner permitted by law, or limit any right that the Collateral Agent may have to bring proceedings against such Grantor 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 in United States Dollars which is made to or for the account of the Collateral Agent 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 only to the extent of the amount of United States Dollars which the Collateral Agent 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 the Collateral Agent, each Grantor 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, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Collateral Agent from time to time and, shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under any judgment or order. (f) Each Grantor waives trial by jury in any action brought on or with respect to this Agreement or any other document executed in connection herewith or therewith. Section 22.2. Service of Process upon Agent. Each Grantor hereby irrevocably designates, appoints and empowers DeVry, and successors as the designee, appointee and agent of such Grantor to receive, accept and acknowledge, for and on behalf of such Grantor 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 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. Each Grantor 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, such Grantor 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 22.2. Each Grantor 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 this Agreement delivered to such Grantor in accordance with this Section 22.2 or to its then designee, appointee or agent for service. If service is made upon such designee, appointee and agent, a copy of such process, summons, notice or document shall also be provided to such Grantor at the address specified in Section 19 by registered or certified mail, or overnight express air courier; provided that failure of such holder to provide such copy to such Grantor shall not impair or affect in any way the validity of such service or any judgment rendered in such action or proceedings. Each Grantor agrees that service upon such Grantor or any such designee, appointee and agent as provided for herein shall constitute valid and effective personal service upon such Grantor with respect to matters contemplated in this Section 22.2 and that the failure of any such designee, appointee and agent to give any notice of such service to such Grantor 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 Collateral Agent to bring actions, suits or proceedings with respect to the obligations and liabilities of any Grantor 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 offices of the Collateral Agent may be located or assets of any Grantor may be found or as otherwise shall to the Collateral Agent seem appropriate, or to affect the right to service of process in any jurisdiction in any other manner permitted by law. IN WITNESS WHEREOF, the parties hereto have caused this Pledge and Intercreditor Agreement to be duty executed as of the date first above written. [NAMES OF GRANTORS] By: Title: STATE OF _____________) ) ss: COUNTY OF ___________) On this ____ day of ______________, 2003, before me personally appeared ______________________, who, being by me duly sworn did depose and say that he/she resides at ______________________; that he/she is ______________ of ________________________, the corporation described in and which executed the above instrument and that he/she executed this instrument on behalf of said corporation and that he/she had authority to do so. _______________________________________ NOTARY PUBLIC Accepted and agreed to by the Collateral Agent as of the date first above written. BANK OF AMERICA, N.A., as Collateral Agent By: STATE OF _____________) ) ss: COUNTY OF ___________) On this ____ day of ______________, 2003, before me personally appeared ______________________, who, being by me duly sworn did depose and say that he/she resides at ______________________; that he/she is ______________ of ________________________, the corporation described in and which executed the above instrument and that he/she executed this instrument on behalf of said corporation and that he/she had authority to do so. _______________________________________ NOTARY PUBLIC Accepted and agreed to as of the date first above written by Bank of America, N.A. on behalf of all Banks in accordance with Section ___ of the Bank Credit Agreement. Bank of America, N.A., as Administrative Agent, on behalf of itself and all Banks under the Bank Credit Agreement By: Title: STATE OF _____________) ) ss: COUNTY OF ___________) On this ____ day of ______________, 2003, before me personally appeared ______________________, who, being by me duly sworn did depose and say that he/she resides at ______________________; that he/she is ______________ of ________________________, the corporation described in and which executed the above instrument and that he/she executed this instrument on behalf of said corporation and that he/she had authority to do so. _______________________________________ NOTARY PUBLIC Accepted and agreed to by the Noteholders as of the date first above written. [NAMES OF NOTEHOLDERS], a Noteholder By: Title: STATE OF _____________) ) ss: COUNTY OF ___________) On this ____ day of ______________, 2003, before me personally appeared ______________________, who, being by me duly sworn did depose and say that he/she resides at ______________________; that he/she is ______________ of ________________________, the corporation described in and which executed the above instrument and that he/she executed this instrument on behalf of said corporation and that he/she had authority to do so. _______________________________________ NOTARY PUBLIC EXHIBIT A U.S. PLEDGED STOCK OWNER OF PLEDGED ISSUER OF PLEDGED CERTIFICATE NO. OF EQUITY INTEREST EQUITY INTEREST NO. SHARES (US GUARANTOR) - --------------------------------------------------------------------------- DeVry Inc. DeVry University, Inc. 1 1,000 DeVry Inc. DeVry/New York Inc. 1 1,000 DeVry Inc. DeVry Educational Products, Inc. 1 1,000 DeVry Inc. DeVry Leasing Corporation 1 1,000 DeVry Inc. DeVry/Becker Educational Development Corp. 1 1,000 DeVry Inc. Becker CPA Review Corp. 1 1,000 DeVry University Inc. DeVry Educational Development Corp. 1 1,000 Dominica Management Inc. Ross University Services, Inc. 1 1,000 DeVry Inc. International Education Holdings, Inc. 1 10 Ross University Services Inc. International Education Holdings, Inc. 3 1,000 DeVry Inc. Dominica Management, Inc. [ ] 1,130,225 COMMON SHARES [ ] 40,224,125 CLASS A PREFERRED SHARES [ ] 25,000 CLASS B PREFERRED SHARES DeVry Inc. / Global Education International International, Inc. 2 65 Education Holdings, Inc.(1) DeVry University,Inc. DeVry Canada LLC UNCERTIFICATED 100% OF D MEMBERSHIP INTERESTS DeVry University,Inc. DeVry Florida LLC UNCERTIFICATED 100% OF D MEMBERSHIP INTERESTS (1) DeVry Inc. transferred ownership of Global Education International, Inc. on the Closing Date to International Education Holdings, Inc. A filing in Barbados with respect to such transfer is necessary in order to transfer beneficial ownership. Once such filing has been recorded in accordance with Barbados law, International Education Holdings, Inc. will be the sole owner. EXHIBIT B OFFSHORE PLEDGED STOCK OWNER OF PLEDGED EQUITY ISSUER OF PLEDGED CERTIFICATE NO. OF INTEREST EQUITY INTEREST NO. SHARES (OFFSHORE GUARANTOR) - --------------------------------------------------------------------------- DeVry Inc. / Global Education 3 35 International Education International, Inc. Holdings, Inc.(2) Global Education Ross University [ ] 10,000 International, Inc. Management, Inc. Ross University Ross University V7 65 Management, Inc. School of Medicine of Veterinary Medicine Limited V8 35 (2) DeVry Inc. transferred ownership of Global Education International, Inc. on the Closing Date to International Education Holdings, Inc. A filing in Barbados with respect to such transfer is necessary in order to transfer beneficial ownership. Once such filing has been recorded in accordance with Barbados law, International Education Holdings, Inc. will be the sole owner. EXHIBIT C-1 FORM OF ACKNOWLEDGMENT TO PLEDGE AND INTERCREDITOR AGREEMENT FOR ADDITIONAL LENDER UNDER AN ADDITIONAL BANK CREDIT AGREEMENT Reference is hereby made to the Pledge and Intercreditor Agreement dated as of May 16, 2003 (the "Agreement"), among the Lenders party to the Bank Credit Agreement, the Issuing Bank and the Collateral Agent, and the Noteholders and any Additional Noteholders party thereto and certain other parties, if any, thereto. The undersigned Additional Lender or its agent has entered into a _____________ Agreement dated as of _____________ with _____________ and desires the Bank Credit Obligations with respect thereto to be secured by the Agreement. The undersigned acknowledges the terms of the Agreement and agrees to be bound thereby. --------------------------------, as an Additional Lender By: Title: Date: [ADD NOTARY LANGUAGE] Notice Address: Acknowledged and Agreed: [NAMES OF GRANTORS] By: Title: Date: [ADD NOTARY LANGUAGE] BANK OF AMERICA, N.A., as Collateral Agent By: Title: Date: [ADD NOTARY LANGUAGE] -------------------------------- (Other Grantors) By: Title: Date: [ADD NOTARY LANGUAGE] EXHIBIT C-2 FORM OF ACKNOWLEDGEMENT TO PLEDGE AND INTERCREDITOR AGREEMENT FOR ADDITIONAL NOTEHOLDERS UNDER AN ADDITIONAL NOTE AGREEMENT Reference is hereby made to the Pledge and Intercreditor Agreement dated as of May 16, 2003 (the "Agreement"), among the Lenders party to the Bank Credit Agreement, the Issuing Bank and the Collateral Agent, and the Noteholders and any Additional Noteholders party thereto and certain other parties, if any, thereto. The undersigned Additional Noteholder has entered into _____________ Agreement dated as of _____________ with _____________ and desires the Senior Note Obligations with respect thereto to be secured by the Agreement. The undersigned acknowledges the terms of the Agreement and agrees to be bound thereby. -------------------------------, as an Additional Lender By: Title: Date: [ADD NOTARY LANGUAGE] Notice Address: Acknowledged and Agreed: [NAMES OF GRANTORS] By: Title: Date: [ADD NOTARY LANGUAGE] BANK OF AMERICA, N.A., as Collateral Agent By: Title: Date: [ADD NOTARY LANGUAGE] ------------------------------- (Other Grantors) By: Title: Date: [ADD NOTARY LANGUAGE] EXHIBIT D PLEDGE AND INTERCREDITOR AGREEMENT JOINDER Re: $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. This PLEDGE AND INTERCREDITOR AGREEMENt JOINDER dated as of _________, _____ (the or this "Joinder") is entered into by the undersigned __________, a ____________ corporation (a "Grantor"), to amend the definition of Grantor as set forth in Pledge and Intercreditor Agreement dated as of May 16, 2003 (the "Pledge and Intercreditor Agreement"). Terms not otherwise defined herein shall have the meaning set forth in the Pledge and Intercreditor Agreement. RECITALS A. The Grantor, is presently a Subsidiary of [DeVry Inc., a Delaware corporation, a Delaware corporation ("DeVry") or Global Education International, Inc., a Barbados corporation ("GEI")]. B. Pursuant to the terms of that certain Credit Agreement dated as of May 16, 2003 (as amended, restated, superseded or otherwise modified from time to time, the "Bank Credit Agreement") among the Obligors, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the banks and other lenders or institutions from time to time party thereto (together with any Additional Lenders, the "Banks"), the Banks are extending credit to the Obligors on the terms provided therein. The obligations of DeVry under the Bank Credit Agreement are unconditionally guaranteed by certain subsidiaries of DeVry which are organized under the laws of a jurisdiction within the United States (the "U.S. Subsidiaries"), and the obligations of GEI under the Bank Credit Agreement are unconditionally guaranteed by DeVry, by the U.S. Subsidiaries and by certain subsidiaries of GEI which are organized under the laws of a jurisdiction located outside the United States (the "Offshore Subsidiaries"). B. Pursuant to the terms of that certain Note Purchase Agreement dated as of May 16, 2003 (as amended, restated, superseded or otherwise modified from time to time, the "Note Agreement"), among the Obligors and the several Purchasers named in Schedule A thereto (together with any successors and assigns, the "Noteholders"), DeVry is selling, and the Noteholders are purchasing from DeVry, its $75,000,000 Floating Rate Senior Notes, Series A, due April 30, 2010 (the "DeVry Notes"), and GEI is selling, and the Noteholders are purchasing from GEI, its $50,000,000 Floating Rate Senior Notes, Series B, Due April 30, 2010 (the "GEI Notes" and, together with the DeVry Notes, are collectively referred to as the "Senior Notes"). The obligations of DeVry under the DeVry Notes and the Note Agreement are unconditionally guaranteed by the U.S. Subsidiaries, and the obligations of GEI under the GEI Notes and the Note Agreement are unconditionally guaranteed by DeVry, by the U.S. Subsidiaries and by the Offshore Subsidiaries. C. As a condition to the extension of financial accommodations to be given under the Bank Credit Agreement by the Banks, and as a condition precedent to the purchase of the Senior Notes by the Noteholders pursuant to the Note Agreement, the Secured Parties required that the Obligors and the other Grantors and the Collateral Agent enter into the Pledge and Intercreditor Agreement to secure the obligations of each Grantor in respect of the Financing Agreements, and to appoint the Collateral Agent as collateral agent for and on behalf of the Secured Parties, as otherwise more particularly set forth herein. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Grantor does hereby covenant and agree, as follows: The Grantor desires to amend the definition of Grantor (as the same may have been heretofore amended) set forth in the Pledge and Intercreditor Agreement attached hereto so that at all times from and after the date hereof, the Grantor shall be liable as set forth in the Pledge and Intercreditor Agreement for the obligations of [a U.S. Grantor or Offshore Grantor] under the Pledge and Intercreditor Agreement to the extent and in the manner set forth therein. The Grantor does hereby pledges, charges, assigns, transfers and sets over to the Collateral Agent, for the ratable benefit of the [Secured Parties or GEI Secured Parties], and hereby pledges, charges, assigns, transfers and grants to the Collateral Agent, for the ratable benefit of the [Secured Parties or GEI Secured Parties], a continuing security interest in all of such Grantor's interest and property rights, whether now existing or hereafter acquired or arising, in and to the property described on Exhibit A to this Joinder. [Specify whether DeVry and/or GEI's obligations are to be secured.] The undersigned is the duly elected ____________ of the Grantor and is duly authorized to execute and deliver this Joinder. The execution by the undersigned of this Joinder shall evidence its consent to and acknowledgment and approval of the terms set forth herein and in the Pledge and Intercreditor Agreement by such execution the Grantor shall be deemed to have made the representations and warranties set forth in Section 3 of the Pledge and Intercreditor Agreement in favor of the Collateral Agent and Secured Parties as of the date of this Joinder. Upon execution of this Joinder, the Pledge and Intercreditor Agreement shall be deemed to be amended as set forth above. Except as amended herein, the terms and provisions of the Pledge and Intercreditor Agreement are hereby ratified, confirmed and approved in all respects. [At time of execution this form of Joinder shall be revised and/or shall contain such additional terms or provisions as may be deemed acceptable by the Collateral Agent, provided that such terms and provisions shall apply to all Secured Obligations and all Secured Parties equally and ratably.] Any and all notices, requests, certificates and other instruments (including the Notes) may refer to the Pledge and Intercreditor Agreement without making specific reference to this Joinder, but nevertheless all such references shall be deemed to include this Joinder unless the context shall otherwise require. [NAME OF GRANTOR] By Its STATE OF _____________) ) ss: COUNTY OF ___________) On this ____ day of ______________, 2003, before me personally appeared ______________________, who, being by me duly sworn did depose and say that he/she resides at ______________________; that he/she is ______________ of ________________________, the corporation described in and which executed the above instrument and that he/she executed this instrument on behalf of said corporation and that he/she had authority to do so. _______________________________________ NOTARY PUBLIC EXHIBIT A TO PLEDGE AND INTERCREDITOR AGREEMENT JOINDER [Description of collateral] -----END PRIVACY-ENHANCED MESSAGE-----