Amendment No. 5 to Amended and Restated Credit Agreement among Gartner, Inc., Lenders, and JPMorgan Chase Bank

Summary

This amendment updates the existing Credit Agreement between Gartner, Inc., its subsidiaries, various lenders, and JPMorgan Chase Bank as Administrative Agent. The main change is a revised definition of "Consolidated EBITDA" for financial reporting purposes. The amendment becomes effective once all required parties sign and certain fees are paid. All other terms of the original Credit Agreement remain in effect. The agreement is governed by New York law and requires Gartner to cover related administrative expenses.

EX-4.4.D 3 y89241exv4w4wd.txt AMEND. #5 TO AMENDED & RESTATED CREDIT AGREEMENT EXHIBIT 4.4d AMENDMENT NO. 5, dated as of June 30, 2003 (this "Amendment"), in respect of the Credit Agreement dated as of July 16, 1999, as amended and restated as of July 17, 2000, as further amended by Amendment No. 3 dated as of May 30, 2002, as further amended by Amendment No. 4 dated as of March 31, 2003 (as heretofore amended, the "Credit Agreement" and, as amended by this Amendment, the "Amended Credit Agreement"), among Gartner, Inc. (the "Borrower"), the Lenders party thereto and JPMorgan Chase Bank, as Administrative Agent (in such capacity, the "Administrative Agent"). The Borrower has requested that the Credit Agreement be amended to effect the amendment set forth below, and the parties hereto are willing so to amend the Credit Agreement. Each capitalized term used but not defined herein has the meaning assigned thereto in the Amended Credit Agreement. In consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree, on the terms and subject to the conditions set forth herein, as follows: SECTION 1. Amendment. Upon the effectiveness of this Amendment as provided in Section 3 below, the Credit Agreement shall be amended as follows: (a) The definition of "Consolidated EBITDA" in Section 1.01 of the Credit Agreement is deleted in its entirety and is replaced with the following definition: "Consolidated EBITDA" means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any extraordinary noncash charges for such period, (v) any noncash nonrecurring charges for such period, and (vi) in the case of the fiscal quarters ended December 31, 2002 and March 31, 2003, restructuring charges in the amounts of $31,000,000 and $5,000,000, respectively, and minus (b) without duplication and to the extent included in determing such Consolidated Net Income, any extraordinary gains and nonrecurring gains for such period, all determined on a consolidated basis in accordance with GAAP. SECTION 2. Representations and Warranties. The Borrower represents and warrants as of the date hereof to each of the Lenders that: 1 (a) Before and after giving effect to this Amendment, the representations and warranties set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects with the same effect as if made on the date hereof, except to the extent such representations and warranties expressly relate to an earlier date; and (b) Immediately before and after giving effect to this Amendment, no Event of Default or Default has occurred and is continuing. SECTION 3. Conditions to Effectiveness. The amendment set forth in Section 1 of this Amendment shall become effective, as of the date hereof, on the date (the "Amendment Closing Date") on which the Administrative Agent shall have received (a) counterparts of this Amendment that, when taken together, bear the signatures of the Borrower, the Administrative Agent, the Subsidiary Loan Parties and the Required Lenders, (b) an amendment fee, for distribution to each Lender that has returned a signed counterpart of this Amendment to the Administrative Agent or its counsel by 5:00 p.m. New York City time on July 11, 2003, equal to 0.125% of the aggregate Commitments of each such signing Lender and (c) payment of all fees and expenses (to the extent invoiced prior to the Amendment Closing Date) payable to JPMorgan Chase Bank and J.P. Morgan Securities Inc. in connection with this Amendment. The provisions of Section 1 shall terminate and cease to be of any force or effect if the Amendment Closing Date shall not have occurred on or prior to July 15, 2003. SECTION 4. Agreement. Except as specifically stated herein, the provisions of the Credit Agreement are and shall remain in full force and effect. As used therein, the terms "Credit Agreement", "herein", "hereunder", "hereinafter", "hereto", "hereof" and words of similar import shall, unless the context otherwise requires, refer to the Amended Credit Agreement. The Subsidiary Loan Parties are executing this Amendment to confirm that their obligations under the Guarantee Agreement, the Pledge Agreement and the Indemnity, Subrogation and Contribution Agreement remain in full force and effect with respect to the Amended Credit Agreement and all references in the Guarantee Agreement, the Pledge Agreement and the Indemnity, Subrogation and Contribution Agreement to the Credit Agreement shall hereafter be deemed to refer to the Amended Credit Agreement. SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 6. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. SECTION 7. Expenses. The Borrower agrees to reimburse the Administrative Agent for all reasonable out-of-pocket expenses incurred by it in connection with this Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent. 2 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above. GARTNER, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer COMPUTER AND COMMUNICATION INFORMATION GROUP, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer DATAQUEST INCORPORATED, by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer GARTNER (KOREA) INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer DECISION DRIVERS, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer GARTNER FUND I, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer GARTNER ENTERPRISES LTD., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer GARTNER SHAREHOLDINGS INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer 3 G.G. GLOBAL HOLDINGS, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer G.G CREDIT INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer G.G. WEST CORPORATION, by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer GRIGGS-ANDERSON, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer THE RESEARCH BOARD, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer THE WARNER GROUP, by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer VISION EVENTS INTERNATIONAL, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer G.G CANADA, INC., by /s/ Lisa Nadler ---------------- Name: Lisa Nadler Title: SVP, Treasurer 4 JPMORGAN CHASE BANK, individually and as Administrative Agent, By /s/ T. David Short ------------------ Name: T. David Short Title: Vice President 5 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Banco Espirito Santo S.A., Nassau Branch By /s/ Andrew M. Orsen ------------------- Name: Andrew M. Orsen Title: Vice President By /s/ Terry R. Hull ----------------- Name: Terry R. Hull Title: Senior Vice President 6 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Bank of America, N.A. by /s/ John E. Williams -------------------- Name: John E. Williams Title: Managing Director 7 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Bank Leumi USA By /s/ Shirly Yechilevich ---------------------- Name: Shirly Yechlevid Title: AVP By /s/ Michaela Klein ------------------ Name: Michaela Klein Title: SVP 8 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution The Bank of New York By /s/ Robert W. Pierson --------------------- Name: Robert W. Pierson Title: Vice President 9 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution The Bank of Nova Scotia By /s/ John W. Campbell -------------------- Name: John W. Campbell Title: Managing Director 10 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Bank One By /s/ Ronald Edwards ------------------ Name: Ronald Edwards Title: Director 11 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Citizens Bank of Massachusetts By /s/ William M. Clossey ---------------------- Name: William M. Clossey Title: Assistant Vice President 12 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Comerica Bank By /s/ Stacey V. Judd ------------------ Name: Stacey V. Judd Title: Account Officer 13 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Credit Suisse First Boston, Acting Through Its Cayman Islands Branch By /s/ Robert Hetu --------------- Name: Robert Hetu Title:Director By /s/ Doreen B. Welch ------------------- Name: Doreen B. Welch Title: Associate 14 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Deutsche Bank AG New York Branch and/or Cayman Islands Branch By /s/ David G. Dickinson Jr. -------------------------- Name: David G. Dickinson Jr. Title: Vice President By /s/ Christopher S. Hall ----------------------- Name: Christopher S. Hall Title: Managing Director 15 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Fleet National Bank By /s/ John B. Desmond ------------------- Name: John B. Desmond Title: Director 16 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution IBM CREDIT LLC, formerly IBM CREDIT CORPORATION By /s/ Steven A. Flanagan ---------------------- Name: Steven A. Flanagan Title: Manager, Global Special Handling 17 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution PEOPLE'S BANK By /s/ David K. Sherrill --------------------- Name: David K. Sherrill Title: Vice President 18 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution SUNTRUST BANK By /s/ Frank A. Coe ---------------- Name: Frank A. Coe Title: Vice President 19 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution WACHOVIA BANK, NATIONAL ASSOCIATION By /s/ Daniel L. Evans ------------------- Name: Daniel L. Evans Title: Managing Director 20 Signature Page to GARTNER, INC. Amendment No. 5 dated as of June 30, 2003 Name of Institution Mizuho Corporate Bank, Ltd. By /s/ Bertram H. Tang ------------------- Name: Bertram H. Tang Title: VP & Team Leader 21