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:
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(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 X.X.
Xxxxxx 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 & Xxxxx, counsel for the Administrative Agent.
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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/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
COMPUTER AND COMMUNICATION
INFORMATION GROUP, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
DATAQUEST INCORPORATED,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
GARTNER (KOREA) INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
DECISION DRIVERS, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
GARTNER FUND I, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
GARTNER ENTERPRISES LTD.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
GARTNER SHAREHOLDINGS INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
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G.G. GLOBAL HOLDINGS, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
G.G CREDIT INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
X.X. XXXX CORPORATION,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
XXXXXX-XXXXXXXX, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
THE RESEARCH BOARD, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
THE WARNER GROUP,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
VISION EVENTS INTERNATIONAL,
INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
G.G CANADA, INC.,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: SVP, Treasurer
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JPMORGAN CHASE BANK,
individually and as
Administrative Agent,
By /s/ T. Xxxxx Xxxxx
------------------
Name: T. Xxxxx Xxxxx
Title: Vice President
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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/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Bank of America, N.A.
by /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Bank Leumi USA
By /s/ Xxxxxx Yechilevich
----------------------
Name: Xxxxxx Yechlevid
Title: AVP
By /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: SVP
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
The Bank of New York
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
The Bank of Nova Scotia
By /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Bank One
By /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Director
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Citizens Bank of Massachusetts
By /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Comerica Bank
By /s/ Xxxxxx X. Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Account Officer
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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/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title:Director
By /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
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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/ Xxxxx X. Xxxxxxxxx Xx.
--------------------------
Name: Xxxxx X. Xxxxxxxxx Xx.
Title: Vice President
By /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Managing Director
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Fleet National Bank
By /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Director
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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/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager, Global Special Handling
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
PEOPLE'S BANK
By /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
SUNTRUST BANK
By /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Vice President
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
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Signature Page to GARTNER, INC.
Amendment No. 5 dated as of June 30, 2003
Name of Institution
Mizuho Corporate Bank, Ltd.
By /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: VP & Team Leader
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