SUBSIDIARY BORROWING AMOUNT, ON THE
EFFECTIVE DATE OF SUCH REDUCTION, THE AGGREGATE PRINCIPAL AMOUNT OF US$ LOANS
AND LOCAL CURRENCY LOANS (US$ EQUIVALENT) MADE TO SUCH SUBSIDIARY BORROWER SHALL
NOT EXCEED THE MAXIMUM SUBSIDIARY BORROWING AMOUNT AS SO REDUCED AND (II) IN THE
CASE OF ANY TERMINATION OF SUCH DESIGNATION, ON THE EFFECTIVE DATE OF SUCH
TERMINATION, ALL SUBSIDIARY BORROWER OBLIGATIONS IN RESPECT OF SUCH SUBSIDIARY
BORROWER SHALL HAVE BEEN PAID IN FULL OR SHALL HAVE BEEN ASSIGNED TO ANOTHER
SUBSIDIARY BORROWER IN ACCORDANCE WITH THE RELEVANT LOCAL CURRENCY FACILITY TO
WHICH SUCH ASSIGNEE SUBSIDIARY BORROWER IS A PARTY.
IN ADDITION, IF ON ANY DATE
A SUBSIDIARY BORROWER SHALL CEASE TO BE A SUBSIDIARY OR CONTROLLED PERSON, ALL
SUBSIDIARY BORROWER OBLIGATIONS IN RESPECT OF SUCH SUBSIDIARY BORROWER SHALL
AUTOMATICALLY BECOME DUE AND PAYABLE ON SUCH DATE AND NO FURTHER LOANS MAY BE
BORROWED BY SUCH SUBSIDIARY BORROWER HEREUNDER OR UNDER ANY LOCAL CURRENCY
FACILITY.
Each borrowing of a US$ Loan by a Borrower shall constitute a representation and
warranty by such Borrower (and, in the case of a Subsidiary Borrower, IBM) as of
the date of such US$ Loan that the conditions contained in paragraphs (b) and
(c) of this Section 5.2 have been satisfied.
SECTION 6.
AFFIRMATIVE COVENANTS
IBM and each Subsidiary Borrower agrees that, so long as the Commitments remain
in effect, any Loan remains outstanding and unpaid or any other amount is owing
to any Lender or the Administrative Agent hereunder, it shall and (in the case
of IBM) shall cause each of the Significant Subsidiaries to:
43
6.1
Existence; Business and Properties.
(a)
Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as would not cause or result in a
Default or Event of Default under this Agreement.
(B)
DO OR CAUSE TO BE DONE ALL THINGS REASONABLY
NECESSARY TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT THE RIGHTS, LICENSES,
PERMITS, FRANCHISES, AUTHORIZATIONS, PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE
NAMES MATERIAL TO THE CONDUCT OF ITS BUSINESS; EXCEPT IN EACH CASE WHERE THE
FAILURE TO DO SO WOULD NOT RESULT IN A MATERIAL ADVERSE EFFECT; AND AT ALL TIMES
MAINTAIN AND PRESERVE ALL PROPERTY MATERIAL TO THE CONDUCT OF ITS BUSINESS AND
KEEP SUCH PROPERTY IN GOOD REPAIR, WORKING ORDER AND CONDITION AND FROM TIME TO
TIME MAKE, OR CAUSE TO BE MADE, ALL NEEDFUL AND PROPER REPAIRS, RENEWALS,
ADDITIONS, IMPROVEMENTS AND REPLACEMENTS THERETO NECESSARY IN ORDER THAT THE
BUSINESS CARRIED ON IN CONNECTION THEREWITH MAY BE PROPERLY CONDUCTED AT ALL
TIMES; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 6.1(B) SHALL PREVENT IBM,
ANY SUBSIDIARY OR ANY SUBSIDIARY BORROWER FROM (X) DISCONTINUING ANY OF ITS
BUSINESSES NO LONGER DEEMED ADVANTAGEOUS TO IT OR DISCONTINUING THE OPERATION
AND MAINTENANCE OF ANY OF ITS PROPERTIES NO LONGER DEEMED USEFUL IN THE CONDUCT
OF ITS BUSINESS OR (Y) SELLING OR DISPOSING OF ANY ASSETS, SUBSIDIARIES OR
CAPITAL STOCK THEREOF, IN A TRANSACTION NOT PROHIBITED