EXECUTION VERSION GUARANTEE AND COLLATERAL AGREEMENT made by GARTNER, INC. and certain of its Subsidiaries in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent Dated as of June 17, 2016
EXECUTION VERSION
GUARANTEE AND COLLATERAL AGREEMENT
made by
GARTNER, INC.
and certain of its Subsidiaries
in favor of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of June 17, 2016
TABLE OF CONTENTS
SECTION 1. DEFINED TERMS ....................................................................................................... 4
1.1 Definitions ............................................................................................................................... 4
1.2 Other Definitional Provisions ................................................................................................... 8
SECTION 2. GUARANTEE ............................................................................................................. 8
2.1 Guarantee ................................................................................................................................. 8
2.2 Right of Contribution ............................................................................................................... 9
2.3 No Subrogation ........................................................................................................................ 9
2.4 Amendments, etc. with respect to the Borrower Obligations ..................................................... 9
2.5 Guarantee Absolute and Unconditional ................................................................................... 10
2.6 Reinstatement ........................................................................................................................ 10
2.7 Payments ............................................................................................................................... 11
SECTION 3. GRANT OF SECURITY INTEREST ......................................................................... 11
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................................................ 12
4.1 Title; No Other Liens ............................................................................................................. 12
4.2 Perfected First Priority Liens .................................................................................................. 12
4.3 Jurisdiction of Organization; Chief Executive Office .............................................................. 12
4.4 Equipment.............................................................................................................................. 12
4.5 Investment Property ............................................................................................................... 12
4.6 Intellectual Property ............................................................................................................... 13
4.7 Commercial Tort Claims ........................................................................................................ 13
SECTION 5. COVENANTS ............................................................................................................ 13
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper .......................................... 13
5.2 Maintenance of Perfected Security Interest; Further Documentation ....................................... 14
5.3 Changes in Name, etc ............................................................................................................. 14
5.4 Notices ................................................................................................................................... 14
5.5 Investment Property ............................................................................................................... 14
5.6 Receivables ............................................................................................................................ 15
5.7 Intellectual Property ............................................................................................................... 15
5.8 Commercial Tort Claims ........................................................................................................ 16
SECTION 6. REMEDIAL PROVISIONS ........................................................................................ 16
6.1 Receivables ............................................................................................................................ 16
6.2 Investment Property ............................................................................................................... 17
6.3 Proceeds to be Turned Over To Administrative Agent ............................................................ 18
6.4 Application of Proceeds ......................................................................................................... 18
6.5 Code and Other Remedies ...................................................................................................... 19
6.6 Subordination ......................................................................................................................... 19
6.7 Deficiency.............................................................................................................................. 19
SECTION 7. THE ADMINISTRATIVE AGENT ............................................................................ 19
7.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc ................................................ 19
7.2 Duty of Administrative Agent ................................................................................................ 21
7.3 Execution of Financing Statements ......................................................................................... 21
7.4 Authority of Administrative Agent ......................................................................................... 22
SECTION 8. MISCELLANEOUS ................................................................................................... 22
8.1 Amendments in Writing ......................................................................................................... 22
8.2 Notices ................................................................................................................................... 22
8.3 No Waiver by Course of Conduct; Cumulative Remedies ....................................................... 22
8.4 Enforcement Expenses; Indemnification ................................................................................. 22
8.5 Successors and Assigns .......................................................................................................... 23
8.6 Set-Off ................................................................................................................................... 23
8.7 Counterparts........................................................................................................................... 23
8.8 Severability ............................................................................................................................ 23
8.9 Section Headings ................................................................................................................... 24
8.10 Integration.............................................................................................................................. 24
8.11 GOVERNING LAW .............................................................................................................. 24
8.12 Submission To Jurisdiction; Waivers ...................................................................................... 24
8.13 Acknowledgements ................................................................................................................ 24
8.14 Additional Grantor ................................................................................................................. 25
8.15 Releases ................................................................................................................................. 25
8.16 WAIVER OF JURY TRIAL ................................................................................................ 25
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Equipment Locations
Schedule 6 Intellectual Property
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of June 17, 2016, made
by each of the signatories hereto (together with any other entity that may become a party hereto as
provided herein, the “Grantors”), in favor of JPMORGAN CHASE BANK, N.A., as Administrative
Agent (in such capacity, the “Administrative Agent”) for the banks and other financial institutions or
entities (the “Lenders”) from time to time parties to the Credit Agreement, dated as of June 17, 2016 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among
GARTNER, INC. (the “Borrower”), the Lenders and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders and the Issuing Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions
set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that includes
each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be
used in part to enable the Borrower to make valuable transfers to one or more of the other Grantors in
connection with the operation of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and
each Grantor will derive substantial direct and indirect benefit from the making of the extensions of credit
under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their
respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the Secured
Parties;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement, and the following terms
are used herein as defined in the New York UCC: Accounts, Certificated Security, Chattel Paper,
Commercial Tort Claims, Documents, Equipment, Fixtures, General Intangibles, Instruments, Inventory,
Letter-of-Credit Rights and Supporting Obligations.
(b) The following terms shall have the following meanings:
“Agreement”: this Guarantee and Collateral Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
“Borrower Obligations”: the collective reference to the unpaid principal of and interest
on (including interest accruing at the then applicable rate provided in the Credit Agreement after the
maturity of the Loans and Reimbursement Obligations and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender (or, in the case of Specified Swap
Agreements or any Specified Cash Management Agreement, any Affiliate of any Lender), whether direct
or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, any other Loan Document, the
Letters of Credit, any Specified Swap Agreement, any Specified Cash Management Agreement or any
other document made, delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees,
charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise; provided, however, that for the purposes of
determining any Guarantor Obligations of any Guarantor, the definition of “Borrower Obligations” shall
no create any guarantee by such Guarantor of any Excluded Swap Obligation of such Guarantor.
“Collateral”: as defined in Section 3.
“Collateral Account”: any collateral account established by the Administrative Agent as
provided in Section 6.1 or 6.4.
“Copyrights”: (i) all copyrights arising under the laws of the United States, any other
country or any political subdivision thereof, whether registered or unregistered and whether published or
unpublished, all registrations and recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and applications in the United States Copyright
Office (including, without limitation, those United States copyright registrations and applications for
registration listed in Schedule 6), and (ii) the right to obtain all renewals thereof.
“Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee, granting any right under any Copyright, including, without limitation, the grant of rights to
distribute, exploit and sell materials derived from any Copyright (including, without limitation, those
listed in Schedule 6).
“Deposit Account”: as defined in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including, without limitation, any demand, time, savings, passbook or like
account maintained with a depositary institution.
“Excluded Collateral”: unless otherwise agreed by the Borrower and the Administrative
Agent, (a) any owned or leased real property or any other interest in real property, (b) motor vehicles and
other assets subject to certificates of title, (c) any Letter-of-Credit Rights (except to the extent perfection
can be obtained by filing financing statements under the UCC) and Commercial Tort Claims with a
potential value below $10,000,000, (d) any property to the extent that the grant of a security interest in
which is prohibited by applicable law, requires a consent not obtained of any Governmental Authority
pursuant to such applicable law or is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in the case of any Investment
Property, Pledged Stock or Pledged Note (other than any of the foregoing issued by a Grantor), any
applicable shareholder or similar agreement, (e) margin stock and Capital Stock in any Person (other than
any wholly-owned Subsidiary of the Borrower) to the extent not permitted by the terms of such Person’s
organizational or joint venture documents in each case, after giving effect to the applicable anti-
assignment provisions of the UCC, (f) any property to the extent a security interest in such assets would
result in material adverse tax consequences as reasonably determined by the Borrower, (g) any newly
acquired asset or Subsidiary or any asset of such newly acquired Subsidiary to the extent that the
collateral assignment thereof or the creation of a security interest therein would constitute a breach of the
terms of any permit, license, contract, authorization, lease or agreement or would permit the relevant
counterparty to terminate such permit, license, contract, authorization, lease or agreement, (h) (i) any
governmental permit, license, contract, franchise or authorization or (ii) any lease, license, contract or
agreement to which any of the Borrower or the Guarantors is a party or any of its rights or interests
thereunder, in each case, to the extent that the collateral assignment thereof or the creation of a security
interest therein would constitute a breach of the terms of such permit, license, contract, franchise,
authorization, lease or agreement, or would permit the relevant Governmental Authority or counterparty
to terminate such permit, license, contract, franchise, authorization, lease or agreement after giving effect
to the applicable anti-assignment provisions of the UCC, and only so long as the applicable provision
giving rise to such violation or invalidity or such right of termination was not incurred in anticipation of
the Loans and (i) any property to the extent actions would be required in any non-U.S. jurisdiction in
order to create any security interests in such property located or titled outside of the U.S. or to perfect any
such security interests and (j) any property in circumstances where the costs of obtaining a security
interest in such property exceed the benefit to the Secured Parties afforded thereby (as reasonably
determined by the Borrower and the Administrative Agent).
“Foreign Subsidiary Voting Stock”: the voting Capital Stock of any Foreign Subsidiary
or Foreign Subsidiary Holdco.
“Grantor Registered Intellectual Property”: all (i) Copyrights registered with and
applications for copyright registrations pending before the United States Copyright Office, (ii) Patents
issued by and patent applications pending before the United States Patent and Trademark Office, and (iii)
Trademarks registered with and applications for trademark registrations pending before the United States
Patent and Trademark Office, in each case, owned by any Grantor.
“Guarantor Obligations”: with respect to any Guarantor, all obligations and liabilities of
such Guarantor (other than, with respect to any Guarantor, any Excluded Swap Obligations of such
Guarantor) which may arise under or in connection with this Agreement (including, without limitation,
Section 2), whether on account of guarantee obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by such Guarantor pursuant to the
terms of this Agreement).
“Guarantors”: the collective reference to each Grantor; provided that each Grantor shall
be considered a Guarantor only with respect to the Borrower Obligations of any other Loan Party.
“Intellectual Property”: the collective reference to all rights, priorities and privileges
relating to intellectual property, whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Patents, the Trademarks, all Copyright
Licenses, Trademark Licenses and Patent Licenses under which any Grantor is the exclusive licensee of a
U.S. registered Copyright, Trademark and/or Patent or an application therefor, Internet domain names,
intellectual property rights in technology, know-how, trade secrets, software and processes, and all rights
to xxx at law or in equity for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
“Intercompany Note”: any promissory note evidencing loans made by any Grantor to the
Borrower or any of its Subsidiaries.
“Investment Property”: the collective reference to (i) all “investment property” as such
term is defined in Section 9-102(a)(49) of the New York UCC (other than any Foreign Subsidiary Voting
Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not constituting “investment
property” as so defined, all Pledged Notes and all Pledged Stock.
“Issuers”: the collective reference to each issuer of any Investment Property.
“New York UCC”: the Uniform Commercial Code as from time to time in effect in the
State of New York.
“Obligations”: (i) in the case of the Borrower, the Borrower Obligations and (ii) in the
case of each Guarantor, the Guarantor Obligations.
“Patents”: (i) all letters patent of the United States, any other country or any political
subdivision thereof, all reissues and extensions thereof and all goodwill associated therewith, (ii) all
applications for letters patent of the United States or any other country and all divisions, continuations
and continuations-in-part thereof, including, without limitation, with respect to (i) and (ii) those United
States patents and patent applications listed in Schedule 6, and (iii) all rights to obtain any reissues or
extensions of the foregoing.
“Patent License”: all agreements, whether written or oral, providing for the grant by or to
any Grantor of any right to practice any invention covered in whole or in part by a Patent, including,
without limitation, those listed in Schedule 6.
“Pledged Notes”: all promissory notes listed on Schedule 2, all Intercompany Notes at
any time issued to any Grantor and all other promissory notes issued to or held by any Grantor (other than
promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary
course of business).
“Pledged Stock”: the shares of Capital Stock listed on Schedule 2, together with any
other shares, stock certificates, options, interests or rights of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect; provided that in no event shall more than 66% of the total outstanding Foreign
Subsidiary Voting Stock of any Foreign Subsidiary or Foreign Subsidiary Holdco be required to be
pledged hereunder.
“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New
York UCC and, in any event, shall include, without limitation, all dividends or other income from the
Investment Property, collections thereon or distributions or payments with respect thereto.
“Receivable”: any right to payment for goods sold or leased or for services rendered,
whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been
earned by performance (including, without limitation, any Account).
“Secured Parties”: the collective reference to the Administrative Agent, the Lenders, the
Issuing Lenders and any affiliate of any Lender or Issuing Lender to which Borrower Obligations or
Guarantor Obligations, as applicable, are owed.
“Trademarks”: (i) all trademarks, trade names, trade dress, service marks and other
source identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights
related thereto (including, without limitation, those United States trademark registrations and applications
for registration listed in Schedule 6), and (ii) the right to obtain all renewals thereof.
“Trademark License”: any agreement, whether written or oral, providing for the grant by
or to any Grantor of any right to use any Trademark (including, without limitation, those listed in
Schedule 6).
“UCC”: the New York UCC or Uniform Commercial Code under any other state the laws
of which are required to be applied in connection with the issue of perfection of security interests.
1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and Schedule references are to
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when used
in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and
their respective successors, indorsees, transferees and assigns, the prompt and complete payment and
performance by the Loan Parties when due (whether at the stated maturity, by acceleration or otherwise)
of the Borrower Obligations (other than, with respect to any Guarantor, any Excluded Swap Obligations
of such Guarantor).
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event
exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of contribution established in Section
2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to
time exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until all the
Borrower Obligations and the obligations of each Guarantor under the guarantee contained in this Section
2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding (other than Letters
of Credit which have been cash collateralized in a manner reasonably acceptable to the Issuing Lender)
and the Commitments shall be terminated, notwithstanding that from time to time during the term of the
Credit Agreement the Loan Parties may be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any
other Person or received or collected by the Administrative Agent or any Lender from the Borrower, any
of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in reduction of or in payment of
the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of
any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made
by such Guarantor in respect of the Borrower Obligations or any payment received or collected from such
Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the
maximum liability of such Guarantor hereunder until the Borrower Obligations are paid in full, no Letter
of Credit shall be outstanding (other then Letters of Credit which have been cash collateralized in a
manner reasonably acceptable to the Issuing Lender) and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor
shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall
be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not
paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to
the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Guarantor to the Administrative Agent and the Lenders, and each
Guarantor shall remain liable to the Administrative Agent and the Lenders for the full amount guaranteed
by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any
set-off or application of funds of any Guarantor by the Administrative Agent or any Lender, no Guarantor
shall be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against
the Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Borrower Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other
Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrower on account of the Borrower Obligations are paid
in full, no Letter of Credit shall be outstanding (other then Letters of Credit which have been cash
collateralized in a manner reasonably acceptable to the Issuing Lender) and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Borrower Obligations shall not have been paid in full, such amount shall be held by
such Guarantor in trust for the Administrative Agent and the Lenders, and shall, promptly upon receipt by
such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor
(duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the
Borrower Obligations, whether matured or unmatured, in the order set forth in Section 6.4.
2.4 Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender and any of the Borrower Obligations continued, and the Borrower Obligations, or
the liability of any other Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and the Credit Agreement and the other Loan Documents and any
other documents executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or the Required Lenders or
all Lenders, as the case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any Lender for the payment
of the Borrower Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Borrower Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Borrower Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Loan
Parties, on the one hand, and the Administrative Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in
this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee contained in this Section 2 shall
be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan Document, any of the Borrower
Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any time be available to or
be asserted by the Borrower, any other Loan Party or any other Person against the Administrative Agent
or any Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guarantee
contained in this Section 2, in bankruptcy or in any other instance, other than payment in full of the
Borrower Obligations. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against any collateral security or
guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of offset, or any release of the
Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of
offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against any Guarantor. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Borrower
Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee
or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim in Dollars at the Funding Office.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative Agent, and hereby grants
to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in, all of the
following property now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the
“Collateral”), as collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of such Grantor’s Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Commercial Tort Claims;
(d) all Deposit Accounts;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all General Intangibles;
(i) all Instruments;
(j) all Intellectual Property;
(k) all Inventory;
(l) all Investment Property;
(m) all Letter-of-Credit Rights;
(n) all other property not otherwise described above (except for any property specifically
excluded from any clause in this section above, and any property specifically excluded from any defined
term used in any clause of this section above);
(o) all books and records pertaining to the Collateral; and
(p) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of
any and all of the foregoing and all collateral security and guarantees given by any Person with respect to
any of the foregoing;
provided, however, that notwithstanding any of the other provisions set forth in this
Section 3, the term “Collateral” shall not include (i) any United States “intent to use” trademark
application or intent-to-use service xxxx application filed pursuant to Section 1(b) of the Xxxxxx Act to
the extent that the grant of a security interest therein would impair the validity or enforceability of, or
render void or voidable or result in the cancellation of any Grantor’s right, title or interest therein or any
trademark or service xxxx issued as a result of such application under applicable federal law, or any
intellectual property or rights therein or thereto if the grant of a Lien on or security interest in such
intellectual property would result in the cancellation or voiding of such intellectual property or such rights
and (ii) any Excluded Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Lenders and the Issuing Lenders to enter into the
Credit Agreement and to induce the Lenders and Issuing Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and warrants to the Administrative
Agent, each Lender and each Issuing Lender that:
4.1 Title; No Other Liens. Except for the security interest granted to the Administrative
Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and the other Liens
permitted to exist on the Collateral by the Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. None of the Grantors have filed or
consented to the filing of any financing statement or other public notice with respect to all or any part of
the Collateral in any public office, except such as have been filed in favor of the Administrative Agent,
for the ratable benefit of the Secured Parties, pursuant to this Agreement or as are permitted by the Credit
Agreement. Without limiting the foregoing, for the avoidance of doubt, it is understood and agreed that
any Grantor may, as part of its business, grant licenses to third parties to practice or use Intellectual
Property owned or developed by a Grantor. For purposes of this Agreement and the other Loan
Documents, such licensing activity shall not constitute a “Lien” on such Intellectual Property. Each of the
Administrative Agent and each Lender understand that any such licenses may be exclusive to the
applicable licensees, and such exclusivity provisions may limit the ability of the Administrative Agent to
utilize, sell, lease or transfer the related Intellectual Property or otherwise realize value from such
Intellectual Property pursuant hereto.
4.2 Perfected First Priority Liens. The security interests granted pursuant to this Agreement
(a) upon completion of the filings and other actions specified on Schedule 3 (which, in the case of all
filings and other documents referred to on said Schedule, have been delivered to the Administrative Agent
in completed and duly executed form) will constitute valid perfected security interests in all of the
Collateral in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, as collateral
security for such Grantor’s Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor, in
each case, to the extent such security interests may be perfected by such filings and other actions and (b)
are prior to all other Liens on the Collateral in existence on the date hereof except Liens permitted by the
Credit Agreement.
4.3 Jurisdiction of Organization; Chief Executive Office. On the date hereof, such Grantor’s
jurisdiction of organization, identification number from the jurisdiction of organization (if any), and the
location of such Grantor’s chief executive office or sole place of business or principal residence, as the
case may be, are specified on Schedule 4.
4.4 Equipment. On the date hereof, the Equipment in excess of $10,000,000 (other than
mobile goods) are kept at the locations listed on Schedule 5.
4.5 Investment Property. (a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of each Issuer
owned by such Grantor except that, in the case of Foreign Subsidiary Voting Stock of Issuers that are
Foreign Subsidiaries or Foreign Subsidiary Holdcos, the shares of Foreign Subsidiary Voting Stock of
such Issuers pledged by such Grantor hereunder constitute 66% of all the issued and outstanding Foreign
Subsidiary Voting Stock of such Issuers (or, if such Grantor owns less than 66% of the issued and
outstanding Foreign Subsidiary Voting Stock of any Issuer that is a Foreign Subsidiary, the shares of
Foreign Subsidiaries Voting Stock of such Issuer pledged by such Grantor hereunder constitute all the
issued and outstanding Foreign Subsidiary Voting Stock of such Issuer that is owned by such Grantor).
(b) All the shares of the Pledged Stock have been duly and validly issued and are fully paid
and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding obligation of the
obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of, or claims
of, any other Person, except the security interest created by this Agreement.
4.6 Intellectual Property. (a) Schedule 6 lists all Grantor Registered Intellectual Property
and all Copyright Licenses, Trademark Licenses and Patent Licenses under which any Grantor is the
exclusive licensee of a U.S. registered Copyright, Trademark and/or Patent or applications therefor.
(b) All Grantor Registered Intellectual Property is subsisting and unexpired and, to the
knowledge of the owning Grantor, valid and enforceable.
(c) No holding, decision or judgment has been rendered by any Governmental Authority
which would limit or cancel the validity of, or such Grantor’s rights in, any Grantor Registered
Intellectual Property in any respect that could reasonably be expected to have a Material Adverse Effect.
(d) No action or proceeding is pending, or, to the knowledge of such Grantor, threatened, (i)
seeking to limit or cancel the validity of any Grantor Registered Intellectual Property or such Grantor’s
ownership interest therein, or (ii) which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been paid in full, no Letter of
Credit shall be outstanding (other then Letters of Credit which have been cash collateralized in a manner
reasonably acceptable to the Issuing Lender) and the Commitments shall have terminated:
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper. If any Grantor shall at
any time hold or acquire any Instrument, Certificated Security or Chattel Paper constituting Collateral and
evidencing an amount in excess of $10,000,000 payable, such Grantor shall promptly arrange for
Instrument, Certificated Security or Chattel Paper to be immediately delivered to the Administrative
Agent, duly indorsed in a manner satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
5.2 Maintenance of Perfected Security Interest; Further Documentation. (a) Such Grantor
shall (i) maintain the security interest created by this Agreement as a perfected security interest having at
least the priority described in Section 4.2 and (ii) use commercially reasonable efforts necessary to defend
such security interest against the claims and demands of all Persons whomsoever, subject to the rights of
such Grantor under the Loan Documents to dispose of the Collateral.
(b) Annually, at the time of the delivery of the Borrower’s annual financial statements with
respect to the preceding fiscal year pursuant to Section 6.1(a) of the Credit Agreement, such Grantor will
furnish to the Administrative Agent and the Lenders statements and schedules which provide the
information on the assets and property of such Grantor in reasonable detail consistent with that provided
in the Schedules hereto or confirm that there has been no change in such information since the date on
which the Grantor provided information to the Administrative Agent and the Lenders pursuant to this
Section 5.2(b).
(c) At any time and from time to time, upon the written request of the Administrative Agent,
and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and
cause to be filed or recorded, such further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining and maintaining the security
interest created by this Agreement over the Collateral as a perfected security having at least the priority
described in Section 4.2 and preserving the rights and powers herein granted, including, without
limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to the security interests created hereby and (ii)
in the case of Investment Property, Letter-of-Credit Rights and any other relevant Collateral (other than
any Excluded Collateral) for which “control” (within the meaning of the applicable UCC) is required for
perfection under the applicable UCC, taking any actions necessary to enable the Administrative Agent to
obtain “control” with respect thereto.
5.3 Changes in Name, etc. Within 30 days of changing (i) its jurisdiction of organization or
the location of its chief executive office or sole place of business or principal residence from that referred
to in Section 4.3 or (ii) its name, such Grantor will provide written notice the Administrative Agent of
such change and deliver to the Administrative Agent all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the validity, perfection
and priority of the security interests provided for herein.
5.4 Notices. Such Grantor will advise the Administrative Agent and the Lenders promptly,
upon becoming aware, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens permitted under the Credit
Agreement) on any of the Collateral which would adversely affect the ability of the Administrative Agent
to exercise any of its remedies hereunder; and
(b) the occurrence of any other event which could reasonably be expected to have a Material
Adverse Effect on the aggregate value of the Collateral or on the security interests created hereby.
5.5 Investment Property. (a) If such Grantor shall become entitled to receive or shall receive
any certificate (including, without limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital Stock of any Issuer,
whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of the Pledged
Stock, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the
Administrative Agent and the Lenders, hold the same in trust for the Administrative Agent and the
Lenders and promptly deliver the same to the Administrative Agent in the exact form received, duly
indorsed by such Grantor to the Administrative Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor, as additional collateral security for the
Obligations; provided, however, that such Grantor shall not be required to take the foregoing actions with
respect to such certificate, option or right in respect of Foreign Subsidiary Voting Stock of a Foreign
Subsidiary or a Foreign Subsidiary Holdco to the extent that more than 66% of the issued and outstanding
Foreign Subsidiary Voting Stock of such Foreign Subsidiary or Foreign Subsidiary Holdco is pledged in
favor of the Administrative Agent as collateral security for the Obligations. Any sums paid upon or in
respect of the Investment Property upon the liquidation or dissolution of any Issuer shall be paid over to
the Administrative Agent to be held by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect of the Investment Property or any
property shall be distributed upon or with respect to the Investment Property pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property so paid or distributed in respect
of the Investment Property shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or property in trust for the
Administrative Agent and the Lenders, as additional collateral security for the Obligations.
5.6 Intellectual Property. (a) Such Grantor (either itself or through licensees) will (i)
continue to use each of its material Trademarks (whether included in the Grantor Registered Intellectual
Property or unregistered) on each and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists to the extent necessary to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii) maintain as in the past the
quality of products and services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required by applicable Requirements of
Law, (iv) not adopt or use any xxxx which is confusingly similar or a colorable imitation of such
Trademark unless the Administrative Agent, for the ratable benefit of the Secured Parties, shall obtain a
security interest in such xxxx pursuant to this Agreement, and (v) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may become
invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any act, or omit to do any act,
whereby any material Patent included in the Grantor Registered Intellectual Property may become
forfeited, abandoned or dedicated to the public, provided, however, that the foregoing shall not limit such
Grantor’s right to enforce and defend its rights in and to any such Patent.
(c) Such Grantor (either itself or through licensees) will not (and will not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do any act whereby any material portion of its
Copyrights (whether included in the Grantor Registered Intellectual Property or unregistered) may
become invalidated or otherwise impaired. Such Grantor will not (either itself or through licensees) do
any act whereby any material portion of such Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any act that knowingly uses
any of its material Intellectual Property to infringe the intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the Lenders immediately if it
knows, or has reason to know, that any application or registration relating to any material Grantor
Registered Intellectual Property may become forfeited, abandoned or dedicated to the public, or of any
adverse determination or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and Trademark Office, the
United States Copyright Office or any court or tribunal in any country) regarding such Grantor’s
ownership of, or the validity of, any material Grantor Registered Intellectual Property or such Grantor’s
right to register the same or to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the United States
Patent and Trademark Office or the United States Copyright Office or acquire a registration of or
application for any such Intellectual Property, such Grantor shall report such filing to the Administrative
Agent within five Business Days after the last day of the fiscal quarter in which such filing or acquisition
occurs for Patents and Trademarks. Upon request of the Administrative Agent, such Grantor shall
execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers as
the Administrative Agent may request to evidence the Administrative Agent’s and the Lenders’ security
interest in such Copyright, Patent or Trademark, as applicable.
(g) Such Grantor will take all commercially reasonable steps, including, without limitation,
in any proceeding before the United States Patent and Trademark Office or the United States Copyright
Office, to maintain and pursue each application (and to obtain the relevant registration) and to maintain
each registration of the material Grantor Registered Intellectual Property, including, without limitation,
filing of applications for renewal, affidavits of use and affidavits of incontestability, other than
abandonment of any Grantor Registered Intellectual Property at the end of the applicable statutory term or
upon any final rejection during prosecution, and, with respect to any pending application included in the
Grantor Registered Intellectual Property that is not material to the owning Grantor, any abandonment in
the ordinary course of business.
(h) In the event that any of its material Intellectual Property is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property and (ii) if such Intellectual
Property is of material economic value, promptly notify the Administrative Agent after it learns thereof
and, if consistent with reasonable business judgment under the circumstances, xxx for infringement,
misappropriation or dilution or seek injunctive relief where appropriate and attempt to recover any and all
damages for such infringement, misappropriation or dilution.
5.7 Commercial Tort Claims. If such Grantor shall obtain an interest in any Commercial
Tort Claim with a potential value in excess of $10,000,000, such Grantor shall within 30 days of
obtaining such interest sign and deliver documentation acceptable to the Administrative Agent granting a
security interest under the terms and provisions of this Agreement in and to such Commercial Tort Claim.
SECTION 6. REMEDIAL PROVISIONS
6.1 Receivables. (a) At any time after the occurrence and during the continuance of an Event
of Default, if requested by the Administrative Agent, a Grantor shall (i) promptly (and, in any event,
within two Business Days) deposit the Proceeds of any payment of Receivables collected by such Grantor
in the exact form received, duly indorsed by such Grantor to the Administrative Agent if required, in a
Collateral Account maintained under the sole dominion and control of the Administrative Agent, subject
to withdrawal by the Administrative Agent for the account of the Lenders only as provided in Section 6.5,
and (ii) hold such Proceeds in trust for the Administrative Agent and the Lenders. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(b) At any time after the occurrence and during the continuance of an Event of Default, at the
Administrative Agent’s request, each Grantor shall use commercially reasonable efforts to deliver to the
Administrative Agent all documents evidencing, and relating to, the agreements and transactions which
gave rise to the Receivables, including, without limitation, all orders, invoices and shipping receipts.
(c) At any time after the occurrence and during the continuance of an Event of Default, the
Administrative Agent in its own name or in the name of others may communicate with obligors under the
Receivables to verify with them to the Administrative Agent’s satisfaction the existence, amount and
terms of any Receivables.
(d) At any time after the occurrence and during the continuance of an Event of Default, upon
the request of the Administrative Agent, each Grantor shall notify obligors on the Receivables that the
Receivables have been assigned to the Administrative Agent for the ratable benefit of the Secured Parties
and that payments in respect thereof shall be made directly to the Administrative Agent.
(e) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither
the Administrative Agent nor any Lender shall have any obligation or liability under any Receivable (or
any agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any Lender of any payment relating thereto, nor shall the Administrative Agent
or any Lender be obligated in any manner to perform any of the obligations of any Grantor under or
pursuant to any Receivable (or any agreement giving rise thereto) to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been assigned to it or to which it
may be entitled at any time.
6.2 Investment Property. (a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the relevant Grantor of the
Administrative Agent’s intent to exercise its corresponding rights pursuant to Section 6.2(b), each Grantor
shall be permitted to receive all cash dividends paid in respect of the Pledged Stock and all payments
made in respect of the Pledged Notes, in each case paid in the normal course of business of the relevant
Issuer and consistent with past practice, to the extent permitted in the Credit Agreement, and to exercise
all voting and corporate or other organizational rights with respect to the Investment Property; provided,
however, that no vote shall be cast or corporate or other organizational right exercised or other action
taken which, in the Administrative Agent’s reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the Credit Agreement, this
Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the Administrative Agent has
given written notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the
Administrative Agent shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application thereof to the Obligations in the
order set forth in Section 6.4, and (ii) any or all of the Investment Property shall be registered in the name
of the Administrative Agent or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (x) all voting, corporate and other rights pertaining to such Investment Property at any meeting
of shareholders of the relevant Issuer or Issuers or otherwise and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options pertaining to such Investment
Property as if it were the absolute owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other organizational structure of any
Issuer, or upon the exercise by any Grantor or the Administrative Agent of any right, privilege or option
pertaining to such Investment Property, and in connection therewith, the right to deposit and deliver any
and all of the Investment Property with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Administrative Agent may determine), but the
Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property
pledged by such Grantor hereunder to (i) comply with any instruction received by it from the
Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and
(y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions
from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and
(ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.3 Proceeds to be Turned Over To Administrative Agent. In addition to the rights of the
Administrative Agent and the Lenders specified in Section 6.1 with respect to payments of Receivables, if
an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of
cash, checks and other Cash Equivalents items shall be held by such Grantor in trust for the
Administrative Agent and the Lenders, and shall, promptly upon receipt by such Grantor, be turned over
to the Administrative Agent in the exact form received by such Grantor (duly indorsed by such Grantor to
the Administrative Agent, if required). All Proceeds received by the Administrative Agent hereunder
shall be held by the Administrative Agent in a Collateral Account maintained under its sole dominion and
control. All Proceeds while held by the Administrative Agent in a Collateral Account (or by such Grantor
in trust for the Administrative Agent and the Lenders) shall continue to be held as collateral security for
all the Obligations and shall not constitute payment thereof until applied as provided in Section 6.5.
6.4 Application of Proceeds. If an Event of Default shall have occurred and be continuing, at
any time at the Administrative Agent’s election, the Administrative Agent shall apply all or any part of
Proceeds constituting Collateral, whether or not held in any Collateral Account, and any proceeds of the
guarantee set forth in Section 2, in payment of the Obligations in the following order:
First, to pay incurred and unpaid fees and expenses of the Administrative Agent under the
Loan Documents;
Second, to the Administrative Agent, for application by it towards payment of amounts then
due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured
Parties according to the amounts of the Obligations then due and owing and remaining unpaid to
the Secured Parties;
Third, to the Administrative Agent, for application by it towards prepayment of the
Obligations, pro rata among the Secured Parties according to the amounts of the Obligations then
held by the Secured Parties; and
Fourth, any balance remaining after the Obligations shall have been paid in full, no Letters of
Credit shall be outstanding (other then Letters of Credit which have been cash collateralized in a
manner reasonably acceptable to the Issuing Lender) and the Commitments shall have terminated
shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the
same.
Notwithstanding the foregoing, no amounts received from any Guarantor shall be applied to
any Excluded Swap Obligations of such Guarantor.
6.5 Code and Other Remedies. If an Event of Default shall occur and be continuing, the
Administrative Agent, on behalf of the Lenders, may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under the New York UCC or any
other applicable law. Without limiting the generality of the foregoing, the Administrative Agent may,
without demand of performance or other demand, presentment, protest, advertisement or notice of any
kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all
and each of which demands, defenses, advertisements and notices are hereby waived), may in such
circumstances, promptly collect, receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may promptly sell or otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk, provided that the Administrative Agent
shall provide notice thereof prior to or promptly after such exercise. Each purchaser, upon such public
sale or sales, and, to the extent permitted by law, upon any such private sale or sales, shall hold the
property so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby
waived and released. Each Grantor further agrees, at the Administrative Agent’s request, to assemble the
Collateral and make it available to the Administrative Agent at a place and time which the Administrative
Agent shall reasonably select that is reasonably convenient to both parties, whether at such Grantor’s
premises or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses incurred in connection
therewith or incidental to the care or safekeeping of any of the Collateral or the rights of the
Administrative Agent and the Lenders hereunder, including, without limitation, reasonable attorneys’ fees
and disbursements, to the payment in whole or in part of the Obligations, in the order set forth in Section
6.4, and only after such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New
York UCC, need the Administrative Agent account for the surplus, if any, to any Grantor. To the extent
permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against
the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any
notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other disposition.
6.6 Subordination. Each Grantor hereby agrees that, upon the occurrence and during the
continuance of an Event of Default, unless otherwise agreed by the Administrative Agent, all
Indebtedness owing by it to any Subsidiary of the Borrower shall be fully subordinated to the indefeasible
payment in full in cash of such Grantor’s Obligations.
6.7 Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its Obligations and the fees and
disbursements of any attorneys employed by the Administrative Agent or any Lender to collect such
deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc. (a) At any time after the
occurrence and during the continuance of an Event of Default, each Grantor hereby (i) irrevocably
constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the purposes of this
Agreement, and (ii) gives the Administrative Agent the power and right, on behalf of such Grantor,
without notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take possession of
and indorse and collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Receivable or Contract or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any and
all such moneys due under any Receivable or Contract or with respect to any other Collateral
whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Administrative Agent may
request to evidence the Administrative Agent’s and the Lenders’ security interest in such
Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay
all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any
indorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral;
(v) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct;
(vi) ask or demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect of or arising out of
any Collateral;
(vii) sign and indorse any invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral;
(viii) commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce
any other right in respect of any Collateral;
(ix) defend any suit, action or proceeding brought against such Grantor with respect
to any Collateral;
(x) settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Administrative Agent may deem
appropriate;
(xi) assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains), throughout the world for
such term or terms, on such conditions, and in such manner, as the Administrative Agent shall in
its sole discretion determine; and
(xii) generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and
(xiii) do, at the Administrative Agent’s option and such Grantor’s expense, at any time,
or from time to time, all acts and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Collateral and the Administrative Agent’s and the Lenders’
security interests therein and to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the Administrative Agent agrees
that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) (other
than pursuant to clause (ii) thereof) unless an Event of Default shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection with actions undertaken
as provided in this Section 7.1, together with interest thereon at a rate per annum equal to the highest rate
per annum at which interest would then be payable on any category of past due ABR Loans under the
Credit Agreement, from the date of payment by the Administrative Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the security interests created hereby
are released.
7.2 Duty of Administrative Agent. The Administrative Agent’s sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of
the New York UCC or otherwise, shall be to deal with it in the same manner as the Administrative Agent
deals with similar property for its own account. Neither the Administrative Agent, any Lender nor any of
their respective officers, directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the
Administrative Agent and the Lenders hereunder are solely to protect the Administrative Agent’s and the
Lenders’ interests in the Collateral and shall not impose any duty upon the Administrative Agent or any
Lender to exercise any such powers. The Administrative Agent and the Lenders shall be accountable
only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or
failure to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to any applicable law, each Grantor
authorizes the Administrative Agent to file or record financing statements and other filing or recording
documents or instruments with respect to the Collateral without the signature of such Grantor in such
form and in such offices as the Administrative Agent determines appropriate to perfect the security
interests of the Administrative Agent under this Agreement. Each Grantor authorizes the Administrative
Agent to use the collateral description “all personal property” in any such financing statements. Each
Grantor hereby ratifies and authorizes the filing by the Administrative Agent of any financing statement
with respect to the Collateral made prior to the date hereof.
7.4 Authority of Administrative Agent. Each Grantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 10.1 of the
Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the Administrative Agent or any
Grantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit Agreement;
provided that any such notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative
Agent nor any Lender shall by any act (except by a written instrument pursuant to Section 8.1), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Administrative Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or such Lender would
otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred in collecting against
such Guarantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such Guarantor is a party, including,
without limitation, the reasonable and documented fees and disbursements of counsel to each Lender and
of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to hold the Administrative Agent and the Lenders
harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any
of the Collateral or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to hold the Administrative Agent and the Lenders
harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the Borrower would be
required to do so pursuant to Section 10.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Administrative Agent and the Lenders and
their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the Administrative Agent and each
Lender at any time and from time to time while an Event of Default shall have occurred and be
continuing, without notice to such Grantor or any other Grantor, any such notice being expressly waived
by each Grantor, to set-off as appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any
time held or owing by the Administrative Agent or such Lender to or for the credit or account of such
Grantor, or any part thereof in such amounts as the Administrative Agent or such Lender may elect,
against and on account of the obligations and liabilities of such Grantor to the Administrative Agent or
such Lender (or any branch or agency thereof) against such Grantor, in any currency, whether arising
hereunder, under the Credit Agreement or any Loan Document, as the Administrative Agent or such
Lender may elect, whether or not the Administrative Agent or any Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent or unmatured, provided
that to the extent prohibited by applicable law as described in the definition of “Excluded Swap
Obligation,” no amount received from or set-off with respect to, any Grantor shall be applied to any
Excluded Swap Obligation of such Grantor. The Administrative Agent and each Lender shall notify such
Grantor promptly of any such set-off and the application made by the Administrative Agent or such
Lender of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each Lender under this Section
8.6 are in addition to other rights and remedies (including, without limitation, other rights of set-off)
which the Administrative Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by email or telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which 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 not invalidate or render unenforceable such provision in any
other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents represent the agreement of
the Grantors, the Administrative Agent and the Lenders with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement, or for recognition and enforcement of any judgment in respect thereof, to the non exclusive
general jurisdiction of the courts of the State of New York in the Borough of Manhattan, the courts of the
United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one hand, and the Administrative Agent
and Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Grantors and the
Lenders.
8.14 Additional Grantors. Each Subsidiary of the Borrower that is required to become a party
to this Agreement pursuant to Section 6.9 of the Credit Agreement shall become a Grantor for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
8.15 Releases. (a) At such time as the Loans, the Reimbursement Obligations and the other
Obligations (other than Obligations in respect of Specified Swap Agreements) shall have been paid in
full, the Commitments have been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and each Grantor hereunder
shall terminate, all without delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor
following any such termination, the Administrative Agent shall deliver to such Grantor any Collateral
held by the Administrative Agent hereunder, and execute and deliver to such Grantor such documents as
such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor
in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the request and sole
expense of such Grantor, shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the
request and sole expense of the Borrower, a Subsidiary Guarantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement; provided that the Borrower
shall have delivered to the Administrative Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release identifying the relevant Subsidiary Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price thereof and any expenses in
connection therewith, together with a certification by the Borrower stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
Capterra, Inc.
c/o Gartner, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Computer Financial Consultants, Inc.
c/o Gartner, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Dataquest, Inc.
c/o Gartner, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Software Advice, Inc.
c/o Gartner, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Research Board, Inc.
c/o Gartner, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
Part I: Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
Part I.A
Capterra, Inc. Ordinary shares C-02 1,000
Computer Financial
Consultants, Inc.
Ordinary shares R-1 1,000
Dataquest, Inc. Ordinary shares R-1 1,000
Software Advice, Inc. Ordinary shares 12 1,176
The Research Board,
Inc.
Ordinary shares 2 3,000
Part X.X
Xxxxxx Group, Inc. Ordinary shares C-002 1,000
G.G. Properties, Ltd. Ordinary shares 1 7,920
SircleIT, Inc. Ordinary shares 2 666
Gartner Japan Limited Ordinary shares 264
Part I.C
Gartner do Brasil
Servicos de Pesquisas
Ltda.
Ordinary shares Uncertificated N/A
Gartner Holdings, LLC Membership interests Uncertificated N/A
Gartner Investments I,
LLC
Membership interests Uncertificated N/A
Gartner Investments II,
LLC
Membership interests Uncertificated N/A
Part II: Pledged Notes:
Intercompany Note, dated June 17, 2016, by and among the Grantors and each other Subsidiary of the
Borrower
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Grantor Location
Gartner, Inc. Delaware
Capterra, Inc. Delaware
Computer Financial Consultants, Inc. Delaware
Dataquest, Inc. California
Software Advice, Inc. California
The Research Board, Inc. Delaware
Patent, Trademark and Copyright Filings
Patent Security Agreement
Trademark Security Agreement
Copyright Security Agreement
Actions with respect to Pledged Stock
Delivery of physical stock certificates representing Pledged Stock to Administrative Agent
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE
Grantor
Jurisdiction
of Organization
Location of Chief
Executive Office
Capterra, Inc. Delaware Arlington, Virginia
Computer Financial Consultants, Inc. Delaware Stamford, Connecticut
Dataquest, Inc. California Stamford, Connecticut
Software Advice, Inc. California Austin, Texas
The Research Board, Inc. Delaware New York, New York
Schedule 5
LOCATIONS OF EQUIPMENT
None.
Schedule 6
GRANTOR REGISTERED INTELLECTUAL PROPERTY
Copyrights
Registered Copyrights
Claimant Title Registration No.
Gartner, Inc. Gartner research topic index Apr05 TX0006188846
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Gartner, Inc. and Xxxxxxx
Xxxxxxxx
Consumer evolution : nine effective
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Gartner, Inc. and Association for
Information and Image
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(AIIM)
Enterprise applications : adoption of E-
business and document technologies 2000-
2001 : Pacific rim industry study
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Gartner, Inc. and Association for
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business and document technologies : 2000-
2001 worldwide
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Gartner, Inc. and K. Xxxx
Xxxxxx
Event processing: designing it systems for
agile companies
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Gartner, Inc. and Xxxxxx
Xxxxxxxxx
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Gartner, Inc., formerly known as
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Gartner, Inc., formerly known as
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Interpose TCO survey
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Gartner, Inc., formerly known as
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Dataquest, Inc. 10 Forecast TX0001012898
Dataquest, Inc. 16 competition TX0000488918
Dataquest, Inc. 17.2 electronic counters : T I I S, v. 1. TX0000000000
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Dataquest, Inc. CAD/CAM industry service : v. I, marketing
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Dataquest, Inc. Circuit board testing TX0000665572
Dataquest, Inc. Computer memory industry service : v. I[-II] TX0000977620
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Dataquest, Inc. Copying and duplicating industry service : v.
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Dataquest, Inc. Data base analysis : appendix A TXu000141248
Dataquest, Inc. Data General Corporation TX0000177734
Dataquest, Inc. Dataquest, Inc. research newsletter 22Feb80.
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TX0000000000
Dataquest, Inc. Dataquest, Inc. research newsletter 29Feb80.
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Dataquest, Inc. Dataquest, Inc. research newsletter 11Apr80.
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Dataquest, Inc. Dataquest, Inc. research newsletter
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Dataquest, Inc. Dataquest, Inc. research newsletter 8Jul80.
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Dataquest, Inc. Dataquest, Inc. research newsletter 22Aug80.
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TX0000543183
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one of the fastest-growing segments in the
test instrument market
TX0000665580
Dataquest, Inc. Dataquest, Inc. research newsletter 19Jun79.
Issue title: U. S. independent test labortory
market
TX0000000000
Dataquest, Inc. Dataquest, Inc. research newsletter 25Jun79.
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consumption
TX0000287228
Dataquest, Inc. Dataquest, Inc. research newsletter 16Nov79.
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TX0000000000
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Dataquest, Inc. Digital image printer study : v. I. TX0001093086
Dataquest, Inc. Digital voltmeters/digital multimeters : the
most basic type of test equipment
TX0000000000
Dataquest, Inc. Display terminal industry service v. 1.
Created 1982
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Dataquest, Inc. Economic data and outlook : [section] 2.1. TX0000177729
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6.35.
TX0000049754
Dataquest, Inc. Xxxxxx Industries, Inc. : [section] 6.37. TX0000049750
Dataquest, Inc. Logic analyzers TX0000665577
Dataquest, Inc. [Logic analyzers becoming fastest growing
segment of test instrument industry market]
TX0000273044
Dataquest, Inc. Market estimate worksheets : appendix A TX0000287229
Dataquest, Inc. Market estimate worksheets : appendix A TX0000177728
Dataquest, Inc. Microdata Corporation TX0000049757
Dataquest, Inc. Microprocessor development systems TX0000665578
Dataquest, Inc. MOS microprocessor shipments TX0000346949
Dataquest, Inc. Motorola : [section] 8.06 ; Xxxxxx : [section]
8.40.
TX0000177738
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
5Jan83. Issue title: Preliminary 1982
worldwide semiconductor market share
estimates
TX0001058152
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
8Feb83. Issue title: 64K dynamic R A M
update
TX0001068753
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
9Mar82. Issue title: G P M C market in
1981--pretty good, ultrahigh-performance
segment--wow!
TX0000962349
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
12Mar82. Issue title: Summary of 1982
Dataquest Small Computer Industry
Conference. Dataquest’s Small Computer
Industry Service’s annual conference, held
Feb. 23-26, 1982 in the Napa Valley, Calif.
TX0000962350
Dataquest, Inc. Xxxxxxx Dataquest research newsletter TX0000959195
17Mar82. Issue title: Dataquest explores the
trends in the 1/2-inch magnetic tape reel
media market
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
17Mar82. Issue title: Masstor Systems
Corporation model M860 cartridge storage
system
TX0000959197
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
12Apr82. Issue title: The Xebec/MSC
S1410, first in the trend toward small-size,
low-cost control units
TX0000959192
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
13Apr82. Issue title: "Computer solutions"
by Macy’s of California
TX0000000000
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
30Apr82. Issue title: The Xxxxxxx XX000, a
low-cost, reduced-height, flexible disk drive
TX0000959196
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
14May82. Issue title: GRiD Systems’
"Navigator" : a manager/executive computer
system
TX0000962352
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
3Jun82. Issue title: Digital Equipment
Corporation announces a personal computer
family for the eighties
TX0000962351
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
2Jul82. Issue title: General industry update
TX0000000000
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
2Jul82. Issue title: M O S
microcomputer/microprocessor shipments
increase slightly in first quarter 1982
TX0000959194
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
13Aug82. Issue title: M O S memory
shipments first and second quarters 1982
TX0000977113
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
24Aug82. Issue title: M O S
microcomputer/microprocessor shipments
prove healthier in second quarter 1982
TX0000977114
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
24Nov82. Issue title: M O S
microcomputer/microprocessor shipments
increase slightly in the third quarter 1982
TX0001036481
Dataquest, Inc. Xxxxxxx Dataquest research newsletter
10Dec82. Issue title: M O S memory
shipments third quarter 1982
TX0001036480
Dataquest, Inc. Oscilloscopes TX0000665570
Dataquest, Inc. Xxxxxx-Xxxxx Corporation TX0000049749
Dataquest, Inc. Pitney Xxxxx : [section] 6.50. TX0000000000
Dataquest, Inc. Propelling the semiconductor market to new
heights
TX0000000000
Dataquest, Inc. Protocol testers TX0000665579
Dataquest, Inc. [Ricoh Corporation, Ltd. : section 8.70.] TX0000049761
Dataquest, Inc. Savin’s manufacturing facilities and new
Xxxxx process : Savin update / [Xxxxxx
Xxxxxxxx]
TX0000780197
Dataquest, Inc. Scope and defintions [sic] : [section] 1.1 ;
Industry structure : [section] 1.3 ; Economic
data and outlook : [section] 2.1 ... [et al.]
TX0000049753
Dataquest, Inc. Semiconductor industry service : v. I[-III] TX0000977614
Dataquest, Inc. Semiconductor testing TX0000665573
Dataquest, Inc. Semiconductor user information service : v.
I[-II]
TX0000977613
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information ed. 22, 1990
TX0002737756
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information ed. 21, 1989
TX0002737757
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information ed. 20, 1988
TX0002343449
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information ed. 19, 1987
TX0000000000
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information 1986
TX0000000000
Dataquest, Inc. Serial number guide : used construction
equipment : year of manufacture
identification information ed. 17, 1984-85
TX0001465321
Dataquest, Inc. Service management information : overview
of service organizations
TX0000000000
Dataquest, Inc. Signal sources : the stimulus portion of test
equipment
TX0000665575
Dataquest, Inc. Small business computers and larger
business systems review and forecast
TX0000929016
Dataquest, Inc. Small business computers : [section] 4.4. TX0000000000
Dataquest, Inc. Small business computers : [section] 4.4 ;
Products--general : [section] 4.0.
TX0000177737
Dataquest, Inc. Small computer industry service : v. I [-IV],
general service minicomputers.
TX0000977616
Dataquest, Inc. SpecCheck facsimile guide, July 1987 TX0002216669
Dataquest, Inc. Stand alone units : appendix A.4. TX0000177727
Dataquest, Inc. The state of the semiconductor industry TX0005515668
Dataquest, Inc. Telecommunications industry service : v. I[-
II]
TX0000977622
Dataquest, Inc. Test instrument industry service : v. I[-III] TX0000977618
Dataquest, Inc. Test instrument market overview : [no.] 2.3. TX0000287227
Dataquest, Inc. Ubiquitous wireless electronics : a
semiconductor cornucopia
TX0005515670
Dataquest, Inc. Very small business computer and personal
computer review and forecast
TX0000929018
Dataquest, Inc. Word processing (general) : [section] 4.0. TX0000000000
Dataquest, Inc. Word processing industry service : v. I[-III] TX0000977623
Dataquest, Inc. and GIS World,
Inc.
GIS strategies : a quarterly analysis of the
worldwide GIS market v. 1, no. 2, 4th
quarter 92
TX0003635633
Dataquest, Inc. and GIS World,
Inc.
GIS strategies : a quarterly analysis of the
worldwide GIS market v. 2, no. 1, 1st quarter
93
TX0000000000
Dataquest, Inc. and GIS World,
Inc.
GIS strategies : a quarterly analysis of the
worldwide GIS market v. 2, no. 2, 2nd
quarter 93
TX0003648628
Dataquest, Inc. and GIS World,
Inc.
GIS strategies : a quarterly analysis of the
worldwide GIS market v. 2, no. 3, 3rd
quarter 93
TX0003689261
Dataquest, Inc. and GIS World,
Inc.
GIS strategies : a quarterly analysis of the
worldwide GIS market v. 1, no. 1, 3rd
quarter 92
TX0003635632
Software Advice, Inc. Market Pages VII TX0007435617
Software Advice, Inc. Software Market Overviews TX0007394494
Software Advice, Inc. Software Market Overviews II TX0007396887
Software Advice, Inc. Software Market Overviews III TX0007398994
Software Advice, Inc. Software Market Overviews IV TX0007403566
Software Advice, Inc. Software Market Overviews V TX0007406550
Software Advice, Inc. Software Market Overviews VI TX0007419030
Software Advice, Inc. Software Product Profiles TX0007389876
Software Advice, Inc. Software Advice Market Overviews VIII TXu001775923
Copyright Applications
None.
Exclusive Copyright Licenses
None.
Patents
Registered Patents
Registered Owner Title Registration No.
Gartner, Inc. Interactive peer directory 8244674
Gartner, Inc. Interactive peer directory with question
router
8918391
Gartner, Inc. Bimodal recommendation engine for
recommending items and peers
8661034
Gartner, Inc. Computer-implemented method and
system for collaborative product
evaluation
8249915
Gartner, Inc., formerly known as
Gartner Group, Inc.
System and method for assigning an
engine measure metric to a computing
system
7016810
Patent Applications
Registered Owner Title Application No.
Gartner, Inc. Implicit profile for use with
recommendation engine and/or question
router
14/533398
Gartner, Inc. Methods and systems for improving
engagement with a recommendation
engine that recommends items, peers,
and services
14/191872
Gartner, Inc. Methods and systems for modifying a
user profile for a recommendation
algorithm and making recommendations
based on user interactions with items
14/046229
Gartner, Inc. Methods and apparatus for integrating
search results of a local search engine
with search results of a global generic
engine search
14/992232
Gartner, Inc. Methods and apparatus for extraction of
content from an e-mail or e-mail threads
for use in providing implicit profile
attributes and content for
recommendation engines
14/996329
Gartner, Inc. Method and systems for finding and
ranking entities in a domain specific
system
62/291029
Exclusive Patent Licenses
None.
Trademarks
Registered Trademarks
Registered Owner Xxxx Registration No.
Gartner, Inc. HYPE CYCLE 4640207
Gartner, Inc. HYPE CYCLE 4640209
Gartner, Inc. SENEXX 4793310
Gartner, Inc. SOLVEPATH 4793311
Gartner, Inc. COOL VENDORS 4645283
Gartner, Inc. COOL VENDORS 4645284
Gartner, Inc. GARTNER IT MARKET CLOCK 3999791
Gartner, Inc. GARTNER IT MARKET CLOCK 3999790
Gartner, Inc. IT MARKET CLOCK 3999787
Gartner, Inc. IT MARKET CLOCK 3999786
Gartner, Inc. SOLVEPATH 4716226
Gartner, Inc. SENEXX 4716228
Gartner, Inc. MAGIC QUADRANT 4640204
Gartner, Inc. MAGIC QUADRANT 4644242
Gartner, Inc. CLOUDBENCH 4614174
Gartner, Inc. CLOUDGRADE 4601868
Gartner, Inc. CLOUDHARMONY 3973590
Gartner, Inc. CLOUDMATCH 4601869
Gartner, Inc. CLOUDADVICE 4919778
Gartner, Inc. CLOUDPROBE 4614173
Gartner, Inc. CLOUDSCORES 4601867
Gartner, Inc. CLOUDSQUARE 4601866
The Research Board, Inc. THE RESEARCH BOARD 1737310
Software Advice, Inc. SOFTWARE ADVICE 4512967
Dataquest, Inc. DATAQUEST 1002377
Dataquest, Inc. DATAQUEST 2656606
Dataquest, Inc. DATAQUEST 2656629
Dataquest, Inc. DATAQUEST 2656615
Capterra, Inc. SOFTWAREMATCH 4591378
Capterra, Inc. SOFTWAREMATCH 4486494
Capterra, Inc. CAPTERRA 2742773
Trademark Applications
None.
Exclusive Trademark Licenses
None.
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 2016, made by
______________________________ (the “Additional Grantor”), in favor of
___________________________, as administrative agent (in such capacity, the “Administrative Agent”)
for the banks and other financial institutions or entities (the “Lenders”) parties to the Credit Agreement
referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Gartner, Inc. (the “Borrower”), the Lenders and the Administrative Agent
have entered into a Credit Agreement, dated as of ____________________, 2016 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its
Affiliates (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement,
dated as of ________________________, 2016 (as amended, supplemented or otherwise modified from
time to time, the “Guarantee and Collateral Agreement”) in favor of the Administrative Agent for the
ratable benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to
the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption
Agreement in order to become a party to the Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral
Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor
thereunder. The information set forth in Annex 1-A hereto is hereby added to the information set forth in
the Schedules to the Guarantee and Collateral Agreement. The Additional Grantor hereby represents and
warrants that each of the representations and warranties contained in Section 4 of the Guarantee and
Collateral Agreement is true and correct on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be
duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:___________________________
Name:
Title:
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
