EXHIBIT 4.14
364-Day
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of November 28, 2001
(this "Amendment and Waiver"), to the Credit Agreement, dated as
of July 2, 2001 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among INGERSOLL-RAND
COMPANY, a New Jersey corporation (the "Borrower"), the several
banks and other financial institutions from time to time parties
to the Credit Agreement (the "Banks"), THE CHASE MANHATTAN BANK,
as administrative agent (in such capacity, the "Administrative
Agent"), CITIBANK N.A. and DEUTSCHE BANC ALEX. BROWN INC., as co-
syndication agents and THE BANK OF NOVA SCOTIA and BANK OF TOKYO
MITSUBISHI TRUST COMPANY, as co-documentation agents.
W I T N E S S E T H:
WHEREAS, the Borrower has requested certain amendments
to, and waivers of, the Credit Agreement;
NOW THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
2. Amendments to Section 1.1 (Definitions). (a) Section 1.1
of the Credit Agreement is hereby amended by adding thereto in
proper alphabetical order the following defined term:
"IR Parent" means Ingersoll-Rand Company Limited,
a Bermuda company.
(b) The definitions of "Consolidated Debt", "Consolidated Net
Worth", "Consolidated Subsidiary", "Debt" and "Material Adverse
Effect" are hereby amended by replacing the references to
"Borrower" therein with "IR Parent".
(c) The definition of "Cross Default" is hereby amended by
(i) inserting immediately after the first appearance of the word
"Borrower" therein the words "or IR Parent" and (ii) by inserting
immediately after the word "Borrower" in each of clauses (i) and
(ii) thereof the words ", IR Parent".
(d) The definition of "Lien" is hereby amended by inserting
immediately after the word "Borrower" therein the words ", IR
Parent".
(e) The definition of "Material Debt" is hereby amended by
(i) inserting immediately after the word "Borrower" in clause (ii)
thereof the words ", IR Parent" and (ii) deleting the word "its"
appearing in clause (ii) thereof and inserting in lieu thereof
the words "their respective".
(f) The definition of "Subsidiary" is hereby amended by
inserting immediately before the period therein "or by IR Parent,
as applicable".
3. Amendment to Section 1.2 (Accounting Terms and
Determinations). Section 1.2 is hereby amended by (i) replacing
both occurrences of the words "the Borrower's" therein with the
words "IR Parent's" and (ii) replacing the first occurrence of
the words "the Borrower" therein with the words "IR Parent".
4. Amendment to Section 1.3 (Types of Borrowings). Section
1.3 is hereby amended by inserting immediately after the word
"Borrower" therein the phrase "or IR Parent".
5. Representations and Covenants. Notwithstanding any
provisions of the Credit Agreement to the contrary, each
covenant, representation and warranty therein made by the
Borrower and/or its Subsidiaries under Sections IV and V is
hereby deemed, from and after the effectiveness hereof, also to
be covenants, representations and warranties made by IR Parent
and its Subsidiaries to the same extent as if each such reference
to the Borrower and/or its Subsidiaries were also references to
IR Parent and/or its Subsidiaries, and such amendments to the
Credit Agreement shall be deemed to be made, including, as
appropriate, to defined terms used in such provisions, as are
necessary to effectuate the foregoing, provided that (i) the
reference to the Borrower's incorporation in New Jersey shall,
as so deemed to apply to IR Parent, be a reference in respect of
IR Parent to the laws of Bermuda, (ii) the references in Section
4.4(a) and (b) to previously delivered financial statements of
the Borrower shall not be so deemed also to refer to IR Parent,
(iii) Section 4.5 (Litigation) shall be deemed not to refer to
the Borrower, but only to IR Parent, (iv) Section 4.6 (Compliance
with ERISA) shall not be deemed also to apply to IR Parent, (v)
Section 4.7 (Environmental Matters) shall be deemed not to refer
to the Borrower, but only to IR Parent, so that the
representations and warranties made therein with respect to
environmental matters shall be made by IR Parent and not the
Borrower, (vi) the first sentence of Section 4.8 (Taxes) shall
not be deemed also to apply to IR Parent, and the reference in
the second sentence thereof to U.S. tax returns shall, as so
deemed to apply to IR Parent, be a reference in respect of IR
Parent to Bermuda tax returns, (vii) Section 5.1(a), (b), (c),
(e) and (f) shall be deemed not to refer to the Borrower, but
only to IR Parent, so that the financial statements, the related
compliance certificate, the reports, proxy statements and
Securities and Exchange Commission filings referred to therein
shall be required in respect of IR Parent and not the Borrower,
(viii) Section 5.1(g) shall not be deemed also to apply to IR
Parent and (ix) Section 5.2(a) shall be deemed not to refer to
the Borrower, but only to IR Parent, so that covenant made
therein with respect to the maintenance of property shall be made
by IR Parent and not the Borrower.
6. Amendments to Section 2 (The Credits). (a) Section
2 is hereby amended to make certain references therein to "the
Borrower" references to each of the Borrower and/or IR Parent as
follows: (i) in Section 2.1, by inserting immediately after both
occurrences of the word "Borrower" therein the phrase "or IR
Parent"; (ii) in Section 2.2, by inserting immediately after the
word "Borrower" therein the phrase "or IR Parent, as applicable";
(iii) in Section 2.3, by replacing each reference therein to "the
Borrower" with a reference to "the Borrower or IR Parent", except
that in subsection 2.3(f)(iv) the words "the Borrower may not"
are hereby replaced with the words "neither the Borrower nor IR
Parent may"; (iv) in Section 2.4(a), by inserting immediately
after the word "Borrower" therein the phrase "or IR Parent, as
the case may be"; (v) in Section 2.4(b), (x) by inserting
immediately after the word "Borrower" in the second sentence
therein and as such word first appears in the third sentence
therein the phrase "or IR Parent, as the case may be" and (y) by
inserting immediately after the word "Borrower" as such word
appears for the second time in the third sentence therein the
phrase "or IR Parent"; (vi) in Section 2.4(c), (x) by inserting
immediately after the word "Borrower" in the first sentence
therein the phrase "or IR Parent, as the case may be" and (y) by
inserting immediately after both occurrences of the word
"Borrower" in the second sentence therein the phrase "or IR
Parent"; (vii) in Section 2.5(a), by inserting immediately after
the word "Borrower" therein the phrase "or IR Parent"; (viii) in
Section 2.5(b), (x) by inserting immediately after the word
"Borrower" in clause (ii) thereof the phrase "and IR Parent" and
(y) by inserting immediately after the word "Borrower" in clause
(iii) thereof the phrase "or IR Parent"; (ix) in Section 2.5(c),
(x) by inserting immediately after the first occurrence of the
word "Borrower" therein the phrase "and IR Parent" and (y) by
inserting immediately after the second and third occurrences of
the word "Borrower" therein the phrase "or IR Parent"; (x) in
Section 2.5(d), (x) by inserting immediately after the first
occurrence of the word "Borrower" therein the phrase "and IR
Parent" and deleting the word "agrees" therein and inserting in
lieu thereof the word "agree" and (y) by inserting immediately
after the second occurrence of the word "Borrower" therein the
phrase "or IR Parent, as the case may be,"; (xi) in Section
2.10(b) by inserting immediately after the word "Borrower"
therein the phrase "and IR Parent"; (xii) in Section 2.11(a), by
inserting immediately after the word "Borrower" therein the
phrase "or IR Parent"; (xiii) in Section 2.11(b), by inserting
immediately after the word "Borrower" therein the phrase "and IR
Parent"; (xiv) in Section 2.11(c), by inserting immediately after
the word "Borrower" therein the phrase "or IR Parent, as the case
may be"; (xv) in Section 2.12(a), by inserting immediately after
each of the first and second occurrences of the word "Borrower"
therein the phrase "and IR Parent, as applicable,"; (xvi) in
Section 2.12(b), by inserting immediately after each of the four
occurrences of the word "Borrower" therein the phrase "or IR
Parent"; and (xvii) in Section 2.13, by inserting immediately
after each of the five occurrences of the word "Borrower" therein
the phrase "or IR Parent".
(b) Section 2.15 of the Credit Agreement is hereby
amended by inserting after each of the phrases "entitled to receive
payments under this Agreement and the Notes" therein the phrase "from
the Borrower or IR Parent".
(c) In addition, Section 2 of the Credit Agreement is hereby
amended by adding the following Section 2.17 (IR Parent Costs) at
the end thereof:
SECTION 2.17 IR Parent Costs. (a) If the cost to
any Bank of making or maintaining any Loan to IR
Parent is increased, or the amount of any sum
received or receivable by any Bank (or its
Applicable Lending Office) is reduced, by an
amount deemed by such Bank to be material, by
reason of the fact that IR Parent is organized
under the laws of, or principally conducts its
business in, a jurisdiction or jurisdictions
outside the United States of America, the Borrower
and IR Parent shall indemnify such Bank for such
increased cost or reduction within 15 days after
demand by such Bank (with a copy to the
Administrative Agent). A certificate of such Bank
claiming compensation under this subsection (a)
and setting forth the additional amount or amounts
to be paid to it hereunder, together with
calculations in reasonable detail supporting such
amounts, shall be conclusive in the absence of
clearly demonstrable error. No such compensation
may be claimed (x) in respect of any Committed
Loan for any period prior to the date 90 days
before the date of notice by such Bank to the
Borrower of its intention to make claims therefore
or (y) to the extent such Bank was aware of such
cost or reduction at the time the related Loan was
made.
(b) Each Bank will promptly notify the
Borrower and the Administrative Agent of any event
of which it has knowledge that will entitle such
Bank to additional interest or payments pursuant
to the foregoing subsection (a) and will designate
a different Applicable Lending Office, if, in the
judgment of such Bank, such designation will avoid
the need for, or reduce the amount of, such
compensation and will not be otherwise
disadvantageous to such Bank.
7. Amendments to Section 6.1 (Events of Default). (a)
Section 6.1 is hereby amended to make certain references therein to
"the Borrower" references to each of the Borrower and IR Parent, or
to IR Parent only, as follows: (i) in Section 6.1(a), by inserting
immediately after the word "Borrower" therein the phrase "or IR
Parent"; (ii) in Section 6.1(b), by inserting immediately after
the word "Borrower" therein the phrase "or IR Parent"; (iii) in
Section 6.1(c), by inserting immediately after both occurrences
of the word "Borrower" therein the phrase "or IR Parent"; (iv) in
Section 6.1(d), by inserting immediately after the word
"Borrower" therein the phrase "or IR Parent"; (v) in Section
6.1(f), by inserting immediately after the word "Borrower"
therein the words ", IR Parent"; (vi) in Section 6.1(g), by
inserting immediately after both occurrences of the word
"Borrower" therein the words ", IR Parent"; (vii) in Section
6.1(i), by inserting immediately after the word "Borrower"
therein the words ", IR Parent"; (viii) in Section 6.1(j), by
inserting in lieu of each occurrence of the word "Borrower"
therein, the words "IR Parent"; (ix) in clause (ii) of Section
6.1, by inserting immediately after the second occurrence of the
word "Borrower" therein the phrase "and IR Parent"; and (x) in
the final proviso of Section 6.1, by (x) inserting immediately
after the first and second occurrences of the word "Borrower"
therein the phrase "or IR Parent" and (y) inserting immediately
after the third occurrence of the word "Borrower" therein the
phrase "and IR Parent".
(b) In addition, Section 6.1 of the Credit Agreement is hereby
amended by inserting immediately after subsection (j) thereof the
following subsection (k):
(k) the guarantee of the Borrower, made in
Section 9.16(a) hereof, shall cease to be
effective or the Borrower shall contest the
validity of such guarantee in court; or the
guarantee of IR Parent made in Section 9.16(b)
hereof shall cease to be effective or IR Parent
shall contest the validity of such guarantee in
court;
8. Amendments to Section 3.2 (Borrowings). Section 3.2 of
the Credit Agreement is hereby amended by inserting in the final
sentence thereof after both occurrences of the word "Borrower"
therein the words "and IR Parent".
9. Amendments to Section 8 (Change in Circumstances).
(a) Section 8.2 of the Credit Agreement is hereby amended by
inserting in the third sentence thereof after the word "Borrower"
therein the words "or IR Parent, as the case may be,".
(b) Section 8.3(a) of the Credit Agreement is hereby amended
by inserting in the second to last sentence thereof after the word
"Borrower" therein the words "or IR Parent, as the case may be,".
(c) Section 8.3(b) of the Credit Agreement is hereby amended
by (i) inserting immediately after the first occurrence of the word
"Borrower" therein the phrase "or IR Parent, as the case may be"
and (ii) inserting immediately after the second and third
occurrences of the word "Borrower" therein the phrase "or IR
Parent".
10. Amendments to Section 9 (Miscellaneous). (a) Section 9.5
of the Credit Agreement is hereby amended by inserting at the end
thereof the following sentence:
For the purposes of this Section, any Loans
assigned to the Borrower pursuant to Section 9.16
shall not be considered outstanding.
(b) Section 9.8 of the Credit Agreement is hereby amended by
(i) in the second sentence thereof, (x) inserting after the word
"Borrower" therein the words "and IR Parent" and (y) deleting the
word "submits" therein and inserting in lieu thereof the word
"submit" and (ii) in the third sentence thereof, (x) inserting
after the word "Borrower" therein the words "and IR Parent" and
(y) deleting the word "waives" therein and inserting in lieu
thereof the word "waive".
(c) In addition, Section 9 of the Credit Agreement is hereby
amended by adding the following Section 9.16 (Guarantee
Agreement) at the end thereof:
SECTION 9.16 Guarantee Agreement. (a) Guarantee
of the Borrower. In order to induce the Banks to
extend credit to IR Parent hereunder, the Borrower
hereby irrevocably and unconditionally guarantees,
as a primary obligor and not merely as a surety,
the Obligations of IR Parent. The Borrower
further agrees that the due and punctual payment
of the Obligations of IR Parent may be extended or
renewed, in whole or in part, without notice to or
further assent from it, and that it will remain
bound upon its guarantee hereunder notwithstanding
any such extension or renewal of any Obligation.
The Borrower waives presentment to, demand of
payment from and protest to IR Parent of any of
the Obligations, and also waives notice of
acceptance of its obligations and notice of
protest for nonpayment. The obligations of the
Borrower hereunder shall not be affected by (a)
the failure of any lender to assert any claim or
demand or to enforce any right or remedy against
IR Parent under the provisions of this Agreement
and any other Loan Document or otherwise; (b) any
extension or renewal of any of the Obligations;
(c) any rescission, waiver, amendment or
modification of, or release from, any of the terms
or provisions of this Agreement or any other Loan
Document or agreement; (d) the failure or delay of
any Bank to exercise any right or remedy against
any other guarantor of the Obligations; (e) the
failure of any Bank to assert any claim or demand
or to enforce any remedy under any Loan Document
or any other agreement or instrument; (f) any
default, failure or delay, willful or otherwise,
in the performance of the Obligations; or (g) any
other act, omission or delay to do any other act
which may or might otherwise operate as a
discharge of the Borrower as a matter of law or
equity or which would impair or eliminate any
right of the Borrower to subrogation.
The Borrower further agrees that its
guarantee hereunder constitutes a promise of
payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual
or collection of any of the Obligations or
operated as a discharge thereof) and not merely of
collection, and waives any right to require that
any resort be had by any Bank to any balance of
any deposit account or credit on the books of any
Bank in favor of the Borrower, IR Parent or any
Subsidiary or any other Person.
The obligations of the Borrower hereunder
shall not be subject to any reduction, limitation,
impairment or termination for any reason, and
shall not be subject to any defense or set-off,
counterclaim, recoupment or termination
whatsoever, by reason of the invalidity,
illegality or unenforceability of the Obligations,
any impossibility in the performance of the
Obligations or otherwise.
The Borrower further agrees that its
obligations hereunder shall continue to be
effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any
Obligation is rescinded or must otherwise be
restored by any Bank upon the bankruptcy or
reorganization of the Borrower or IR Parent or
otherwise.
In furtherance of the foregoing and not in
limitation of any other right which any Bank may
have at law or in equity against the Borrower by
virtue hereof, upon the failure of IR Parent to
pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, the
Borrower hereby promises to and will, upon receipt
of written demand by the Administrative Agent,
forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Banks
in cash an amount equal the unpaid principal
amount of such Obligation. The Borrower further
agrees that if payment in respect of any
Obligation shall be due in currency other than
Dollars and/or at a place of payment other than
New York and if, by reason of any legal
prohibition, disruption of currency or foreign
exchange markets, war or civil disturbance or
other event, payment of such Obligation in such
currency or at such place of payment shall be
impossible or, in the reasonable judgment of any
Bank, not consistent with the protection of its
rights, then, at the election of such Bank and in
reasonable consultation with the Borrower, the
Borrower shall make payments of such Obligation in
Dollars (based upon the applicable Exchange Rate
in effect on the date of payment) and/or in New
York, and shall indemnify such Bank against any
losses or expenses (including losses or expenses
resulting from fluctuations in exchange rates)
that it shall sustain as a result of such
alternative payment.
Upon payment in full by the Borrower of any
Obligation of IR Parent, each Bank shall, in a
reasonable manner, assign to the Borrower the
amount of such Obligation owed to such Bank and so
paid, such assignment to be pro tanto to the
extent to which the Obligation in question was
discharged by the Borrower, or make such
disposition thereof as the Borrower shall direct
(all without recourse to any Bank and without any
representation or warranty by any Bank). Upon
payment by the Borrower of any sums as provided
above, all rights of the Borrower against IR
Parent arising as a result thereof by way of right
of subrogation, through the assignment described
herein or otherwise shall in all respects be
subordinated and junior in right of payment to the
prior indefeasible payment in full of all the
Obligations owed by IR Parent to the Bank (it
being understood that, after the discharge of all
the Obligations due and payable from IR Parent,
such rights may be exercised by the Borrower
notwithstanding that IR Parent may remain
contingently liable for indemnity or other
Obligations).
(b) Guarantee of IR Parent. In order to
induce the Banks to extend credit to the Borrower
hereunder, IR Parent hereby irrevocably and
unconditionally guarantees, as a primary obligor
and not merely as a surety, the Obligations of the
Borrower. IR Parent further agrees that the due
and punctual payment of the Obligations of the
Borrower may be extended or renewed, in whole or
in part, without notice to or further assent from
it, and that it will remain bound upon its
guarantee hereunder notwithstanding any such
extension or renewal of any Obligation.
IR Parent waives presentment to, demand of
payment from and protest to the Borrower of any of
the Obligations, and also waives notice of
acceptance of its obligations and notice of
protest for nonpayment. The obligations of IR
Parent hereunder shall not be affected by (a) the
failure of any lender to assert any claim or
demand or to enforce any right or remedy against
the Borrower under the provisions of this
Agreement, any other Loan Document or otherwise;
(b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment
or modification of, or release from, any of the
terms or provisions of this Agreement or any other
Loan Document or agreement; (d) the failure or
delay of any Bank to exercise any right or remedy
against any other guarantor of the Obligations;
(e) the failure of any Bank to assert any claim or
demand or to enforce any remedy under any Loan
Document or any other agreement or instrument; (f)
any default, failure or delay, willful or
otherwise, in the performance of the Obligations;
or (g) any other act, omission or delay to do any
other act which may or might otherwise operate as
a discharge of IR Parent as a matter of law or
equity or which would impair or eliminate any
right of IR Parent to subrogation.
IR Parent further agrees that its guarantee
hereunder constitutes a promise of payment when
due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or
collection of any of the Obligations or operated
as a discharge thereof) and not merely of
collection, and waives any right to require that
any resort be had by any Bank to any balance of
any deposit account or credit on the books of any
Bank in favor of the Borrower or any Subsidiary or
any other Person.
The obligations of IR Parent hereunder shall
not be subject to any reduction, limitation,
impairment or termination for any reason, and
shall not be subject to any defense or set-off,
counterclaim, recoupment or termination
whatsoever, by reason of the invalidity,
illegality or unenforceability of the Obligations,
any impossibility in the performance of the
Obligations or otherwise.
IR Parent further agrees that its obligations
hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any
Bank upon the bankruptcy or reorganization of the
IR Parent or Borrower or otherwise.
In furtherance of the foregoing and not in
limitation of any other right which any Bank may
have at law or in equity against IR Parent by
virtue hereof, upon the failure of the Borrower to
pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, IR Parent
hereby promises to and will, upon receipt of
written demand by the Administrative Agent,
forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Banks
in cash an amount equal the unpaid principal
amount of such Obligation. IR Parent further
agrees that if payment in respect of any
Obligation shall be due in currency other than
Dollars and/or at a place of payment other than
New York and if, by reason of any legal
prohibition, disruption of currency or foreign
exchange markets, war or civil disturbance or
other event, payment of such Obligation in such
currency or at such place of payment shall be
impossible or, in the reasonable judgment of any
Bank, not consistent with the protection of its
rights, then, at the election of such Bank and in
reasonable consultation with IR Parent, IR Parent
shall make payments of such Obligation in Dollars
(based upon the applicable Exchange Rate in effect
on the date of payment) and/or in New York, and
shall indemnify such Bank against any losses or
expenses (including losses or expenses resulting
from fluctuations in exchange rates) that it shall
sustain as a result of such alternative payment.
Upon payment in full by IR Parent of any
Obligation of the Borrower, each Bank shall, in a
reasonable manner, assign to IR Parent the amount
of such Obligation owed to such Bank and so paid,
such assignment to be pro tanto to the extent to
which the Obligation in question was discharged by
IR Parent, or make such disposition thereof as IR
Parent shall direct (all without recourse to any
Bank and without any representation or warranty by
any Bank). Upon payment by IR Parent of any sums
as provided above, all rights of IR Parent against
the Borrower arising as a result thereof by way of
right of subrogation, through the assignment
described herein or otherwise shall in all
respects be subordinated and junior in right of
payment to the prior indefeasible payment in full
of all the Obligations owed by the Borrower to the
Bank (it being understood that, after the
discharge of all the Obligations due and payable
from the Borrower, such rights may be exercised by
IR Parent notwithstanding that the Borrower may
remain contingently liable for indemnity or other
Obligations).
11. Waiver. The Required Banks hereby waive any Default or
Event of Default under the Credit Agreement, including of Section
5.7 (Consolidations, Mergers, Sales of Assets) or Section 6.1(j)
(Change of Control) to the extent that it would otherwise
directly result from the implementation of the corporate
reorganization as and to the extent described in the Agreement
and Plan of Merger, among Ingersoll-Rand Company, Ingersoll-Rand
Company Limited and IR Merger Corporation, as attached to the
proxy statement dated October 31, 2001 (the "Merger Agreement")
and related information filed with the SEC and provided to the
Banks in respect thereof, in each case prior to the date hereof.
12. Effectiveness. This Amendment and Waiver shall become
effective as of the date hereof when (a) the Administrative Agent
shall have received (i) counterparts hereof duly executed by the
Borrower, IR Parent, the Administrative Agent and the Required
Banks, (ii) legal opinions of counsel for the Borrower and for IR
Parent in form reasonably satisfactory to the Administrative
Agent, (iii) all documents the Administrative Agent may
reasonably request relating to the existence of the IR Parent,
the corporate authority for and the validity of this Amendment
and Waiver and the Credit Agreement, and any other matters
relevant hereto, all in form and substance reasonably
satisfactory to the Administrative Agent and (iv) evidence in
form and substance reasonably satisfactory to the Administrative
Agent that IR Parent has appointed an agent for service of
process in New York City and (b) the certificate of merger
referred to in the Merger Agreement and filed with the Treasurer
of State of New Jersey shall have become effective.
13. Representations and Warranties. The Borrower and IR
Parent hereby represent and warrant on the date hereof that, after
giving effect to this Amendment and Waiver, (a) no Default or
Event of Default has occurred and is continuing and (b) each of
the representations and warranties of the Borrower and IR Parent
in or pursuant to the Loan Documents is true and correct in all
material respects, as if made on and as of the date hereof.
14. Continuing Effect of Credit Agreement. This
Amendment and Waiver shall not be construed as a waiver of or consent
to any further or future action on the part of the Borrower or IR
Parent that would require a waiver or consent by the Administrative
Agent and/or the Banks. Except as expressly amended or waived
hereby, the Credit Agreement shall continue to be and shall
remain in full force and effect in accordance with its terms.
15. Counterparts. This Amendment and Waiver may be executed
by one or more of the parties hereto on any number of separate
counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of
an executed signature page of this Amendment and Waiver by
facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
16. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
17. Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation
and execution of this Amendment and Waiver, including, without
limitation, the fees and disbursements of counsel to the
Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed and delivered by their duly
authorized officers as of the date first written above.
INGERSOLL-RAND COMPANY
By: /S/_________________________
Name:
Title:
INGERSOLL-RAND COMPANY LIMITED
By: /S/___________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By: /S/___________________________
Name:
Title:
CITIBANK, N.A., as Co-Syndication
Agent and as a Bank
By: /S/___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as Co-
Documentation Agent and as a Bank
By: /S/___________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Co-Documentation Agent
and as a Bank
By: /S/___________________________
Name:
Title:
DEUTSCHE BANC ALEX. BROWN INC.,
as Co-Syndication Agent
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
FLEET NATIONAL BANK
By: /S/___________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: /S/___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
WACHOVIA BANK, N.A.
By: /S/___________________________
Name:
Title:
BARCLAYS BANK, PLC
By: /S/___________________________
Name:
Title:
HSBC BANK USA
By: /S/___________________________
Name:
Title:
BNP PARIBAS
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
ING (U.S.) CAPITAL LLC
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
WELLS FARGO BANK, N.A.
By: /S/___________________________
Name:
Title:
MELLON BANK, N.A.
By: /S/___________________________
Name:
Title:
THE BANK OF NEW YORK
By: /S/___________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
STANDARD CHARTERED BANK
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
INTESABCI-NEW YORK BRANCH
By: /S/___________________________
Name:
Title:
NORDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /S/___________________________
Name:
Title:
By: /S/___________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By: /S/___________________________
Name:
Title:
THE FUJI BANK, LIMITED
By: /S/___________________________
Name:
Title:
BANK OF IRELAND INTERNATIONAL
FINANCE LTD
By: /S/___________________________
Name:
Title: