ISSUING AND PAYING AGENCY AGREEMENT
[FOREIGN ISSUER WITH GUARANTY]
This
Agreement, dated as of May 22, 2008, is by and among
Ingersoll-Rand Global Holding Company Limited (the
“Issuer” ),
Ingersoll-Rand Company Limited (the
“Guarantor” )
and JPMorgan Chase Bank, National Association (
“JPMorgan” ).
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1.
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APPOINTMENT AND ACCEPTANCE
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The
Issuer and the Guarantor hereby request that JPMorgan act as
the Issuer’s issuing and paying agent in connection with
the issuance and payment of certain short-term promissory
notes of the Issuer (the
“Notes” ),
as further described herein, and JPMorgan agrees to act as such
agent upon the terms and conditions contained in this
Agreement.
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2.
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COMMERCIAL PAPER PROGRAMS
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The
Issuer may establish one or more commercial paper programs
under this Agreement by delivering to JPMorgan a completed
program schedule (the
“Program Schedule” )
with respect to
each such
program. JPMorgan has given the Issuer a copy of the current form
of Program Schedule, and the Issuer shall complete and return its
first Program Schedule to JPMorgan prior to or simultaneously with
the execution of this Agreement. In the event that any of the
information provided in, or attached to, a Program Schedule shall
change, the Issuer shall promptly inform JPMorgan of such change in
writing.
All
Notes issued by the Issuer under this Agreement shall be
short-term promissory notes, guaranteed by the Guarantor,
exempt from the registration requirements of the Securities
Act of 1933, as amended, and from applicable state securities
laws. The Notes may be placed by dealers (the
“Dealers” )
pursuant to Section 4 hereof. Notes shall be issued in either
certificated or book-entry form.
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4.
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AUTHORIZED REPRESENTATIVES
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The
Issuer shall deliver to JPMorgan a certified copy of duly
adopted corporate resolutions from its Board of Directors (or
other governing body) authorizing the issuance of Notes under
each program established pursuant to this Agreement and a
certificate of incumbency, with specimen signatures attached,
of those officers, employees and agents of the Issuer
authorized to take certain actions with respect to the Notes
as provided in this Agreement. The Guarantor shall deliver to
JPMorgan a certified copy of duly adopted corporate
resolutions from its Board of Directors (or other governing
body) authorizing its guaranty of the Notes and a certificate
of incumbency, with specimen signatures attached, of those
officers, employees and agents of the Guarantor authorized to
execute this Agreement and take certain actions with respect
to the Notes as provided in this Agreement. Each person named
on any certificate of incumbency of the Issuer or the
Guarantor is hereinafter referred to as an
“Authorized Representative”
. Until JPMorgan receives any subsequent incumbency certificates,
JPMorgan shall be entitled to rely on the last incumbency
certificate delivered to it by the Issuer or the Guarantor for the
purpose of determining such party’s Authorized
Representatives. The Issuer and Guarantor represent and warrant
that each of its Authorized Representatives may appoint other
officers, employees and agents (the
“Delegates” ),
including without limitation any Dealers, to issue instructions to
JPMorgan under this Agreement, and take other actions on its behalf
hereunder, provided that notice of the appointment of each Delegate
is delivered to JPMorgan in writing. Each such appointment shall
remain in effect unless and until revoked by the Issuer or the
Guarantor in a written notice to JPMorgan.
If
and when the Issuer intends to issue certificated notes
(
“Certificated Notes” ),
the Issuer and JPMorgan shall agree upon the form of such Notes.
Thereafter, the Issuer shall from time to time deliver to JPMorgan
adequate supplies of Certificated Notes which will be in bearer
form, serially numbered, and shall be executed by the manual or
facsimile signature of an Authorized Representative of each of the
Issuer and the Guarantor. JPMorgan will acknowledge receipt of any
supply of Certificated Notes received from the Issuer, noting any
exceptions to the shipping manifest or transmittal letter (if any),
and will hold the Certificated Notes in safekeeping for the Issuer
in accordance with JPMorgan’s customary practices. JPMorgan
shall not have any liability to the Issuer or the Guarantor to
determine by whom or by what means a facsimile signature may have
been affixed on Certificated Notes, or to determine whether any
facsimile or manual signature is genuine, if such facsimile or
manual signature resembles the specimen signature attached to the
Issuer’s certificate of incumbency with respect to such
Authorized Representative. Any Certificated Note bearing the manual
or facsimile signature of a person who is an Authorized
Representative on the date such signature was affixed shall bind
the Issuer and the Guarantor after completion thereof by JPMorgan,
notwithstanding that such person shall have ceased to hold his or
her office on the date such Note is countersigned or delivered by
JPMorgan.
The
Issuer’s Book-entry notes (
“Book-Entry Notes” )
shall not be issued in physical form, but their aggregate face
amount shall be represented by a master note (the
“Master Note” )
in the form of Exhibit A executed by the Issuer and the Guarantor
pursuant to the book-entry commercial paper program of The
Depository Trust Company (
“DTC” ).
JPMorgan shall maintain the Master Note in safekeeping, in
accordance with its customary practices, on behalf of Cede &
Co., the registered owner thereof and nominee of DTC. As long as
Cede & Co. is the registered owner of the Master Note, the
beneficial ownership interest therein shall be shown on, and the
transfer of ownership thereof shall be effected through, entries on
the books maintained by DTC and the books of its direct and
indirect participants. The Master Note and the Book-entry Notes
shall be subject to DTC’s rules and procedures, as amended
from time to time. JPMorgan shall not be liable or responsible for
sending transaction statements of any kind to DTC’s
participants or the beneficial owners of the Book-entry Notes, or
for maintaining, supervising or reviewing the records of DTC or its
participants with respect to such Notes. In connection with
DTC’s program, the Issuer and Guarantor understand that as
one of the conditions of their participation therein, it shall be
necessary for the Issuer, the Guarantor and JPMorgan to enter into
a Letter of Representations, in the form of Exhibit B hereto, and
for DTC to receive and accept such Letter of Representation. In
accordance with DTC’s program, JPMorgan shall obtain from the
CUSIP Service Bureau a written list of CUSIP numbers for
Issuer’s Book-entry Notes, and JPMorgan shall deliver such
list to DTC. The CUSIP Service Bureau shall bill the Issuer
directly for the fee or fees payable for the list of CUSIP numbers
for the Issuer’s Book-entry Notes.
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7.
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ISSUANCE INSTRUCTIONS TO JPMORGAN; PURCHASE
PAYMENTS
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The
Issuer and the Guarantor understand that all instructions
under this Agreement are to be directed to JPMorgan’s
Commercial Paper Operations Department. JPMorgan shall provide
the Issuer, the Guarantor, or, if applicable, the
Issuer’s Dealers, with access to JPMorgan’s Money
Market Issuance System or other electronic means
(collectively, the
“System” )
in order that JPMorgan may receive electronic instructions for the
issuance of Notes. Electronic instructions must be transmitted in
accordance with the procedures furnished by JPMorgan to the
Guarantor, the Issuer or its Dealers in connection with the System.
In the event that the System is inoperable at any time, an
Authorized Representative or a Delegate may deliver written,
telephone or facsimile instructions to JPMorgan, which instructions
shall be verified in accordance with any security procedures agreed
upon by the parties. JPMorgan shall incur no liability to the
Issuer or the Guarantor in acting upon instructions believed by
JPMorgan in good faith to have been given by an Authorized
Representative or a Delegate. In the event that a discrepancy
exists between a telephonic instruction and a written confirmation,
the telephonic instruction will be deemed the controlling and
proper instruction. JPMorgan may electronically record any
conversations made pursuant to this Agreement, and the Issuer and
the Guarantor hereby consent to such recordings. All issuance
instructions regarding the Notes must be received by 1:00 P.M. New
York time in order for the Notes to be issued or delivered on the
same day.
(a)
Issuance and Purchase of Book-entry Notes
.
Upon
receipt of issuance instructions from the Issuer or its
Dealers with respect to Book-entry Notes, JPMorgan shall
transmit such instructions to DTC and direct DTC to cause
appropriate entries of the Book-entry Notes to be made in
accordance with DTC’s applicable rules, regulations and
procedures for book-entry commercial paper programs. JPMorgan
shall assign CUSIP numbers to the Issuer’s Book-entry
Notes to identify the Issuer’s aggregate principal
amount of outstanding Book-entry Notes in DTC’s system,
together with the aggregate unpaid interest (if any) on such
Notes. Promptly following DTC’s established settlement
time on each issuance date, JPMorgan shall access DTC’s
system to verify whether settlement has occurred with respect
to the Issuer’s Book-entry Notes. Prior to the close of
business on such business day, JPMorgan shall deposit
immediately available funds in the amount of the proceeds due
the Issuer (if any) to the Issuer’s account at JPMorgan
and designated in the applicable Program Schedule (the
“Account” ),
provided that JPMorgan
has received DTC’s confirmation that the Book-entry Notes
have settled in accordance with DTC’s applicable rules,
regulations and procedures. JPMorgan shall have no liability to the
Issuer or the Guarantor whatsoever if any DTC participant
purchasing a Book-entry Note fails to settle or delays in settling
its balance with DTC or if DTC fails to perform in any
respect.
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(b)
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Issuance and Purchase of Certificated Notes
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Upon
receipt of issuance instructions with respect to Certificated
Notes, JPMorgan shall: (a) complete each Certificated Note as
to principal amount, date of issue, maturity date, place of
payment, and rate or amount of interest (if such Note is
interest bearing) in accordance with such instructions; (b)
countersign each Certificated Note; and (c) deliver each
Certificated Note in accordance with the Issuer’s
instructions. Whenever JPMorgan is instructed to deliver any
Certificated Note by mail, JPMorgan shall strike from the
Certificated Note the word “Bearer,” insert as
payee the name of the person so designated by the Issuer or
the Guarantor and effect delivery by mail to such payee or to
such other person as is specified in such instructions to
receive the Certificated Note. The Issuer and the Guarantor
understand that, in accordance with the custom prevailing in
the commercial paper market, delivery of Certificated Notes
shall be made before the actual receipt of payment for such
Notes in immediately available funds, even if JPMorgan is
instructed to deliver a Certificated Note against payment.
Therefore, once JPMorgan has delivered a Certificated Note to
the designated recipient, the Issuer and the Guarantor shall
bear the risk that such recipient may fail to remit payment of
such Note or return such Note to JPMorgan. Delivery of
Certificated Notes shall be subject to the rules of the New
York Clearing House in effect at the time of such delivery.
Funds received in payment of Certificated Notes shall be
credited to the Account.
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8.
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USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
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JPMorgan
is not obligated to credit the Issuer’s Account unless
and until payment of the purchase price of each Note is
received by JPMorgan. From time to time, JPMorgan, in its sole
discretion, may permit the Issuer to have use of funds payable
with respect to the Notes prior to JPMorgan’s receipt of
the sales proceeds of such Notes. If JPMorgan makes a deposit,
payment or transfer of funds on behalf of the Issuer before
JPMorgan receives payment for any Notes, such deposit, payment
or transfer of funds shall represent an advance by JPMorgan to
the Issuer to be repaid promptly, and in any event on the same
day as it is made, from the proceeds of the sale of the Notes,
or by the Issuer or the Guarantor if such proceeds are not
received by JPMorgan.
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9.
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PAYMENT OF MATURED NOTES
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Notice
that an Issuer will not redeem any Note on the relative
Initial Redemption Date (as defined in the applicable
Extendible Commercial Note Announcement) must be received in
writing by JPMorgan by 11:00 A.M. on such Initial Redemption
Date. On any day when a Note matures or is prepaid, the Issuer
shall transmit, or cause to be transmitted, to the Account,
prior to 2:00 P.M. New York time on the same day, an amount of
immediately available funds sufficient to pay the aggregate
principal amount of such Note and any applicable interest due.
JPMorgan shall pay the interest (if any) and principal on a
Book-entry Note to DTC in immediately available funds, which
payment shall be by net settlement of JPMorgan’s account
at DTC. JPMorgan shall pay Certificated Notes upon
presentment. JPMorgan may without liability to the Issuer or
the Guarantor refuse to pay any Note that would result in an
overdraft to the Account.
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a.
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Intraday
overdrafts with respect to each Account shall be subject to
JPMorgan’s policies as in effect from time to
time.
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b.
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An
overdraft will exist in an Account if JPMorgan, in its sole
discretion, (i) permits an advance to be made pursuant to Section
8, notwithstanding the provisions of Section 8, and such advance is
not repaid in full on the same day as it is made, or (ii) pays a
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