Successor Administrative Agent
57
9.10
Syndication and Documentation Agents
57
SECTION 10.
GUARANTEE
58
10.1
Guarantee
58
10.2
No Subrogation
58
10.3
Amendments, etc. with respect to the Subsidiary Borrower Obligations
58
10.4
Guarantee Absolute and Unconditional
59
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10.5
Reinstatement
60
10.6
Payments
60
10.7
Judgments Relating to Guarantee
60
10.8
Independent Obligations
60
SECTION 11.
MISCELLANEOUS
61
11.1
Amendments and Waivers
61
11.2
Notices
61
11.3
No Waiver; Cumulative Remedies
62
11.4
Survival of Representations and Warranties
62
11.5
Payment of Expenses
62
11.6
Participations
63
11.7
Transfers of Competitive Loans
64
11.8
Assignments
65
11.9
The Register; Disclosure; Pledges to Federal Reserve Banks
66
11.10
Changing Designations of Swing Line Lenders and Competitive Loan Lenders
66
11.11
Replacement of Lenders under Certain Circumstances
67
11.12
Adjustments; Set-off
67
11.13
Counterparts
68
11.14
Severability
68
11.15
Integration
68
11.16
GOVERNING LAW
68
11.17
Submission To Jurisdiction; Waivers
68
11.18
Judgments Relating to Subsidiary Borrowers
69
11.19
Acknowledgements
69
11.20
WAIVERS OF JURY TRIAL
70
11.21
Confidentiality
70
11.22
Binding Effect; Successors and Assigns
70
11.23
Incremental Revolving Credit Commitments
71
11.24
USA PATRIOT Act
72
11.25
No Fiduciary Duty, etc
72
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SCHEDULES
SCHEDULE 1.1
Revolving Credit Commitments and Swing Line Commitments of Lenders
SCHEDULE 3.4
Certain Existing Local Currency Facilities
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 Assumption
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 Incremental Commitment Supplement
EXHIBIT J
Form of Extension Request
EXHIBITS K-1 through K-4
Forms of U.S. Tax Compliance Certificate
iv
CREDIT AGREEMENT, dated as of November 10, 2011, 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, N.A., as administrative agent for the Lenders hereunder (in such capacity,
the "Administrative Agent"), BARCLAYS CAPITAL, BNP PARIBAS AND CITIBANK, N.A.,
as syndication agents (in such capacity, the "Syndication Agents") and DEUTSCHE
BANK SECURITIES INC., HSBC BANK USA, NATIONAL ASSOCIATION, MITSUBISHI UFJ
FINANCIAL GROUP, INC., MIZUHO CORPORATE BANK, LTD., ROYAL BANK OF CANADA AND
WELLS FARGO BANK, NATIONAL ASSOCIATION, as documentation agents (in such
capacity, the "Documentation Agents").
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