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EXHIBIT 4 (e)
FOURTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED FINANCING AGREEMENT
THIS FOURTH AMENDMENT (this "Amendment") dated as of December 3,
1999 is entered into by and among Keller Graduate School Management, Inc., a
Delaware corporation (the "Borrower"), the financial institutions who are
party to the Credit Agreement referred to below (the "Lenders") and Bank of
America National Trust and Savings Association (as successor by merger to Bank
of America Illinois), as Agent for the Lenders (herein, in such capacity, the
"Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Agent are parties to a
certain Amended and Restated Financing Agreement dated as of June 12, 1996 (as
heretofore amended, called the "Credit Agreement"; terms used but not otherwise
defined herein are used herein as defined in the Credit Agreement);
WHEREAS, the Borrower desires to amend the Credit Agreement in
certain respects; and
WHEREAS, subject to the terms and conditions set forth herein the
Agent and the Lenders are willing to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to
be legally bound hereby, the Borrower, the Agent and the Lenders hereby agree
as follows:
SECTION 1. AMENDMENTS.
----------
Upon receipt of the documents to be delivered by the Borrower
pursuant to Section 3 below, and in reliance on the Borrower's warranties set
forth in Section 4 below, as of the date hereof the Credit Agreement is hereby
amended as follows:
1.1 The title page and the preamble to the Credit Agreement
are hereby amended by deleting each reference therein to "Keller Graduate
School of Management, Inc." and in its place substituting "DeVry
University, Inc."
1.2 The title page and the preamble to the Credit Agreement are
hereby amended by deleting each reference therein to "Bank of America
National Trust and Savings Association" and in its place substituting
"Bank of America, N.A.".
1.3 The definition of "BofA" set forth in Paragraph 1(A) of the
Credit Agreement is hereby amended to read in its entirety as follows:
"BofA means Bank of America, N.A."
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1.4 The definition of "Permitted Transaction" set forth in
Paragraph 1(A) of the Credit Agreement is hereby amended by deleting in
its entirety clause (iv) of such definition.
1.5 Paragraph 16(A)(ii) of the Credit Agreement is hereby
amended by deleting the reference therein to "1.8:1" and in its place
substituting "2.25:1".
SECTION 2. WAIVER. Upon receipt of the documents to be delivered by
the Borrower pursuant to Section 3 below, and in reliance of the Borrower's
warranties set forth in Section 4 below, the Lenders and the Agent hereby waive
any Event of Default under Paragraph 13(I) of the Credit Agreement as a result
of the failure by the New Guarantors (as hereinafter defined) to timely
execute and deliver Guaranties to the Agent.
SECTION 3. CERTAIN DOCUMENTS.
-----------------------------
Concurrently herewith the Borrower has delivered the following to the
Agent, duly executed and appropriately dated and in form and substance
satisfactory to the Agent.
(1) Name Change. A certificate of the Secretary of State of
Delaware evidencing the name change of the Borrower from "Keller Graduate
School of Management" to "DeVry University, Inc."
(2) Guaranty. A Guaranty in the form of Annex II hereto duly
executed by each of [DeVry New York, DeVry Leasing Corp., Becker CD LLC
and DeVry Colorado LLC] (collectively, the "new Guarantors").
(3) Certificate. A certificate of the Secretary or Assistant
Secretary of each of the New Guarantors or in the case of limited
liability companies, the sole member of such New Guarantor, certifying:
(a) a copy of the organizational documents of such New Guarantor, as
theretofore amended; (b) copies of all corporate or limited liability
company action as the case may be taken by such New Guarantor, authorizing
the execution, delivery and performance of such New Guarantor of each
document to be executed and delivered by such New Guarantor pursuant to
this Amendment; and (c) the names and true signatures of the officers of
such New Guarantor or in the case of limited liability companies, of the
sole member of such New Guarantor, authorized to sign the documents to be
executed and delivered by such New Guarantor under this Amendment.
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SECTION 4. WARRANTIES.
----------------------
To induce the Agent and the Lenders to enter into this Amendment, the
Borrower warrants to the Agent and the Lenders as of the date hereof that:
(a) The representations and warranties contained in the Credit
Agreement and Loan Documents are true and correct in all material respects
on and as of the date hereof (except to the extent such representations
and warranties expressly refer to an earlier date); and
(b) No Default or Event of Default has occurred and is
continuing.
SECTION 5. GENERAL.
-------------------
(a) As hereby modified, the Credit Agreement shall remain in
full force and effect and is hereby ratified, approved and confirmed in
all respects.
(b) This Amendment shall be binding upon and shall inure to
the benefit of the Borrower, the Lenders and the Agent and respective
successors and assigns of the Lenders and the Agent.
(c) This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Amendment.
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Delivered at Chicago, Illinois, as of the date and year first above written.
KELLER GRADUATE SCHOOL OF
MANAGEMENT, INC.
By:
Title:
BANK OF AMERICA, N.A., as Agent
By:
Title:
BANK OF AMERICA, N.A., as Lender
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
HARRIS TRUST AND SAVINGS BANK
By:
Title:
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The undersigned hereby (i) acknowledge the foregoing amendments, (ii)
acknowledge that their respective Guaranties continue to guaranty the
obligations of the Borrower arising under the Credit Agreement, as amended
hereby and (iii) and reaffirm their respective duties and obligations arising
under the Loan Documents to which each is a party.
DEVRY, INC.
By:
Its:
BECKER CPA REVIEW CORP. (f/k/a
DEVRY CPA REVIEW CORP.)
By:
Its:
DEVRY/BECKER EDUCATIONAL
DEVELOPMENT CORP. (f/k/a DEVRY
EDUCATIONAL DEVELOPMENT CORP.)
By:
Its:
DEVRY EDUCATIONAL PRODUCTS, INC.
By:
Its:
DEVRY EDUCATIONAL DEVELOPMENT
CORP.
By:
Its:
BECKER CPA REVIEW, INC.
By:
Its:
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[DEVRY NEW YORK]
By:
Its:
[DEVRY LEASING CORP.]
By:
Its:
[BECKER CD LLC]
By: Becker CPA Review, Inc.
By:
Its:
[DEVRY COLORADO LLC]
By: DeVry Educational Development Corp.
By:
Its:
