163
EXHIBIT 4(d)
FIRST AMENDMENT DATED AS OF June 29,2004
TO CREDIT AGREEMENT DATED AS OF MAY 16, 2003
This Amendment ("Amendment") is entered into as of June
29, 2004, among DeVry Inc., a Delaware corporation ("DeVry"),
Global Education International, Inc., a Barbados corporation
("GEI" and together with DeVry a "Borrower" and collectively the
"Borrowers"), the lenders party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
W I T N E S S E T H:
--------------------
WHEREAS, the Borrowers, the Lenders and Bank of
America, N.A., as Administration Agent, Swing Line Lender and L/C
Issuer are parties to that certain Credit Agreement, dated as of
May 16, 2003 (the "Credit Agreement") (terms defined in the
Credit Agreement shall have the same respective meanings when
used herein);
WHEREAS, the Borrowers have requested that the Lenders
agree to amend or modify the Credit Agreement in certain respects
so as to, among other things: (i) change the Applicable Rate,
(ii) provide for a procedure wherein Commitments may be
increased, (iii) revise certain financial tests, and (iv) make
certain other changes to the Credit Agreement, all as more fully
hereinafter set forth; and
WHEREAS, the Lenders are willing to amend the Credit
Agreement on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein contained and other good and valuable
consideration (the receipt, adequacy and sufficiency of which is
hereby acknowledged), the parties hereto, intending legally to be
bound, hereby agree as follows:
ARTICLE I
AMENDMENTS
----------
Amendments. The Credit Agreement is hereby amended as
follows:
1.1 Section 1.1 of the Credit Agreement is amended so that the
table in the definition of "Applicable Rate" shall read in its
entirety as follows:
Applicable Rate
------------------------------------------------------------------
Eurodollar
Consolidated Rate Loans
Pricing Leverage Commitment and Letters Base Rate
Level Ratio Fee of Credit Loans
------------------------------------------------------------------
1 >= 2.00:1 35 bps 150 bps 25 bps
2 >=1.50:1 but < 2.00:1 30 bps 125 bps 0 bps
3 >=1:00:1 but < 1.50:1 25 bps 100 bps 0 bps
4 >=0.50:1 but < 1.00:1 20 bps 87.5 bps 0 bps
5 < 0.50:1 20 bps 75 bps 0 bps
164
1.2 Section 1.1 of the Credit Agreement is further amended so
that the period at the end of the definition of "Consolidated
Funded Indebtedness" shall be deleted and replaced with a semi-
colon and the following text inserted after such semi-colon:
provided, however, that, effective on and after June 25,
2005, the definition of Consolidated Funded Indebtedness
shall not include any outstanding principal amounts for
Obligations borrowed hereunder within 5 business days of
June 30 of each year; it being understood, however, that the
total of all Obligations not included in the definition of
Consolidated Funded Indebtedness pursuant to the first
proviso of this paragraph, shall (i) be repaid within 5
business days after June 30, (ii) not exceed $50,000,000 at
any time, (iii) only be excluded from the definition of
Consolidated Funded Indebtedness as of June 30 of each
applicable year and not at any other date, and (iv) only be
excluded from the definition of Consolidated Funded
Indebtedness for the express purpose of determining the
Consolidated Leverage Ratio for use in determining the
Applicable Rate at June 30 of each year following the year
ended June 30, 2004, based on such Consolidated Leverage
Ratio.
1.3 Section 1.1 of the Credit Agreement is further amended so
that the definition of "GEI Letter of Credit Sublimit" shall read
in its entirety as follows:
"GEI Letter of Credit Sublimit" means an amount
equal to $5,000,000. The GEI Letter of Credit Sublimit is
part of, and not in addition to, the Aggregate GEI
Commitments.
1.4 Section 1.1 of the Credit Agreement is further amended so
that the definition of Maturity date shall read in its entirety
as follows:
"Maturity Date" means July 1, 2009.
1.5 Section 2.6(a) of the Credit Agreement is amended by
deleting "On June 30, 2004, the Aggregate DeVry Commitments shall
be reduced by $25,000,000" and inserting in lieu thereof the
following: "[Pursuant to the First Amendment hereto, this
Section has been deleted, it being understood that (i) the
$25,000,000 reduction of the Aggregate DeVry Commitments as
provided for in Section 2.6(a) before giving effect to such First
Amendment is of no further force or effect and (ii) immediately
after giving effect to such First Amendment the Commitments of
the Lenders are as set forth in Schedule 2.1 as revised by such
First Amendment.]"
1.6 Section 2 of the Credit Agreement is amended by adding
Section 2.14 as follows:
2.14 Increase in Commitments.
(a) Upon notice to the Administrative Agent (which
shall promptly notify the Lenders), DeVry may from time to
time (but not more than twice), request an increase in the
Aggregate DeVry Commitments by an amount (for all such
requests) not exceeding $75,000,000; provided, however, that
(i) any increase shall be in an aggregate amount of
$15,000,000 or any whole multiple of $1,000,000 in excess
thereof, and (ii) no Default shall then exist. At the time
165
of sending such notice, DeVry (in consultation with the
Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of
delivery of such notice to the Lenders). Each Lender shall
notify the Administrative Agent within such time period
whether or not it agrees to increase its Commitment and, if
so, whether by an amount equal to, greater than, or less
than its Pro Rata Share of such requested increase. Any
Lender not responding within such time period shall be
deemed to have declined to increase its Commitment, it being
understood that no Lender shall have any obligation to
increase its Commitment. The Administrative Agent shall
notify DeVry and each Lender of the Lenders' responses to
each request made hereunder. To achieve the full amount of
a requested increase, DeVry may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(b) If the Aggregate DeVry Commitments are increased
in accordance with this Section, the Administrative Agent
and DeVry shall determine the effective date (the "Increase
Effective Date") and the final allocation of such increase.
The Administrative Agent shall promptly notify DeVry and the
Lenders of the final allocation of such increase and the
Increase Effective Date. As a condition precedent to such
increase, DeVry shall deliver to the Administrative Agent
the following, in form and substance satisfactory to the
Administrative Agent, dated as of such Increase Effective
Date, and in sufficient copies for each Lender:
(i) a certificate signed by the Secretary or Assistant
Secretary of DeVry certifying and attaching the resolutions
adopted by DeVry approving such increase,
(ii) a certificate signed by a Responsible Officer of DeVry
certifying that, before and after giving effect to such increase,
(A) the representations and warranties contained in Article V and
the other Loan Documents are true and correct on and as of the
Extension Effective Date (except to the extent that such
representations and warranties specifically refer to an earlier
date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.14, the
representations and warranties contained in Section 5.5(a) and
(b) hereof shall be deemed to refer to the most recent statements
furnished pursuant to Section 6.1 (a) and (b) hereof), and (B) no
Default exists,
(iii) an acknowledgment signed by each other Loan Party
consenting to such increase and reaffirming its obligations under
the Loan Documents; and
(iv) to the extent requested by the Administrative Agent, such
opinions of counsel (including opinions of counsel for its Non-
U.S. Subsidiaries) reaffirming the opinions furnished pursuant to
Sections 4.1 and 6.15 as applied to the increase in Commitments
pursuant to this Section and confirming that the Collateral
secures the Obligations as so increased.
On the Increase Effective Date, the Administrative Agent
shall revise Schedule 2.1 to reflect the increase in
Commitments and the allocation thereof, it being understood that
166
(i) each Lender's Pro Rata Share shall be revised to
reflect a fraction (expressed as a decimal, carried out to
the ninth decimal place) the numerator of which is the
amount of the aggregate Commitment of such Lender at such
time (i.e., such Lender's aggregate Commitment to DeVry and
GEI) and the denominator of which is the amount of the
Aggregate Commitments of all Lenders, and (ii) the
allocation of such Lender's Commitment (as between Devry
and GEI) shall be revised to reflect such Lender's Pro Rata
Share of the Aggregate Commitments as so revised. DeVry
shall prepay any Revolving Loans outstanding on the Increase
Effective Date (and pay any additional amounts required
pursuant to Section 3.5) to the extent necessary to keep all
outstanding Revolving Loans ratable with any revised Pro
Rata Shares arising from any nonratable increase in the
Commitments under this Section.
(c) This Section shall supersede any provisions in
Sections 2.13 or 11.1 to the contrary.
1.7 Section 5.5(c) of the Credit Agreement is amended to read in
its entirety as follows:
5.5(c) Since March 31, 2004, 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.
1.8 Section 6.11 of the Credit Agreement is amended to read in
its entirety as follows:
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, (iv)
refinance existing Indebtedness, and (v) for other general
corporate purposes not in contravention of any Law or of any
Loan Document.
1.9 Section 7.15(a) of the Credit Agreement is amended to read
in its entirety as follows:
(a) Consolidated Net Worth. Permit Consolidated Net Worth at
any time to be less than the sum of (a) $375,000,000, (b) an
amount equal to 50% of the Consolidated Net Income earned in each
full fiscal quarter ending after March 31, 2004 (with no
deduction for a net loss in any such fiscal quarter) 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.
1.10 Section 7.15(c) of the Credit Agreement is amended to read
in its entirety as follows:
(c) Consolidated Leverage Ratio. Permit the
Consolidated Leverage Ratio for any period of four
consecutive fiscal quarters to exceed 2.25:1.
167
1.11 Section 7.15(d) of the Credit Agreement is amended to read
in its entirety as follows:
(d) Composite DOE Financial Responsibility Ratio.
Permit the DOE Ratio to be less than 1.40:1 as of June 30,
2004 or less than 1.50:1 as of the end of any fiscal year of
DeVry thereafter.
1.12 Schedule 2.1 is revised to read in its entirety as set forth
in Schedule 2.1 attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that:
2.1 Each Loan Party is a corporation, partnership or limited
liability company duly organized or formed, validly existing and
in good standing under the Laws of the jurisdiction of its
incorporation or organization.
2.2 The execution, delivery and performance by each Loan Party
of this Amendment have been duly authorized by all necessary
corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person's Organization
Documents; (b) conflict with or result in any breach or
contravention of (i) any Contractual Obligation to which such
Person is a party or (ii) any order, injunction, writ or decree
of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law.
2.3 No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental
Authority or any other Person not previously obtained or made is
necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this
Amendment.
2.4 This Amendment has been duly executed and delivered by each
Loan Party that is party to the Credit Agreement. This Amendment
constitutes a legal, valid and binding obligation of each Loan
Party, enforceable against each Loan Party, that is party hereto
in accordance with its terms, except as such enforceability may
be limited by (i) applicable Debtor Relief Laws and (ii) general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
2.5 The representations and warranties of the Borrower set forth
in Article V of the Credit Agreement are true and correct as of
the date hereof as though made on the date hereof and as though
applied to the Credit Agreement as amended by this Amendment
(except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except that for
purposes of this Section 2.5, the representations and warranties
contained in Section 5.5(a) and (b) of the Credit Agreement shall
be deemed to refer to the most recent statements furnished
pursuant to Section 6.1 (a) and (b) of the Credit Agreement).
2.6 No Default or Event of Default has occurred and is
continuing.
168
ARTICLE III
CONDITIONS TO EFFECTIVENESS
---------------------------
This Amendment shall become effective as of the date
hereof (the "First Amendment Closing Date"), subject, however, to
the receipt by the Administrative Agent of each of all the
following, each appropriately completed and duly executed as
required and otherwise in form and substance reasonably
satisfactory to the Administrative Agent:
3.1 Counterparts of this Amendment, executed by the Borrowers,
the other Loan Parties whose signatures are provided for
hereinbelow, and the Lenders;
3.2 Evidence of the receipt by the Administrative Agent of (i)
an upfront fee for the benefit of the Lenders (it being
understood that the upfront fee payable to each Lender shall be
equal to 0.1% of the amount of such Lender's Commitment under the
Credit Agreement as amended hereby and that the Administrative
Agent shall pay over such fee to such Lender promptly following
the effectiveness of this Amendment), (ii) such additional fees
as shall be payable to the Administrative Agent pursuant to a
separate fee letter between the Borrower and the Administrative
Agent, and (iii) the legal fees and expenses of counsel for the
Administrative Agent to the extent theretofore invoiced to DeVry;
3.3 Certified copies of resolutions of the Board of Directors of
each of the Borrowers authorizing or ratifying the execution,
delivery and performance by the Borrowers of this Amendment;
3.4 A certificate of the Secretary or Assistant Secretary of
each of the Borrowers, certifying the name(s) of the officer(s)
of each of the Borrowers authorized to sign this Amendment and
the documents related hereto;
3.5 Opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel of DeVry, and of
Mayer, Brown, ▇▇▇▇ & Maw; and
3.6 Such other instruments, agreements and documents as the
Lenders may reasonably request.
ARTICLE IV
GENERAL
-------
4.1 As amended or modified by this Amendment, the Loan Documents
shall remain in full force and effect. References to the Credit
Agreement in any of the Loan Documents shall be deemed to include
a reference to the Credit Agreement as amended or modified
hereby, whether or not reference is made to this Amendment.
Section headings used in this Amendment are for convenience of
reference only, and shall not affect the construction of this
Amendment.
4.2 This Amendment may be executed in any number of counterparts
(each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument).
4.3 Each of the Borrowers agrees to pay to or reimburse the
Administrative Agent, upon demand, for all costs and expenses
incurred (including legal expenses) in connection with the
169
development, preparation, negotiation, execution and delivery of
this Amendment and the other Loan Documents.
4.4 All obligations of the Borrowers and rights of the
Administrative Agent and the Lenders, that are expressed herein,
shall be in addition to and not in limitation to those provided
by applicable law. This Amendment shall be a contract made under
and governed by the internal laws of the State of New York,
without giving effect to principles of conflicts of laws.
Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under
applicable law; but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.
4.5 Each of the Borrowers acknowledges and agrees that the
execution and delivery by the Administrative Agent and the
Lenders of this Amendment shall not be deemed to create a course
of dealing or otherwise obligate the Lenders to forbear or
execute similar amendments under the same or similar
circumstances in the future.
4.6 This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. No third party beneficiaries are intended in connection
with this Amendment.
4.7 This Amendment, together with the Credit Agreement, contains
the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This
Amendment supercedes all prior drafts and communications with
respect hereto. This Amendment may not be amended except in
accordance with the provisions of Section 11.1 of the Credit
Agreement.
[Signature Page Follows]
170
IN WITNESS WHEREOF, the parties hereto have caused the
execution and delivery hereof by their respective representatives
as of the date hereof.
DEVRY INC.
By:
Name:
Title:
GLOBAL EDUCATION INTERNATIONAL,
INC.
By:
Name:
Title:
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., as
Administrative Agent
By:
Name:
Title:
BANK OF AMERICA, N.A., as a
Lender, L/C Issuer and Swing
Line Lender
By:
Name:
Title:
172
JPMORGAN CHASE BANK
By:
Name:
Title:
173
SUNTRUST BANK
By:
Name:
Title:
174
NATIONAL CITY BANK OF THE
MIDWEST (fka NATIONAL CITY BANK
OF MICHIGAN/ILLINOIS)
By:
Name:
Title:
175
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:
Name:
Title:
176
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
177
LASALLE BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
178
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company,
Inc., as Investment Adviser
By:
Name:
Title:
MASSMUTUAL ASIA LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company,
Inc., as Investment Adviser
By:
Name:
Title:
C.M. LIFE INSURANCE COMPANY, C/O
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company,
Inc., as Investment Sub-Adviser
By:
Name:
Title:
179
ACKNOWLEDGEMENT
The undersigned hereby acknowledges and agrees to the foregoing
Amendment and confirms that its Loan Documents remain in full
force and effect and are hereby reaffirmed.
Pledgors
--------
DeVry University, Inc.
Dominica Management, Inc.
▇▇▇▇ University Services, Inc.
International Education Holdings,
Inc.
▇▇▇▇ University Management, Inc.
By:
__________________________________
Title:_________________________
U.S. Guarantors
---------------
DeVry Educational Products, Inc.
DeVry Leasing Corporation
DeVry/▇▇▇▇▇▇ Educational
Development Corp.
DeVry Educational Development
Corp.
DeVry Florida LLC
DeVry Canada LLC
▇▇▇▇ University Services, Inc.
DeVry University, Inc.
▇▇▇▇▇▇ CPA Review Corp.
International Education Holdings,
Inc.
Dominica Management, Inc.
DeVry/New York, Inc.
By:
__________________________________
Title:_________________________
Offshore Guarantors
-------------------
▇▇▇▇ University Management, Inc.
▇▇▇▇ University School of Medicine
School of Veterinary Medicine
Limited
▇▇▇▇ University School of Medicine
School of Veterinary Medicine (St.
Kitts) Limited
By:
__________________________________
Title:_________________________
180
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Lender DeVry GEI Aggregate Pro Rata
Commitment Commitment Commitments Share
-------------------------------------------------------------------------
BANK OF AMERICA 39,000,000 22.28571429%
N.A. 27,857,142.86 11,142,857.14
CM LIFE 1,000,000 0.571428571%
INSURANCE 714,285.71 285,714.29
COMPANY
▇▇▇▇▇▇ TRUST & 27,000,000 15.▇▇▇▇▇▇▇▇%
SAVINGS BANK 19,285,714.29 7,714,285.71
JPMORGAN CHASE 15,000,000 8.571428571%
BANK 10,714,285.71 4,285,714.29
LASALLE BANK 27,000,000 15.42857143%
NATIONAL 19,285,714.29 7,714,285.71
ASSOCIATION
MASSMUTUAL ASIA 500,000 0.285714286%
LIMITED 357,142.86 142,857.14
MASSMUTUAL LONG 4,500,000 2.571428571%
TERM POOL 3,214,285.71 1,285,714.29
MASSMUTUAL SPOT 3,000,000 1.714285714%
PRICED CONTRACT 2,142,857.14 857,142.86
MASSMUTUTAL IFM 1,000,000 0.571428571%
NON TRADITIONAL 714,285.71 285,714.29
NATIONAL CITY 15,000,000 8.571428571%
BANK OF THE 10,714,285.71 4,285,714.29
MIDWEST (fka
NATIONAL CITY
BANK OF
MICHIGAN/ILLINOIS)
NORTHERN TRUST 27,000,000 15.42857143%
COMPANY 19,285,714.29 7,714,285.71
SUNTRUST BANK, 15,000,000 8.571428571%
INC. 10,714,285.71 4,285,714.29
----------------------------------------------------------
Total $125,000,000.00 $50,000,000.00 $175,000,000 100.00000000%
----------------------------------------------------------
