FORM OF U.S. SUBSIDIARY GUARANTY
EXHIBIT 4.2
FORM
OF U.S. SUBSIDIARY GUARANTY
U.S.
Subsidiaries of DeVry Inc.
Dated
as
of May 16, 2003
as
amended and restated as of January 11, 2007
Re:
Credit Agreement dated May 16, 2003, as amended, 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
As
Amended and Restated
Re:
Credit Agreement
____________________________________________________________________
This
U.S.
Subsidiary
Guaranty dated
as
of May 16, 2003, as amended and restated as of January 11, 2007 (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.
Reference
is made to the Credit Agreement dated as of May 16, 2003, as amended to and
including the Third Amendment thereto (the "Third
Amendment")
dated
as of January 11, 2007 (herein, as the same may be further amended or modified
from time to time, the “Credit
Agreement”)
among
DeVry Inc., a Delaware corporation (“DeVry”),
Global
Education International, Inc. (“GEI”
and,
together with DeVry, 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”).
B.
Each
Guarantor is a direct or indirect U.S. Subsidiary of DeVry.
C.
The
Credit Extensions under the Credit Agreement have benefited and will continue
to
benefit the Borrowers and their Subsidiaries by, among other things, providing
funds to enable the Borrowers to finance working capital and capital
expenditures, support the issuance of standby letters of credit, make Restricted
Payments to the extent permitted in Section 7.6 of the Credit Agreement, and
for
other general corporate purposes.
D.
Pursuant
to the Credit Agreement as originally executed as of May 16, 2003, each of
the
Guarantors executed a Guaranty dated as of May 16, 2003 (the "Existing Guaranty
Agreement"), or a Guaranty Joinder joining such Guarantor as a party thereto,
and now desire to amend and restate such Existing Guaranty Agreement in its
entirety. The obligations of the Lenders to make Credit Extensions under the
Credit Agreement are conditioned on, among other things, the execution and
delivery by the Guarantors of a Guaranty in the form hereof. As consideration
therefor and in order to induce the Lenders to execute the Third Amendment
and
to make Credit Extensions under the Credit Agreement, the Guarantors are willing
to execute this Guaranty case as security for the Obligations under the Credit
Agreement.
E.
The
Administrative Agent and the Lenders have required as a condition to the
effectiveness of the Third Amendment and to their obligations to make Credit
Extensions under the Credit Agreement that DeVry cause each Person that
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”)
as
security for the Obligations under the Credit Agreement and
DeVry
has
agreed to cause each Person that hereafter becomes a U.S. Subsidiary to
execute a Guaranty Joinder.
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:
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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, Eurocurrency 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.
F-1-5
(c)
All
amounts payable under this Guaranty by each Guarantor shall be made in the
lawful currency of the United States of America.
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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.
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Section 4.
|
General
Provisions Relating to the Guaranty.
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(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
F-1-6
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
F-1-7
(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:
F-1-8
(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
F-1-9
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
F-1-10
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.
F-1-11
(g)
Neither
the Administrative Agent nor any Lender, shall be under any obligation: (1)
to
▇▇▇▇▇▇▇▇ 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.
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Section 5.
|
Representations
and Warranties of the Guarantors.
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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
F-1-12
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.
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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.
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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.
F-1-13
(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 speci-fied 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,
F-1-14
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.
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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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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.
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Section 9.
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Miscellaneous.
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(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
F-1-15
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.
F-1-16
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 11th day of January, 2007.
|
DeVry
University, Inc.
|
|
By:
____________________________________
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Senior Vice President
|
|
DeVry/▇▇▇▇▇▇
Educational Development Corp.
|
|
DeVry
Educational Development Corp.
|
|
▇▇▇▇
University Services, Inc.
|
|
DeVry
University, Inc.
|
|
▇▇▇▇▇▇
CPA Review Corp.
|
|
International
Education Holdings, Inc.
|
|
Dominica
Management, Inc.
|
|
DeVry/New
York,
Inc.
|
|
Dominica
Services Inc.
|
|
▇▇▇▇▇▇▇▇▇▇▇
College of Nursing and Health Sciences, Inc.
. (f/k/a ▇▇▇▇ University
School of Nursing and Health Sciences, Inc.)
|
|
By:
____________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President and Treasurer
|
|
DeVry
International Holdings LLC
By:
DeVry Inc., its Sole
Member
By:______________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice
President
|
|
DeVry
Florida LLC
By:
DeVry University, Inc., its Sole Member
By:______________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice President
|
|
DeVry
Canada LLC
By:
DeVry Educational Development Corp., its
Sole
Member
By:______________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President and Treasurer
|
|
▇▇▇▇▇▇▇▇▇▇▇
College of Nursing LLC (f/k/a
Deaconess
College of Nursing LLC),
By:
▇▇▇▇▇▇▇▇▇▇▇ College of Nursing and Health
Sciences,
Inc.,
its Sole Member
By:______________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President and
Treasurer
|