Indemnification
51
9.8
Administrative Agent in Its Individual Capacity
51
9.9
Successor Administrative Agent
52
9.10
Syndication and Documentation Agents
52
9.11
Certain ERISA Matters
52
SECTION 10.
[RESERVED]
54
SECTION 11.
MISCELLANEOUS
54
11.1
Amendments and Waivers
54
11.2
Notices
54
11.3
No Waiver; Cumulative Remedies
55
11.4
Survival of Representations and Warranties
56
11.5
Payment of Expenses
56
11.6
Participations
56
11.7
Transfers of Competitive Loans
57
iii
11.8
Assignments
58
11.9
The Register; Disclosure; Pledges to Federal Reserve Banks
59
11.10
Changing Designations of Competitive Loan Lenders
60
11.11
Replacement of Lenders under Certain Circumstances
60
11.12
Adjustments; Set-off
60
11.13
Counterparts
61
11.14
Severability
61
11.15
Integration
61
11.16
GOVERNING LAW
61
11.17
Submission To Jurisdiction; Waivers
61
11.18
Judgment Related to Borrowings
62
11.19
Acknowledgements
62
11.20
WAIVERS OF JURY TRIAL
62
11.21
Confidentiality
62
11.22
Binding Effect
63
11.23
Incremental Revolving Credit Commitments
63
11.24
USA PATRIOT Act
64
11.25
No Fiduciary Duty, etc.
64
11.26
EU Bail-In
65
11.27
Amendment and Restatement
65
iv
SCHEDULES
SCHEDULE 1.1
Revolving Credit Commitments
SCHEDULE 6.2(c)
Compliance Certificate
EXHIBITS
EXHIBIT A
Form of Competitive Loan Confirmation
EXHIBIT B
Form of Competitive Loan Offer
EXHIBIT C
Form of Competitive Loan Request
EXHIBIT D
Form of Closing Certificate
EXHIBIT E
Form of Assignment and Assumption
EXHIBIT F
Form of Revolving Credit Loan Promissory Note
EXHIBIT G
Form of Competitive Loan Promissory Note
EXHIBIT H
Form of New Lender Supplement
EXHIBIT I
Form of Incremental Commitment Supplement
EXHIBIT J
Form of U.S. Tax Compliance Certificates
EXHIBIT K
Form of Extension Request
v
AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT, dated as of July 19, 2018,
among INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation
("IBM") and its Subsidiary IBM CREDIT LLC, a Delaware limited liability company
("IBMCLLC")
(each individually a "Borrower" and together the "Borrowers"), 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"), BNP
PARIBAS, CITIBANK, N.A., ROYAL BANK OF CANADA and MIZUHO BANK, LTD. as
syndication agents (in such capacity, the "Syndication Agents") and BARCLAYS
BANK PLC, BANK OF AMERICA, N.A., DEUTSCHE BANK SECURITIES INC., HSBC BANK USA,
NATIONAL ASSOCIATION, SOCIETE GENERALE,
and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as documentation agents (in such capacity, the "Documentation
Agents").
WHEREAS, the Borrowers are party to the Three-Year Credit Agreement, dated as of
July 20, 2017 (as amended, supplemented or otherwise modified from time to time,
the "Existing Credit Agreement") with the several banks and other financial
institutions parties thereto and JPMorgan Chase Bank, N.A., as administrative
agent;
WHEREAS, the Borrowers, the Lenders and the Administrative Agent have, subject
to the terms and conditions set forth herein, agreed to amend and restate the
Existing Credit Agreement as provided in this Agreement;
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities existing under