EX-4 5 exh4-12.txt AMENDMENT AND WAIVER- 5-YEAR EXHIBIT 4.12 5-Year 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 definition of "Borrowing Subsidiary" is hereby amended by deleting such definition in its entirety and inserting in lieu thereof, in proper alphabetical order, the following: "Additional Borrower" means, at any time, IR Parent and each of the Subsidiaries which has been designated as an Additional Borrower by the Borrower pursuant to Section 2.16, other than any such Subsidiary which has ceased to be an Additional Borrower as provided in Section 2.16, and which may borrow Committed Loans as described in Section 2.1. (c) 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". (d) 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". (e) The definition of "Lien" is hereby amended by inserting immediately after the word "Borrower" therein the words ", IR Parent". (f) 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". (g) 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. Borrowing Subsidiary/Additional Borrower. As used throughout the Credit Agreement, the term "Borrowing Subsidiary" is hereby replaced with the term "Additional Borrower". 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. Amendment to Section 2.3 (Money Market Borrowings). Section 2.3 of the Credit Agreement is hereby amended to make each reference therein to "the Borrower" 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". 7. Amendment to Section 2.15 (Withholding Tax Exemption). 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, IR Parent or any other entity that is an Additional Borrower at the time of such delivery". 8. Amendment to Section 2.16 (Borrowing Subsidiaries). Section 2.16 of the Credit Agreement is hereby amended by deleting said Section 2.16 in its entirety and inserting in lieu thereof the following: Additional Borrowers. (a) The Borrower hereby designates IR Parent as an Additional Borrower, effective as of the date of the First Amendment hereto. (b) On or after the Effective Date, the Borrower may designate any wholly owned Subsidiary of IR Parent or any wholly owned Subsidiary of the Borrower as an Additional Borrower by delivery to the Administrative Agent of (i) an Additional Borrower Agreement executed by such Subsidiary, IR Parent, and the Borrower, substantially in the form of Exhibit G hereto and (ii) a favorable written opinion (addressed to the Administrative Agent and the Banks) of counsel of such Subsidiary or Subsidiaries (which opinion shall be reasonably satisfactory to the Administrative Agent). Upon delivery of the above-mentioned documents, such Subsidiary shall for all purposes of this Agreement be an Additional Borrower and a party to this Agreement. Promptly following receipt of any Additional Borrower Agreement, the Administrative Agent shall send a copy thereof to each Bank. 9. 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(b), by inserting immediately after the word "Borrower" therein the phrase "or IR Parent"; (ii) in Section 6.1(f), by inserting immediately after the word "Borrower" therein the words ", IR Parent"; (iii) in Section 6.1(g), by inserting immediately after both occurrences of the word "Borrower" therein the words ", IR Parent"; (iv) in Section 6.1(i), by inserting immediately after the word "Borrower" therein the words ", IR Parent"; and (v) in Section 6.1(j), by inserting in lieu of each occurrence of the word "Borrower" therein, the words "IR Parent". (b) In addition, Section 6.1(k) of the Credit Agreement is hereby amended by inserting immediately after the semicolon therein the following: or the guarantee of IR Parent made in Section 9.16 hereof shall cease to be effective or IR Parent shall contest the validity of such guarantee in court; 10. Amendment to Section 9.16 (Guarantee Agreement). Section 9.16 of the Credit Agreement is hereby amended to add, in addition to and in the same form as the existing guarantee by the Borrower, a guarantee by IR Parent of the obligations of the Borrower and each Additional Borrower, as follows: (i) immediately after the title of such section, inserting "(a)" and (ii) after the final period therein inserting the following: (b) 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 and each Additional Borrower. IR Parent further agrees that the due and punctual payment of the Obligations of the Borrower or any Additional 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 or any Additional 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 or any Additional Borrower under the provisions of this Agreement, any Additional Borrower 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, any Additional Borrower or other 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 Borrower or any Additional 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 or any Additional 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 or any Additional 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 or any Additional 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 or any Additional Borrower to the Bank (it being understood that, after the discharge of all the Obligations due and payable from the Borrower and the Additional Borrowers, 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. Amendment to Exhibit G. Exhibit G to the Credit Agreement is hereby amended by deleting said exhibit in its entirety and inserting in lieu thereof Exhibit G hereto. 13. 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 and (ii) legal opinions of counsel for the Borrower and for IR Parent in form reasonably satisfactory to the Administrative Agent 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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: EXHIBIT G ADDITIONAL BORROWER AGREEMENT AGREEMENT dated as of _____, 20 , made by [ADDITIONAL BORROWER(S)] (the "New Additional Borrower"), INGERSOLL-RAND COMPANY (the "Borrower") in favor of THE CHASE MANHATTAN BANK, as Administrative Agent for the Banks from time to time parties to the Credit Agreement referred to below. W I T N E S S E T H WHEREAS, this Additional Borrower Agreement (the "Agreement") relates to the $1,250,000,000 5-Year Credit Agreement dated as of July 2, 2001 among the Borrower, the Banks, and the Agents (the "Credit Agreement"); and WHEREAS, the Borrower and the New Additional Borrower desire that the New Additional Borrower become an Additional Borrower under the Credit Agreement; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, the parties hereto agree as follows: SECTION 1. Definitions. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement. SECTION 2. New Additional Borrower. Upon the effectiveness of this Agreement and the satisfaction of the requirements of the Credit Agreement, the New Additional Borrower, as provided in Section 2.16 of the Credit Agreement, hereby becomes party to the Credit Agreement as an Additional Borrower. SECTION 4. Agreements. (a) The Borrower hereby agrees that the guarantee of the Borrower contained in the Credit Agreement shall apply to the Obligations of the New Additional Borrower. (b) IR Parent hereby agrees that the guarantee of IR Parent contained in the Credit Agreement shall apply to the Obligations of the New Additional Borrower. (c) The New Additional Borrower hereby agrees to be bound by all provisions of the Credit Agreement. SECTION 5. Representations and Warranties. The Borrower represents that the New Additional Borrower is organized under the laws of [ ], and that the representations and warranties of the Borrower in the Credit Agreement are true and correct in all material respects on and as of the date hereof after giving effect to this agreement (it being understood that the representations and warranties in Sections 4.4 [Financial Information; No Material Adverse Change] and 4.5 [Litigation ] shall be deemed for purposes of this agreement to refer to the financial statements most recently delivered under Section 5.1(a) or (b) [Information] and to the date thereof at all times after the first such delivery thereunder rather than to the dates and financial statements specified in Section s 4.4 and 4.5). SECTION 6. Effectiveness. This Agreement shall become effective as of the date when the Administrative Agent shall have received: (a) Counterparts hereof duly executed by the Borrower, IR Parent, the New Additional Borrower and the Administrative Agent; (b) All documents the Administrative Agent may reasonably request relating to the existence of the New Additional Borrower, the corporate authority for and the validity of this Agreement and the Credit Agreement, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent; (c) A favorable written opinion of counsel for the New Additional Borrower, addressed to the Administrative Agent and the Banks, in form and substance reasonably satisfactory to the Administrative Agent; and (d) If the New Additional Borrower is organized under a jurisdiction other than the United States of America, evidence in form and substance reasonably satisfactory to the Administrative Agent that the New Additional Borrower has appointed an agent for service of process in New York City. SECTION 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. SECTION 8. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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: [NEW ADDITIONAL BORROWER] By:/S/____________________________ Name: Title: THE CHASE MANHATTAN BANK, as Administrative Agent By:/S/____________________________ Name: Title: