Integration
11.16
GOVERNING LAW
11.17
Submission To Jurisdiction; Waivers
11.18
Judgments Relating to Subsidiary Borrowers
11.19
Acknowledgements
11.20
WAIVERS OF JURY TRIAL
11.21
Confidentiality
11.22
Binding Effect; Successors and Assigns
11.23
Commitment Increases
11.24
USA PATRIOT Act
iii
SCHEDULES
SCHEDULE 1.1
Revolving Credit Commitments and Swing Line Commitments of Lenders
SCHEDULE 6.2(c)
Compliance Certificate
EXHIBITS
EXHIBIT A-1
Form of Competitive Loan Confirmation
EXHIBIT A-2
Form of Competitive Loan Offer
EXHIBIT A-3
Form of Competitive Loan Request
EXHIBIT B-1
Form of Subsidiary Borrower Notice and Designation
EXHIBIT B-2
Form of Subsidiary Borrower Request
EXHIBIT C
Form of Closing Certificate
EXHIBIT D-1
Form of Opinion of Simpson Thacher & Bartlett LLP
EXHIBIT D-2
Form of Opinion of Assistant General Counsel of IBM
EXHIBIT E
Form of Assignment and Acceptance
EXHIBIT F
Form of Local Currency Facility Addendum
EXHIBIT G-1
Form of Revolving Credit Loan Promissory Note
EXHIBIT G-2
Form of Competitive Loan Promissory Note
EXHIBIT H-1
Form of Lender Addendum
EXHIBIT H-2
Form of Subsidiary Borrower Addendum
EXHIBIT I-1
Form of New Lender Supplement
EXHIBIT I-2
Form of Commitment Increase Supplement
EXHIBIT J
Form of Extension Request
iv
CREDIT AGREEMENT, dated as of May 27, 2004, among INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation ("IBM"), each Subsidiary Borrower
(as hereinafter defined), the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders"), JPMORGAN CHASE
BANK, as administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"), and CITIBANK, N.A., as syndication agent (in such
capacity, the "Syndication Agent").
The parties hereto hereby agree as follows:
SECTION 1.
DEFINITIONS
1.1
Defined Terms.
As used in this Agreement,
the following terms shall have the following meanings:
"ABR":
for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes
hereof:
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its principal office in New York City (each change in the Prime Rate to be
effective on the date such change is publicly announced); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the denominator of which is
one minus the CD Reserve Percentage and (b) the CD Assessment Rate; "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve Bank
of New