UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): May 19, 2020
Linde plc
(Exact name of registrant as specified in its charter)
Ireland |
001-38730 |
98-1448883 |
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(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
The Priestley Centre
10 Priestley Road
Surrey Research Park
Guildford, Surrey GU2 7XY
United Kingdom
(Address of principal executive offices)(Zip Code)
+44 1483 242200
(Registrant’s telephone numbers, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading symbol(s) |
Name of each exchange on which registered |
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Ordinary shares (€0.001 nominal value per share) |
LIN |
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01. | Other Events. |
On May 19, 2020, Linde Finance B.V., a company organized under the laws of The Netherlands (“Linde Finance”), issued €750 million aggregate principal amount of 0.250% Notes due 2027 (the “2027 Notes) and €750 million aggregate principal amount of 0.550% Notes due 2032 (the “2032 Notes”). Linde Finance is a wholly owned subsidiary of Linde plc (the “Company”). The 2027 Notes and the 2032 Notes were issued pursuant to a Subscription Agreement, dated May 15, 2020, by and among Linde Finance, as Issuer, Linde plc, as Guarantor, and the financial institutions named as managers therein (the “Managers”). The key terms of the 2027 Notes and the 2032 Notes are set out in the Final Terms filed as Exhibits 4.1 and 4.2, respectively, which are incorporated herein by reference.
Linde Finance received aggregate proceeds of approximately €1,491.7 million, net of fees paid to the Managers of the offering. Net proceeds of the offering will be used for general corporate purposes.
The 2027 Notes and 2032 Notes have been admitted to the official list of the Luxembourg Stock Exchange and for trading on the Euro MTF market operated by the Luxembourg Stock Exchange.
The 2027 Notes and the 2032 Notes were issued under the European debt issuance programme (the “Program”) established by the Company and Linde Finance (together, the “Issuers”) on May 11, 2020. Under the Program, each Issuer may issue unsecured notes (“Notes”) with such terms, including currency, interest rate and maturity, as agreed by the relevant Issuer and the purchasers of such Notes at the time of sale and as set out in the final terms (“Final Terms”) for the relevant issue of Notes. The Program will be valid for a period of one year after which it will require updating prior to any further issuance of Notes. The aggregate principal amount of Notes authorized under the Program to be outstanding from time to time is €10 billion.
Notes issued by Linde Finance under the Program will be guaranteed by the Company under the Guarantee and Negative Pledge filed as Exhibit 4.3, which is incorporated herein by reference.
Linde GmbH, a wholly owned subsidiary of the Company organized under the laws of Germany, and Praxair, Inc., a wholly owned subsidiary of the Company organized under the laws of Delaware, will provide to the Company (i) a guarantee of the Notes issued by the Company under the Program and (ii) a guarantee of the Company’s guarantee of Notes issued by Linde Finance under the Program. Such guarantee of Linde GmbH is filed as Exhibit 4.4 and incorporated by reference herein, and such guarantee of Praxair, Inc. is filed as Exhibit 4.5 and incorporated by reference herein.
Under the Program, Notes will be issued under a Fiscal Agency Agreement, dated May 11, 2020, by and among the Issuers and Deutsche Bank Aktiengesellschaft, as Fiscal Agent and Paying Agent. Pursuant to a Dealer Agreement, dated May 11, 2020, by and among the Issuers and Deutsche Bank Aktiengesellschaft and the other dealers party thereto from time to time (together the “Dealers”), the Issuers have appointed the Dealers to subscribe and pay for Notes issued under the Program on the terms set out therein. Copies of the Fiscal Agency Agreement and the Dealer Agreement are filed as Exhibits 4.6 and Exhibit 1.1, respectively, and are incorporated herein by reference.
Notes issued under the Program by the Issuers will be issued pursuant to Regulation S under the U.S. Securities Act of 1933, as amended (the “Securities Act”), will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent registration or an applicable exemption from registration requirements under the Securities Act. This Current Report on Form 8-K shall not constitute an offer to sell, or the solicitation of an offer to buy, any securities, including any securities of the Company or Linde Finance.The foregoing description is qualified in its entirety by reference to the exhibits filed herewith.
Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibit. The following exhibit is filed herewith:
Exhibit
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Description |
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1.1 |
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4.1 |
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4.2 |
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4.3 |
Guarantee and Negative Pledge of Linde plc dated May 11, 2020 |
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4.4 |
Upstream Guarantee to Linde plc provided by Linde GmbH dated May 11, 2020 |
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4.5 |
Upstream Guarantee to Linde plc provided by Praxair, Inc. dated May 11, 2020 |
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4.6 |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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LINDE PLC |
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Date: May 26, 2020 |
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By: |
/s/ Guillermo Bichara |
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Name: |
Guillermo Bichara |
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Title: |
General Counsel |
EXHIBIT 1.1
Execution Copy
Dated 11 May 2020
LINDE PLC
as Issuer and,
in respect of Notes issued by Linde Finance B.V.
as Guarantor
and
LINDE FINANCE B.V.
as Issuer
and
DEUTSCHE BANK AKTIENGESELLSCHAFT
as Arranger and Dealer
and
THE OTHER DEALERS
DEALER AGREEMENT
relating to the
EUR 10,000,000,000 Debt Issuance Programme
Linklaters LLP
Table of Contents
Contents | Page | |||||
1 |
Definitions and Interpretation | 1 | ||||
2 |
Agreements to Issue and Purchase | 5 | ||||
3 |
Conditions of Issue, Updating of Legal Opinions | 6 | ||||
4 |
Warranties | 9 | ||||
5 |
Undertakings by the Issuer and the Guarantor | 13 | ||||
6 |
Indemnity | 16 | ||||
7 |
Authority to Distribute Documents | 17 | ||||
8 |
Dealers Undertakings | 17 | ||||
9 |
Fees, Expenses and Stamp Duties | 17 | ||||
10 |
Termination of Appointment of Dealers | 18 | ||||
11 |
Appointment of New Dealers | 18 | ||||
12 |
Increase in the Programme Amount | 19 | ||||
13 |
Status of the Arranger, Indemnity Arrangements among the Dealers and Obligations Several | 20 | ||||
14 |
Assignment of Agreement | 21 | ||||
15 |
Currency Indemnity | 21 | ||||
16 |
Calculation Agent | 21 | ||||
17 |
Stabilisation | 22 | ||||
18 |
Notices and Communications | 22 | ||||
19 |
Recognition of the U.S. Special Resolution Regime | 23 | ||||
20 |
No Fiduciary Duties | 24 | ||||
21 |
Power of Attorney | 24 | ||||
22 |
Governing Law, Place of Jurisdiction | 24 | ||||
23 |
Severability and Partial Invalidity | 24 | ||||
24 |
Counterparts | 24 | ||||
SCHEDULE 1 Documentation List |
25 | |||||
SCHEDULE 2 Selling Restrictions |
26 | |||||
SCHEDULE 3 Dealer Accession |
30 | |||||
SCHEDULE 4 Letter regarding increase in the Programme Amount |
35 | |||||
SCHEDULE 5 Form of Subscription Agreement |
37 | |||||
SCHEDULE 6 Issuer Effectuation Authorisation |
44 | |||||
SCHEDULE 7 List of Communication Details |
46 | |||||
Signature Page to the Dealer Agreement |
S-1 |
i |
This DEALER AGREEMENT is made on 11 May 2020
BETWEEN
(1) |
LINDE PLC (Linde plc or, in the case of issues of Notes by Linde Finance B.V., the Guarantor); |
(2) |
LINDE FINANCE B.V. (Linde Finance); |
(3) |
DEUTSCHE BANK AKTIENGESELLSCHAFT (Deutsche Bank or the Arranger); |
(4) |
BOFA SECURITIES EUROPE SA, CITIGROUP GLOBAL MARKETS EUROPE AG, CITIGROUP GLOBAL MARKETS LIMITED, COMMERZBANK AKTIENGESELLSCHAFT, CREDIT SUISSE SECURITIES (EUROPE) LIMITED, DEUTSCHE BANK AKTIENGESELLSCHAFT, HSBC BANK PLC, J.P. MORGAN SECURITIES PLC, MERRILL LYNCH INTERNATIONAL, MIZUHO SECURITIES EUROPE GMBH, UNICREDIT BANK AG and WELLS FARGO SECURITIES INTERNATIONAL LIMITED (each a Dealer and together, the Dealers, which expression shall include any new dealer appointed in accordance with Clause 11 and shall exclude any entity whose appointment has been terminated pursuant to Clause 10). |
RECITALS:
(A) |
Linde plc is a public limited company incorporated under the laws of Ireland with its registered office in Dublin, Republic of Ireland and registered in Ireland with registration number 602527. Linde plc is the parent company of the Group (as defined below). |
(B) |
Linde Finance is a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) with its registered office in Amsterdam and registered in the Dutch Trade Register of the Chamber of Commerce (the Dutch Trade Register) under number 34115238. Linde plc is the ultimate parent company of Linde Finance B.V. |
(C) |
Linde plc and Linde Finance propose to issue from time to time bearer notes in an aggregate nominal amount outstanding at any one time not exceeding the Programme Limit (as specified herein) in accordance with this Agreement (the Programme). |
(D) |
Linde plc, Linde Finance, the Arranger and the Dealers now wish to record the arrangements agreed between them in relation to the Programme as set out herein. |
(E) |
In connection with the Programme, Linde plc and Linde Finance will also enter into an agency agreement, dated 11 May 2020 (such agreement amended from time to time the Agency Agreement) and made between Linde plc, Linde Finance and Deutsche Bank Aktiengesellschaft as Fiscal Agent and Paying Agent. |
IT IS AGREED as follows:
1 |
Definitions and Interpretation |
1.1 |
Definitions. In this Agreement: |
Agreement Date means, in respect of any particular Tranche of Notes, the date on which agreement is reached for the issue of such Notes as contemplated in Clause 2. In case of Notes issued on a syndicated basis or otherwise in relation to which a Subscription Agreement is entered into, the Agreement Date shall be the date on which the relevant Subscription Agreement is signed by or on behalf of all the parties;
1 |
Arranger means Deutsche Bank and any company appointed to the position of arranger for the Programme and Arrangers means Deutsche Bank and any company appointed to the position of arranger for the Programme acting together;
Calculation Agent means, in relation to any Series of Notes, the institution appointed as calculation agent for the purposes of such Notes and named as such in the relevant Final Terms, in the case of the Fiscal Agent, pursuant to Clause 8 of the Agency Agreement, in the case of a Dealer or any other institution, pursuant to Clause 16 and, in any case, any successor to such institution in its capacity as such;
CBF means Clearstream Banking AG, Frankfurt am Main, Germany;
CBL means Clearstream Banking S.A., Luxembourg;
Common Safekeeper means an ICSD in its capacity as Common Safekeeper or a person nominated by the ICSDs to perform the role of Common Safekeeper;
Conditions means in relation to any Tranche of Notes, the set of terms and conditions applicable to such Tranche of Notes as set out in the Prospectus and as determined and completed by the relevant Final Terms as described therein. The Conditions may be documented either by (i) replicating the relevant provisions of Option I or Option II, and completing the relevant placeholders of Option I or Option II, as relevant, in Part I of the Final Terms in which case the replicated and completed provisions of Option I or Option II alone shall constitute the Conditions applicable to any Tranche of Notes, or by (ii) referring to the relevant provisions of Option I or Option II in Part I of the Final Terms only, in which case Option I or Option II and the relevant Final Terms taken together shall constitute the Conditions applicable to any Tranche of Notes. The Conditions will be attached to each Global Note representing the Notes;
Confirmation Letter means
(a) |
in respect of the appointment of a third party as a Dealer for the duration of the Programme, the Confirmation Letter substantially in the form set out in Part II of Schedule 3 hereto; and |
(b) |
in respect of the appointment of a third party as a Dealer for one or more particular issue(s) of Notes under the Programme, the Confirmation Letter substantially in the form set out in Part IV of Schedule 3 thereto; |
Dealer Accession Letter means
(a) |
in respect of the appointment of a third party as a Dealer for the duration of the Programme, the Dealer Accession Letter substantially in the form set out in Part I of Schedule 3 hereto; and |
(b) |
in respect of the appointment of a third party as a Dealer for one or more particular issue(s) of Notes under the Programme, the Dealer Accession Letter substantially in the form set out in Part III of Schedule 3 hereto; |
Documentation List means the list of documents set out in Schedule 1;
Euroclear means Euroclear Bank SA/NV, Brussels;
Euro MTF Market means the Euro MTF market of the Luxembourg Stock Exchange;
Event of Default means any of the events provided in § 9 of the Conditions of the Notes to be an Event of Default;
2 |
Exchange Act means the United States Securities Exchange Act of 1934;
Final Terms means the final terms issued in relation to each Tranche of Notes (substantially in the form set out in the Prospectus (as defined below)) specifying the relevant issue details in relation to such Tranche;
Fiscal Agent means Deutsche Bank Aktiengesellschaft as Fiscal Agent under the Agency Agreement and any successor fiscal agent appointed by Linde plc and Linde Finance in accordance with the Agency Agreement;
FSMA means the Financial Services and Markets Act 2000;
Global Note means a Temporary Global Note or a Permanent Global Note;
Group means Linde plc and its consolidated subsidiaries taken as a whole;
Guarantee means the Guarantee dated May 2020 (substantially in the form set out in the Prospectus), executed by the Guarantor and the Fiscal Agent;
ICSD means each of CBL and Euroclear, together the ICSDs;
Indemnified Person means for the purposes of this Agreement each Dealer, its affiliates and each person who controls such Dealer (within the meaning of section 15 of the Securities Act or section 20 of the Exchange Act) and each of their directors, officers, employees and agents;
Issue Date means, in respect of any Tranche of Notes, the date of issue of the Notes;
Issuer means either Linde plc or Linde Finance, as the case may be, as the issuer or proposed issuer of Notes under the Programme and Issuers means Linde plc and Linde Finance acting together; relevant Issuer means, in relation to any Series, the Issuer which has concluded, or is negotiating, an agreement with the Relevant Dealer(s) to issue, or which has issued, the Notes of that Series;
Lead Manager means, in relation to any Tranche of Notes, the Dealer defined as the Lead Manager in the applicable Subscription Agreement or when only one Dealer signs such Subscription Agreement, such Dealer;
Listing Agent means in the case of Notes to be listed on the Euro MTF Market, the Luxembourg Listing Agent and, in the case of Notes to be listed on any Stock Exchange other than the Euro MTF Market, such listing agent as the relevant Issuer may from time to time appoint for the purposes of coordinating the listing of the Notes on such Stock Exchange;
Listing Rules means, in relation to a Stock Exchange, the rules and regulations for the listing of debt securities for the time being in force for such Stock Exchange;
Luxembourg Listing Agent means Deutsche Bank Luxembourg S.A., Luxembourg;
Luxembourg Prospectus Law means the Luxembourg law on prospectuses for securities (Loi relative aux prospectus pour valeurs mobilières) dated 16 July 2019;
Market Abuse Regulation means Regulation (EU) No 596/2014 of the European Parliament and of the Council;
New Dealer means any entity appointed as an additional Dealer in accordance with Clause 11;
3 |
NGN means a Global Note which is intended to be a New Global Note, as stated in the applicable Final Terms;
Note means any note in bearer form issued or to be issued by any Issuer pursuant to this Agreement;
Option I means the set of terms and conditions for Notes with fixed interest rates, non-interest-bearing Notes and zero coupon Notes as set out in the Prospectus, including any set of terms and conditions for Notes with fixed interest rates previously published and incorporated by reference into the Prospectus;
Option II means the set of terms and conditions for Notes with floating interest rates as set out in the Prospectus, including any set of terms and conditions for Notes with floating interest rates previously published and incorporated by reference into the Prospectus;
Permanent Global Note means a permanent global note substantially in the form set out in Schedule 1 to the Agency Agreement (or in such other form as may be agreed between the relevant Issuer, the Guarantor (if Linde Finance is the Issuer), the Fiscal Agent and the Relevant Dealer) issued or to be issued (if indicated in the applicable Final Terms) by the Issuer pursuant to this Agreement in exchange for the whole or part of a Temporary Global Note issued in respect of Notes of the same Tranche;
Procedures Memorandum means the Procedures Memorandum as amended, varied or supplemented from time to time;
Programme means the Debt Issuance Programme established by this Agreement;
Programme Amount means EUR 10,000,000,000, being the aggregate principal amount of the Notes outstanding at any one time that may be issued under the Programme calculated in accordance with Clause 3.5, as such amount may be increased from time to time in accordance with the provisions of Clause 12;
Prospectus means the base prospectus relating to the Notes in accordance with Part IV of the Luxembourg Prospectus Law, prepared in connection with the listing of Notes issued under the Programme on the Euro MTF Market, as supplemented or updated from time to time in accordance with Clause 5.2 including, in relation to each Tranche of Notes, the Final Terms relating to such Tranche and such other documents as are from time to time incorporated therein by reference. For the purpose of Clause 4.2 with respect to the Agreement Date and the Issue Date, the Prospectus means the Prospectus as at the Agreement Date but not including any subsequent amendment thereto;
Relevant Clearing System means any of the following as specified in the applicable Final Terms: CBF, CBL, Euroclear;
Relevant Dealer means, in relation to any Tranche of Notes, the Dealer or Dealers with whom the relevant Issuer has agreed the issue and purchase of such Tranche;
Securities Act means the United States Securities Act of 1933, as amended;
Series means a Tranche of Notes together with any further Tranche or Tranches of Notes (i) which are expressed to be consolidated and form a single series and (ii) are identical in all respects (including as to listing) except for their respective Issue Dates and/or issue prices;
Stabilising Manager means, in relation to any Tranche of Notes, the Dealer or Dealers (if any) specified as the stabilising manager in the Final Terms in relation to such Tranche;
4 |
Stock Exchange means the Euro MTF Market or any other or further stock exchange(s) on which any Notes may from time to time be listed. References in this Agreement to the relevant Stock Exchange shall, in relation to any Notes, be references to the stock exchange or stock exchanges on which such Notes are from time to time, or are intended to be, listed as specified in the relevant Final Terms;
Subscription Agreement means an agreement in or substantially in the form set out in Schedule 5 hereto or such other form as may be agreed between the relevant Issuer, the Guarantor (if Linde Finance is the Issuer) and the Lead Manager which agreement shall be supplemental to this Agreement;
Temporary Global Note means a temporary global note substantially in the form set out in Schedule 1 to the Agency Agreement (or in such other form as may be agreed between the relevant Issuer, the Guarantor (if Linde Finance is the Issuer), the Fiscal Agent and the Relevant Dealer) issued or to be issued by the Issuer pursuant to this Agreement and initially representing Notes of the same Tranche; and
Tranche means Notes issued hereunder which are identical in all respects (including as to listing).
1.2 |
Expressions. Expressions defined in the Agency Agreement and in the sets of terms and conditions of the Notes as set out in the Prospectus and not otherwise defined in this Agreement shall have the same meanings in this Agreement, except where the context otherwise requires. |
1.3 |
References. All references in this Agreement to an agreement, instrument or other document (including this Agreement, the Agency Agreement, the Guarantee, any Series of Notes and any Conditions appertaining thereto) shall be construed as a reference to that agreement, instrument or document as the same may be amended, modified, varied, supplemented or replaced from time to time, including this Agreement as supplemented by any Subscription Agreement. |
2 |
Agreements to Issue and Purchase |
2.1 |
Issue and Purchase of Notes. Each Issuer may from time to time agree with any Dealer to issue, and any Dealer may agree to purchase, Notes. |
2.2 |
Delivery of Notes and Payment of Net Issue Proceeds. On each occasion upon which any Issuer and any Dealer agree on the terms of the issue by the Issuer and purchase by such Dealer of one or more Notes: |
2.2.1 |
Delivery of Notes: the relevant Issuer shall cause the Notes, which shall be initially represented by a Temporary Global Note or a Permanent Global Note, as indicated in the applicable Final Terms, to be issued and delivered on the agreed Issue Date to |
(i) |
if the Relevant Clearing System is CBF, to CBF, or |
(ii) |
if the Relevant Clearing System is CBL and Euroclear |
(a) |
to a common depositary for CBL and Euroclear, or |
5 |
(b) |
in the case of NGNs, to a Common Safekeeper; and the securities account of the Relevant Dealer with the Relevant Clearing System will be credited with the Notes on the agreed Issue Date, as described in the Procedures Memorandum; and |
2.2.2 |
Payment of Net Issue Proceeds: the Relevant Dealer shall, on a delivery against payment basis (unless otherwise agreed), cause the payment of the net subscription moneys (namely the agreed issue or sale price for the Notes plus any accrued interest and less any agreed commissions, concessions or other agreed deductions) to or to the order of the relevant Issuer by credit transfer to such account as may have been specified by the Issuer to the Relevant Dealer for such purpose. |
2.3 |
Liability of Dealers Several and Not Joint: Where more than one Dealer has agreed with any Issuer to purchase a particular Tranche of Notes pursuant to this Clause, the obligations of such Dealers to purchase the Notes shall be several and not joint. |
2.4 |
Subscription Agreement. Where any Issuer agrees with two or more Dealers to issue, and such Dealers agree to purchase, Notes on a syndicated basis, the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) shall enter into a Subscription Agreement with such Dealers. Any Issuer may also enter into a Subscription Agreement with one Dealer only. |
2.5 |
Procedures Memorandum. The procedures which apply to issues of Notes not to be subscribed pursuant to a Subscription Agreement are set out in Part I of the Procedures Memorandum. The procedures which apply to issues of Notes to be subscribed pursuant to a Subscription Agreement are set out in Part II of the Procedures Memorandum. |
2.6 |
Restrictions Relating to Certain Currencies. Any issue of Notes denominated in a currency in respect of which particular laws, regulations, guidelines, restrictions and reporting requirements apply will only be issued in circumstances which comply with such laws, regulations, guidelines, restrictions and reporting requirements from time to time. |
Each Issuer shall ensure that Notes denominated or payable in Yen (Yen Notes) will only be issued in compliance with applicable Japanese laws, regulations, guidelines and policies. The relevant Issuer or its designated agent shall submit such reports or information as may be required from time to time by applicable laws, regulations and guidelines promulgated by Japanese authorities in the case of Yen Notes. Each Dealer agrees to provide any necessary information relating to Yen Notes to the relevant Issuer (which shall not include the names of clients) so that the relevant Issuer may make any required reports to the competent authority of Japan for itself or through its designated agent.
The restrictions relating to Yen Notes shall only apply insofar as they are consistent with the relevant regulations of the appropriate regulatory bodies or are necessary to comply with applicable laws and regulations from time to time. On each occasion when any such regulatory body amends or introduces any relevant regulation, the restrictions above shall be deemed to be amended accordingly.
3 |
Conditions of Issue, Updating of Legal Opinions |
3.1 |
First Issue. Before any Issuer reaches its first agreement with any Dealer for the issue and purchase of Notes, each Dealer shall have received, and found satisfactory, all of the documents and confirmations described in the Documentation List. Any Dealer must notify Deutsche Bank and the Issuers within seven Frankfurt business days of receipt of the documents and confirmations described in the Documentation List if it considers any to be unsatisfactory. |
6 |
3.2 |
Each Issue. The obligations of a Dealer under any agreement for the issue and purchase of Notes made pursuant to Clause 2 are conditional upon: |
3.2.1 |
No Material Adverse Change: there having been, as at the proposed Issue Date, no adverse change from that set forth in the Prospectus on the relevant Agreement Date in the condition (financial or otherwise) of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) and the Group which, in any case, is material in the context of the issue and offering of the Notes; |
3.2.2 |
No Breach of Obligations: there being no outstanding breach of any of the obligations of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) under this Agreement, any relevant Subscription Agreement, any Notes, the Agency Agreement or the Guarantee which has not been waived by the Dealer on or prior to the proposed Issue Date; |
3.2.3 |
Accuracy of Warranties: the accuracy as of the Agreement Date and the Issue Date, of the warranties set out in Clause 4 or in any relevant Subscription Agreement, and there having been no event rendering inaccurate any of such warranties of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) with reference to the facts and circumstances then subsisting; |
3.2.4 |
Programme Amount: subject to Clause 12, the aggregate principal amount of the Notes to be issued, when added to the aggregate principal amount of all Notes outstanding on the proposed Issue Date (excluding for this purpose Notes due to be redeemed on such Issue Date) not exceeding the Programme Amount or its equivalent in other currencies as determined pursuant to Clause 3.5; |
3.2.5 |
Listing: in the case of Notes which are intended to be listed on any Stock Exchange, all necessary steps having been taken by the relevant Issuer to qualify the Notes for listing or to obtain the listing of such Notes and the Relevant Dealer being satisfied that such listing will be granted by the relevant Stock Exchange on or shortly after the Issue Date for such Notes; |
3.2.6 |
Force Majeure: there having been, between the Agreement Date and the Issue Date for such Notes, in the reasonable opinion of the Relevant Dealer no such change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable opinion of the Relevant Dealer be likely to either prejudice materially the success of the offering and distribution of the Notes or dealings in the Notes in the secondary market; |
3.2.7 |
Ratings: there having been, between the Agreement Date and the Issue Date, no downgrading in the rating of any of the debt securities of either Linde plc or Linde Finance by Moodys Investors Service, Inc., S&P Global Ratings Europe Limited or any other rating agency instructed by Linde plc or Linde Finance which has assigned a rating to either of the Issuers or their debt securities and no public announcement that any such organisation has under surveillance or review with negative implications its rating of any of the debt securities of the Issuers, provided that such downgrading or public announcement is, in the reasonable opinion of the Relevant Dealer, likely to prejudice materially the success of the offering and distribution of the Notes or dealings in the Notes in the secondary market; |
7 |
3.2.8 |
Documents Agreed: the relevant form of the Final Terms, the Temporary Global Note, the Permanent Global Note, the legal opinions (in the circumstances of Clause 3.4 below), and the comfort letter or comfort letters of the relevant Issuer and (if Linde Finance is the Issuer) the Guarantor in the circumstances of Clause 5.7 below, as the case may be, in relation to the Tranche of Notes and the respective settlement procedures having been agreed by the relevant Issuer, the Guarantor (if Linde Finance is the Issuer), the Relevant Dealer and the Fiscal Agent; |
3.2.9 |
Currency Accepted: the relevant currency being accepted for settlement by the Relevant Clearing System; |
3.2.10 |
Calculations: any calculations or determinations which are required by the relevant Conditions to have been made prior to the Issue Date having been duly made; |
3.2.11 |
Approval, Filing, Publication: in the case of Notes which are intended to be listed on the Euro MTF Market, the Prospectus (except for the relevant Final Terms in relation to each Tranche of Notes) being approved by the Luxembourg Stock Exchange and having been published in accordance with the requirements of the Luxembourg Prospectus Law and any other applicable law and the relevant Final Terms having been filed with the Luxembourg Stock Exchange; |
3.2.12 |
No Supplement required: in the case of Notes which are intended to be listed on the Euro MTF Market, (i) there being no significant new factor, material mistake or inaccuracy relating to the information included in the Prospectus which is capable of affecting the assessment of the Notes which are intended to be listed or (ii) if there is such significant new factor, material mistake or inaccuracy, a supplement to the Prospectus having been approved by the Luxembourg Stock Exchange and having been published in accordance with the requirements of the Luxembourg Prospectus Law and any other applicable law; and |
3.2.13 |
If Linde plc is the Issuer, Confirmation of the decision of the Chief Financial Officer (Finanzvorstand) of Linde plc: there having been delivered on or prior to the Issue Date the confirmation by an authorised signatory regarding the decision of the Chief Financial Officer (Finanzvorstand) of Linde plc authorising the respective issue of Notes (hereby acting on the basis of a resolution of the Board of Executive Directors (Vorstand) of Linde plc). |
In the event that any of the foregoing conditions is not satisfied and subject to the provisions of the relevant Subscription Agreement, the Relevant Dealer shall be entitled (but not bound) by notice to the Issuer to be released and discharged from its obligations under the agreement reached under Clause 2.
3.3 |
Waiver. Any Dealer, on behalf of itself only, may by notice in writing to the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) waive any of the conditions precedent contained in Clauses 3.1 and 3.2 (save for the condition precedent contained in Clause 3.2.4) in so far as they relate to an issue of Notes to that Dealer. |
3.4 |
Updating of Legal Opinions. On each occasion on which the Prospectus is updated or supplemented pursuant to Clause 5.2, the Issuers shall procure that legal opinions in such form and with such content as the Dealers may reasonably require, are delivered, at the expense of the Issuers, to the Dealers from legal advisers in each of the jurisdictions of the Issuers. In addition, on such other occasions as a Dealer reasonably so requests, the Issuers will procure that a legal opinion or further legal opinions, as the case may be, in such form and with such content as the Dealers may reasonably require, is or are delivered, at the expense of the Issuers, to the Dealers from legal advisers in each of the jurisdictions of the |
8 |
Issuers. If at or prior to the time of any payment of net issue proceeds as set forth in Clause 2.2.2 such a request is made with respect to the Notes to be issued, the receipt of the relevant opinion or opinions in a form satisfactory to the Relevant Dealer shall be a condition precedent to the issue of those Notes to that Dealer. |
3.5 |
Determination of Programme Amount. For the purposes of Clause 3.2.4: |
3.5.1 |
General: the euro equivalent of the aggregate principal amount of the Notes denominated in a currency other than euro shall be calculated by the Fiscal Agent on the basis of the reference rate as obtained by the Fiscal Agent for the sale of euro against the purchase of the relevant currency on the relevant day of calculation; and |
3.5.2 |
Zero Coupon Notes: the euro equivalent of Zero-Coupon Notes issued at a discount shall be calculated in the manner specified above by reference to the net proceeds received by the relevant Issuer for the relevant issue. |
4 |
Warranties |
4.1 |
Warranties. As at the date of this Agreement, Linde plc and Linde Finance hereby warrants in respect of itself only, and Linde plc in respect of Notes issued by Linde Finance warrants in its capacity as Guarantor jointly and severally with Linde Finance to the Dealers and each of them as follows that: |
4.1.1 |
Financial Statements: the most recently published (i) audited consolidated annual financial statements of Linde plc and its consolidated subsidiaries and (ii) audited stand-alone financial statements of Linde Finance as well as any interim financial statements, if any, published subsequently thereto were prepared in accordance with the requirements of law and with International Financial Reporting Standards or with accounting principles generally accepted in United States of America in the case of Linde plc, and with accounting principles generally accepted in The Netherlands in the case of Linde Finance, in each case consistently applied and they give a true and fair view of the financial condition of Linde plc and its consolidated subsidiaries and Linde Finance as at the date to which they were prepared (the Relevant Date) and of the results of the operations of Linde plc and its consolidated subsidiaries and Linde Finance for the financial year or financial period ended on the Relevant Date and that there has been no material adverse change or any development likely to result in a future material adverse change in the condition (financial or otherwise) of Linde plc and its consolidated subsidiaries taken as a whole and Linde Finance since the Relevant Date except as disclosed in the Prospectus; |
4.1.2 |
Prospectus: (i) the Prospectus contains all information which is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profit and losses and prospects of Linde plc and Linde Finance and the rights attaching to the Notes and all information which is material in the context of the Programme and the issue and offering of Notes thereunder, (ii) the information contained in the Prospectus with respect to Linde plc, Linde Finance and the Notes is accurate and complete in all material respects and is not misleading, (iii) the opinions and intentions expressed therein with respect to Linde plc, Linde Finance and the Notes are honestly held, (iv) there are no other facts with respect to Linde plc, Linde Finance or the Notes the omission of which would make the Prospectus as a whole or any of such information or the expression of any such opinions or intentions misleading in any material respect and that Linde plc and Linde Finance have made all reasonable enquiries to ascertain all facts material for the purposes aforesaid; |
9 |
4.1.3 |
Publication of Prospectus: on or before the first Agreement Date, the Prospectus will have been published in accordance with the requirements of the Luxembourg Prospectus Law; |
4.1.4 |
Incorporation of Linde plc: Linde plc is a public limited company duly established under the laws of the Republic of Ireland with full power and authority to own its assets and to conduct its business as described in the Prospectus; |
4.1.5 |
Incorporation of Linde Finance: Linde Finance is a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) duly incorporated under Dutch law with full power and authority to own its assets and to conduct its business as described in the Prospectus; |
4.1.6 |
Agreements Valid: the issue of Notes and the execution and delivery of this Agreement, the Agency Agreement and the Guarantee by Linde plc and/or Linde Finance, as the case may be, have been duly authorised by Linde plc and/or Linde Finance, as the case may be, and, in the case of this Agreement, the Agency Agreement and the Guarantee constitute, and, in the case of Notes, upon due execution, authentication, effectuation (if applicable), issue and delivery in accordance with the Agency Agreement will constitute, legal, valid and binding obligations of Linde plc and/or Linde Finance as the case may be, enforceable in accordance with their respective terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally; |
4.1.7 |
No Infringement or Violation: the establishment of the Programme, the execution and delivery of this Agreement, the Agency Agreement and the Guarantee, the issue, offering and distribution of Notes and the performance of the terms of any Notes, this Agreement, the Agency Agreement and/or the Guarantee will not infringe any law or regulation of its jurisdiction of incorporation and are not contrary to the provisions of the constitutional documents of Linde plc and/or Linde Finance and will not result in any violation of the terms of any instrument or agreement to which Linde plc and/or Linde Finance is a party or by which Linde plc and/or Linde Finance or their respective property is bound; |
4.1.8 |
No Event of Default: no Event of Default or event which with the giving of notice or lapse of time or other condition would constitute an Event of Default is subsisting in relation to any outstanding Note and no event has occurred which would constitute (after an issue of Notes) an Event of Default thereunder or which with the giving of notice or lapse of time or other condition would (after an issue of Notes) constitute such an Event of Default; |
4.1.9 |
Proceedings: other than as set forth in the Prospectus, neither Linde plc nor Linde Finance is engaged (whether as defendant or otherwise) in, nor has Linde plc or Linde Finance knowledge of the existence of, or any threat (Androhung) of, any legal, arbitration, administrative or other proceedings the result of which relates to claims or amounts which might be material in the context of the Programme and/or the issue and offering of Notes thereunder or which might have or have had a material adverse effect on the financial position or operations of Linde plc, Linde Finance or the Group; |
10 |
4.1.10 |
Approvals in Effect: all licences, consents, approvals, authorisations, orders and clearances of all regulatory authorities required by the relevant Issuer and/or the Guarantor for or in connection with the creation and offering of Notes under the Programme, the execution and issue of, and compliance by the Issuer and/or the Guarantor with the terms of Notes issued under the Programme and the execution and delivery of, and compliance with the terms of, this Agreement, the Agency Agreement and the Guarantee have been obtained and are in full force and effect; |
4.1.11 |
Programme Amount: as of the Issue Date for the sale of such Notes, after giving effect to the issuance of such Notes and of any other Notes to be issued by any Issuer, and to the redemption of Notes to be redeemed by any Issuer, on or prior to such Issue Date, the aggregate principal amount of Notes issued by the Issuers outstanding will not exceed the Programme Amount; |
4.1.12 |
Directed Selling Efforts: neither Linde plc nor Linde Finance nor any of their affiliates (as defined in Rule 405 under the Securities Act) nor any persons acting on its or their behalf or any such affiliates behalf (other than the Dealers, as to whom no representation or warranty is made) have engaged or will engage in any directed selling efforts within the meaning of Rule 903 of Regulation S under the Securities Act with respect to the Notes; |
4.1.13 |
Offering Restrictions: in respect of any issue of Notes under the Programme, the Issuers and, if applicable, the Guarantor and each of their respective affiliates (as defined in Rule 405 under the Securities Act), and any person (other than the Dealers, as to whom no representation or warranty is made) acting on behalf of any of the foregoing persons have complied and will comply with the offering restrictions requirement of Regulation S under the Securities Act; |
4.1.14 |
Dutch Financial Supervision Act: in respect of any issue of Notes under the Programme, Linde Finance complies with the applicable requirements set out in the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht, as amended from time to time the FMSA), including in particular, that Linde Finance conducts its finance activities, whether or not related to the Programme, in a manner so that it has the benefit of the exemptive relief available pursuant to Article 3:2 of the FMSA. |
4.1.15 |
Ranking of Notes: any Notes will be unsecured obligations of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) and will rank pari passu among themselves and (save for certain debts required to be preferred by law) equally with all other unsecured and unsubordinated obligations of the relevant Issuer from time to time outstanding; |
4.1.16 |
Authorised representatives: that the persons named in the list referred to in paragraph 4 of the Documentation List (as such list may be amended from time to time by notice in writing in accordance with Clause 5.6) are authorised to represent Linde plc and Linde Finance, respectively, in respect of the Programme and to take any action and to sign any document on behalf of Linde plc and Linde Finance, respectively, with binding effect on Linde plc and Linde Finance, respectively; |
4.1.17 |
ICSDs Agreement: the agreements with the ICSDs regarding matters related to the Notes to be issued under the Programme in NGN form are in full force and effect; |
11 |
4.1.18 |
Sanctions: neither the U.S. Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the U.S. Department of State, the United Nation Security Council (UNSC), the European Union (the EU) nor Her Majestys Treasury has imposed any sanctions against Linde plc, Linde Finance or, to the best knowledge of Linde plc and Linde Finance, against any of their subsidiaries, directors, or officers, or any of their employees who will act in any capacity in connection with or benefit from the Programme because of the violation of any laws and regulations administered by OFAC, the U.S. Department of State, the UNSC, the EU or Her Majestys Treasury, respectively. |
This representation is only made to the extent that it does not result in a violation of or conflict with Section 7 of the German Foreign Trade Ordinance (§ 7 AußenwirtschaftsverordnungAWV), any provision of Council Regulation (EC) No 2271/96 (or any law or regulation imposing penalties in respect of such regulation in the United Kingdom or any member state of the European Union) or any similar applicable blocking or anti-boycott statue in any member state of the European Union or the United Kingdom.
4.1.19 |
Anti-Bribery: each of Linde plc and Linde Finance has instituted and maintains anti-bribery and corruption policies and procedures and that neither Linde plc or Linde Finance nor, to the knowledge of Linde plc and Linde Finance, any of their respective subsidiaries, directors, officers or employees has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) made any direct or indirect unlawful payment to any government official or employee from corporate funds, or (iii) made any bribe, influence payment, kickback or other unlawful payment; and |
4.1.1 |
Money-Laundering: no formal action, suit or proceeding by or before any court or governmental agency, authority or body involving Linde plc or Linde Finance with respect to any applicable anti-money-laundering laws or regulations is pending or has been pending within the last three years, other than as disclosed and each of Linde plc or Linde Finance has instituted and maintains procedures to ensure compliance with applicable anti-money-laundering laws and any transactions proceeds will not be used for any purpose that would breach applicable anti-money-laundering laws. |
4.2 |
Warranties Repeated as at Agreement Date and Issue Date. With regard to each issue of Notes under the Programme, each warranty set forth in Clause 4.1 shall be true and correct as at the Agreement Date for such Notes (any agreement on such Agreement Date being deemed to have been made on the basis of, and in reliance on, such warranties) and as at the Issue Date of such Notes and each of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) shall be deemed to repeat each such warranty as at each such date. |
4.3 |
Warranties Repeated on other Occasions. Each warranty set forth in Clause 4.1 shall be true and correct on the date on which the Prospectus or any supplement thereto is published, on each date on which a new Prospectus is published and on each date on which the Programme Amount is increased in accordance with Clause 12 and the Issuers shall be deemed to repeat each such warranty as at each such date. |
4.4 |
Warranties Continuing in Effect. The warranties set forth in this Clause shall continue in full force and effect notwithstanding the knowledge of any Dealer with respect to any of the matters referred to in the warranties set out above, any investigation by or on behalf of the Dealers or completion of the subscription and issue of any Notes. |
12 |
5 |
Undertakings by the Issuer and the Guarantor |
5.1 |
Notification of Material Developments. Each Issuer and/or the Guarantor (if Linde Finance is the Issuer) shall promptly after becoming aware of the occurrence thereof notify each Dealer of: |
5.1.1 |
Event of Default: any Event of Default or any condition, event or act which would after an issue of Notes (or would with the giving of notice and/or lapse of time) constitute an Event of Default or any breach of the warranties or undertakings contained in this Agreement or the Agency Agreement or the Guarantee or any of them; and |
5.1.2 |
Material Developments: any development or information which (i) relates, directly or indirectly, to the Issuers, their business, financial situation, profits or prospects, or any of its financial instruments, (ii) which has not been made public and (iii) would be likely to have a significant effect on the price of the Notes issued hereunder if it were made public, except that if such development or information constitutes inside information within the meaning of Article 7 of the Market Abuse Regulation, the disclosure of which either Issuer has delayed in accordance with Article 17(4) of the Market Abuse Regulation, no notification needs to be made while such right to delay disclosure continues. |
If, following the time of an agreement under Clause 2 and before the issue of the relevant Notes, the relevant Issuer or the Guarantor (if Linde Finance is the Issuer) becomes aware that the conditions specified in Clause 3.2 will not be satisfied in relation to that issue, the relevant Issuer or the Guarantor shall forthwith notify the Relevant Dealer to this effect giving full details thereof. In such circumstances and subject to the provisions of the relevant Subscription Agreement, the Relevant Dealer shall be entitled (but not bound) by notice to the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) to be released and discharged from its obligations under the agreement reached under Clause 2.
Without prejudice to the generality of the foregoing, the Issuers shall from time to time promptly furnish to each Dealer such information relating to the Issuers as such Dealer may reasonably request.
5.2 |
Updating of Prospectus. |
5.2.1 |
Annual Update: On or before each anniversary of the date of this Agreement, Linde plc and Linde Finance shall update or supplement the Prospectus (following consultation with the Arranger who will consult with the Dealers) and shall have the Prospectus approved by the Luxembourg Stock Exchange by the publication of a supplement thereto or a new Prospectus, in a form approved by the Dealers. |
5.2.2 |
Supplement: Linde plc and Linde Finance shall (i) update or supplement the Prospectus (following consultation with the Arranger(s) who will consult with the Dealers) by publication of a supplement to the Prospectus in a form approved by the Dealers, (aa) in the event of any significant new factor, material mistake or inaccuracy relating to the information included in the Prospectus which is capable of affecting the assessment of the Notes to be issued under the Programme, (bb) on |
13 |
each occasion on which Linde plc or Linde Finance publishes an annual report either in a form setting out, in the case of Linde plc, the audited consolidated financial statements and, in case of Linde Finance, the audited financial statements or by way of incorporating them by reference into the Prospectus or (cc) in case it increases the Programme Amount, and (ii) have the supplement approved by the Luxembourg Stock Exchange and published in accordance with at least the same arrangements as were applied when the Prospectus was published and furnish a copy of such supplement to the Dealers. |
Except in the case of (cc) above, the Issuers may decide to postpone the publication of a supplement, if at the relevant time no issuance of Notes under the Programme is envisaged.
5.2.3 |
Financial Statements: Linde plc and Linde Finance shall promptly supply to each Dealer and the Fiscal Agent such number of copies of such financial statements, revised Prospectuses or supplements (if any) as each Dealer or the Fiscal Agent (as the case may be) may reasonably request. Until a Dealer receives such financial statements, incorporated by reference into the Prospectus or any supplement thereto, the definition of Prospectus in Clause 1 shall, in relation to such Dealer, mean the Prospectus prior to the receipt by such Dealer of such financial statements or the publication of such revised Prospectus or supplement. |
5.2.4 |
Change of Terms: If the terms of the Programme are modified or amended in a manner which would make the Prospectus, as supplemented, inaccurate or misleading, Linde plc and Linde Finance shall prepare and publish a new Prospectus or supplement. |
5.3 |
Listing. The Issuers confirm that they have authorised the Luxembourg Listing Agent to make or cause to be made an application on behalf of and at the expense of the Issuers for the Programme to be admitted to the Euro MTF Market so that Notes to be issued under the Programme may be listed on the Official List of the Luxembourg Stock Exchange. |
If in relation to any issue of Notes, it is agreed between the relevant Issuer and the Relevant Dealer to list such Notes on any other or further Stock Exchange, each of the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) undertakes to use its best endeavours to obtain and maintain the listing of such Notes on such Stock Exchange. If any Notes cease to be listed on the relevant Stock Exchange, the relevant Issuer and the Guarantor (if Linde Finance is the Issuer) shall use its best endeavours promptly to list such Notes on another stock exchange to be agreed between the relevant Issuer and the Relevant Dealer.
For the avoidance of doubt, the Issuers will under no circumstance be obligated to prepare a prospectus compliant with the Regulation (EU) 2017/1129 of the European Parliament and of the Council (the Prospectus Regulation) for a listing of Notes on an EU regulated market.
Each relevant Issuer and the Guarantor (if Linde Finance is the Issuer) shall comply with the rules of each relevant Stock Exchange and shall otherwise comply with any undertakings given by it from time to time to the relevant Stock Exchange in connection with any Notes listed on such Stock Exchange or the listing thereof and shall furnish or procure to be furnished to the relevant Stock Exchange all such information as the relevant Stock Exchange may require in connection with the listing on such Stock Exchange of any Notes.
14 |
5.4 |
Agency Agreement and Guarantee. Each of Linde plc and Linde Finance undertakes that it will not: |
5.4.1 |
without prior consultation with the Dealers terminate the Agency Agreement or the Guarantee or effect or permit to become effective any amendment to any such agreement which, in the case of an amendment, would or might adversely affect the interests of any Dealer or of any holder of Notes issued before the date of such amendment, or |
5.4.2 |
except after consultation with the Arranger appoint a different Fiscal Agent or paying agent(s) under the Agency Agreement. |
Linde plc and/or Linde Finance shall promptly notify each of the Dealers of any termination of, or amendment to, the Agency Agreement, or the Guarantee and of any change in the Fiscal Agent or paying agent(s) under the Agency Agreement.
5.5 |
Lawful Compliance. Each of Linde plc and Linde Finance shall at all times ensure that all necessary action is taken and all necessary conditions are fulfilled (including, without limitation, the obtaining of all necessary consents) so that they may lawfully comply with their obligations under all Notes, this Agreement, the Agency Agreement and the Guarantee as the case may be, and, so that they may comply with any applicable laws, regulations and guidance from time to time promulgated by any governmental and regulatory authorities relevant in the context of the issue of Notes. Each of Linde plc and Linde Finance complies and undertakes that it will continue to comply with the requirements of the FSMA. |
5.6 |
Authorised Representatives. Linde plc and/or Linde Finance shall notify the Dealers and the Fiscal Agent immediately in writing if any of the persons named in the list referred to in paragraph 4 of the Documentation List ceases to be authorised to take action on behalf of Linde plc and/or Linde Finance respectively or if any additional person becomes so authorised together, in the case of an additional authorised person, with evidence satisfactory to the Dealers that such person has been so authorised. |
5.7 |
Auditors Comfort Letters. Linde plc and Linde Finance shall at the time of the preparation of the Prospectus and at other times whenever so reasonably requested by the Dealers (or any of them) deliver, at the expense of Linde plc and Linde Finance to the Dealers a comfort letter or comfort letters from independent auditors of Linde plc and Linde Finance in such form and with such content as the Dealers may reasonably request, provided that no such letter or letters will be delivered in connection with the publication or issue of the audited annual financial statements of Linde plc and Linde Finance. |
If at or prior to the time of any payment of net issue proceeds as set forth in Clause 2.2.2 such a request is made with respect to the Notes to be issued, the receipt of the relevant comfort letter or letters in a form satisfactory to the Relevant Dealer shall be a condition for the issue of those Notes to that Dealer.
5.8 |
No other Issues. During the period commencing on an Agreement Date and ending on the Issue Date with respect to any Notes which are issued on a syndicated basis and are to be listed, the relevant Issuer shall not, without prior consultation with the Relevant Dealer, issue or agree to issue any other listed notes, bonds or other debt securities of whatsoever nature (other than Notes to be issued to the same Dealer) where such notes, bonds or other debt securities would have the same maturity and currency as the Notes to be issued on the relevant Issue Date. |
15 |
5.9 |
Ratings. Each of Linde plc and Linde Finance undertakes promptly to notify the Dealers of any change in the ratings given by Moodys Investors Service, Inc., S&P Global Ratings Europe Limited and/or such other rating agency as notified to the Dealers for any of the Notes to be issued under the Programme by it or any public announcement that any such organisation has under surveillance or review its rating of any of the debt securities of such Issuer. |
5.10 |
Sanctions. Linde plc and Linde Finance will not use the proceeds from the issuance of Notes under the Programme in violation of any laws and regulations administered by OFAC, the U.S. Department of State, UNSC, the EU and the United Kingdom, respectively. |
This undertaking is only given to the extent that it does not result in a violation of or conflict with Section 7 of the German Foreign Trade Ordinance (§ 7 Außenwirtschaftsverordnung - AWV), any provision of Council Regulation (EC) No 2271/96 (or any law or regulation imposing penalties in respect of such regulation in the United Kingdom or any member state of the European Union) or any similar applicable blocking or anti-boycott statue in any member state of the European Union or the United Kingdom.
6 |
Indemnity |
6.1 |
Without prejudice to the other rights or remedies of the Dealers, each of Linde plc and Linde Finance jointly and severally undertake with each of the Dealers that they will indemnify each Indemnified Person against any losses, liabilities, damages, costs, claims, expenses or actions (including all reasonable costs, charges and expenses paid or incurred in disputing or defending any of the foregoing) which such Indemnified Person may incur or which may be made against it as a result of or in relation to: |
6.1.1 |
Failure to Issue: any failure by either Issuer to issue on the agreed Issue Date any Notes which a Dealer has agreed to purchase (unless such failure is as a result of the failure by the Relevant Dealer to pay the aggregate purchase price for such Notes); or |
6.1.2 |
Breach of Obligations: any breach or (in case of a claim not brought by any of the Dealers) alleged breach of the obligations and undertakings contained in or made by any Issuer and/or Guarantor (if Linde Finance is the Issuer) pursuant to this Agreement or any Subscription Agreement; or |
6.1.3 |
Inaccuracy of Warranties: any inaccuracy or alleged inaccuracy of the warranties contained in, or made or deemed to be made by any Issuer and/or Guarantor (if Linde Finance is the Issuer) pursuant to this Agreement or any Subscription Agreement; or |
6.1.4 |
Inaccuracy of Prospectus: any inaccurate or misleading, or allegedly inaccurate or misleading, untrue or (in case of a claim not brought by any of the Dealers) alleged untrue statement in, or omission, or alleged omission, from, the Prospectus or any part thereof; or |
6.1.5 |
Inaccuracy of Information Provided: any inaccurate or misleading, or allegedly inaccurate or misleading, statement in any additional written information provided by Linde plc and/or Linde Finance to the Dealers pursuant to Clause 7 below. |
6.2 |
Each of Linde plc and Linde Finance agrees that its undertaking pursuant to subsection 6.1.3 to 6.1.5 constitutes a separate and absolute guarantee and that its obligation to indemnify any Dealer shall exist irrespective of whether fault of itself, its organs, directors, officers, employees or agents is involved. |
16 |
7 |
Authority to Distribute Documents |
7.1 |
Linde plc and Linde Finance hereby authorise each of the Dealers on behalf of Linde plc and Linde Finance to provide copies of and make oral statements consistent with the Prospectus and such additional written information as Linde plc and Linde Finance shall provide to the Dealers or approve for the Dealers to use or such other information as is in the public domain as a consequence of a publication by or on behalf or with the express authority of either of them to actual and potential purchasers of Notes. |
7.2 |
When using the Prospectus, each Dealer must make certain that it complies with all applicable laws and regulations in force in the respective jurisdictions, including with the restrictions specified in the Prohibition of Sales to EEA and United Kingdom Retail Investors legend set out on the cover page of the applicable Final Terms, if any. |
8 |
Dealers Undertakings |
8.1 |
Each Dealer represents and agrees to comply with the restrictions and agreements set out in Schedule 2 hereto. |
8.2 |
Without prejudice to the other rights or remedies of Linde plc and Linde Finance, each of the Dealers severally undertakes with Linde plc and Linde Finance that it will indemnify Linde plc, Linde Finance, their affiliates and each of their directors, officers, employees and agents against any losses, liabilities, costs, claims, expenses or actions (including all reasonable costs, charges and expenses paid or incurred in disputing or defending any of the foregoing) which such entity or person may incur or which may be made against it as a result of or in relation to any wilful or negligent failure by that Dealer to comply with the restriction and agreement set out in Schedule 2 hereto, provided that, without prejudice to any other claim the Issuer may have against that Dealer, no Dealer shall be liable to hold Linde plc or Linde Finance indemnified against any losses, liabilities, costs, claims, expenses or actions arising from the sale of Notes to any person believed in good faith by that Dealer, on reasonable grounds after making all reasonable investigations, to be a person to whom Notes could legally be sold in compliance with the provisions of Schedule 2. |
8.3 |
Each of the Dealers agrees that a determination will be made in relation to each issue of Notes about whether, for the purpose of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the MiFID Product Governance Rules), any Dealer subscribing for any Notes is a manufacturer in respect of such Notes, but that, otherwise, neither the Arranger nor the Dealers nor any of their respective affiliates will be a manufacturer for the purpose of the MiFID Product Governance Rules. |
9 |
Fees, Expenses and Stamp Duties |
Linde plc and Linde Finance jointly and severally undertake that they will:
9.1 |
pay to each Dealer all commissions agreed between the relevant Issuer and such Dealer in connection with the sale of any Notes to that Dealer (and any value added tax or other tax thereon); and |
9.2 |
pay (together with any value added tax or other tax thereon): |
17 |
9.2.1 |
the fees and expenses of its legal advisers and auditors; |
9.2.2 |
the costs of listing and maintaining the listing of any Notes which are to be listed on a Stock Exchange; |
9.2.3 |
the costs of obtaining any credit rating for the Notes as agreed by the Issuer; |
9.2.4 |
the costs of any publicity agreed by the Issuer in connection with any issue of Notes; |
9.2.5 |
the cost of obtaining the approval of the Prospectus or any supplement thereto by the Luxembourg Stock Exchange; |
9.2.6 |
the costs in relation to the publication of the Prospectus and any supplement thereto in accordance with the Luxembourg Prospectus Law and any other applicable law, |
9.2.7 |
the fees and expenses of the Fiscal Agent and any paying agent as more fully set out in a letter between Linde plc and the Fiscal Agent; and |
9.2.8 |
all expenses in connection with the preparation of this Agreement, the Agency Agreement, the Guarantee and the preparation and printing the Prospectus and any amendments or supplements thereto (including the updating of any legal opinions issued pursuant to Clause 3.4 and of any auditors comfort letters issued pursuant to Clause 5.7); |
9.3 |
pay to Deutsche Bank the fees and disbursements of legal advisers appointed to represent the Dealers (including any value added tax thereon) in connection with the negotiation, preparation, execution and delivery of this Agreement, the Agency Agreement, the Guarantee and any documents referred to in any of them and any other documents required in connection with the update of the Programme as more fully set out in a letter of even date herewith between Linde plc, Linde Finance and Deutsche Bank; and |
9.4 |
pay promptly, and in any event before any penalty becomes payable, any documentary, registration or similar duty or tax payable in connection with the entry into, performance, enforcement or admissibility in evidence of this Agreement, any communication pursuant hereto, the Agency Agreement, the Guarantee or any Note and indemnify each Dealer against any liability with respect to or resulting from any delay in paying or omission to pay any such duty or tax. |
10 |
Termination of Appointment of Dealers |
Linde plc and Linde Finance or (as to itself) a Dealer may terminate this Agreement by giving not less than 30 days written notice to the other parties hereto. Linde plc and Linde Finance may terminate the appointment of a Dealer by giving not less than 30 days written notice to such Dealer (with a copy promptly thereafter to all the other Dealers and the Fiscal Agent). Termination shall not affect any rights or obligations (including but not limited to those arising under Clauses 6, 8 and 9) which have accrued at the time of termination or which accrue thereafter in relation to any act or omission or alleged act or omission which occurred prior to such time.
11 |
Appointment of New Dealers |
11.1 |
Appointment. Nothing in this Agreement shall prevent Linde plc and Linde Finance from appointing one or more New Dealers for the duration of the Programme or, with regard to an issue of a particular Tranche of Notes, for the purposes of that particular Tranche, in either case upon the terms of this Agreement. Unless such appointment is effected pursuant to a Subscription Agreement: |
18 |
11.1.1 |
any New Dealer shall have first delivered to the Issuers an appropriate Dealer Accession Letter; and |
11.1.2 |
the Issuers shall have delivered to such New Dealer an appropriate Confirmation Letter. |
11.2 |
Rights and Obligations of New Dealers. Upon receipt of the relevant Confirmation Letter or execution of the relevant Subscription Agreement, each such New Dealer shall, subject to the terms of the Relevant Dealer Accession Letter and the relevant Confirmation Letter or the relevant Subscription Agreement, as the case may be, become a party to this Agreement, vested with all rights and obligations of a Dealer as if originally named as a Dealer hereunder. Except in the case of the appointment of a New Dealer for the duration of the Programme, following the Issue Date of the relevant Tranche, the relevant New Dealer shall have no further rights or obligations except such as may have accrued or been incurred prior to, or in connection with, the issue of such Tranche. |
11.3 |
Dealer Notification. The Issuers shall promptly notify the other Dealers and the Fiscal Agent of any appointment of a New Dealer for the duration of the Programme by supplying to such parties a copy of any Dealer Accession Letter and Confirmation Letter. Such notice shall be given in the case of an appointment of a New Dealer for a particular issue of Notes to the Fiscal Agent only. |
12 |
Increase in the Programme Amount |
12.1 |
Procedure. From time to time Linde plc and Linde Finance may wish to increase the aggregate principal amount of the Notes that may be issued under the Programme. In such circumstances, they may give notice of such an increase (subject as set out in Clause 12.2) by delivering to the Luxembourg Listing Agent, the Fiscal Agent and the Dealers a letter substantially in the form set out in Schedule 4 hereto. Upon the date specified in such notice (which date may not be earlier than seven Frankfurt business days after the date on which the notice is given), all references in this Agreement, the Agency Agreement, the Guarantee or any other agreement or document in relation to the Programme to a Debt Issuance Programme of a certain principal amount, shall be and shall be deemed to be references to a Debt Issuance Programme of the increased principal amount. |
12.2 |
Documentation. The right of Linde plc and Linde Finance to increase the aggregate principal amount of the Programme shall be subject to each Dealer having received and found satisfactory all the documents and confirmations described in the Documentation List (with such changes as may be relevant, with reference to the circumstances at the time of the proposed increase as are agreed between Linde plc, Linde Finance and the Dealers), and the delivery of any further documents that the Arranger(s) on behalf of the Dealers may reasonably require, including the production by Linde plc and Linde Finance of a supplementary Prospectus and any further or other documents required by the relevant Stock Exchange for the purpose of listing any Notes to be issued under the Programme on the relevant Stock Exchange. The Arranger(s) shall circulate to the Dealers the documents and confirmations described in the Documentation List and any further documents which may have been required by it. Any Dealer must notify the Arranger(s) and Linde plc and Linde Finance within five Frankfurt business days of receipt, if it considers such documents to be unsatisfactory. In the absence of such notification, such Dealer shall be deemed to consider such documents to be satisfactory. |
19 |
13 |
Status of the Arranger, Indemnity Arrangements among the Dealers and Obligations Several |
13.1 |
Status of the Arranger. Each of the Dealers agrees that the Arranger has only acted in an administrative capacity to facilitate the establishment and/or maintenance of the Programme. The Arranger has no responsibility to any Dealer for (a) the adequacy, accuracy, completeness or reasonableness of any representation, warranty, undertaking, agreement, statement or information in the Prospectus, any Final Terms, this Agreement or any information provided in connection with the Programme or (b) the nature and suitability to it of all legal, tax and accounting matters and all documentation in connection with the Programme or any Tranche. |
13.2 |
Indemnity Arrangements among the Dealers. Each Indemnifying Dealer (as defined below) will indemnify any Non-participating Dealer (as defined below) named in the Prospectus against any loss, liability, claim, action, demand or expense (a Loss which shall include, but not be limited to, all reasonable costs, charges and expenses paid or incurred in disputing or defending any of the foregoing) which, such Non-participating Dealer may incur, or alternatively which may be made against such Non-participating Dealer by an order of a competent court or tribunal, in the relevant jurisdiction in connection with an offer of Notes under the Programme, as a result of a failure or an alleged failure by the Issuer or the Guarantor to update or supplement the Prospectus due to significant new factors arising after the date of the Prospectus, as required by law. |
Where there is only one Indemnifying Dealer, its share of the Loss will be the whole of the Loss. In all other cases, the Loss shall be proportionate to the amount of Notes underwritten by each Indemnifying Dealer.
The indemnity given by the Indemnifying Dealer as set out in this Clause shall not apply to any Loss for which the Issuer or the Guarantor itself is not also liable to the relevant Non-participating Dealer as set out in Clause 6.1.4.
Indemnifying Dealer means, where the relevant issue of Notes is subscribed by only one Dealer, that Dealer or, in any other case, the (Joint-) Lead Manager(s) or Joint Bookrunners of that issue (each as defined in the respective Subscription Agreement). Non-participating Dealer means any Dealer which is not an Indemnifying Dealer and in this definition, Dealer and Indemnifying Dealer includes, in each case, its affiliates and any person who controls it (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act).
The obligation of an Indemnifying Dealer to indemnify a Non-participating Dealer under this Clause shall only arise when such Non-participating Dealer:
(a) |
as soon as reasonably practicable but in any event not later than 25 days after becoming aware of any claim, action or other legal process being raised or instituted against it, notifies the Indemnifying Dealer thereof in writing and gives the Indemnifying Dealer an opportunity to participate in the defence of the claim, action or other legal process; and |
(b) |
in the exercise of its reasonable judgment, has determined: |
20 |
(i) |
following a formal legal opinion from a reputable law firm, that it is not possible to pursue an indemnification claim against the Issuer or the Guarantor under Clause 6.1.4; or |
(ii) |
that it is unlikely that such claim can be successfully collected in whole. |
An Indemnifying Dealer shall not be liable in respect of any Loss arising from the settlement of any claim, action or other legal process raised or instituted against a Non-participating Dealer effected without its consent, such consent not to be unreasonably withheld, delayed or denied.
13.3 |
Obligations Several. Save as expressly provided in any Subscription Agreement, the obligations of the Dealers and the Arranger under this Agreement are several and not joint. |
14 |
Assignment of Agreement |
Linde plc and Linde Finance may not assign their rights or transfer their obligations under this Agreement, in whole or in part. Any purported such assignment or transfer shall be void.
Subject to Clause 19, the Dealers may only assign or transfer their rights or obligations under this Agreement with the prior written consent of Linde plc and Linde Finance.
15 |
Currency Indemnity |
If, under any applicable law and whether pursuant to a judgment being made or registered against Linde plc or Linde Finance or in the liquidation, insolvency or analogous process of Linde plc or Linde Finance or for any other reason, any payment under or in connection with this Agreement is made or falls to be satisfied in a currency (the other currency) other than that in which the relevant payment is expressed to be due (the required currency) under this Agreement, then, to the extent that the payment (when converted into the required currency at the rate of exchange on the date of payment or, if it is not practicable for the Relevant Dealer to purchase the required currency with the other currency on the date of payment, at the rate of exchange as soon thereafter as it is practicable for it to do so or, in the case of a liquidation, insolvency or analogous process, at the rate of exchange on the latest date permitted by applicable law for the determination of liabilities in such liquidation, insolvency or analogous process) actually received by the Relevant Dealer falls short of the amount due under the terms of this Agreement, Linde plc and Linde Finance jointly and severally undertake that they shall, as a separate and independent obligation, indemnify such Dealer against the amount of such shortfall. For the purpose of this Clause rate of exchange means the rate at which the Relevant Dealer is able on the Frankfurt foreign exchange market on the Relevant Date to purchase the required currency with the other currency and shall take into account any premium and other reasonable costs of exchange.
16 |
Calculation Agent |
16.1 |
General. In the case of any Series of Notes which require the appointment of a Calculation Agent, the Fiscal Agent shall act as Calculation Agent, unless the Fiscal Agent has not agreed, or may not be treated as having agreed, to act as Calculation Agent in accordance with Clause 8 of the Agency Agreement or the Relevant Dealer or (in the case of a syndicated issue) the Lead Manager requests the Issuer to appoint such Dealer or Lead Manager, or a person nominated by such Dealer or Lead Manager (a Nominee), as Calculation Agent and the Issuer agrees thereto. |
21 |
16.2 |
Appointment. Should such a request be made to the Issuer and agreement be given by the Issuer, the appointment of that Dealer or Lead Manager shall be automatic upon the issue of the relevant Series of Notes, and shall, except as agreed, be on the terms set out in the Agency Agreement. No further action shall be required to effect the appointment of such Dealer or Lead Manager as Calculation Agent in relation to that Series of Notes. The appointment of a Nominee as Calculation Agent shall require the delivery (i) to the Nominee of a Calculation Agent Appointment Letter duly completed and executed by the Issuer and (ii) to the Issuer of a Confirmation duly completed and executed by that Nominee, such Calculation Agent Appointment Letter and such Confirmation to be substantially in the form set out in Schedule 2 to the Agency Agreement or as otherwise agreed. The name of the Dealer, Lead Manager or Nominee so appointed will be entered in the relevant Final Terms. |
17 |
Stabilisation |
In connection with the issue of any Tranche of Notes under the Programme, the Stabilising Manager or any person acting for such Stabilising Manager may over-allot Notes or effect transactions with a view to supporting the price of the Notes at a level higher than that which might otherwise prevail. However, stabilisation may not necessarily occur. Such stabilising, if commenced, may be discontinued at any time, and must be brought to an end after a limited period. Such stabilising shall be in compliance with all applicable laws, regulations and rules. Any stabilisation action may begin at any time after the adequate public disclosure of the terms of the offer of the relevant Tranche of the Notes and, if begun, may cease at any time, but it must end no later than the earlier of 30 days after the Issue Date and 60 days after the date of the allotment of the relevant Tranche of Notes. Any stabilisation action or over-allotment must be conducted by the relevant Stabilising Manager(s) (or person(s) acting on behalf of any Stabilising Manager(s)) in accordance with all applicable laws and rules. Any loss or profit sustained as a consequence of any such over-allotment or stabilising shall, as against the Issuer and the Guarantor, be for the account of the Stabilising Manager. Linde plc and Linde Finance authorise the Stabilising Manager (or person(s) acting on its behalf) to make adequate public disclosure of the information required in relation to such stabilisation by Regulation (EU) No. 596/2014 after consultation with the relevant Issuer. The relevant Stabilising Manager shall also act as central point responsible pursuant to Article 6(5) Commission Delegated Regulation (EU) 2016/1052 of 8 March 2016 supplementing the Market Abuse Regulation.
18 |
Notices and Communications |
18.1 |
Form of and Address for Notices. All notices and communications under this Agreement shall be by letter, email or fax, posted or delivered by hand, or (but only where specifically provided in the Procedures Memorandum) by telephone. Each notice or communication shall be given to the relevant party at the address, fax number or telephone number and, in the case of a communication by letter or fax, marked for the attention of, or (in the case of a communication by telephone) made to, the person(s) or department from time to time specified in writing by that party to the other for the purpose. The initial address, telephone number, fax number and person(s) or department so specified by each party are set out in Schedule 7 hereto. |
18.2 |
Effectiveness. Every notice or communication sent in accordance with Clause 18.1 shall be effective as follows: |
22 |
18.2.1 |
Letter, Email or Fax: if sent by letter, email or fax, upon receipt by the addressee; and |
18.2.2 |
Telephone: if made on the telephone, upon being made. |
In the case of (a) above, any such notice or communication which would otherwise take effect after 4.00 p.m. in the place of the addressee on any particular day shall not take effect until 10.00 a.m. on the immediately succeeding business day in the place of the addressee.
18.3 |
Copy to Linde plc. A copy of any notice or communication served on Linde Finance in accordance with Clause 18.1 above shall be given to Linde Plc to the contact specified in Schedule 7 hereto |
19 |
Recognition of the U.S. Special Resolution Regime |
19.1 |
In the event that any Dealer that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Dealer of this Dealer Agreement, and any interest and obligation in or under this Dealer Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Dealer Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
19.2 |
In the event that any Dealer that is a Covered Entity or a Covered Affiliate of any such Dealer becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Dealer Agreement that may be exercised against such Dealer are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Dealer Agreement were governed by the laws of the United States or a state of the United States. |
Covered Affiliate has the meaning assigned to the term affiliate in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
Covered Entity means any of the following:
(i) |
a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
(ii) |
a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
(iii) |
a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
U.S. Special Resolution Regime means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23 |
20 |
No Fiduciary Duties |
Each Issuers acknowledges and agrees that each Dealer is acting solely pursuant to a contractual relationship with the Issuers on an arms length basis with respect to the Programme and any issue, offer and sale of Notes thereunder (including in connection with determining the terms of the issue, offer and sale of any Notes) and not as a financial adviser or a fiduciary to the Issuers or any other person. Additionally, each Issuer acknowledges that none of the Dealers is advising the Issuers or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Each Issuer shall consult with its own advisers concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Dealers shall have no responsibility or liability to the Issuers with respect thereto. The Issuer further acknowledges and agrees that any review by the Dealers of the Issuers, any issue, offer and sale of the Notes under the Programme, the terms of any Notes and other matters relating thereto will be performed solely for the benefit of the relevant Dealer and shall not be on behalf of the Issuers or any other person. The foregoing is without prejudice to any obligation of the relevant Dealers to make recommendations to the Issuers concerning the pricing of any offerings under the Programme in accordance with applicable laws and regulations.
21 |
Power of Attorney |
If Linde Finance is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Agreement or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of the Netherlands, it is hereby expressly acknowledged and accepted by the other parties hereto that such laws shall govern the existence and extent of such attorneys or attorneys authority and the effects of the exercise thereof.
22 |
Governing Law, Place of Jurisdiction |
22.1 |
Governing Law. This Agreement, any non-contractual obligations arising out of or in connection with it and every agreement for the issue and purchase of Notes as referred to in Clause 2 shall be governed by, and construed in accordance with, German law. |
22.2 |
Place of Jurisdiction. Any action or other legal proceedings (Proceedings) arising out of or in connection with this Agreement shall be brought in the District Court (Landgericht) in Frankfurt am Main. |
Nothing contained herein shall limit the right of any party hereto to take Proceedings against any other party hereto in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
23 |
Severability and Partial Invalidity |
Should any provision of this Agreement be or become invalid in whole or in part, the other provisions shall remain in force. The invalid provision shall be deemed substituted by a valid provision which accomplishes as far as legally possible the economic purposes of the invalid provision.
24 |
Counterparts |
This Agreement may be signed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement and any party may enter into this Agreement by executing a counterpart.
24 |
SCHEDULE 1
Documentation List
1. |
A copy of the Articles of Association of Linde plc and Linde Finance, respectively. |
2. |
An extract of most recent date from the Commercial Registers pertaining to Linde plc and Linde Finance, respectively. |
3. |
Copies of the resolution of the board of management of Linde plc and Linde Finance, respectively, passed in connection with the establishment of the Programme. |
4. |
A list of the names and titles and specimen signatures of the persons authorised to sign on behalf of Linde plc and Linde Finance. |
5. |
Conformed copies of each of this Agreement, the Agency Agreement and the Guarantee. |
6. |
The Prospectus. |
7. |
A copy of the approval of the Prospectus by the Luxembourg Stock Exchange. |
8. |
A copy of the effectuation authorisations signed by each Issuer in the form or, substantially in the form of, Schedule 6. |
9. |
A copy of the agreement of each Issuer with the ICSDs regarding Notes in NGN format. |
10. |
Legal opinions in form and substance satisfactory to the Arranger from: |
(a) |
Linklaters LLP (legal advisers to the Issuers as to the laws of The Netherlands); |
(b) |
Arthur Cox (legal advisers to the Issuers as the laws of Ireland); |
(c) |
Hengeler Mueller Partnerschaft von Rechtsanwälten mbB (legal advisers to the Dealers as to the laws of the Federal Republic of Germany). |
11. |
Comfort letters from PricewaterhouseCoopers, Ireland, as independent auditors of Linde plc for its IFRS financial statements, PricewaterhouseCoopers LLP, as independent auditors of Linde plc for its U.S. GAAP financial statements and KPMG Accountants N.V. as independent auditors of Linde Finance. |
All such documents shall be in the German or English language or shall be accompanied by a certified translation into the German or English language, if applicable.
25 |
SCHEDULE 2
Selling Restrictions
1. |
General |
Each Dealer acknowledges that, other than with respect to the listing of the Notes on the relevant stock exchange, no action has been or will be taken in any country or jurisdiction by the Issuer or the Dealers that would permit a public offering of Notes, or possession or distribution of any offering material in relation thereto, in any country or jurisdiction where action for that purpose is required. Each Dealer will (to the best of its knowledge) comply with all applicable laws and regulations in each country or jurisdiction in or from which it purchases, offers, sells or delivers Notes or has in its possession or distributes such offering material, in all cases at its own expense.
2. |
United States of America |
(a) |
Each Dealer acknowledges that the Notes and the Guarantee have not been and will not be registered under the Securities Act, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S under the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. |
(b) |
Each Dealer represents and agrees that it has not offered and sold any Notes, and will not offer and sell any Notes constituting part of its allotment within the United States or to, or for the account or benefit of a U.S. person, except in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act. Accordingly, each Dealer further has represented and agreed that neither it, its affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts with respect to any Note, and it and they have complied and will comply with the offering restrictions requirements of Regulation S. |
(c) |
Each Dealer agrees that, at or prior to confirmation of any sale of Notes, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it during the distribution compliance period a confirmation or notice to substantially the following effect: |
The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 as amended (the Securities Act) and no Dealer (or persons covered by Rule 903 (c)(2)(iv)) may offer or sell any Notes constituting part of its allotment within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act. Terms used above have the meanings given to them by Regulation S.
Terms used in the above paragraph have the meanings given to them by Regulation S.
Each Dealer represents and agrees that it has not entered and will not enter into any contractual arrangement with respect to the distribution or delivery of Notes, except with its affiliates or with the prior written consent of the Issuer.
(d) |
Notes will be issued in accordance with the provisions of United States Treasury Regulations Section 1.163-5(c)(2)(i)(D) (the D Rules), or in accordance with the provisions of United States Treasury Regulations Section 1.163-5(c)(2)(i)(C) (the C Rules) (or, any successor rules in substantially the same form as the C Rules or D Rules, as applicable, for purposes of Section 4701 of the U.S. Internal Revenue Code). |
26 |
In respect of Notes issued in accordance with the D Rules, each Dealer represents and agrees that:
(i) |
except to the extent permitted under the D Rules, (x) it has not offered or sold, and during the restricted period will not offer or sell, Notes to a person who is within the United States or its possessions or to a United States person, and (y) such Dealer has not delivered and will not deliver within the United States or its possessions definitive Notes that are sold during the restricted period; |
(ii) |
it has and throughout the restricted period will have in effect procedures reasonably designed to ensure that its employees or agents who are directly engaged in selling Notes are aware that such Notes may not be offered or sold during the restricted period to a person who is within the United States or its possessions or to a United States person, except as permitted by the D Rules; |
(iii) |
if such Dealer is a United States person, it has represented that it is acquiring the Notes for purposes of resale in connection with their original issuance and if such Dealer retains Notes for its own account, it will only do so in accordance with the requirements of the D Rules; |
(iv) |
with respect to each affiliate that acquires from such Dealer Notes for the purposes of offering or selling such Notes during the restricted period, such Dealer either (x) repeats and confirms the agreements contained in sub-clauses (i), (ii) and (iii) on such affiliates behalf or (y) agrees that it will obtain from such affiliate for the benefit of the Issuer the agreements contained in sub-clauses (i), (ii) and (iii). |
Terms used in the above paragraph have the meanings given to them by the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder, including the D Rules.
In addition, in respect of Notes issued in accordance with the C Rules, Notes must be issued and delivered outside the United States and its possessions in connection with their original issuance. Each Dealer represents and agrees that it has not offered, sold or delivered and will not offer, sell or deliver, directly or indirectly, Notes within the United States or its possessions in connection with their original issuance. Further, each Dealer represents and agrees in connection with the original issuance of Notes, that it has not communicated, and will not communicate, directly or indirectly, with a prospective purchaser if such purchaser is within the United States or its possessions and will not otherwise involve its U.S. office in the offer or sale of Notes. Terms used in this paragraph have the meanings given to them by the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder, including the C Rules.
Notes issued pursuant to the D Rules (other than Temporary Global Notes) will bear the following legend: Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code.
27 |
3. |
European Economic Area and the United Kingdom |
Unless the Final Terms in respect of any Notes specify the Prohibition of Sales to EEA and United Kingdom Retail Investors as Not Applicable, each Dealer represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes which are the subject of the offering contemplated by the Prospectus as completed by the Final Terms in relation thereto to any retail investor in the European Economic Area and in the United Kingdom. For the purposes of this provision:
the expression retail investor means a person who is one (or more) of the following:
(i) |
a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, MiFID II); or |
(ii) |
a customer within the meaning of Directive 2016/97/EU, as amended, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II. |
4. |
United Kingdom of Great Britain and Northern Ireland (United Kingdom) |
Each Dealer represents and agrees that:
(a) |
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer or the Guarantor; and |
(b) |
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom. |
5. |
The Netherlands |
Each Dealer represents and agrees that it has complied and will comply with the requirement under the Dutch Savings Certificates Act (Wet inzake spaarbewijzen) that bearer Zero Coupon Notes and other Notes which qualify as savings certificates as defined in the Dutch Savings Certificates Act may only be transferred and accepted, directly or indirectly, within, from or into the Netherlands through the mediation of either the relevant Issuer or a Member of Euronext Amsterdam N.V. with due observance of the Dutch Savings Certificates Act and its implementing regulations (including registration requirements). No such mediation is required, however, in respect of (i) the initial issue of such Notes to the first holders thereof, (ii) the transfer and acceptance by individuals who do not act in the conduct of a profession or business, and (iii) the issue and trading of such Notes, if they are physically issued outside the Netherlands and are not distributed in the Netherlands in the course of primary trading or immediately thereafter.
Each Dealer represents and agrees that, in order to offer the Notes in the Netherlands, it is either licensed or exempt under Section 2:96 of the Act on the Financial Supervision (Wet op het financieel toezicht).
28 |
6. |
Switzerland |
Each Dealer acknowledges that with regard to Switzerland the Prospectus is not intended to constitute an offer or solicitation to purchase or invest in the Notes described therein. The Notes may not be publicly offered directly or indirectly, in, into or from Switzerland within the meaning of the Swiss Financial Services Act (FinSA) and will not be admitted to trading on any exchange or other trading venue in Switzerland. Neither the Base Prospectus nor any other offering or marketing material relating to the Notes constitutes a prospectus as such term is understood pursuant to the FinSA and neither the Base Prospectus nor any other offering or marketing material relating to the Notes may be publicly distributed or otherwise made publicly available in Switzerland.
7. |
Singapore: |
Each Dealer acknowledges that the Prospectus has not been and will not be registered as a prospectus with the Monetary Authority of Singapore and the Notes will be offered pursuant to exemptions under the Securities and Futures Act, Chapter 289 of Singapore (the SFA). Accordingly, the Prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes may not be circulated or distributed, nor may the Notes be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (1) to an institutional investor under Section 274 of the SFA; (2) to a relevant person pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA or (3) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the Notes are subscribed or purchased under Section 275 of the SFA by a relevant person which is (a) a corporation (which is not an accredited investor) (as defined in Section 4A of the SFA) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, securities or securities-based derivatives contracts (each as defined in Section 2(1) of the SFA) of that corporation or the beneficiaries rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired the securities under Section 275 of the SFA except:
a) |
to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA; |
b) |
where no consideration is or will be given for the transfer; |
c) |
where the transfer is by operation of law; or |
d) |
as specified in Section 276(7) of the SFA, |
as specified in Regulation 37A of the Securities and Futures (Offers of Investments)(Securities and Securities-based Derivatives Contracts) Regulations 2018.
29 |
SCHEDULE 3
Dealer Accession
PART I
Form of Dealer Accession Letter - Programme
[Date]
To: |
Linde plc |
Linde Finance B.V.
Linde plc
Linde Finance B.V.
EUR 10,000,000,000 Debt Issuance Programme
Dear Sirs,
We refer to the Dealer Agreement dated 11 May 2020 entered into in respect of the above Debt Issuance Programme and made between Linde plc, Linde Finance B.V. and the Dealers party thereto (which agreement, as amended, supplemented or restated from time to time, is herein referred to as the Dealer Agreement).
Conditions Precedent
We confirm that we are in receipt of the documents referenced below:
(i) |
a copy of the Dealer Agreement; and |
(ii) |
a copy of all documents referred to in Schedule 1 of the Dealer Agreement, |
and have found them to our satisfaction.
For the purposes of the Dealer Agreement our notice details are as follows:
[insert name, address, telephone, facsimile and attention].
In consideration of the appointment by yourselves of us as a Dealer under the Dealer Agreement we hereby undertake, for your benefit and the benefit of the other Dealers, that we will perform and comply with all the duties and obligations expressed to be assumed by a Dealer under the Dealer Agreement.
30 |
This letter is governed by, and shall be construed in accordance with, German law.
Yours faithfully,
[Name of New Dealer]
By:
cc: |
Deutsche Bank Aktiengesellschaft, |
as Fiscal Agent
31 |
PART Il
Form of Confirmation Letter - Programme
[Date]
To: [Name and address of New Dealer]
Linde plc
Linde Finance B.V.
EUR 10,000,000,000 Debt Issuance Programme
Dear Sirs,
We refer to the Dealer Agreement dated 11 May 2020 (such agreement, as amended, supplemented or restated from time to time, the Dealer Agreement) entered into in respect to the above Debt Issuance Programme and hereby acknowledge receipt of your Dealer Accession Letter to us dated [●].
We hereby confirm that, with effect from the date hereof, you shall become a party to the Dealer Agreement in accordance with Clause 11.2 of the Dealer Agreement.
Yours faithfully,
Linde plc | ||||
|
|
|||
By: | By: | |||
Linde Finance B.V. | ||||
|
|
|||
By: | By: |
cc: Deutsche Bank Aktiengesellschaft, as Fiscal Agent The other Dealers
32 |
PART III
Form of Dealer Accession Letter - Note Issue
[Date]
To: |
Linde plc |
Linde Finance B.V.
[Description of issue]
(the Notes)
Dear Sirs,
We refer to the Dealer Agreement dated 11 May 2020 and made between Linde plc, Linde Finance B.V. and the Dealers party thereto (which agreement, as amended, supplemented or restated from time to time, is herein referred to as the Dealer Agreement).
Conditions Precedent
We confirm that we are in receipt of the documents referenced below:
(i) |
a copy of the Dealer Agreement; and |
(ii) |
a copy of such of the other documents referred to in Schedule 1 of the Dealer Agreement as we have requested, |
and have found them to our satisfaction or (in the case of the documents referred to in (ii) above) have waived such production.
For the purposes of the Dealer Agreement our notice details are as follows:
[insert name, address, telephone, facsimile and attention].
In consideration of the appointment by yourselves of us as a Dealer in respect of the issue of the Notes under the Dealer Agreement we hereby undertake, for your benefit and the benefit of each of the other Dealers that in relation to the issue of the Notes we will perform and comply with all the duties and obligations expressed to be assumed by a Dealer under the Dealer Agreement.
This letter is governed by, and shall be construed in accordance with, German law.
Yours faithfully, |
[Name of New Dealer] |
|
By: |
cc: |
Deutsche Bank Aktiengesellschaft, |
as Fiscal Agent
33 |
PART IV
Form of Confirmation Letter - Note Issue
[Date]
To: |
[Name and address of New Dealer] |
[Linde plc] [Linde Finance B.V.]
(the Issuer)
[Description of issue]
(the Notes)
Dear Sirs,
We refer to the Dealer Agreement dated 11 May 2020 (such agreement, as amended, supplemented or restated from time to time, the Dealer Agreement) and hereby acknowledge receipt of your Dealer Accession Letter to us dated [●].
We hereby confirm that, with effect from the date hereof in respect of the issue of the Notes, you shall become a party to the Dealer Agreement in accordance with the provisions of Clause 11.2 of the Dealer Agreement.
Yours faithfully, | ||||
Linde plc | ||||
|
|
|||
By: | By: | |||
Linde Finance B.V. | ||||
|
|
|||
By: | By: |
cc: |
Deutsche Bank Aktiengesellschaft, |
as Fiscal Agent
34 |
SCHEDULE 4
Letter regarding increase in the Programme Amount
[Date]
To: |
The Dealers and the Luxembourg Listing Agent |
(as those expressions are defined
in the Dealer Agreement
dated 11 May 2020,
as amended, supplemented or restated from
time to time (the Dealer Agreement))
Linde plc
Linde Finance B.V.
EUR 10,000,000,000 Debt Issuance Programme
Dear Sirs,
We hereby require, pursuant to Clause 12.1 of the Dealer Agreement, that the aggregate principal amount of the above Programme be increased to EUR [●] from [specify date which is no earlier than seven Frankfurt business days after the date the notice is given] whereupon all references in the Dealer Agreement, the Agency Agreement, the Guarantee and the Procedures Memorandum will be deemed amended accordingly.
We understand that this increase is subject to the satisfaction of the condition set out in Clause 12.2 of the Dealer Agreement, namely that each Dealer shall have received and found satisfactory the documents listed in the Documentation List (with such agreed changes as may be relevant with reference to the circumstances at the time of the proposed increase).
You must notify the Fiscal Agent and ourselves within five Frankfurt business days of receipt by you of those documents if you consider such documents to be unsatisfactory and, in the absence of such notification, you will be deemed to consider such documents to be satisfactory.
35 |
Terms used in this letter have the meanings given to them in the Dealer Agreement.
Yours faithfully, | ||||
Linde plc | ||||
|
|
|||
By: | By: | |||
Linde Finance B.V. | ||||
|
|
|||
By: | By: |
cc: |
Deutsche Bank Aktiengesellschaft, |
as Fiscal Agent
36 |
SCHEDULE 5
Form of Subscription Agreement
Dated [●]
[LINDE PLC] [LINDE FINANCE B.V.]
as Issuer
[and
LINDE PLC
as Guarantor]
and
[insert Lead Manager]
as Lead Manager
and
OTHERS
SUBSCRIPTION AGREEMENT
relating to the
EUR 10,000,000,000 Debt Issuance Programme
Ref:
Linklaters LLP
37 |
(1) |
[Linde plc] |
[Linde Finance B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) with its registered office in Amsterdam and registered in the Dutch Trade Register of the Chamber of Commerce under number 34115238]
(the Issuer)
[(2)] |
[if Linde Finance is the Issuer insert: Linde plc |
(the Guarantor)]
[(3)] |
[Insert name of lead manager] |
(the Lead Manager)
[(4)] |
[insert name of other managers] |
(together, with the Lead Manager, the Managers)
agree as follows:
1 |
Terms |
The Issuer proposes to issue [description of issue] (the Notes) pursuant to the EUR 10,000,000,000 Debt Issuance Programme established by it. The terms of the issue shall be as set out in the Conditions. [The Notes will be unconditionally and irrevocably guaranteed by the Guarantor.]
References herein to the Conditions shall be to the [in the case Part I of the Final Terms only refers to the relevant provisions of Option I or Option II: set of terms and conditions for [Fixed Rate Notes] [non-interest bearing Notes] [Zero Coupon Notes] [Floating Rate Notes] as determined and completed by the final terms relating to the Notes (the Final Terms), both as attached hereto as Annex A] [in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II: Conditions as attached hereto as Annex A].
This Agreement is supplemental to the Dealer Agreement (the Dealer Agreement) dated 11 May 2020 made between the Issuer [, the Guarantor] and the Dealers party thereto. All terms with initial capitals used herein without definition have the meanings given to them in the Dealer Agreement.
2 |
[Appointments] |
[The Issuer hereby appoints each Manager, which is not a party to the Dealer Agreement (each a New Dealer), as a New Dealer in accordance with the provisions of Clause 11 of the Dealer Agreement for the purposes of the issue of the Notes. The Lead Manager confirms that it is in receipt of the documents referenced below:
(i) |
a copy of the Dealer Agreement; and |
(ii) |
a copy of such of the documents referred to in Schedule 1 of the Dealer Agreement as the Lead Manager (on behalf of the Managers) has requested |
38 |
and has confirmed with [each of] the New Dealer[s] that [each of] the New Dealer[s] has found them to be satisfactory or (in the case of any or all of the documents referred to in (ii)) has waived such production.
or the purposes of the Dealer Agreement the details of the Lead Manager for service of notices are as follows:
[insert name, address, telephone, facsimile and attention].
In consideration of the Issuer appointing the New Dealer[s] as [a] Dealer[s] in respect of the Notes under the Dealer Agreement, [each/the] New Dealer hereby undertakes, for the benefit of the Issuer [,the Guarantor] and each of the other Dealers, that, in relation to the issue of the Notes, it will perform and comply with all the duties and obligations expressed to be assumed by a Dealer under the Dealer Agreement, a copy of which it acknowledges it has received from the Lead Manager. The Issuer [and the Guarantor] hereby confirms that [each of] the New Dealer[s] shall be vested with all rights and obligations of a Dealer in relation to the issue of the Notes as if originally named as a Dealer under the Dealer Agreement, provided that following the Issue Date of the Notes [each of] the New Dealer[s] shall have no further such rights and obligations except such as may have accrued or been incurred prior to, or in connection with, the issue of the Notes.]
3 |
Purchase of the Notes |
3.1 |
Subject to the terms and conditions of the Dealer Agreement the Issuer hereby agrees to issue the Notes and each Manager severally and not jointly agrees to purchase such principal amount of the Notes as corresponds to its commitment as set forth in Annex B attached hereto at a purchase price of [●]% of the principal amount of the Notes (the Purchase Price), being the issue price of [●]% less a selling concession of [●]%of such principal amount and a management and underwriting fee of [●]% of such principal amount. |
3.2 |
The settlement procedures set out in Part II of the Procedures Memorandum shall apply as if set out in this Agreement provided that, for the purposes of this Agreement: |
(i) |
the sum payable on the Issue Date shall be [●] (representing the Purchase Price) [, less the amount payable in respect of Managers expenses specified in Article [4] of this Agreement]; |
(ii) |
Issue Date means [●] a.m. ([●] time) on [●] or such other time and/or date as the Issuer and the Lead Manager on behalf of the Managers may agree; |
(iii) |
Payment Instruction Date means the Issue Date unless there is to be a pre-closing for the issue in which case it means the business day (being a day on which banks and foreign exchange markets are open for business in [Frankfurt]) prior to the Issue Date. |
4 |
Expenses |
The Issuer[, or failing the Issuer, the Guarantor] shall bear and pay (together with any applicable value added tax) all costs and expenses incurred in or in connection with the issue of the Global Notes, this Agreement and the Final Terms prepared in connection with the issue of the Notes[, the listing of the Notes on the [Euro MTF market of the Luxembourg Stock Exchange] [insert other stock exchange]] and making initial delivery of the Notes. In addition, the Issuer[, or failing the Issuer, the Guarantor] agrees to pay to the Lead Manager [insert currency and amount] in respect of legal, travelling, telex, facsimile, telephone, postage and advertising expenses incurred and to be incurred by the Managers in connection with the preparation and management of the issue, and distribution of the Notes which sum may be deducted from the Purchase Price as provided in Clause [3] hereof.
39 |
5 |
Conditions Precedent |
5.1 |
The obligation of the Managers to purchase the Notes is conditional upon: |
(a) |
the conditions set out in Clause 3.2 of the Dealer Agreement being satisfied as of the Payment Instruction Date and without prejudice to the aforesaid, the Prospectus dated [] [, as supplemented by [],] containing all material information relating to the assets and liabilities, financial position and profits and losses of the Issuer [and the Guarantor] and nothing having happened or being expected to happen which would require the Prospectus [, as so supplemented,] to be [further] supplemented or updated; and |
(b) |
the delivery to the Lead Manager on the Payment Instruction Date of: |
(i) |
legal opinion[s] addressed to the Managers dated the Payment Instruction Date in such form and with such contents as the Lead Manager, on behalf of the Managers, may reasonably require from [the internal legal department of the Issuer] [Linklaters LLP] [and] [Hengeler Mueller Partnerschaft von Rechtsanwälten mbB]; |
(ii) |
a certificate dated as at the Payment Instruction Date signed by a duly authorised officer of the Issuer [and a certificate dated as at the Payment Instruction Date signed by a duly authorised officer of the Guarantor] giving confirmation to the effect stated in sub-paragraph (a) of this Article; |
(iii) |
[a] comfort letter[s] dated the [date hereof and the] Payment Instruction Date from the independent auditors of [each of] the Issuer [and the Guarantor], in such form and with such content as the Managers may reasonably request; |
(iv) |
such other conditions precedent as the Lead Manager may require. |
5.2 |
If any of the conditions set forth in Clause [5].1 is not satisfied as of the Payment Instruction Date, this Agreement shall terminate on such date. Upon such termination the parties hereto shall be under no further liability arising out of this Agreement (except for the liability of the Issuer[, or failing the Issuer, the Guarantor] in relation to expenses as provided in Clause [4] hereof and except for any liability arising before or in relation to such termination), provided that the Lead Manager, on behalf of the Managers, may in its discretion waive any of the aforesaid conditions (other than the condition precedent contained in Clause 3.2.4 of the Dealer Agreement) or any part of them. |
6 |
Force Majeure |
The Lead Manager, on behalf of the Managers, may, by notice to the Issuer [and the Guarantor], terminate this Agreement at any time prior to payment of the net purchase money to the Issuer if in the opinion of the Lead Manager, upon consultation, if practicable, with the Issuer [and the Guarantor], there shall have been such a change in national or international financial, political or economic conditions or currency exchange rates or exchange controls as would in its view be likely to either prejudice materially the success of the offering and distribution of the Notes or dealings in the Notes in the secondary market. Upon such notice being given, the parties to this Agreement shall (except for the liability of the Issuer[, or failing the Issuer, the Guarantor] in relation to expenses as provided in Clause [4] hereof and except for any liability arising before or in relation to such termination) be released and discharged from their respective obligations under this Agreement.
40 |
7 |
MiFID Product Governance Rules |
Solely for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated Directive 2017/593 (the Product Governance Rules) regarding the mutual responsibilities of manufacturers under the Product Governance Rules:
(a) |
each of the Manager[s] (each a Manufacturer and together the Manufacturers) acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Notes and the related information set out in the Final Terms in connection with the Notes; and |
(b) |
[the Managers] [and] [,] the Issuer [and the Guarantor] note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Notes by the Manufacturer[s] and the related information set out in the Final Terms in connection with the Notes. |
8 |
Miscellaneous |
8.1 |
Clause 19 of the Dealer Agreement shall also apply to this Agreement as if expressly incorporated herein. |
8.2 |
This Agreement may be signed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement and any party may enter into this Agreement by executing a counterpart. |
The Issuer | ||||||
[LINDE PLC] [LINDE FINANCE B.V.] | ||||||
[The Guarantor | ||||||
[LINDE PLC] | ||||||
] |
The Managers |
[NAMES OF MANAGERS] |
41 |
ANNEX A
to the Subscription Agreement
[The Conditions]
42 |
SCHEDULE 6
Issuer Effectuation Authorisation
(Letterhead of Issuers)
Linde plc
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
Linde Finance B.V.
Buitenveldertselaan 106
1081 AB Amsterdam
The Netherlands
[Date]
To: |
Euroclear Bank SA/NV |
New Issues Department
1 Boulevard du Roi Albert II
1210 Brussels
Belgium
Clearstream Banking S.A.
New Issues Department
42 Avenue J.F. Kennedy
1855 Luxembourg
Luxembourg
Dear Sirs,
Linde plc
Linde Finance B.V.
EUR 10,000,000,000
Debt Issuance Programme
With respect to each global note representing securities issued under the above-captioned programme received from time to time by Euroclear Bank SA/NV and/or Clearstream Banking S.A. (the CSK) from ourselves or any agent acting on our behalf (each a Global Note), we hereby authorise and instruct the CSK to:
(i) |
act as our agent with respect to the effectuation of each Global Note and, as such, sign each Global Note as the final act making such note a valid security in accordance with the terms of such Global Note; and |
44 |
(ii) |
destroy each Global Note in accordance with the normal procedure of the CSK upon maturity and final redemption (or, in the case of each temporary global note, full exchange for the relative permanent global note) of such Global Note. |
We expressly authorise the CSK to sub-delegate the effectuation authorisation set out in subparagraph (i) above to any other party acting for such CSK.
Very truly yours,
On behalf of
[Linde plc]
[Linde Finance B.V.]
By: |
[Signature of Authorised Officer of relevant Issuer or Agent with Authorisation of relevant Issuer] |
[Print Name]
[Street Address]
[City]
[Country]
[Postal Code]
[Phone Number]
[E-mail Address]
45 |
SCHEDULE 7
List of Communication Details
46 |
47 |
48 |
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
LINDE PLC | ||
/s/ Christopher Cossins |
||
By: | Christopher Cossins | |
LINDE FINANCE B.V. | ||
/s/ Micha Glaser |
||
By: | Micha Glaser |
S-1 |
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
DEUTSCHE BANK AKTIENGESELLSCHAFT | ||||
(as Arranger and Dealer) | ||||
/s/ Dr. Ute Münstermann | /s/ Dr. Mark K. Oulds | |||
By: Dr. Ute Münstermann | By: Dr. Mark K. Oulds |
BOFA SECURITIES EUROPE SA | ||||
/s/ Elena Leone | ||||
By: Elena Leone |
CITIGROUP GLOBAL MARKETS EUROPE AG | ||||
/s/ Julia Bardin | /s/ Aoife Boyle | |||
By: Julia Bardin | Aoife Boyle |
Designated Signatory Designated Signatory
CITIGROUP GLOBAL MARKETS LIMITED | ||||
/s/ Julia Bardin | ||||
By: Julia Bardin Designated Signatory |
CREDIT SUISSE SECURITIES (EUROPE) LIMITED | ||||
/s/ Scott Roose |
/s/ Anthony Stringer |
|||
By: Scott Roose Managing Director |
Anthony Stringer Director |
HSBC BANK PLC | ||||
/s/ Samantha Riley | ||||
By: Samantha Riley |
S-2 |
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
J.P. MORGAN SECURITIES PLC |
/s/ Alexander Voigt |
By: Alexander Voigt, Executive Director |
MERRILL LYNCH INTERNATIONAL |
/s/ Elena Leone |
By: Elena Leone |
WELLS FARGO SECURITIES INTERNATIONAL LIMITED |
/s/ Vid Jarc |
By: Vid Jarc, Vice President, DCM |
COMMERZBANK AKTIENGESELLSCHAFT |
MIZUHO SECURITIES EUROPE GMBH |
UNICREDIT BANK AG |
(each by its duly authorised attorney) |
/s/ Richard Bauer |
By: Richard Bauer |
S-3 |
EXHIBIT 4.1
MIFID II PRODUCT GOVERNANCE / PROFESSIONAL INVESTORS AND ECPS ONLY TARGET MARKET Solely for the purposes of each manufacturers product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties and professional clients only, each as defined in Directive 2014/65/EU (as amended, MiFID II); and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a distributor) should take into consideration the manufacturers target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturers target market assessment) and determining appropriate distribution channels.
MIFID II PRODUKTÜBERWACHUNGSPFLICHTEN / ZIELMARKT PROFESSIONELLE INVESTOREN UND GEEIGNETE GEGENPARTEIEN Die Zielmarktbestimmung im Hinblick auf die Schuldverschreibungen hat ausschließlich für den Zweck des Produktgenehmigungsverfahrens jedes Konzepteurs zu dem Ergebnis geführt, dass: (i) der Zielmarkt für die Schuldverschreibungen ausschließlich geeignete Gegenparteien und professionelle Kunden, jeweils im Sinne der Richtlinie 2014/65/EU (in der jeweils gültigen Fassung, MiFID II), umfasst und (ii) alle Kanäle für den Vertrieb der Schuldverschreibungen an geeignete Gegenparteien und professionelle Kunden angemessen sind. Jede Person, die in der Folge die Schuldverschreibungen anbietet, verkauft oder empfiehlt (ein Vertriebsunternehmen) soll die Beurteilung des Zielmarkts der Konzepteure berücksichtigen; ein Vertriebsunternehmen, welches MiFID II unterliegt, ist indes dafür verantwortlich, seine eigene Zielmarktbestimmung im Hinblick auf die Schuldverschreibungen durchzuführen (entweder durch die Übernahme oder durch die Präzisierung der Zielmarktbestimmung der Konzepteure) und angemessene Vertriebskanäle zu bestimmen.
PROHIBITION OF SALES TO EEA AND UK RETAIL INVESTORS The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the European Economic Area (EEA) or in the United Kingdom (UK). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, MiFID II) or (ii) a customer within the meaning of Directive 2016/97/EU as amended (IDD), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II. Consequently, no key information document required by Regulation (EU) No 1286/2014 (as amended or superseded, the PRIIPs Regulation) for offering or selling the Notes or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation.
VERBOT DES VERKAUFS AN KLEINANLEGER IM EUROPÄISCHEN WIRTSCHAFTSRAUM UND IM VEREINIGTEN KÖNIGREICH Die Schuldverschreibungen sind nicht zum Angebot, zum Verkauf oder zur sonstigen Zurverfügungstellung an Kleinanleger im Europäischen Wirtschaftsraum (EWR) oder im Vereinigten Königreich bestimmt und sollten Kleinanlegern im EWR und im Vereinigten Königreich nicht angeboten, nicht an diese verkauft und diesen auch nicht in sonstiger Weise zur Verfügung gestellt werden. Für die Zwecke dieser Bestimmung bezeichnet der Begriff Kleinanleger eine Person, die eines (oder mehrere) der folgenden Kriterien erfüllt: (i) sie ist ein Kleinanleger im Sinne von Artikel 4 Abs. 1 Nr. 11 der Richtlinie 2014/65/EU (in ihrer jeweils gültigen Fassung, MiFID II) oder (ii) sie ist ein Kunde im Sinne der Richtlinie 2016/97/EU in ihrer jeweils gültigen Fassung (IDD), soweit dieser Kunde nicht als professioneller Kunde im Sinne von Artikel 4 Abs. 1 Nr. 10 MiFID II gilt. Entsprechend wurde kein nach der Verordnung (EU) Nr. 1286/2014 (in ihrer jeweils gültigen oder ersetzten Fassung, die PRIIPs-Verordnung) erforderliches Basisinformationsblatt für das Angebot oder den Verkauf oder die sonstige Zurverfügungstellung der Schuldverschreibungen an Kleinanleger im EWR oder im Vereinigten Königreich erstellt; daher kann das Angebot oder der Verkauf oder die sonstige Zurverfügungstellung der Schuldverschreibungen an Kleinanleger im EWR oder im Vereinigten Königreich nach der PRIIPs-Verordnung rechtswidrig sein.
Dated 15 May 2020
Datum 15. Mai 2020
Final Terms
Endgültige Bedingungen
LINDE FINANCE B.V.
Legal Entity Identifier (LEI): 5H8RMHHYTWIP1RKLCE38
Issue of
Emission von
EUR 750,000,000 0.250 per cent. Notes due 2027
EUR 750.000.000 0,250% Schuldverschreibungen fällig 2027
issued as
begeben als
Series | Tranche | |||||
1 | 1 | |||||
Serie | Tranche |
under the
unter dem
EUR 10,000,000,000
DEBT ISSUANCE PROGRAMME
of
der
Linde plc and Linde Finance B.V.
Linde plc und der Linde Finance B.V.
guaranteed by Linde plc
garantiert durch die Linde plc
Issue Date: | 19 May 2020 | Issue Price: | 99.958 per cent. | |||
Begebungstag: | 19. Mai 2020 | Emissionspreis: | 99,958% |
2
Important Notice
This document constitutes the final terms relating to the issue of Notes described herein (the Final Terms). These Final Terms have been prepared for the purposes of the listing of the Notes on the Euro MTF market of the Luxembourg Stock Exchange and must be read in conjunction with the base prospectus dated 11 May 2020 (the Base Prospectus) which constitute(s) a base prospectus for the purposes of the Luxembourg Law of 16 July 2019 on Prospectuses for Securities. The Base Prospectus and any supplement thereto are available for viewing in electronic form on the website of the Luxembourg Stock Exchange (www.bourse.lu). Full information on the Issuer, the Guarantor and the Notes is only available on the basis of the combination of these Final Terms and the Base Prospectus.
Wichtiger Hinweis
Dieses Dokument stellt die endgültigen Bedingungen für die Emission der hierin beschriebenen Schuldverschreibungen dar (die Endgültigen Bedingungen). Diese Endgültigen Bedingungen wurden für die Zwecke des der Zulassung zum Handel der Schuldverschreibungen am Euro MTF Market der Luxemburger Börse abgefasst und sind nur mit dem Basisprospekt vom 11. Mai 2020 (der Basisprospekt), der einen Basisprospekt im Sinne des Luxemburger Gesetzes vom 16. Juli 2019 bezüglich Wertpapierprospekte darstellt, gemeinsam zu lesen. Der Basisprospekt sowie etwaige Nachträge können in elektronischer Form auf der Internetseite der Luxemburger Börse (www.bourse.lu) eingesehen werden. Vollständige Informationen in Bezug auf die Emittentin, die Garantin und die Schuldverschreibungen sind nur in der Gesamtheit dieser Endgültigen Bedingungen und dem Basisprospekt enthalten.
3
PART I CONTRACTUAL TERMS
The Terms and Conditions applicable to the Notes (the Conditions), and the English language translation thereof, are as set out below.
TEIL I VERTRAGLICHE REGELUNGEN
Die für die Schuldverschreibungen geltenden Anleihebedingungen (die Bedingungen) sowie deren englischsprachige Übersetzung sind wie nachfolgend aufgeführt.
4
5
6
1 |
In English language translation § 328(1) BGB (German Civil Code) reads as follows: |
A contract may stipulate performance for the benefit of a third party, to the effect that the third party acquires the right directly to demand performance.
2 |
Der gesetzliche Verzugszinssatz beträgt für das Jahr fünf Prozentpunkte über dem von der Deutsche Bundesbank von Zeit zu Zeit bekanntgemachten Basiszinssatz, §§ 288 Absatz 1, 247 BGB. |
3 |
The default rate of interest established by law is five percentage points above the basic rate of interest published by Deutsche Bundesbank from time to time, §§ 288(1), 247 BGB (German Civil Code). |
7 |
8
9
erstmals verpflichtet wäre, Zusätzliche Beträge (wie in § 7 definiert) zu zahlen bzw. nicht früher als 90 Tage vor dem Tag, an dem frühestens eine ordnungsgemäße Zahlungsaufforderung unter der Garantie erfolgen könnte. | would be for the first time obliged to pay any Additional Amounts (as defined in § 7) or (as the case may be) not earlier than 90 days prior to the earliest date of a demand for payment duly made under the Guarantee. | |
Ein Gross-up-Ereignis tritt ein, wenn der Emittentin oder der Garantin ein Gutachten einer anerkannten Anwaltskanzlei vorliegt (und die Emittentin oder die Garantin der Emissionsstelle eine Kopie davon übermittelt), aus dem hervorgeht, dass die Emittentin aufgrund einer Änderung oder Klarstellung von Gesetzen, Verordnungen oder sonstigen Vorschriften, oder aufgrund einer Änderung oder Klarstellung der Auslegung oder Anwendung, oder aufgrund einer erstmaligen Auslegung oder Anwendung dieser Gesetze, Verordnungen oder sonstigen Vorschriften durch eine gesetzgebende Körperschaft, ein Gericht oder eine Behörde (einschließlich des Erlasses von Gesetzen sowie der Bekanntmachung von Entscheidungen eines Gerichts oder einer Behörde) verpflichtet ist oder verpflichtet sein wird, Zusätzliche Beträge gemäß § 7 auf die Schuldverschreibungen zu zahlen, oder die Garantin verpflichtet ist oder verpflichtet sein wird, Zusätzliche Beträge auf fällige Beträge aus der Garantie zu zahlen, wenn die Änderung oder Klarstellung an oder nach dem Tag der Begebung der letzten Tranche dieser Serie von Schuldverschreibungen in Kraft tritt (einschließlich des Falles, dass die betreffende Änderung oder Klarstellung rückwirkend Anwendung findet), und die Emittentin oder die Garantin diese Verpflichtung nicht abwenden kann, indem sie Maßnahmen ergreift, die sie nach Treu und Glauben für zumutbar und angemessen hält. | A Gross up Event will occur if an opinion of a recognised law firm has been delivered to the Issuer or the Guarantor (and the Issuer or the Guarantor has provided the Fiscal Agent with a copy thereof) stating that, as a result of any change in, or amendment or clarification to, the laws, regulations or other rules, or as a result of any change in, or amendment or clarification to, the interpretation or application, or as a result of any interpretation or application made for the first time, of any such laws, regulations or other rules by any legislative body, court or authority (including the enactment of any legislation and the publication of any decision of any court or authority), which change, amendment or clarification becomes effective on or after the date of issue of the last tranche of this Series of Notes (including any such change, amendment or clarification which has a retroactive effect), the Issuer has or will become obliged to pay Additional Amounts pursuant to § 7 on the Notes or the Guarantor has or will become obliged to pay Additional Amounts in respect of payments due under the Guarantee, and that obligation cannot be avoided by the Issuer or the Guarantor, respectively, taking such measures it (acting in good faith) deems reasonable and appropriate. | |
Eine solche Kündigung ist unwiderruflich, muss den für die Rückzahlung festgelegten Tag nennen und eine zusammenfassende Erklärung enthalten, welche die das Rückzahlungsrecht der Emittentin begründenden Umstände darlegt. | Any such notice shall be irrevocable, must specify the date fixed for redemption and must set forth a statement in summary form of the facts constituting the basis for the right of the Issuer so to redeem. | |
(4) Vorzeitige Rückzahlung nach Wahl der Emittentin bei geringem ausstehendem Gesamtnennbetrag. Die Emittentin ist berechtigt, die ausstehenden Schuldverschreibungen (insgesamt, jedoch nicht nur teilweise) jederzeit durch Mitteilung an die Gläubiger gemäß § 13 unter Einhaltung einer Frist von mindestens 30 und höchstens 60 Kalendertagen mit Wirkung zu dem in der Mitteilung für die Rückzahlung festgesetzten Tag zu kündigen, wenn zu irgendeinem Zeitpunkt der Gesamtnennbetrag der ausstehenden und nicht von der Emittentin, der Garantin und ihren jeweiligen Tochtergesellschaften gehaltenen Schuldverschreibungen auf 25 % oder weniger des Gesamtnennbetrags der Schuldverschreibungen dieser Serie, die ursprünglich ausgegeben wurden (einschließlich Schuldverschreibungen, die gemäß § 12(1) zusätzlich begeben worden sind), fällt. Wenn die Emittentin ihr Kündigungsrecht gemäß Satz 1 ausübt, ist die Emittentin verpflichtet, die Schuldverschreibungen an dem für die Rückzahlung festgesetzten Tag zu ihrem Vorzeitigen Rückzahlungsbetrag zuzüglich bis zum für die Rückzahlung festgesetzten Tag (ausschließlich) aufgelaufener Zinsen zurückzahlen. | (4) Early Redemption for Reason of Minimal Outstanding Aggregate Principal Amount. The Issuer may, on giving not less than 30 and not more than 60 days prior notice to the Holders in accordance with § 13, redeem all, but not some only, of the outstanding Notes at any time with effect on the date fixed for redemption in the notice if at any time the aggregate principal amount of the Notes outstanding and held by persons other than the Issuer, the Guarantor and their respective subsidiaries is equal to or less than 25 % of the aggregate principal amount of the Notes of this Series originally issued (including any Notes additionally issued in accordance with § 12(1)). In the case such notice is given, the Issuer will redeem the Notes at their Early Redemption Amount together with interest accrued to but excluding the date fixed for redemption on the date fixed for redemption. | |
(5) Vorzeitige Rückzahlung nach Wahl der Emittentin. | (5) Early Redemption at the Option of the Issuer. | |
(a) Die Emittentin ist berechtigt, die ausstehenden Schuldverschreibungen (insgesamt oder teilweise) durch Mitteilung an die Gläubiger gemäß § 13 unter Einhaltung einer Frist von nicht weniger als 30 und nicht mehr als 60 Tagen mit Wirkung zu jedem Wahl-Rückzahlungstag (Call) (wie nachstehend definiert) zu kündigen. Wenn die Emittentin ihr Rückzahlungsrecht gemäß Satz 1 ausübt, ist die Emittentin verpflichtet, die Schuldverschreibungen an dem in der Bekanntmachung für die Rückzahlung festgelegten Wahl-Rückzahlungstag (Call) zu ihrem betreffenden Wahl-Rückzahlungsbetrag (Call) (wie nachstehend definiert) zuzüglich bis zu diesem Wahl-Rückzahlungstag (Call) (ausschließlich) aufgelaufener Zinsen zurückzuzahlen. |
(a) The Issuer may, on giving not less than 30 and not more than 60 days prior notice to the Holders in accordance with § 13, redeem all or some only of the outstanding Notes with effect as of each Call Redemption Date (as specified below). If the Issuer exercises its call right in accordance with sentence 1, the Issuer shall redeem the Notes at the applicable Call Redemption Amount (as defined below) together with accrued interest to but excluding such Call Redemption Date on the Call Redemption Date fixed for redemption. |
10
11
12
13
14
15
16
17
18
19
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PART II OTHER INFORMATION
TEIL II ANDERE INFORMATIONEN
Listing and admission to trading
Börsennotierung und Zulassung zum Handel
21
Stabilisation Manager(s): |
Deutsche Bank Aktiengesellschaft | |
Security Codes and Eurosystem eligibility | ||
Wertpapierkennung and EZB-Fähigkeit | ||
ISIN: |
XS2177021271 | |
Common Code: |
217702127 | |
WKN: |
A28XE4 | |
Intended to be held in a manner which would allow Eurosystem eligibility: | Yes | |
Soll in EZB-fähiger Weise gehalten werden: | Ja | |
Note that the designation Yes simply means that the Notes are intended upon issue to be deposited with one of the ICSDs as common safekeeper, and does not necessarily mean that the Notes will be recognized as eligible collateral for Eurosystem monetary policy and intraday credit operations by the Eurosystem either upon issue or at any or all times during their life. Such recognition will depend upon the ECB being satisfied that Eurosystem eligibility criteria have been met. | ||
Es wird darauf hingewiesen, dass Ja hier lediglich bedeutet, dass die Wertpapiere nach ihrer Begebung bei einem der ICSDs als gemeinsamen Verwahrer verwahrt werden und es bedeutet nicht notwendigerweise, dass die Schuldverschreibungen als geeignete Sicherheit im Sinne der Währungspolitik des Eurosystems und der taggleichen Überziehungen (intraday credit operations) des Eurosystems entweder nach Begebung oder zu irgendeinem Zeitpunkt während ihrer Existenz anerkannt werden. Eine solche Anerkennung wird vom Urteil der EZB abhängen, dass die Eurosystemfähigkeitskriterien erfüllt werden. |
Listing application
These Final Terms comprise the final terms required to list the issue of Notes described herein pursuant to the Euro 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance B.V. on the Euro MTF market of the Luxembourg Stock Exchange.
Antrag auf Börsennotierung
Diese Endgültigen Bedingungen enthalten die Details, die erforderlich sind, um die hierin beschriebenen Schuldverschreibungen des Euro 10.000.000.000 Debt Issuance Programme der Linde plc und Linde Finance B.V. am Euro MTF Markt der Luxemburger Wertpapierbörse zu notieren.
Authorisation
The issue of this Series of Notes was authorised by the sole Managing Director of Linde Finance B.V. on 12 May 2020, by a resolution of the supervisory board of Linde Finance B.V. dated 12 May 2020 and by a resolution of the sole shareholder of Linde Finance B.V. dated 12 May 2020.
Genehmigung
Die Emission dieser Serie von Schuldverschreibungen wurde durch den alleinigen Managing Director der Linde Finance B.V. am 12. Mai 2020, durch einen Beschluss des Aufsichtsrats der Linde Finance B.V. vom 12. Mai 2020 und einen Beschluss des alleinigen Anteilseigners der Linde Finance B.V. vom 12. Mai 2019 genehmigt.
22
Signed on behalf of | ||
Linde Finance B.V. | ||
By: |
/s/ Micha Glaser |
|
Duly authorised | ||
Micha Glaser |
23
EXHIBIT 4.2
MIFID II PRODUCT GOVERNANCE / PROFESSIONAL INVESTORS AND ECPS ONLY TARGET MARKET Solely for the purposes of each manufacturers product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties and professional clients only, each as defined in Directive 2014/65/EU (as amended, MiFID II); and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a distributor) should take into consideration the manufacturers target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturers target market assessment) and determining appropriate distribution channels.
MIFID II PRODUKTÜBERWACHUNGSPFLICHTEN / ZIELMARKT PROFESSIONELLE INVESTOREN UND GEEIGNETE GEGENPARTEIEN Die Zielmarktbestimmung im Hinblick auf die Schuldverschreibungen hat ausschließlich für den Zweck des Produktgenehmigungsverfahrens jedes Konzepteurs zu dem Ergebnis geführt, dass: (i) der Zielmarkt für die Schuldverschreibungen ausschließlich geeignete Gegenparteien und professionelle Kunden, jeweils im Sinne der Richtlinie 2014/65/EU (in der jeweils gültigen Fassung, MiFID II), umfasst und (ii) alle Kanäle für den Vertrieb der Schuldverschreibungen an geeignete Gegenparteien und professionelle Kunden angemessen sind. Jede Person, die in der Folge die Schuldverschreibungen anbietet, verkauft oder empfiehlt (ein Vertriebsunternehmen) soll die Beurteilung des Zielmarkts der Konzepteure berücksichtigen; ein Vertriebsunternehmen, welches MiFID II unterliegt, ist indes dafür verantwortlich, seine eigene Zielmarktbestimmung im Hinblick auf die Schuldverschreibungen durchzuführen (entweder durch die Übernahme oder durch die Präzisierung der Zielmarktbestimmung der Konzepteure) und angemessene Vertriebskanäle zu bestimmen.
PROHIBITION OF SALES TO EEA AND UK RETAIL INVESTORS The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the European Economic Area (EEA) or in the United Kingdom (UK). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, MiFID II) or (ii) a customer within the meaning of Directive 2016/97/EU as amended (IDD), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II. Consequently, no key information document required by Regulation (EU) No 1286/2014 (as amended or superseded, the PRIIPs Regulation) for offering or selling the Notes or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation.
VERBOT DES VERKAUFS AN KLEINANLEGER IM EUROPÄISCHEN WIRTSCHAFTSRAUM UND IM VEREINIGTEN KÖNIGREICH Die Schuldverschreibungen sind nicht zum Angebot, zum Verkauf oder zur sonstigen Zurverfügungstellung an Kleinanleger im Europäischen Wirtschaftsraum (EWR) oder im Vereinigten Königreich bestimmt und sollten Kleinanlegern im EWR und im Vereinigten Königreich nicht angeboten, nicht an diese verkauft und diesen auch nicht in sonstiger Weise zur Verfügung gestellt werden. Für die Zwecke dieser Bestimmung bezeichnet der Begriff Kleinanleger eine Person, die eines (oder mehrere) der folgenden Kriterien erfüllt: (i) sie ist ein Kleinanleger im Sinne von Artikel 4 Abs. 1 Nr. 11 der Richtlinie 2014/65/EU (in ihrer jeweils gültigen Fassung, MiFID II) oder (ii) sie ist ein Kunde im Sinne der Richtlinie 2016/97/EU in ihrer jeweils gültigen Fassung (IDD), soweit dieser Kunde nicht als professioneller Kunde im Sinne von Artikel 4 Abs. 1 Nr. 10 MiFID II gilt. Entsprechend wurde kein nach der Verordnung (EU) Nr. 1286/2014 (in ihrer jeweils gültigen oder ersetzten Fassung, die PRIIPs-Verordnung) erforderliches Basisinformationsblatt für das Angebot oder den Verkauf oder die sonstige Zurverfügungstellung der Schuldverschreibungen an Kleinanleger im EWR oder im Vereinigten Königreich erstellt; daher kann das Angebot oder der Verkauf oder die sonstige Zurverfügungstellung der Schuldverschreibungen an Kleinanleger im EWR oder im Vereinigten Königreich nach der PRIIPs-Verordnung rechtswidrig sein.
Dated 15 May 2020
Datum 15. Mai 2020
Final Terms
Endgültige Bedingungen
LINDE FINANCE B.V.
Legal Entity Identifier (LEI): 5H8RMHHYTWIP1RKLCE38
Issue of
Emission von
EUR 750,000,000 0.550 per cent. Notes due 2032
EUR 750.000.000 0.550% Schuldverschreibungen fällig 2032
issued as
begeben als
Series Tranche
2 1
Serie Tranche
under the
unter dem
EUR 10,000,000,000
DEBT ISSUANCE PROGRAMME
of
der
Linde plc and Linde Finance B.V.
Linde plc und der Linde Finance B.V.
guaranteed by Linde plc
garantiert durch die Linde plc
Issue Date: | 19 May 2020 | Issue Price: | 99.434 per cent. | |||
Begebungstag: | 19. Mai 2020 | Emissionspreis: | 99,434% |
2
Important Notice
This document constitutes the final terms relating to the issue of Notes described herein (the Final Terms). These Final Terms have been prepared for the purposes of the listing of the Notes on the Euro MTF market of the Luxembourg Stock Exchange and must be read in conjunction with the base prospectus dated 11 May 2020 (the Base Prospectus) which constitute(s) a base prospectus for the purposes of the Luxembourg Law of 16 July 2019 on Prospectuses for Securities. The Base Prospectus and any supplement thereto are available for viewing in electronic form on the website of the Luxembourg Stock Exchange (www.bourse.lu). Full information on the Issuer, the Guarantor and the Notes is only available on the basis of the combination of these Final Terms and the Base Prospectus.
Wichtiger Hinweis
Dieses Dokument stellt die endgültigen Bedingungen für die Emission der hierin beschriebenen Schuldverschreibungen dar (die Endgültigen Bedingungen). Diese Endgültigen Bedingungen wurden für die Zwecke des der Zulassung zum Handel der Schuldverschreibungen am Euro MTF Market der Luxemburger Börse abgefasst und sind nur mit dem Basisprospekt vom 11. Mai 2020 (der Basisprospekt), der einen Basisprospekt im Sinne des Luxemburger Gesetzes vom 16. Juli 2019 bezüglich Wertpapierprospekte darstellt, gemeinsam zu lesen. Der Basisprospekt sowie etwaige Nachträge können in elektronischer Form auf der Internetseite der Luxemburger Börse (www.bourse.lu) eingesehen werden. Vollständige Informationen in Bezug auf die Emittentin, die Garantin und die Schuldverschreibungen sind nur in der Gesamtheit dieser Endgültigen Bedingungen und dem Basisprospekt enthalten.
3
PART I CONTRACTUAL TERMS
The Terms and Conditions applicable to the Notes (the Conditions), and the English language translation thereof, are as set out below.
TEIL I VERTRAGLICHE REGELUNGEN
Die für die Schuldverschreibungen geltenden Anleihebedingungen (die Bedingungen) sowie deren englischsprachige Übersetzung sind wie nachfolgend aufgeführt.
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1 |
In English language translation § 328(1) BGB (German Civil Code) reads as follows: |
A contract may stipulate performance for the benefit of a third party, to the effect that the third party acquires the right directly to demand performance.
2 |
Der gesetzliche Verzugszinssatz beträgt für das Jahr fünf Prozentpunkte über dem von der Deutsche Bundesbank von Zeit zu Zeit bekanntgemachten Basiszinssatz, §§ 288 Absatz 1, 247 BGB. |
3 |
The default rate of interest established by law is five percentage points above the basic rate of interest published by Deutsche Bundesbank from time to time, §§ 288(1), 247 BGB (German Civil Code). |
7
8
9
erstmals verpflichtet wäre, Zusätzliche Beträge (wie in § 7 definiert) zu zahlen bzw. nicht früher als 90 Tage vor dem Tag, an dem frühestens eine ordnungsgemäße Zahlungsaufforderung unter der Garantie erfolgen könnte. |
would be for the first time obliged to pay any Additional Amounts (as defined in § 7) or (as the case may be) not earlier than 90 days prior to the earliest date of a demand for payment duly made under the Guarantee. |
|
Ein Gross-up-Ereignis tritt ein, wenn der Emittentin oder der Garantin ein Gutachten einer anerkannten Anwaltskanzlei vorliegt (und die Emittentin oder die Garantin der Emissionsstelle eine Kopie davon übermittelt), aus dem hervorgeht, dass die Emittentin aufgrund einer Änderung oder Klarstellung von Gesetzen, Verordnungen oder sonstigen Vorschriften, oder aufgrund einer Änderung oder Klarstellung der Auslegung oder Anwendung, oder aufgrund einer erstmaligen Auslegung oder Anwendung dieser Gesetze, Verordnungen oder sonstigen Vorschriften durch eine gesetzgebende Körperschaft, ein Gericht oder eine Behörde (einschließlich des Erlasses von Gesetzen sowie der Bekanntmachung von Entscheidungen eines Gerichts oder einer Behörde) verpflichtet ist oder verpflichtet sein wird, Zusätzliche Beträge gemäß § 7 auf die Schuldverschreibungen zu zahlen, oder die Garantin verpflichtet ist oder verpflichtet sein wird, Zusätzliche Beträge auf fällige Beträge aus der Garantie zu zahlen, wenn die Änderung oder Klarstellung an oder nach dem Tag der Begebung der letzten Tranche dieser Serie von Schuldverschreibungen in Kraft tritt (einschließlich des Falles, dass die betreffende Änderung oder Klarstellung rückwirkend Anwendung findet), und die Emittentin oder die Garantin diese Verpflichtung nicht abwenden kann, indem sie Maßnahmen ergreift, die sie nach Treu und Glauben für zumutbar und angemessen hält. | A Gross up Event will occur if an opinion of a recognised law firm has been delivered to the Issuer or the Guarantor (and the Issuer or the Guarantor has provided the Fiscal Agent with a copy thereof) stating that, as a result of any change in, or amendment or clarification to, the laws, regulations or other rules, or as a result of any change in, or amendment or clarification to, the interpretation or application, or as a result of any interpretation or application made for the first time, of any such laws, regulations or other rules by any legislative body, court or authority (including the enactment of any legislation and the publication of any decision of any court or authority), which change, amendment or clarification becomes effective on or after the date of issue of the last tranche of this Series of Notes (including any such change, amendment or clarification which has a retroactive effect), the Issuer has or will become obliged to pay Additional Amounts pursuant to § 7 on the Notes or the Guarantor has or will become obliged to pay Additional Amounts in respect of payments due under the Guarantee, and that obligation cannot be avoided by the Issuer or the Guarantor, respectively, taking such measures it (acting in good faith) deems reasonable and appropriate. | |
Eine solche Kündigung ist unwiderruflich, muss den für die Rückzahlung festgelegten Tag nennen und eine zusammenfassende Erklärung enthalten, welche die das Rückzahlungsrecht der Emittentin begründenden Umstände darlegt. | Any such notice shall be irrevocable, must specify the date fixed for redemption and must set forth a statement in summary form of the facts constituting the basis for the right of the Issuer so to redeem. | |
(4) Vorzeitige Rückzahlung nach Wahl der Emittentin bei geringem ausstehendem Gesamtnennbetrag. Die Emittentin ist berechtigt, die ausstehenden Schuldverschreibungen (insgesamt, jedoch nicht nur teilweise) jederzeit durch Mitteilung an die Gläubiger gemäß § 13 unter Einhaltung einer Frist von mindestens 30 und höchstens 60 Kalendertagen mit Wirkung zu dem in der Mitteilung für die Rückzahlung festgesetzten Tag zu kündigen, wenn zu irgendeinem Zeitpunkt der Gesamtnennbetrag der ausstehenden und nicht von der Emittentin, der Garantin und ihren jeweiligen Tochtergesellschaften gehaltenen Schuldverschreibungen auf 25 % oder weniger des Gesamtnennbetrags der Schuldverschreibungen dieser Serie, die ursprünglich ausgegeben wurden (einschließlich Schuldverschreibungen, die gemäß § 12(1) zusätzlich begeben worden sind), fällt. Wenn die Emittentin ihr Kündigungsrecht gemäß Satz 1 ausübt, ist die Emittentin verpflichtet, die Schuldverschreibungen an dem für die Rückzahlung festgesetzten Tag zu ihrem Vorzeitigen Rückzahlungsbetrag zuzüglich bis zum für die Rückzahlung festgesetzten Tag (ausschließlich) aufgelaufener Zinsen zurückzahlen. |
(4) Early Redemption for Reason of Minimal Outstanding Aggregate Principal Amount. The Issuer may, on giving not less than 30 and not more than 60 days prior notice to the Holders in accordance with § 13, redeem all, but not some only, of the outstanding Notes at any time with effect on the date fixed for redemption in the notice if at any time the aggregate principal amount of the Notes outstanding and held by persons other than the Issuer, the Guarantor and their respective subsidiaries is equal to or less than 25 % of the aggregate principal amount of the Notes of this Series originally issued (including any Notes additionally issued in accordance with § 12(1)). In the case such notice is given, the Issuer will redeem the Notes at their Early Redemption Amount together with interest accrued to but excluding the date fixed for redemption on the date fixed for redemption. |
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(5) Vorzeitige Rückzahlung nach Wahl der Emittentin. | (5) Early Redemption at the Option of the Issuer. | |
(a) Die Emittentin ist berechtigt, die ausstehenden Schuldverschreibungen (insgesamt oder teilweise) durch Mitteilung an die Gläubiger gemäß § 13 unter Einhaltung einer Frist von nicht weniger als 30 und nicht mehr als 60 Tagen mit Wirkung zu jedem Wahl-Rückzahlungstag (Call) (wie nachstehend definiert) zu kündigen. Wenn die Emittentin ihr Rückzahlungsrecht gemäß Satz 1 ausübt, ist die Emittentin verpflichtet, die Schuldverschreibungen an dem in der Bekanntmachung für die Rückzahlung festgelegten Wahl-Rückzahlungstag (Call) zu ihrem betreffenden Wahl-Rückzahlungsbetrag (Call) (wie nachstehend definiert) zuzüglich bis zu diesem Wahl-Rückzahlungstag (Call) (ausschließlich) aufgelaufener Zinsen zurückzuzahlen. |
(a) The Issuer may, on giving not less than 30 and not more than 60 days prior notice to the Holders in accordance with § 13, redeem all or some only of the outstanding Notes with effect as of each Call Redemption Date (as specified below). If the Issuer exercises its call right in accordance with sentence 1, the Issuer shall redeem the Notes at the applicable Call Redemption Amount (as defined below) together with accrued interest to but excluding such Call Redemption Date on the Call Redemption Date fixed for redemption. |
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PART II OTHER INFORMATION
TEIL II ANDERE INFORMATIONEN
Listing and admission to trading | ||
Börsennotierung und Zulassung zum Handel | ||
☒ Euro MTF Market of the Luxembourg Stock Exchange |
||
Euro MTF Markt der Luxemburger Börse |
||
Date of admission: |
19 May 2020 | |
Datum der Zulassung: |
19. Mai 2020 | |
Estimate of the total expenses related to admission to trading: |
EUR 6,000 | |
Geschätzte Gesamtkosten für die Zulassung zum Handel: |
EUR 6.000 | |
Rating of the Notes | ||
Rating der Schuldverschreibungen | ||
☒ The Notes to be issued have been rated as follows |
||
Die Schuldverschreibungen wurden wie folgt geratet |
||
☒ S&P: |
A | |
☒ Moodys: |
A2 | |
Interests of natural and legal persons involved in the issue/offer | ||
Interessen von natürlichen oder juristischen Personen, die bei der Emission/dem Angebot beteiligt sind | ||
☒ So far as the Issuer is aware, no person involved in the offer of the Notes has an interest material to the offer. |
||
Soweit es der Emittentin bekannt ist, hat keine Person, die bei dem Angebot der Schuldverschreibungen beteiligt ist, Interessen, die für das Angebot von wesentlicher Bedeutung sind. |
||
Reasons for the offer and Net Proceeds | ||
Gründe für das Angebot und Nettoerlöse | ||
Use of proceeds / reasons for the offer: |
General corporate purposes | |
Verwendung der Emissionserlöse / Gründe für das Angebot: |
Allgemeine Unternehmenszwecke | |
Estimated net proceeds: |
EUR 743,692,500 | |
Geschätzter Nettobetrag des Emissionserlöses: |
EUR 743.692.500 | |
Yield | ||
Rendite | ||
Yield: |
0.599 per cent. p.a. | |
Rendite: |
0,599% p.a. | |
Specific Selling Restrictions and Stabilisation | ||
Spezifische Verkaufsbeschränkungen und Stabilisierung | ||
Prohibition of Sales to Retail Investors in the European Economic Area and the United Kingdom: |
Applicable | |
Verkaufsverbot an Kleinanleger im Europäischen Wirtschaftsraum und im Vereinigten Königreich: |
Anwendbar | |
Stabilisation Manager(s): |
Deutsche Bank Aktiengesellschaft | |
Stabilisation Manager(s): |
Deutsche Bank Aktiengesellschaft |
21
Security Codes and Eurosystem eligibility | ||||
Wertpapierkennung and EZB-Fähigkeit | ||||
ISIN: | XS2177021602 | |||
Common Code: | 217702160 | |||
WKN: | A28XE5 | |||
Intended to be held in a manner which would allow Eurosystem eligibility: |
Yes | |||
Soll in EZB-fähiger Weise gehalten werden: |
Ja | |||
Note that the designation Yes simply means that the Notes are intended upon issue to be deposited with one of the ICSDs as common safekeeper, and does not necessarily mean that the Notes will be recognized as eligible collateral for Eurosystem monetary policy and intraday credit operations by the Eurosystem either upon issue or at any or all times during their life. Such recognition will depend upon the ECB being satisfied that Eurosystem eligibility criteria have been met. | ||||
Es wird darauf hingewiesen, dass Ja hier lediglich bedeutet, dass die Wertpapiere nach ihrer Begebung bei einem der ICSDs als gemeinsamen Verwahrer verwahrt werden und es bedeutet nicht notwendigerweise, dass die Schuldverschreibungen als geeignete Sicherheit im Sinne der Währungspolitik des Eurosystems und der taggleichen Überziehungen (intraday credit operations) des Eurosystems entweder nach Begebung oder zu irgendeinem Zeitpunkt während ihrer Existenz anerkannt werden. Eine solche Anerkennung wird vom Urteil der EZB abhängen, dass die Eurosystemfähigkeitskriterien erfüllt werden. |
Listing application
These Final Terms comprise the final terms required to list the issue of Notes described herein pursuant to the Euro 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance B.V. on the Euro MTF market of the Luxembourg Stock Exchange.
Antrag auf Börsennotierung
Diese Endgültigen Bedingungen enthalten die Details, die erforderlich sind, um die hierin beschriebenen Schuldverschreibungen des Euro 10.000.000.000 Debt Issuance Programme der Linde plc und Linde Finance B.V. am Euro MTF Markt der Luxemburger Wertpapierbörse zu notieren.
Authorisation
The issue of this Series of Notes was authorised by the sole Managing Director of Linde Finance B.V. on 12 May 2020, by a resolution of the supervisory board of Linde Finance B.V. dated 12 May 2020 and by a resolution of the sole shareholder of Linde Finance B.V. dated 12 May 2020.
Genehmigung
Die Emission dieser Serie von Schuldverschreibungen wurde durch den alleinigen Managing Director der Linde Finance B.V. am 12. Mai 2020, durch einen Beschluss des Aufsichtsrats der Linde Finance B.V. vom 12. Mai 2020 und einen Beschluss des alleinigen Anteilseigners der Linde Finance B.V. vom 12. Mai 2019 genehmigt.
22
Signed on behalf of
Linde Finance B.V.
By: |
/s/ Micha Glaser |
|
Duly authorised Micha Glaser |
23
EXHIBIT 4.3
GARANTIE UND NEGATIVVERPFLICHTUNG (die Garantie) |
GUARANTEE AND NEGATIVE PLEDGE (the Guarantee) |
|
der | of | |
Linde plc
(einer nach irischem Recht errichteten
(die Garantin) |
Linde plc
(incorporated as a public limited company under
(the Guarantor) |
|
zugunsten der Gläubiger von Schuldverschreibungen (die Schuldverschreibungen) |
for the benefit of the holders of Notes (the Notes) |
|
emittiert durch | issued by | |
Linde Finance B.V. (eine nach niederländischem Recht errichtete Gesellschaft mit beschränkter Haftung (besloten vennootschap met beperkte aansprakelijkheid)) (Linde Finance) |
Linde Finance B.V. (incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of The Netherlands) (Linde Finance) |
|
im Rahmen des EUR 10,000,000,000 Debt Issuance Programme der Linde plc und der Linde Finance B.V. (wie jeweils abgeändert, ergänzt oder neu gefasst) (das Programm). |
under the EUR 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance B.V. (as amended, supplemented or restated from time to time) (the Programme). |
1
2
3
4
5
(7) Dieser Vertrag ist in deutscher Sprache abgefasst. Die englische Übersetzung dient nur Informationszwecken. |
(7) This Agreement is written in the German language. The English translation is for information purposes only. |
|
(8) Das Original dieses Vertrages wird der Emissionsstelle ausgehändigt und von dieser verwahrt. |
(8) The original version of this Agreement shall be delivered to, and kept by, the Fiscal Agent. |
|
(9) Erfüllungsort ist Frankfurt am Main. |
(9) Place of performance shall be Frankfurt am Main. |
|
(10) Nicht ausschließlicher Gerichtsstand für alle Rechtsstreitigkeiten aus oder im Zusammenhang mit diesem Vertrag ist Frankfurt am Main. Jeder Gläubiger kann seine Ansprüche jedoch auch vor jedem anderen zuständigen Gericht geltend machen. |
(10) Non-exclusive place of jurisdiction for all legal proceedings arising out of or in connection with this Agreement shall be Frankfurt am Main. Each Holder may, however, also pursue his claims before any other court of competent jurisdiction. |
|
(11) Jeder Gläubiger kann in jedem Rechtsstreit gegen die Garantin und in jedem Rechtsstreit, in dem er und die Garantin Partei sind, seine Rechte aus diesem Vertrag auf der Grundlage einer von einer vertretungsberechtigten Person der Emissionsstelle beglaubigten Kopie dieses Vertrages ohne Vorlage des Originals im eigenen Namen wahrnehmen und durchsetzen. |
(11) On the basis of a copy of this Agreement certified as being a true copy by a duly authorized officer of the Fiscal Agent, each Holder may protect and enforce in his own name his rights arising under this Agreement in any legal proceedings against the Guarantor or to which such Holder and the Guarantor are parties, without the need for production of this Agreement in such proceedings. |
Guildford, im Mai 2020 | Dublin, in May 2020 | |
Linde plc | Linde plc | |
/s/ Christopher Cossins |
|
|
Gez.: Christopher Cossins | By: | |
Wir nehmen die Bedingungen der vorstehenden Garantie ohne Obligo, Gewährleistung oder Haftung an. | We hereby accept the above declaration without recourse, warranty or liability on us. | |
Frankfurt am Main, im Mai 2020
Deutsche Bank Aktiengesellschaft |
Frankfurt am Main, in May 2020
Deutsche Bank Aktiengesellschaft |
|
/s/ Dagmar Habersack /s/ Sabine Ebert |
|
|
Gez.: Dagmar Habersack Sabine Ebert Director Vice President |
By: |
6
EXHIBIT 4.4
UPSTREAM GUARANTEE
(the Upstream Guarantee)
of
Linde GmbH
(a limited liability company (Gesellschaft mit beschränkter Haftung) under the laws of the Federal Republic of Germany)
(Linde GmbH)
to
Linde plc
(a public limited company incorporated under the laws of Ireland with registered number 602527)
(Linde plc)
relating to
notes issued by Linde plc (the Linde plc Notes)
and
the guarantee (the Programme Guarantee) of Linde plc for the benefit of the holders (the Noteholders) of notes (the Linde Finance Notes) issued by
Linde Finance B.V.
(incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of The Netherlands)
(Linde Finance),
in each case under the EUR 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance dated 11 May 2020 (as amended, supplemented or restated from time to time) (the Programme).
WHEREAS:
(A) |
Linde plc intends to issue Linde plc Notes under the Programme from time to time. |
(B) |
Linde Finance intends to issue Linde Finance Notes under the Programme from time to time. By way of the Programme Guarantee, Linde plc will guarantee unconditionally and irrevocably the payment of principal and interest as well as any other amounts payable in respect of the Linde Finance Notes that may be issued by Linde Finance under the Programme. |
(C) |
Substantially concurrently with the execution and delivery of this Upstream Guarantee, Praxair Inc., incorporated under the laws of Delaware, USA, (Praxair) will agree to fully and unconditionally guarantee Linde plcs obligations under the Linde plc Notes and under the Programme Guarantee (the Concurrent Upstream Guarantee). |
(D) |
Linde GmbH wishes to provide this Upstream Guarantee for the benefit of Linde plc. |
IN CONSIDERATION OF THE FOREGOING, IT IS AGREED AS FOLLOWS:
(1) (a) |
Linde GmbH hereby fully and unconditionally guarantees to Linde plc all obligations of Linde plc under the Linde plc Notes and under the Programme Guarantee. Failing payment when due by Linde plc of any amount under the Linde plc Notes or the Programme Guarantee, as the case may be, for whatever reason, Linde GmbH shall be obligated to pay the same immediately to Linde plc. Linde GmbH agrees that the Noteholders will not be required to claim payment from the Parent or proceed against the Parent or any other person before being obligated to fulfill its obligations to Linde plc under this Upstream Guarantee. The Holders of Notes issued by Linde plc or Linde Finance B.V. under the Programme will not have any direct enforcement rights under this Upstream Guarantee against Linde GmbH. |
(b) |
The Upstream Guarantee constitutes unconditional, unsecured and unsubordinated obligations of Linde GmbH and ranks pari passu with all other unsecured and unsubordinated obligations of Linde GmbH outstanding from time to time (save for any other mandatory provisions of law). |
(c) |
All amounts payable in respect of the Upstream Guarantee shall be payable without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied or collected by or in or on behalf of the Netherlands or the the Republic of Germany or by or on behalf of any political subdivision or authority therein having power to tax, unless such deduction or withholding is required by law. In such event, Linde GmbH will not be obliged to make any additional payments to Linde plc in respect of such withholding or deduction. |
(d) |
The obligations of Linde GmbH under the Upstream Guarantee (i) shall be separate and independent from the obligations of Linde plc under the Linde plc Notes and the obligations of Linde Finance under the Linde Finance Notes, as the case may be, (ii) shall exist irrespective of the legality, validity and binding effect or enforceability of the Linde plc Notes or the Linde Finance Notes, as the case may be, and (iii) shall not be affected by any event, condition or circumstance of whatever nature, whether factual or legal, save the full, definitive and irrevocable satisfaction of any and all payment obligations expressed to be assumed under the Linde plc Notes or the Linde Finance Notes, as the case may be. |
(2) |
Linde GmbH may refuse to make any payments under this Upstream Guarantee to the extent any such payment would result in a violation of Sections 30 et seq. or Section 43 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) (or a successor provision of such law or comparable provision under any successor law) or would otherwise lead to personal liability of its managing directors (Geschäftsführer). Linde GmbH covenants to use all commercially reasonable efforts to maximize the amount payable under this Upstream Guarantee to the extent permitted by applicable German law. |
(3) (a) |
The Upstream Guarantee is given for an indefinite period. |
(b) |
The Upstream Guarantee expires in full if |
(i) |
the Linde plc Notes and the Linde Finance Notes have been fully and irrevocably repaid; or |
(ii) |
all obligations under the Programme Guarantee have been fully and irrevocably fulfilled; or |
(ii) |
all obligations under the Upstream Guarantee have been fully and irrevocably fulfilled. |
(4) |
Linde GmbH will be automatically released from all of its obligations under this Upstream Guarantee if and when (i) (x) it has been, is or will be, substantially concurrently released from all of its guarantee obligations (including guarantees of guarantees) with respect to Funded Debt of Linde plc and Praxair and (y) the aggregate outstanding principal amount of Funded Debt of Linde Finance is not greater than $100,000,000 or (ii) Linde GmbH is no longer a subsidiary of Linde plc. Funded Debt means any obligation for the payment of borrowed money with an initial term longer than one year. |
2
(5) |
Linde GmbH hereby confirms that it is its intention that the Upstream Guarantee does not constitute a fraudulent transfer or conveyance for the purposes of US Bankruptcy Law, the US Uniform Fraudulent Conveyance Act, the US Uniform Fraudulent Transfer Act or any similar US federal, US state or foreign law to the extent applicable to the Upstream Guarantee. To effectuate the foregoing intention, Linde GmbH hereby irrevocably agrees that the obligations of Linde GmbH under the Upstream Guarantee shall be limited to the extent necessary so that it shall not constitute a fraudulent transfer or conveyance. |
(6) |
Linde plc agrees to only consent to amendments to the Linde plc Notes or the Programme Guarantee, as the case may be, with the prior written consent of Linde GmbH. |
(7) |
This Upstream Guarantee shall be governed by, and construed in accordance with, German law. |
(8) |
Non-exclusive place of jurisdiction for all legal proceedings arising out of or in connection with the Upstream Guarantee shall be Frankfurt am Main, Germany. |
[Signature Page to follow]
3
Pullach, Germany, 11th May 2020
Linde GmbH
/s/ Eduardo Menezes |
/s/ Matthias von Plotho |
|||||
By: Eduardo Menezes | By: Matthias von Plotho |
Guildford, UK, 11th May 2020 |
Linde plc |
/s/ Christopher Cossins |
By: Christopher Cossins |
S-1
Exhibit 4.5
UPSTREAM GUARANTEE
(the Upstream Guarantee)
of
Praxair, Inc.
(incorporated under the laws of Delaware)
(Praxair)
to
Linde plc
(a public limited company incorporated under the laws of Ireland with registered number 602527)
(Linde plc)
relating to
notes issued by Linde plc (the Linde plc Notes)
and
the guarantee (the Programme Guarantee) of Linde plc for the benefit of the holders (the Noteholders) of notes (the Linde Finance Notes) issued by
Linde Finance B.V.
(incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of The Netherlands)
(Linde Finance),
in each case under the EUR 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance dated 11 May 2020 (as amended, supplemented or restated from time to time) (the Programme).
WHEREAS:
(A) |
Linde plc intends to issue Linde plc Notes under the Programme from time to time. |
(B) |
Linde Finance intends to issue Linde Finance Notes under the Programme from time to time. By way of the Programme Guarantee, Linde plc will guarantee unconditionally and irrevocably the payment of principal and interest as well as any other amounts payable in respect of the Linde Finance Notes that may be issued by Linde Finance under the Programme. |
(C) |
Substantially concurrently with the execution and delivery of this Upstream Guarantee, Linde GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) under the laws of the Federal Republic of Germany (Linde GmbH), will agree to fully and unconditionally guarantee Linde plcs obligations under the Linde plc Notes and under the Programme Guarantee (the Concurrent Upstream Guarantee). |
(D) |
Praxair wishes to provide this Upstream Guarantee for the benefit of Linde plc. |
IN CONSIDERATION OF THE FOREGOING, IT IS AGREED AS FOLLOWS:
(1) (a) |
Praxair hereby fully and unconditionally guarantees to Linde plc all obligations of Linde plc under the Linde plc Notes and under the Programme Guarantee. Failing payment when due by Linde plc of any amount under the Linde plc Notes or the Programme Guarantee, as the case may be, for whatever |
reason, Praxair shall be obligated to pay the same immediately to Linde plc. Praxair agrees that the Noteholders will not be required to claim payment from the Parent or proceed against the Parent or any other person before being obligated to fulfill its obligations to Linde plc under this Upstream Guarantee. The Holders of Notes issued by Linde plc or Linde Finance B.V. under the Programme will not have any direct enforcement rights under this Upstream Guarantee against Praxair. |
(b) |
The Upstream Guarantee constitutes unconditional, unsecured and unsubordinated obligations of Praxair and ranks pari passu with all other unsecured and unsubordinated obligations of Praxair outstanding from time to time (save for any other mandatory provisions of law). |
(c) |
All amounts payable in respect of the Upstream Guarantee shall be payable without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied or collected by or in or on behalf of the Netherlands or the United States of America or by or on behalf of any political subdivision or authority therein having power to tax, unless such deduction or withholding is required by law. In such event, Praxair will not be obliged to make any additional payments to Linde plc in respect of such withholding or deduction. |
(d) |
The obligations of Praxair under the Upstream Guarantee (i) shall be separate and independent from the obligations of Linde plc under the Linde plc Notes and the obligations of Linde Finance under the Linde Finance Notes, as the case may be, (ii) shall exist irrespective of the legality, validity and binding effect or enforceability of the Linde plc Notes or the Linde Finance Notes, as the case may be, and (iii) shall not be affected by any event, condition or circumstance of whatever nature, whether factual or legal, save the full, definitive and irrevocable satisfaction of any and all payment obligations expressed to be assumed under the Linde plc Notes or the Linde Finance Notes, as the case may be. |
(2) (a) |
The Upstream Guarantee is given for an indefinite period. |
(b) |
The Upstream Guarantee expires in full if |
(i) |
the Linde plc Notes and the Linde Finance Notes have been fully and irrevocably repaid; or |
(ii) |
all obligations under the Programme Guarantee have been fully and irrevocably fulfilled; or |
(ii) |
all obligations under the Upstream Guarantee have been fully and irrevocably fulfilled. |
(3) |
Praxair will be automatically released from all of its obligations under this Upstream Guarantee if and when (i) (x) it has been, is or will be, substantially concurrently released from all of its guarantee obligations (including guarantees of guarantees) with respect to Funded Debt of Linde plc and Linde Finance and (y) the aggregate outstanding principal amount of Funded Debt of Praxair is not greater than $100,000,000 or (ii) Praxair is no longer a subsidiary of the Linde plc. Funded Debt means any obligation for the payment of borrowed money with an initial term longer than one year. |
(4) |
Praxair hereby confirms that it is its intention that the Upstream Guarantee does not constitute a fraudulent transfer or conveyance for the purposes of US Bankruptcy Law, the US Uniform Fraudulent Conveyance Act, the US Uniform Fraudulent Transfer Act or any similar US federal, US state or foreign law to the extent applicable to the Upstream Guarantee. To effectuate the foregoing intention, Praxair hereby irrevocably agrees that the obligations of Praxair under the Upstream Guarantee shall be limited to the extent necessary so that it shall not constitute a fraudulent transfer or conveyance. |
(5) |
Linde plc agrees to only consent to amendments to the Linde plc Notes or the Programme Guarantee, as the case may be, with the prior written consent of Praxair. |
(6) |
This Upstream Guarantee shall be governed by, and construed in accordance with, German law. |
2
(7) |
Non-exclusive place of jurisdiction for all legal proceedings arising out of or in connection with the Upstream Guarantee shall be Frankfurt am Main, Germany. |
Danbury, CT, USA, 11 May 2020 |
Praxair Inc. |
/s/ Matthew White |
By: Matthew White, CFO |
Guildford, UK, 11th May 2020 |
Linde plc |
/s/ Christopher Cossins |
By: Christopher Cossins |
3
Exhibit 4.6
Execution Copy
Dated 11 May 2020
LINDE PLC
as Issuer and Guarantor
and
LINDE FINANCE B.V.
as Issuer
and
DEUTSCHE BANK AKTIENGESELLSCHAFT
as Fiscal Agent and Paying Agent
FISCAL AGENCY AGREEMENT
relating to the
EUR 10,000,000,000 Debt Issuance Programme
of Linde plc and Linde Finance B.V.
Ref: PWZ
Linklaters LLP
Table of Contents
Contents | Page | |||||
1 |
Definitions and Interpretation | 1 | ||||
2 |
Appointment of Fiscal Agent and Paying Agent(s) | 4 | ||||
3 |
The Notes | 5 | ||||
4 |
Issuance of Notes | 5 | ||||
5 |
Exchange of Notes | 8 | ||||
6 |
Payments | 8 | ||||
7 |
Miscellaneous Duties of the Fiscal Agent and the Paying Agent(s) | 9 | ||||
8 |
Appointment and Duties of the Calculation Agent | 12 | ||||
9 |
Early Redemption of Notes | 13 | ||||
10 |
Fees and Expenses | 13 | ||||
11 |
Terms of Appointment | 14 | ||||
12 |
Warranties and Undertakings | 15 | ||||
13 |
Know-your Customer | 16 | ||||
14 |
Changes in Agents | 16 | ||||
15 |
Merger and Consolidation | 17 | ||||
16 |
Notification of Changes in Agents | 18 | ||||
17 |
Communication between the Parties | 18 | ||||
18 |
Taxes and Stamp Duties | 18 | ||||
19 |
Power of Attorney | 18 | ||||
20 |
Notices and Communications | 18 | ||||
21 |
Governing Law, Place of Jurisdiction and Process Agent | 20 | ||||
22 |
Severability and Partial Invalidity | 20 | ||||
23 |
Amendment | 21 | ||||
24 |
Counterparts | 21 | ||||
Schedule 1 Part I: German language form of Global Note |
22 | |||||
Schedule 1 Part II: English language form of Global Note |
35 | |||||
Schedule 2 Specific duties of the Fiscal Agent in the case of NGNs |
43 | |||||
Schedule 3 The Specified Offices of the Fiscal Agent and Paying Agent |
44 | |||||
Schedule 4 Part I: English Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder |
45 | |||||
Schedule 4 Part II: German Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder |
47 | |||||
Signature Page to the Fiscal Agency Agreement |
S-1 |
i |
This FISCAL AGENCY AGREEMENT (the Agreement) is made on 11 May 2020
BETWEEN
(1) |
LINDE PLC (Linde plc or, in the case of issues of Notes by Linde Finance B.V., the Guarantor); |
(2) |
LINDE FINANCE B.V. (Linde Finance); and |
(3) |
DEUTSCHE BANK AKTIENGESELLSCHAFT (the Fiscal Agent and Paying Agent, which expressions shall include any successor agent appointed in accordance with Clause 13), and, in case any additional paying agent has been appointed, the Paying Agents). |
RECITALS:
(A) |
Linde plc is a public limited company incorporated under the laws of Ireland with its registered office in Dublin, Republic of Ireland and registered in Ireland with registration number 602527. Linde plc is the parent company of the Group (as defined below). |
(B) |
Linde Finance is a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) with its registered office in Amsterdam and registered in the Dutch Trade Register of the Chamber of Commerce (the Dutch Trade Register) under number 34115238. Linde plc is the ultimate parent company of Linde Finance B.V. |
(C) |
Linde plc and Linde Finance have established a programme (the Programme) for the issuance of Notes (as defined herein) in connection with which they have entered into a dealer agreement dated of even date herewith (the Dealer Agreement) with the financial institutions named therein (the Dealers, which expression shall include any new dealers appointed, and exclude any institution whose appointment as a dealer has been terminated, in accordance with the Dealer Agreement). |
(D) |
The parties hereto wish to record the arrangements made between them in relation to the services of Deutsche Bank Aktiengesellschaft in relation to the Programme. |
(E) |
Notes may be issued on a listed or unlisted basis. Linde plc and Linde Finance have caused an application to be made to the Luxembourg Stock Exchange for Notes issued under the Programme to be listed on the Euro MTF Market. In connection with such application they have procured the preparation of the Prospectus (as defined herein). Notes may be listed on such other stock exchange or stock exchanges as the relevant Issuer and the relevant Dealer(s) may agree. |
IT IS HEREBY AGREED as follows:
1 |
Definitions and Interpretation |
1.1 |
Definitions. In this Agreement: |
Agents means the Fiscal Agent, the Calculation Agent, the Paying Agent(s) or any of them.
Calculation Agent means, in relation to any Series of Notes, the institution appointed as calculation agent for the purposes of such Notes and named as such in the relevant Final Terms, in the case of the Fiscal Agent, pursuant to Clause 8 hereof, in the case of a Dealer or any other institution, pursuant to Clause 16 of the Dealer Agreement and, in any case, any successor to such institution in its capacity as such.
1 |
CBF means Clearstream Banking AG, Frankfurt am Main, Germany.
CBL means Clearstream Banking S.A., Luxembourg.
Clearing System has the meaning set forth in § 1(4) of the Terms and Conditions.
Common Safekeeper means an ICSD in its capacity as common safekeeper or a person nominated by the ICSDs to perform the role of common safekeeper.
Conditions means in relation to any Tranche of Notes, the set of terms and conditions applicable to such Tranche of Notes as set out in the Prospectus and as determined and completed by the relevant Final Terms as described therein. The Conditions may be documented either by (i) replicating the relevant provisions of Option I or Option II, and completing the relevant placeholders in Option I or Option II, as relevant, in which case the replicated and completed provisions of Option I or Option II alone shall constitute the Conditions applicable to any Tranche of Notes, or by (ii) referring to the relevant provisions of Option I or Option II in Part I of the Final Terms only, in which case Option I or Option II and the relevant Final Terms taken together shall constitute the Conditions applicable to any Tranche of any Series of Notes. The Conditions will be attached to each Global Note representing the Notes.
Euroclear means Euroclear Bank SA/NV, Brussels.
Exchange Act means the United States Securities Exchange Act of 1934.
Frankfurt business day means a day (other than Saturdays and Sundays) on which commercial banks and foreign exchange markets are open for business (including dealings in foreign exchange and foreign currency deposits) in Frankfurt am Main.
Global Note means a Temporary Global Note or a Permanent Global Note, as applicable.
Group means Linde plc and its consolidated subsidiaries taken as a whole.
Guarantee means the Guarantee dated May 2020, substantially in the form set out in the Prospectus, executed by the Guarantor and the Fiscal Agent in respect of Notes issued by Linde Finance.
Holder means in respect of Notes deposited with any Clearing System or other central securities depositary, any holder of a proportionate co-ownership or other beneficial interest or right in the Notes so deposited, and otherwise the bearer of a Note.
Interest Commencement Date means, in the case of interest-bearing Notes, the date specified in the applicable Final Terms from (and including) which such Notes bear interest, which may or may not be the Settlement Date.
Issue Price means the price, generally expressed as a percentage of the principal amount of the Notes, at which the Notes will be issued.
Issuer means each of Linde plc and Linde Finance as issuer or proposed issuer of Notes and Issuers means Linde plc and Linde Finance acting together; relevant Issuer means, in relation to any Series, the Issuer which has concluded, or is negotiating, an agreement with the Relevant Dealer(s) to issue, or which has issued, the Notes of that Series.
Luxembourg Listing Agent means Deutsche Bank Luxembourg S.A., Luxembourg.
2 |
NGN means a Temporary Global Note or a Permanent Global Note in the form of a New Global Note.
Note means any note in bearer form, including any Global Note, issued or to be issued by any Issuer under the Programme.
Permanent Global Note means a permanent global note substantially in the form set out in Schedule 1 (or in such other form as may be agreed between the relevant Issuer, the Guarantor (if Linde Finance is the Relevant Issuer), the Fiscal Agent and the Relevant Dealer) issued or to be issued (if indicated in the applicable Final Terms) by the Issuer pursuant to this Agreement in exchange for the whole or part of a Temporary Global Note issued in respect of Notes of the same Tranche.
Prospectus means the base prospectus relating to the Notes in accordance with Part IV of the Luxembourg Prospectus Law, prepared in connection with the listing of Notes issued under the Programme on the Euro MTF Market, as supplemented or updated from time to time, including, in relation to each Tranche of Notes, the Final Terms relating to such Tranche and such other documents as are from time to time incorporated therein by reference.
Relevant Agreement means an agreement between the relevant Issuer and any Dealer(s) for the sale by the relevant Issuer and the purchase by the Dealer(s) of any Notes.
Relevant Dealer means, in respect of any Tranche of Notes, the institution specified as such in the relevant Final Terms.
Specified Office of any Agent means the office specified against its name in Schedule 3 hereto or, in the case of any Agent not originally party hereto, specified in its terms of appointment (or, in the case of a Calculation Agent which is a Dealer, specified for the purposes of Clause 15 of the Dealer Agreement) or such other office in the same country as such Agent may specify by notice to the Issuer and the other parties hereto in accordance with Clause 14.9.
Temporary Global Note means a temporary global note substantially in the form set out in Schedule 1 to this Agreement (or in such other form as may be agreed between the relevant Issuer, the Guarantor (if Linde Finance is the Relevant Issuer), the Fiscal Agent and the Relevant Dealer) and initially representing Notes of the same Tranche.
Terms and Conditions means the set of terms and conditions of Option I or Option II, as the case may be, substantially in the form set out in the Prospectus.
Tranche means Notes issued hereunder which are identical in all respects (including as to listing).
1.2 |
Expressions. Expressions defined elsewhere in this Agreement shall have the meanings so indicated. Expressions defined in the Dealer Agreement and the sets of Terms and Conditions and not otherwise defined in this Agreement shall have the same meanings in this Agreement, except where the context otherwise requires. |
1.3 |
References. All references in this Agreement to costs or charges or expenses shall include any value added tax or similar tax charged or chargeable in respect thereof, if applicable. |
All references in this Agreement to principal and/or interest or both in respect of the Notes or to any moneys payable by either Issuer under this Agreement shall have the meaning set out in § 4(6) of the Terms and Conditions.
3 |
All references in this Agreement to an agreement, instrument or other document (including, without limitation, this Agreement, the Dealer Agreement, the Guarantee, the Procedures Memorandum, the Notes and any Conditions appertaining thereto) shall be construed as a reference to that agreement, instrument or document as the same may be amended, varied or supplemented from time to time.
2 |
Appointment of Fiscal Agent and Paying Agent(s) |
2.1 |
Each of Linde plc and Linde Finance hereby appoint the Fiscal Agent, and the Fiscal Agent hereby agrees to act, as agent of each of Linde plc and Linde Finance in relation to Notes, upon the terms and subject to the conditions set out below, for the purposes of: |
2.1.1 |
authenticating and delivering Global Notes; |
2.1.2 |
in respect of Global Notes which are NGNs, that will not bear the original signature of the relevant Issuer due to their electronic transmission to CBL or Euroclear, as the case may be, as Common Safekeeper, giving effectuation instructions for each such Global Note; |
2.1.3 |
exchanging or instructing the Relevant Clearing System to exchange Temporary Global Notes for Permanent Global Notes in accordance with the terms of such Temporary Global Notes and the Conditions and making, or procuring the making of, all notations on Global Notes as may be required, and, in respect of any exchange of Global Notes which are NGNs, instructing CBF, CBL and Euroclear to make appropriate entries in their records; |
2.1.4 |
paying sums due on Global Notes and, if applicable the Guarantee, and, in respect of Global Notes which are NGNs, instructing CBL or Euroclear to make appropriate entries in their records; |
2.1.5 |
determining the end of the restricted period applicable to each Tranche in the case that the Relevant Clearing System does not determine such period; |
2.1.6 |
arranging on behalf and at the expense of Linde plc and Linde Finance for notices to be communicated to Holders; |
2.1.7 |
ensuring that, as directed by the relevant Issuer (and with prior approval from the Fiscal Agent) where information is required to be provided by the relevant Issuer, all necessary action is taken to comply with any reporting requirements of any competent authority in respect of any relevant currency, except for Pound Sterling, as may be in force from time to time with respect to the Notes to be issued under the Programme; |
2.1.8 |
acting as Calculation Agent in respect of Notes where named as such in the relevant Final Terms and agreed between the relevant Issuer and the Fiscal Agent; and |
2.1.9 |
performing all other obligations and duties imposed upon it by the Conditions and this Agreement and, in relation to each issue of Notes, the Procedures Memorandum. |
2.2 |
In relation to each issue of NGNs, the relevant Issuer hereby authorises and instructs the Fiscal Agent to elect CBL or Euroclear as Common Safekeeper. From time to time, the relevant Issuer and the Fiscal Agent may agree to vary this election. The relevant Issuer acknowledges that any such election is subject to the right of CBL and Euroclear to jointly determine that the other shall act as Common Safekeeper in relation to any such issue and agrees that no liability shall attach to the Fiscal Agent in respect of any such election made by it. |
4 |
2.3 |
Each of Linde plc and Linde Finance hereby appoint the Paying Agent(s), and each of the Paying Agent(s) hereby agrees to act, as paying agent of the relevant Issuer and (if Linde Finance is the Relevant Issuer) the Guarantor in relation to the Notes, upon the terms and subject to the conditions set out below, for the purposes of paying sums due on Notes and, if applicable, the Guarantee, and of performing all other obligations and duties imposed upon it by the Conditions and this Agreement. The Relevant Dealer shall transfer the funds according to the deadlines of the Relevant Clearing System applicable to the relevant currency. |
3 |
The Notes |
3.1 |
Each Global Note shall: |
3.1.1 |
be printed or typewritten in substantially the form (duly completed) set out in the relevant Schedule hereto (or in such other form as the relevant Issuer, the Fiscal Agent and the Relevant Dealer shall have agreed); |
3.1.2 |
have attached thereto the Conditions which may consist of (i) the replicated relevant provisions of either Option I or Option II and the completed relevant placeholders in Option I, Option II, as relevant or (ii) Option I or Option II and the relevant Final Terms taken together; |
3.1.3 |
be executed manually by two authorised signatories of the relevant Issuer; |
3.1.4 |
be authenticated manually by or on behalf of the Fiscal Agent; |
3.1.5 |
if the Global Note is an NGN, be effectuated manually by a Common Safekeeper; and |
3.1.6 |
bear a unique serial number (if applicable). |
3.2 |
Each of Linde plc and Linde Finance shall promptly notify in writing the Fiscal Agent of any change in the names of the person or persons whose signatures are to be used. |
4 |
Issuance of Notes |
4.1 |
Upon the conclusion of any Relevant Agreement, the relevant Issuer shall, as soon as practicable but in any event, not later than 2.00 p.m. (Frankfurt time) on the third Frankfurt business day prior to the proposed Issue Date in relation to each Tranche: |
4.1.1 |
confirm to the Fiscal Agent by telefax or any electronic information system agreed between the Fiscal Agent and the relevant Issuer all such information as the Fiscal Agent may reasonably require to carry out its functions under this Agreement and such details as are necessary to enable it to authenticate and deliver the Global Note; |
4.1.2 |
(if no standard payment instructions have been given to the Fiscal Agent) designate by telefax or any other form of communication agreed between the Fiscal Agent and the relevant Issuer the account of the relevant Issuer to which payment of the proceeds of issue should be made; |
4.1.3 |
deliver to the Fiscal Agent a copy, duly executed, of the Final Terms; and |
5 |
4.1.4 |
deliver to the Fiscal Agent the completed Global Note (in unauthenticated form but executed on behalf of the relevant Issuer) in relation to the relevant Tranche, with the Conditions to be attached to the Global Note (in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II , as relevant) or a copy of the Final Terms, duly executed on behalf of the relevant Issuer to be attached by the Fiscal Agent to the Global Note together with the relevant set of the Terms and Conditions of the Notes (in the case Part I of Final Terms only refers to the relevant provisions of Option I or Option II). |
4.2 |
On or before 10.00 a.m. (Frankfurt time) on the Frankfurt business day prior to the Issue Date in relation to each Tranche or such other time as may be agreed between the Fiscal Agent and the Relevant Clearing System, the Fiscal Agent shall |
4.2.1 |
authenticate the Global Note; |
4.2.2 |
deliver the Global Note to, or to a depositary for, the Relevant Clearing System (which, in the case of CBL and Euroclear, shall be a specified common depositary) or specified Common Safekeeper (if the Global Note is an NGN), and instruct the Common Safekeeper to effectuate the Global Note (if the same will not bear the original signature of the relevant Issuer, due to its electronic transmission to the Common Safekeeper); |
4.2.3 |
if the Global Note is an NGN, instruct CBL and Euroclear to make the appropriate entries in their records to reflect the initial (in the case of the first Tranche of Notes of any Series) or increased (in the case of a subsequent Tranche of Notes of any Series) outstanding aggregate principal amount of the relevant Series; and |
4.2.4 |
instruct the Relevant Clearing System to credit Notes represented by a Global Note to the Fiscal
Agents distribution account and to hold each such Note to the order of the relevant Issuer pending delivery to the Relevant Dealer(s) on a delivery against payment basis (or on such other basis as shall have been agreed between the relevant
Issuer and the Relevant Dealer and notified to the Fiscal Agent) in accordance with the normal procedures of the Relevant Clearing System and, following payment, to credit the Notes represented by such Global Note to such securities account(s) as
shall have been notified to the Fiscal Agent by the Relevant
|
4.3 |
The Fiscal Agent shall on the Issue Date in respect of the relevant Tranche and against receipt of funds from the Relevant Dealer(s) transfer the proceeds of issue to the relevant Issuer to the account notified in accordance with sub-clause 4.1 above. |
4.4 |
Where the Fiscal Agent delivers any authenticated Global Note to a Common Safekeeper for effectuation using electronic means, it is authorised to destroy the Global Note retained by it following its receipt of confirmation from the Common Safekeeper that the relevant Global Note has been effectuated. |
4.5 |
Where the Fiscal Agent acts as receiving bank for the relevant Issuer in respect of the proceeds of issue of Notes being issued, if on the relevant Issue Date the Fiscal Agent does not receive the full proceeds of issue in respect of any Note (the Defaulted Note) and, as a result, the Defaulted Note remains in the Fiscal Agents distribution account with the Clearing System after such Issue Date, the Fiscal Agent shall: |
4.5.1 |
continue to hold the Defaulted Note to the order of the relevant Issuer; |
6 |
4.5.2 |
notify the relevant Issuer forthwith of the non-receipt of the proceeds of issue in respect of the Defaulted Note; and, subsequently, |
4.5.3 |
notify the relevant Issuer forthwith upon receipt of the full proceeds of issue in respect of such Defaulted Note and pay to the relevant Issuer the amounts so received. |
4.6 |
The Fiscal Agent shall hold in safe custody all unauthenticated Global Notes delivered to it in accordance with this Clause 4 and shall ensure that the same are authenticated and delivered only in accordance with the terms hereof and, if applicable, the relevant Global Note. The relevant Issuer shall ensure that each of the Fiscal Agent holds sufficient Global Notes to fulfil its respective obligations under this Clause 4. The Fiscal Agent undertakes to notify the relevant Issuer if it holds insufficient Global Notes for such purposes. |
4.7 |
The Fiscal Agent is authorised by each Issuer to authenticate such Global Notes as may be required to be authenticated hereunder by the signature of any person duly authorised for the purpose by the Fiscal Agent. |
4.8 |
In the event that a person who has signed on behalf of the relevant Issuer any Note not yet issued but held by the Fiscal Agent in accordance with Clause 4.6 ceases to be authorised, the Fiscal Agent shall (unless the relevant Issuer gives written notice to the Fiscal Agent that Notes signed by that person do not constitute valid and binding obligations of the relevant Issuer or otherwise until replacements have been provided to the Fiscal Agent) continue to have authority to issue any such Global Notes, and the relevant Issuer hereby warrants to the Fiscal Agent that such Global Notes shall, unless notified as aforesaid, be valid and binding obligations of the relevant Issuer. Promptly upon such person ceasing to be authorised, the relevant Issuer shall provide the Fiscal Agent with replacement Global Notes and upon receipt of such replacement Global Notes the Fiscal Agent shall cancel and destroy the Notes held by it which are signed by such person and shall provide to the relevant Issuer a confirmation of destruction in respect thereof specifying the Notes so cancelled and destroyed. |
4.9 |
Subject to the procedures set out in the Procedures Memorandum, for the purposes of this Clause 4 each of the Fiscal Agent is entitled to treat a telephone or telefax communication from a person purporting to be (and who the Fiscal Agent believes in good faith to be) the authorised representative of the relevant Issuer named in the list referred to in, or notified pursuant to, Clause 11.7 as sufficient instructions and authority of the relevant Issuer for the Fiscal Agent to act in accordance with this Clause 4. |
4.10 |
If the Fiscal Agent, in its discretion, pays an amount (the Advance) to the relevant Issuer on the basis that a payment (the Payment) has been or will be, received from a Dealer and if the Payment is not received by the Fiscal Agent on the date the Fiscal Agent pays the relevant Issuer, the relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall repay to the Fiscal Agent the Advance and shall pay interest on the Advance (or the unreimbursed portion thereof) from (and including) the date such Advance is made to (but excluding) the earlier of repayment in full of the Advance and receipt in full by the Fiscal Agent of the Payment from the Dealer (at a rate quoted at that time by the Fiscal Agent as its cost of funding the Advance). |
7 |
5 |
Exchange of Notes |
Upon any exchange of all or a part of the Notes represented by a Temporary Global Note for Notes represented by a Permanent Global Note, the Fiscal Agent shall:
5.1 |
prepare, complete and authenticate such Permanent Global Note in accordance with the terms hereof and of such Global Note; |
5.2 |
deliver such Permanent Global Note to, or to the depositary for, the Relevant Clearing System which is holding the Temporary Global Note (if such Permanent Global Note is an NGN, to the Common Safekeeper to effectuate the same, as applicable); |
5.3 |
instruct the Relevant Clearing System to make all notations on the Global Notes as may be required reflecting the reduction, respectively the increase, of the aggregate principal amount of the respective Global Note; and |
5.4 |
in the case of any Global Note which is an NGN, instruct CBL and Euroclear to make appropriate entries in their records to reflect such exchange. |
In the case of a total exchange, the Fiscal Agent shall cancel or arrange for the cancellation of the relevant Global Note.
6 |
Payments |
6.1 |
Each Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall not later than 9 hours (local time in the relevant financial centre of the currency payable which include Japanese yen, New Zealand dollar, Hong Kong dollar and Australian dollar as well as euro) or in case of Pound sterling not later than 10 hours (Frankfurt time) or in case of U.S. dollar, Canadian dollar not later than 15 hours (Frankfurt time) any other currencies need to be checked with the Fiscal Agent prior to payment on each date on which any payment in respect of any Note becomes due, transfer to such account as the Fiscal Agent shall specify such amount in the currency in which the relevant payment falls to be made as shall be sufficient for the purposes of such funds being settled through such payment system as the Fiscal Agent and the relevant Issuer may agree. The Fiscal Agent shall not be liable to account for interest on money paid to it by the relevant Issuer. Money held by the Fiscal Agent need not to be segregated except as required by law. |
6.2 |
The relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall ensure that not later than 10.00 a.m. (Frankfurt time) on the third Frankfurt business day immediately preceding the date on which any payment is to be made to the Fiscal Agent pursuant to sub-clause 6.1, the Fiscal Agent shall receive an irrevocable payment confirmation from the paying bank of the relevant Issuer. |
6.3 |
Subject to the receipt by the Fiscal Agent of the payment as provided in sub-clause 6.1 above, the Fiscal Agent or the relevant Paying Agent shall pay or cause to be paid all amounts due in respect of the Notes on behalf of the relevant Issuer and (if Linde Finance is the Relevant Issuer) the Guarantor in the manner provided in the Conditions. If any payment provided for in sub-clause 6.1 is made late but otherwise in accordance with the provisions of this Agreement, the Fiscal Agent and/or each Paying Agent shall nevertheless make payments in respect of the Notes as aforesaid following receipt by it of such payment. The Fiscal Agent shall, as soon as reasonably possible on the business day following the due date, notify the relevant Issuer if it has not received such payment from the relevant Issuer. |
6.4 |
If the Fiscal Agent has reason to believe that the amounts to be received by the Fiscal Agent pursuant to sub-clause 6.1 will be, or the amounts actually received by it pursuant thereto are, insufficient to satisfy all claims in respect of all payments then falling due in respect of the Notes, neither the Fiscal Agent nor any Paying Agent shall be obliged to pay any such claims until the Fiscal Agent, has received the full amount of all such payments. |
8 |
6.5 |
The Fiscal Agent shall not be obliged to repay any moneys paid to it by an Issuer in respect of any Note or the Guarantor in respect of the Guarantee unless or until claims against the relevant Issuer or the Guarantor in respect of the relevant Notes or the Guarantee are prescribed or the obligation to make the relevant payment ceases in accordance with the Conditions or the terms of the Guarantee. In such event it shall upon the request of the relevant Issuer repay, as soon as practicable, to the relevant Issuer or the Guarantor, as the case may be, such portion of such amount as relates to such claim or payment by paying the same by credit transfer to such account with such bank as the relevant Issuer or the Guarantor may by notice to the Fiscal Agent have specified for this purpose, provided the Fiscal Agent still holds the relevant amount. |
6.6 |
If the Fiscal Agent pays any amounts to the Holders or to any Paying Agent at a time when it has not received payment in full in respect of the relevant Notes in accordance with sub-clause 6.1 (the excess of the amounts so paid over the amounts so received being the Shortfall), the relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall, in addition to paying amounts due under sub-clause 6.1, pay to the Fiscal Agent on demand interest (at a rate which represents the Fiscal Agents cost of funding the Shortfall) on the Shortfall (or the unreimbursed portion thereof) until the receipt in full by the Fiscal Agent of the Shortfall. |
6.7 |
Where Notes are represented by a Global Note, all payments due in respect of such Notes shall be made to, or to the order of, the holder of the Global Note, subject to and in accordance with the provisions of the Global Note and the Conditions. |
6.8 |
lf the amount of principal and/or interest then due for payment is not paid in full (otherwise than by reason of a deduction required by law to be made therefrom), the Fiscal Agent to which a Note is presented for the purpose of making such payment shall make a record of such Shortfall on the Note and such record shall, in the absence of manifest error, be prima facie evidence that the payment in question has not to that extent been made. |
7 |
Miscellaneous Duties of the Fiscal Agent and the Paying Agent(s) |
7.1 |
If the Notes of the relevant Tranche are initially represented by a Temporary Global Note the following provisions shall apply in the case that the relevant Clearing System does not determine the Exchange Date on the end of the distribution compliance period: |
7.1.1 |
The Fiscal Agent shall determine the Exchange Date for such Temporary Global Note in accordance with the terms thereof. Forthwith upon determining the Exchange Date in respect of any Tranche in accordance with the Conditions, the Fiscal Agent shall notify such determination to the relevant Issuer, the Guarantor (if Linde Finance is the Relevant Issuer), the Relevant Dealer and the Clearing System. |
7.1.2 |
In the case of a Tranche in respect of which there is only one Relevant Dealer, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the date certified by the Relevant Dealer to the Fiscal Agent as being the date as of which distribution of the Notes of that Tranche was completed. |
9 |
7.1.3 |
In the case of a Tranche in respect of which there is more than one Relevant Dealer but which is not issued on a syndicated basis, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the latest of the dates certified by all the Relevant Dealers to the Fiscal Agent as being the respective dates as of which distribution of the Notes of that Tranche purchased by each such Relevant Dealer was completed. |
7.1.4 |
In the case of a Tranche issued on a syndicated basis, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the date certified by the Lead Manager to the Fiscal Agent as being the date as of which distribution of the Notes of that Tranche was completed. |
7.1.5 |
Forthwith upon determining the end of the distribution compliance period in respect of any Tranche, the Fiscal Agent shall notify such determination to the relevant Issuer, the Guarantor (if Linde Finance is the Relevant Issuer), the Clearing System and the Relevant Dealer(s) (in the case of a non-syndicated issue) or the Lead Manager (in the case of a syndicated issue). |
7.2 |
In the case the Notes of the relevant Tranche are to be listed on Euro MTF market of the Luxembourg Stock Exchange or, as the case may be, any further stock exchange and where the rules of such stock exchange require submission of the Final Terms for the listing of such Notes only, the relevant Issuer shall deliver to the Luxembourg Listing Agent a copy of the Final Terms in relation to such Tranche and, in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant, the Conditions to such stock exchange or the relevant listing agent as agreed between the relevant Issuer and the Relevant Dealer and notified to the Fiscal Agent as soon as practicable but in any event, subject to the timely receipt thereof, not later than the time required by such stock exchange for submission of Final Terms. |
7.3 |
The Fiscal Agent shall not have any responsibility in respect of the listing of Notes to be issued under the Programme on any German stock exchange. If in respect of any Tranche of Notes, the applicable Final Terms provide for the listing of such Tranche on a German stock exchange, the Relevant Dealer shall attend to obtaining such listing. |
7.4 |
Upon the receipt by the Fiscal Agent of a demand or notice from any Holder in accordance with the Conditions the Fiscal Agent shall forward a copy thereof to the relevant Issuer and (if Linde Finance is the Relevant Issuer) the Guarantor. |
7.5 |
On behalf of and at the request and expense of the relevant Issuer the Fiscal Agent shall cause to be published, or delivered to Holders, all notices required to be given by the relevant Issuer or the Guarantor (if Linde Finance is the Relevant Issuer) to the Holders in accordance with the Conditions. The final version of such notices shall be delivered to the Fiscal Agent by e-mail and confirmed by telefax signed by duly authorised signatories: |
7.5.1 |
with respect to notices to be published in a daily newspaper (i) in the United Kingdom not later than 10.00 a.m. on the ninth Frankfurt business day prior to the date of publication, (ii) in the Federal Republic of Germany or Luxembourg not later than 10.00 a.m. on the seventh Frankfurt business day prior to the date of publication, and (iii) in any other country on such date and time as shall be agreed between the relevant Issuer and the Fiscal Agent on a case by case basis; |
7.5.2 |
with respect to notices to be communicated via the Clearing System not later than 10.00 a.m. on the second Frankfurt business day prior to the date of transmission to the Clearing System; and |
10 |
7.5.3 |
with respect to notices to be published on the website of the Luxembourg Stock Exchange not later than 10.00 a.m. on the fourth Frankfurt business day prior to the date of publication. |
7.5.4 |
with respect to notices to be published in the Federal Gazette (Bundesanzeiger) not later than 10.00 a.m. on the fifth Frankfurt business day prior to the date of publication; |
In determining the time limits above the relevant Issuer shall take into account the respective periods according to the Conditions after the expiration of which such notices are deemed to have been validly given to the Holders.
7.6 |
If the relevant Issuer is, in respect of any payment, required to withhold or deduct any amount for or on account of taxes or duties of whatever nature as specifically contemplated under the Conditions, the relevant Issuer and/or the Guarantor (if Linde Finance is the Relevant Issuer) shall give notice thereof to the Fiscal Agent as soon as it becomes aware of the requirement to make such withholding or deduction and shall give to the Fiscal Agent such information as either of them shall require to enable it to comply with such requirement. With respect to any withholding or deduction pursuant to § 7 of the Terms and Conditions, the relevant Issuer shall contact the Fiscal Agent first to clarify if and how such requirement could technically be complied with by the Fiscal Agent. |
7.7 |
The executed Guarantee shall be deposited with the Fiscal Agent and shall be held in safe custody by it on behalf of the Holders at its Specified Office for the time being. The Fiscal Agent shall upon request issue a certified copy of the Guarantee to a Holder for the purposes set out in Clause 11 of the Guarantee. |
7.8 |
The Paying Agent(s) shall hold available for inspection at their Specified Offices during normal business hours copies of all documents required to be so available as provided in the Prospectus, or in relation to any Notes, the Conditions or Final Terms in respect of such Notes, or as may be required by the rules of any stock exchange on which the Notes may be listed. |
7.9 |
For the above purposes, the Issuers shall furnish to the Fiscal Agent for distribution among the Paying Agent(s) sufficient copies of each of the relevant documents. |
7.10 |
In respect of any Series of Notes that are NGNs, each Paying Agent agrees that if any information that is required by the Fiscal Agent to perform the duties set out in Schedule 2 hereto becomes known to it, it will promptly provide such information to the Fiscal Agent. |
7.11 |
Each of the Agents shall severally indemnify Linde plc and Linde Finance against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which either of them may incur, as a result or arising out of any negligent or wilful breach by such Agent of its obligations under this Agreement. The indemnification shall continue after the expiry or termination of this Agreement provided that the negligent or wilful breach by such Agent of its obligations under this Agreement occurred before the expiry or termination of this Agreement. |
7.12 |
Upon fulfilment of all payment obligations of the relevant Issuer in respect of any Notes, the Fiscal Agent shall procure that the relevant Global Note (other than an NGN intended to be held in a manner, which would allow Eurosystem eligibility) is cancelled and shall deliver a certificate of destruction to the relevant Issuer. |
11 |
7.13 |
Each Issuer undertakes to notify the Fiscal Agent of any changes in the identity of the Dealers appointed generally in respect of the Programme and the Fiscal Agent agrees to notify the other Paying Agent(s) thereof. |
7.14 |
If the presentation period in respect of Notes as specified in Clause 8 of the Conditions of the Notes shall have lapsed and provided that there is no outstanding bona fide and proper claim in respect of any payment in respect of the Notes, the Fiscal Agent shall on demand pay to the relevant Issuer or the Guarantor, as the case may be, sums equivalent to any amounts paid to it by the relevant Issuer or the Guarantor, as the case may be, for the purposes of such payments, provided the Fiscal Agent still holds the relevant amount. |
8 |
Appointment and Duties of the Calculation Agent |
8.1 |
Except for the calculation of the Early Redemption Amount pursuant to § 5[(8)(b)] of Option I of the Terms and Conditions, the Fiscal Agent may be appointed as Calculation Agent in respect of any Series of Notes by agreement with the relevant Issuer. The Fiscal Agent shall be deemed to having agreed to act as Calculation Agent in respect of a Series if it shall have been named as Calculation Agent in the relevant Final Terms not later than five Frankfurt business days before the Issue Date or, if earlier, the first date on which it is required to make any calculation or determination and shall not have notified the relevant Issuer that it does not wish to be so appointed within three Frankfurt business days of receipt by it of the relevant Final Terms. |
8.2 |
If the Fiscal Agent has agreed, or is deemed to have agreed to act as Calculation Agent, it shall perform all matters expressed to be performed by it in, and otherwise comply with, the Conditions and the provisions of this Agreement and, in connection therewith, shall take all such action as may be incidental thereto. |
8.3 |
The Calculation Agent shall in respect of each Series of Notes in relation to which it is appointed as such: |
8.3.1 |
obtain such quotes and rates and/or make such determinations, calculations, adjustments, notifications and publications as may be required to be made by it by the Conditions at the times and otherwise in accordance with the Conditions; and |
8.3.2 |
maintain a record of all quotations obtained by it and of all amounts, rates and other items determined or calculated by it and make such record available for inspection at all reasonable times during normal business hours by the relevant Issuer and the Paying Agent(s). |
8.4 |
Notwithstanding any other provision of §3(3) of Option II of the Terms and Conditions, if, in the Calculation Agents opinion there is any uncertainty between two or more alternative courses of action in making any determination or calculation under §3(3) of Option II of the Terms and Conditions, the Calculation Agent shall promptly notify the relevant Issuer thereof and the relevant Issuer shall direct the Calculation Agent in writing as to which alternative course of action to adopt. If the Calculation Agent is not promptly provided with such direction, or is otherwise unable to make such calculation or determination for any reason, it shall notify the relevant Issuer thereof and the Calculation Agent shall be under no obligation to make such calculation or determination and shall not incur any liability for not doing so. |
8.5 |
Notwithstanding any other provision of §3(3) of Option II the Terms and Conditions, neither the relevant Issuer nor the Independent Adviser (as the case may be) shall be able to effect any Benchmark Amendments which, in the sole opinion of the Fiscal Agent, Calculation Agent or the Paying Agent, would have the effect of increasing the obligations or duties, or decreasing the rights or protections, of the Fiscal Agent, Calculation Agent or the Paying Agent (as the case may be). |
12 |
9 |
Early Redemption of Notes |
9.1 |
If the relevant Issuer decides to redeem any Notes for the time being outstanding prior to their Maturity Date in accordance with the Conditions, it shall give notice of such decision to the Fiscal Agent not less than 14 Frankfurt business days before the date on which it will give notice to the Holders in accordance with the Conditions of such redemption in order to enable the Fiscal Agent to undertake its obligations herein and in the Conditions. |
9.2 |
lf only some of the Notes are to be redeemed on such date, the Fiscal Agent shall take the required steps for identifying the Notes to be redeemed in accordance with the Conditions. |
9.3 |
The Fiscal Agent shall publish the notice required in connection with any such redemption. Such notice shall specify the matters relevant in respect of such redemption in accordance with the provisions of the Conditions. The Fiscal Agent will also notify the other Paying Agent(s) of any date fixed for redemption of any Notes. |
9.4 |
The Fiscal Agent will keep a stock of redemption notices (in the form of Schedule 4 attached hereto or in such form as may be agreed between the Issuers and the Fiscal Agent) and will make such notices available on demand to Holders of Notes, the Conditions of which provide for redemption at the option of Holders. The Fiscal Agent shall, upon receipt of any such redemption notice, notify forthwith the relevant Issuer thereof. At the end of each period for the exercise of such option, the Fiscal Agent shall promptly notify the relevant Issuer of the principal amount of Notes together with their securities identification numbers in respect of which such option has been exercised. |
10 |
Fees and Expenses |
10.1 |
The relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall pay to the Fiscal Agent for its own account and for the account of the Paying Agent(s), as long as such Paying Agent(s) belong to the group of companies controlled by the Fiscal Agent, and, in case the Fiscal Agent acts as Calculation Agent, the Calculation Agent, such fees as may have been agreed between them and the Fiscal Agent in respect of the services of such Agents hereunder. The relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall pay to any Calculation Agent such fees as may have been agreed between the relevant Issuer and the Guarantor (if Linde Finance is the Relevant Issuer) and such Calculation Agent in respect of its services hereunder. |
10.2 |
The relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall reimburse each Agent for all expenses (including legal fees and any applicable value added tax) properly incurred in connection with its services hereunder. |
10.3 |
The relevant Issuer (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall pay all stamp, documentary, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) which may be payable upon or in connection with the execution and delivery of this Agreement and any letters of appointment under which any Agent is appointed as agent hereunder. The Issuers shall indemnify (failing which the Guarantor, if Linde Finance is the Relevant Issuer) each Agent against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which it may incur or which may be made against it as a result or arising out of any failure to pay or delay in paying any of the amounts on account of any such documentary and other taxes and duties. |
13 |
11 |
Terms of Appointment |
11.1 |
Each of the Agents and (in the case of (b), (d), (e) and (f)) each Calculation Agent may, in connection with its services hereunder: |
11.1.1 |
except as ordered by a court of competent jurisdiction or as required by law, treat the bearer of any Note as the owner thereof and make payments thereon accordingly; |
11.1.2 |
assume that the terms of each Note as issued are correct; |
11.1.3 |
refer any question relating to the ownership of any Note or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Note to the relevant Issuer for determination by such Issuer and rely upon any determination so made; |
11.1.4 |
rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; |
11.1.5 |
engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained. Such Agent shall be protected and shall incur no liability as against Linde plc or Linde Finance in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith; and |
11.1.6 |
treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. |
11.2 |
In acting hereunder and in connection with the Notes, the Agents shall act solely as agents of Linde plc and Linde Finance and will thereby not assume any obligations towards or relationship of agency or trust for or with any of the Holders. |
11.3 |
In acting hereunder and in connection with the Notes, the Agents shall not be liable for the legality, validity or enforceability of any Note. |
11.4 |
Each Agent may purchase, hold and dispose of Notes and may enter into any transaction (including, among other transactions, any depositary, trust or agency transaction) with any Holder or with any other party hereto in the same manner as if it had not been appointed as the agent of Linde plc and Linde Finance. |
11.5 |
The Issuers (failing which the Guarantor, if Linde Finance is the Relevant Issuer) shall indemnify each Agent against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which such Agent may incur, otherwise than as a result of or arising out of any negligent or wilful breach by such Agent of its obligations under this Agreement. The indemnification shall continue after the expiry or termination of this Agreement. |
11.6 |
The obligations of the Agents hereunder shall be several, and not joint. |
14 |
11.7 |
Each of the Issuers shall provide the Fiscal Agent with a list of persons authorised to execute documents and take action on its behalf in connection with this Agreement, such list to be signed by two duly authorised signatories of Linde plc and Linde Finance, respectively. Linde plc and Linde Finance shall notify the Fiscal Agent immediately if any of such persons ceases to be so authorised or if any additional person becomes so authorised by notice signed by two duly authorised signatories of Linde plc and Linde Finance, as the case may be. |
12 |
Warranties and Undertakings |
As at the date of this Agreement, Linde plc and Linde Finance hereby warrants in respect of itself only, and Linde plc in respect of Notes issued by Linde Finance warrants in its capacity as Guarantor jointly and severally with Linde Finance to the Fiscal Agent:
12.1 |
that neither the U.S. Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the U.S. Department of State, the United Nation Security Council (UNSC), the European Union (the EU) nor Her Majestys Treasury has imposed any sanctions against Linde plc, Linde Finance or, to the best knowledge of Linde plc and Linde Finance, against any of their subsidiaries, directors, or officers, or any of their employees who will act in any capacity in connection with or benefit from the Programme because of the violation of any laws and regulations administered by OFAC, the U.S. Department of State, the UNSC, the EU or Her Majestys Treasury, respectively. |
This representation is only made to the extent that it does not result in a violation of or conflict with Section 7 of the German Foreign Trade Ordinance (§ 7 Außenwirtschaftsverordnung - AWV), any provision of Council Regulation (EC) No 2271/96 (or any law or regulation imposing penalties in respect of such regulation in the United Kingdom or any member state of the European Union) or any similar applicable blocking or anti-boycott statue in any member state of the European Union or the United Kingdom.
12.2 |
that Linde plc and Linde Finance will not use the proceeds from the issuance of Notes under the Programme in violation of any laws and regulations administered by OFAC, the U.S. Department of State, UNSC, the EU and the United Kingdom, respectively. |
This undertaking is only given to the extent that it does not result in a violation of or conflict with Section 7 of the German Foreign Trade Ordinance (§ 7 Außenwirtschaftsverordnung - AWV), any provision of Council Regulation (EC) No 2271/96 (or any law or regulation imposing penalties in respect of such regulation in the United Kingdom or any member state of the European Union) or any similar applicable blocking or anti-boycott statue in any member state of the European Union or the United Kingdom.
12.3 |
that Linde plc is a public limited company duly established under the laws of the Republic of Ireland with full power and authority to own its assets and to conduct its business as described in the Prospectus; |
12.4 |
that Linde Finance is a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) duly incorporated under Dutch law with full power and authority to own its assets and to conduct its business as described in the Prospectus; |
12.5 |
that the execution and delivery of this Agreement, have been duly authorised by Linde plc and/or Linde Finance and this Agreement constitutes legal, valid and binding obligations of Linde plc and Linde Finance enforceable in accordance with its terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally; |
12.6 |
that the execution and delivery of this Agreement will not infringe any law or regulation of its jurisdiction of incorporation and are not contrary to the provisions of the constitutional documents of Linde plc and/or Linde Finance and will not result in any violation of the terms of any instrument or agreement to which Linde plc and/or Linde Finance is a party or by which Linde plc and/or Linde Finance or their respective property is bound; and |
15 |
12.7 |
that all licences, consents, approvals, authorisations, orders and clearances of all regulatory authorities required by the relevant Issuer and/or the Guarantor for or in connection with the execution and delivery of, and compliance with the terms of, this Agreement have been obtained and are in full force and effect. |
13 |
Know-your Customer |
Upon the request of any Agent, each of the Issuers and the Guarantor shall promptly supply or procure the supply of such documentation and other evidence as is reasonably required by the Agent to carry out and be satisfied to have complied with all necessary know your customer or similar checks under all applicable laws and regulations.
14 |
Changes in Agents |
14.1 |
The Fiscal Agent may (subject as provided in sub-clause 14.3 below) at any time resign as Fiscal Agent by giving at least 45 days written notice to Linde plc and Linde Finance of such intention on its part, specifying the date on which its desired resignation shall become effective. |
14.2 |
The Fiscal Agent may (subject as provided in sub-clause 14.3 below) be removed at any time by Linde plc and Linde Finance on at least 45 days notice by the filing with it of an instrument in writing signed on behalf of Linde plc and Linde Finance specifying such removal and the date when it shall become effective. |
14.3 |
Any resignation under sub-clause 14.1 or removal under sub-clauses 14.2 or 14.4 shall only take effect upon the appointment by Linde plc and Linde Finance as hereinafter provided, of a successor Fiscal Agent and (other than in cases of insolvency of the Fiscal Agent) on the expiry of the notice to be given under Clause 14. Linde plc and Linde Finance agree with the Fiscal Agent that if, by the day falling ten days before the expiry of any notice under sub-clause 14.1, Linde plc and Linde Finance have not appointed a successor Fiscal Agent, then the Fiscal Agent shall be entitled, on behalf of Linde plc and Linde Finance, to appoint as a successor Fiscal Agent in its place a reputable financial institution of good standing which Linde plc and Linde Finance shall approve (such approval not to be unreasonably withheld or delayed). |
14.4 |
In case at any time the Fiscal Agent resigns, or is removed, or becomes incapable of acting or is adjudged bankrupt or insolvent, or files a voluntary petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of an administrator, liquidator or administrative or other receiver of all or a substantial part of its property, or admits in writing its inability to pay or meet its debts as they mature or suspends payment thereof, or if any order of any court is entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or insolvency law a successor Fiscal Agent, which shall be a reputable financial institution of good standing may be appointed by Linde plc and Linde Finance by an instrument in writing filed with the successor Fiscal Agent. Upon the appointment as aforesaid of a successor Fiscal Agent and acceptance by the latter of such appointment and (other than in case of insolvency of the Fiscal Agent when it shall be of immediate effect) upon expiry of the notice to be given under Clause 15, the Fiscal Agent so superseded shall cease to be the Fiscal Agent hereunder. |
16 |
14.5 |
Subject to the applicable provisions of the Conditions, Linde plc and Linde Finance may, after prior consultation with the Fiscal Agent, terminate the appointment of any Paying Agent or Calculation Agent at any time and/or appoint one or more further Paying Agent(s) or Calculation Agent by giving to the Fiscal Agent, and to the relevant Paying Agent at least 45 days notice in writing to that effect (other than in the case of insolvency of the Paying Agent or Calculation Agent). |
14.6 |
Subject to the applicable provisions of the Conditions, any Paying Agent or Calculation Agent may resign its appointment hereunder at any time by giving Linde plc and Linde Finance and the Fiscal Agent at least 45 days written notice to that effect. |
14.7 |
Upon its resignation or removal becoming effective, the Fiscal Agent: |
14.7.1 |
shall forthwith transfer all moneys held by it hereunder and, if applicable, the documents and records referred to in Clauses 7.7, 7.8, 7.9 and 16 and all Notes surrendered and not yet destroyed to the successor Fiscal Agent hereunder; and |
14.7.2 |
shall be entitled to the payment by Linde plc and Linde Finance of its fees and expenses for the services therefore rendered hereunder in accordance with the terms of Clause 10. |
14.8 |
Upon its appointment becoming effective, a successor Fiscal Agent or Calculation Agent and any new Paying Agent shall, without further act, become vested with all the rights, duties and obligations of its predecessor or, as the case may be, a Paying Agent with like effect as if originally named as Fiscal Agent or (as the case may be) a Paying Agent or Calculation Agent hereunder. |
14.9 |
lf the Fiscal Agent or any Paying Agent or Calculation Agent determines to change its Specified Office it shall (after having, in any such case other than a change of Specified Office within the same country, obtained the prior written approval of Linde plc and Linde Finance thereto) give to Linde plc and Linde Finance and (if applicable) the Fiscal Agent written notice of such determination giving the address of the new Specified Office which shall be in the same country and stating the date on which such change is to take effect, which shall not be less than 45 days thereafter. The Fiscal Agent (on behalf of the Issuers (failing which the Guarantor, if Linde Finance is the Relevant Issuer)) shall within 15 days of receipt of such notice (unless the appointment of the Fiscal Agent or the Paying Agent or Calculation Agent, as the case may be, is to terminate pursuant to the above sub-clauses on or prior to the date of such change) give or cause to be given not more than 45 days nor less than 30 days notice thereof to the Holders in accordance with the Conditions. |
15 |
Merger and Consolidation |
Any corporation into which the Fiscal Agent, Paying Agent or Calculation Agent may be merged or converted, or any corporation with which the Fiscal Agent, Paying Agent or Calculation Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Fiscal Agent, Paying Agent or Calculation Agent shall be a party, or any corporation to which the Fiscal Agent, Paying Agent or Calculation Agent shall sell or otherwise transfer all or substantially all the assets of the Fiscal Agent, Paying Agent or Calculation Agent shall, on the date when such merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any applicable laws, become the successor Fiscal Agent, Paying Agent or Calculation Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto, unless otherwise required by Linde plc or Linde Finance and after the said effective date all references in this Agreement to the Fiscal Agent, Paying Agent or Calculation Agent shall be deemed to be references to such corporation. Written notice of any such merger, conversion, consolidation or transfer shall be given to Linde plc and Linde Finance by the Fiscal Agent, Paying Agent or Calculation Agent concerned.
17 |
16 |
Notification of Changes in Agents |
Following receipt of notice of resignation from the Fiscal Agent, Paying Agent or Calculation Agent and forthwith upon appointing a successor Fiscal Agent, Paying Agent or Calculation Agent or on giving notice to terminate the appointment of any Fiscal Agent, Paying Agent or Calculation Agent, the Fiscal Agent shall give or cause to be given not more than 45 days nor less than 30 days notice thereof to the Holders in accordance with the Conditions. Such notice shall be on behalf and at the expense of the Issuers unless the resignation from or termination of the appointment is solely attributable to the party giving notice in which case such party shall bear the costs.
17 |
Communication between the Parties |
A copy of all communications relating to the subject matter of this Agreement between the Issuers or (the Guarantor, if Linde Finance is the Relevant Issuer) and the Holders on the one hand and any of the Paying Agent(s) (other than the Fiscal Agent or the Calculation Agent) on the other hand shall be sent by the Paying Agent or the Calculation Agent to the Fiscal Agent.
18 |
Taxes and Stamp Duties |
Linde plc and Linde Finance agree to pay any and all stamp, registration or documentary taxes or duties which may be payable in connection with the execution, delivery, performance and enforcement of this Agreement.
19 |
Power of Attorney |
If Linde Finance is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Agreement or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of the Netherlands, it is hereby expressly acknowledged and accepted by the other parties hereto that such laws shall govern the existence and extent of such attorneys or attorneys authority and the effects of the exercise thereof.
20 |
Notices and Communications |
20.1 |
All notices and communications under this Agreement shall be by letter or telefax, posted or delivered by hand, or (but only where specifically provided in the Procedures Memorandum) by telephone. Each notice or communication shall be given as follows or in any other form of communication agreed between the parties: |
18 |
20.1.1 |
if to Linde plc, at: |
Linde plc
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
Telephone: +44 7799 342124
Attention: Treasury
20.1.2 |
if to Linde Finance, at: |
Linde Finance B.V.
Buitenveldertselaan 106
1081 AB Amsterdam
The Netherlands
Telephone: +31 20 301 3800
Telefax: +31 20 301 3809
Attention: The Managing Director
with a copy thereof to Linde plc at the address or telephone number specified in paragraph (a) above.
20.1.3 |
if to the Fiscal Agent, at: |
Deutsche Bank Aktiengesellschaft
Trust & Agency Services
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
Telephone: +49 69 910 43530
Telefax: +49 69 910 41526
Attention: Trust & Agency Services
e-mail: frankfurt.mmi@db.com
20.1.4 |
if to the Paying Agent, at: |
Deutsche Bank Aktiengesellschaft
Trust & Agency Services
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
Telephone: ++49 69 910 30094
Telefax: +49 69 910 38672
Attention: Trust & Agency Services
e-mail: frankfurt.debtservices@db.com
19 |
20.1.5 |
if to the Calculation Agent where the Fiscal Agent is the Calculation Agent, at: |
Deutsche Bank Aktiengesellschaft
Trust & Agency Services
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
Telephone: +49 69 910 30819
Telefax: +49 69 910 38672
Attention: Trust & Agency Services
e-mail: frankfurt.corpactions@db.com
(or in the case of a Fiscal Agent not originally a party hereto, specified by notice to the other parties hereto at or about the time of its appointment as the agent of each of the Issuers)
20.1.6 |
if to the Calculation Agent where the Fiscal Agent is not the Calculation Agent to it at the address, telefax number or telephone number, specified by notice to the other parties hereto at or about the time of its appointment as agent of each of the Issuers. |
or, in any case, to such other address, telefax number or telephone number or for the attention of such other person or department as the addressee has by prior notice to the sender specified for the purpose.
20.2 |
Every notice or communication sent in accordance with sub-clause 20.1.1 shall be effective as follows: |
20.2.1 |
Letter or Telefax: if sent by letter or telefax, upon receipt by the addressee; |
20.2.2 |
Telephone: if made on the telephone, upon being made. |
In the case of (a) or (b) above, any such notice or communication which would otherwise take effect after 4.00 p.m. in the place of the addressee on any particular day shall not take effect until 10.00 a.m. on the immediately succeeding business day in the place of the addressee.
21 |
Governing Law, Place of Jurisdiction and Process Agent |
21.1 |
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, German law. |
21.2 |
Any action or other legal proceedings (Proceedings) arising out of or in connection with this Agreement shall be brought in the District Court (Landgericht) in Frankfurt am Main. |
Nothing contained herein shall limit the right of any party hereto to take Proceedings against any other party hereto in any other court of competent jurisdiction.
22 |
Severability and Partial Invalidity |
Should any provision of this Agreement be or become invalid in whole or in part, the other provisions shall remain in force. The invalid provision shall be deemed substituted by a valid provision which accomplishes as far as legally possible the economic purposes of the invalid provision.
20 |
23 |
Amendment |
This Agreement may be amended by agreement in writing among the parties hereto without the consent of the Holders.
24 |
Counterparts |
This Agreement may be signed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.
21 |
Schedule 1
Part I: German language form of Global Note
Serien Nr. [] | ||
Common Code Nr. [] | WKN [] | |
ISIN Nr. [] | [Sonstige Wertpapier-Kenn-Nr. [] |
[Any United States person who holds this obligation will be subject to limitations under the United States income tax laws including the limitations provided in sections 165(j) and 1287(a) of the Internal Revenue Code.]1
[LINDE PLC,
München, Bundesrepublik Deutschland]2
[LINDE FINANCE B.V.
Amsterdam, Niederlande]2
[Vorläufige] [Dauer-] Globalurkunde
[unter der unbedingten und unwiderruflichen Garantie der
LINDE PLC]2
über
[bis zu]3 [Währung und Gesamtnennbetrag der Emission]
SCHULDVERSCHREIBUNGEN
fällig [Fälligkeitsjahr]
Diese [Vorläufige] [Dauer-] Globalurkunde verbrieft eine ordnungsgemäß genehmigte Emission von [bis zu]3 [Währung und Gesamtnennbetrag der Emission] Schuldverschreibungen, fällig [Fälligkeitsjahr] (die Schuldverschreibungen) der [Linde plc] [Linde Finance B.V.] (die Emittentin). Bezugnahmen in dieser Urkunde auf die Bedingungen verstehen sich auf [Falls Teil I der Endgültigen Bedingungen nur auf die betreffenden Angaben der Option I oder der Option II verweist: den Satz der Anleihebedingungen für [Nullkupon-] Schuldverschreibungen [mit [fester] [variabler] Verzinsung] in der durch die endgültigen Bedingungen für die Schuldverschreibungen (die endgültigen Bedingungen) festgelegten und vervollständigten Form. Die Anleihebedingungen und endgültigen Bedingungen sind dieser Urkunde beigefügt] [Falls Teil I der Endgültigen Bedingungen die betreffenden Angaben der Option I oder der Option II wiederholt und die betreffenden Leerstellen in Option I oder Option II, je nachdem vervollständigt: die Bedingungen, die dieser Urkunde beigefügt sind]. Die Bedingungen sind Teil dieser [Vorläufigen] [Dauer-] Globalurkunde. Die in den Bedingungen definierten Begriffe haben, soweit hierin verwendet, in dieser Urkunde die gleiche Bedeutung.
1 |
Dieser Absatz ist entbehrlich, wenn die Schuldverschreibungen eine ursprüngliche Laufzeit von einem Jahr oder weniger haben. |
2 |
Sofern nicht anwendbar, streichen. |
3 |
Einzufügen im Falle von TEFRA D und falls die Globalurkunde bei CBF eingeliefert wird. |
22 |
Die Emittentin verpflichtet sich, dem Inhaber dieser Urkunde die auf die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieften Schuldverschreibungen zahlbaren Beträge gemäß den Bedingungen zu zahlen.
[Bei jeder Rückzahlung oder jedem Kauf und jeder Entwertung von Schuldverschreibungen, die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieft werden, werden die Einzelheiten der Rückzahlung oder des Kaufs und der Entwertung von der oder für die Emittentin in Anhang A zu dieser Urkunde vermerkt. Der entsprechende Vermerk im Anhang A zu dieser Urkunde, in dem die Rückzahlung oder der Kauf und die Entwertung vermerkt werden, ist von der oder für die Emittentin zu unterzeichnen. Nach der Rückzahlung oder dem Kauf und der Entwertung ist der Gesamtnennbetrag dieser [Vorläufigen] [Dauer-] Globalurkunde um den gesamten Nennbetrag der zurückgezahlten oder gekauften und entwerteten Schuldverschreibungen reduziert. Der Gesamtnennbetrag dieser [Vorläufigen] [Dauer-] Globalurkunde nach der Rückzahlung oder dem Kauf und der Entwertung ist dann der jeweils letzte in der betreffenden Spalte in Teil I oder II des Anhangs A zu dieser Urkunde vermerkte Gesamtnennbetrag.]4
[Diese Vorläufige Globalurkunde wird gemäß § 1 der Bedingungen gegen eine Dauer-Globalurkunde ausgetauscht. Bei vollständigem Austausch ist diese Vorläufige Globalurkunde der Emissionsstelle auszuhändigen.]
[Falls diese Globalurkunde eine NGN5 ist, einfügen: Da diese [Vorläufige] [Dauer-] Globalurkunde eine NGN ist, wird insbesondere auf § 1 der Bedingungen hingewiesen.]
Diese [Vorläufige] [Dauer-] Globalurkunde unterliegt deutschem Recht.
Diese [Vorläufige] [Dauer-] Globalurkunde ist nur gültig, wenn sie die Kontrollunterschrift der Emissionsstelle oder ihres Beauftragten trägt.
[Falls diese Globalurkunde eine NGN ist und infolge der elektronischen Übertragung zu CBL und Euroclear als Common Safekeeper keine Originalunterschrift der Emittentin tragen wird, einfügen: Zu ihrer Gültigkeit bedarf diese [Vorläufige] [Dauer-] Globalurkunde der Bestätigung der Wirksamkeit durch den von den ICSDs bestellten Common Safekeeper.]
[München] [Amsterdam], den [Datum]
[LINDE PLC] [LINDE FINANCE B.V.]
|
|
|||||||
Unterschriftsberechtigter | Unterschriftsberechtigter |
Kontrollunterschrift (Ohne Obligo, Gewährleistung oder Rückgriff) von
4 |
Dieser Absatz und Anhang A sowie Anhang B entfallen, wenn die Globalurkunde eine NGN ist. |
5 |
Wie in § 1 der Bedingungen definiert. |
23 |
Unterschriftsberechtigter
[Bestätigung der Wirksamkeit
(ohne Obligo, Gewährleistung oder Rückgriff) durch
..
als Common Safekeeper:
Unterschriftsberechtigter]6
6 |
Einzufügen, wenn die Globalurkunde eine NGN ist. |
24 |
[Falls Teil I der Endgültigen Bedingungen nur auf die betreffenden Angaben der Option I oder der Option II verweist:
Der Satz der Anleihebedingungen für [Nullkupon-] [unverzinsliche] Schuldverschreibungen [mit [fester] [variabler] Verzinsung] und die endgültigen Bedingungen sind als Anlage beizufügen.]
[Falls Teil I der Endgültigen Bedingungen die betreffenden Angaben der Option I oder der Option II wiederholt und die betreffenden Leerstellen der Option I oder der Option II, je nachdem, vervollständigt:
Die Bedingungen sind als Anlage beizufügen.]
25 |
[Die folgenden Muster werden der Bestätigung oder andere üblicherweise verwendete Muster der Vorläufigen Globalurkunde beigefügt.]
Anlage I
[Form of certificate to be given in relation to exchanges of this Temporary Global Note for the Permanent Global Note:]
[LINDE PLC]
[LINDE FINANCE B.V.]
[Aggregate principal amount and title of Notes]
(the Securities)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our Member Organisations) substantially to the effect set forth in the Fiscal Agency Agreement, as of the date hereof, [ ] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (United States persons), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1. 165-12(c)(1)(iv) (financial institutions)) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms acquired through and holding through are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuers agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the States and the District of Columbia) and its possessions include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as at the date hereof.
29 |
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
Date: [ ]*
[Clearstream Banking AG / Euroclear Bank SA/NV / Clearstream Banking S.A. / other Clearing System]
[authorised signature]
* |
To be dated not earlier than the Exchange Date. |
30 |
Anlage II
[Form of certificate to be given in relation to payments of interest falling due before the Exchange Date:]
[LINDE PLC]
[LINDE FINANCE B.V.]
[Aggregate principal amount and title of Notes]
(the Securities)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our Member Organisations) substantially to the effect set forth in the Fiscal Agency Agreement, as of the date hereof, [ ] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (United States persons), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) (financial institutions)) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms acquired through and holding through are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuers agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the States and the District of Columbia) and its possessions include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
31 |
Date: [ ]*
[Clearstream Banking AG / Euroclear Bank SA/NV / Clearstream Banking S.A. / other Clearing System]
[authorised signature]
* |
To be dated not earlier than the relevant interest payment date. |
32 |
Anlage III
[Form of account holders certification referred to in the preceding certificates:]
[LINDE PLC]
[LINDE FINANCE B.V.]
[Aggregate principal amount and title of Notes]
(the Securities)
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to the United States Federal income taxation regardless of its source (United States persons), (ii) are owned by United States person(s) that (a) are foreign branches of a United States financial institution (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) (financial institutions) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms acquired through and holding through are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Issuer or the Issuers agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)) this is further to certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the States and the District of Columbia) and its possessions include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to [ ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
33 |
Date: [ ]*
[Account Holder] as or as agent for the beneficial owner of the Notes.
[authorised signature]
* |
To be dated not earlier than fifteen days before the Exchange Date or, as the case may be, the relevant interest payment date. |
34 |
Schedule 1
Part II: English language form of Global Note
Series No. []
Common Code No. [] | WKN [] | |
ISIN No. [] | [Other Security Identification No. []] |
[Any United States person who holds this obligation will be subject to limitations under the United States income tax laws including limitations provided in sections 165(j) and 1287(a) of the Internal Revenue Code.]1
[LINDE PLC
with statutory seat at Munich, Federal Republic of Germany]2
[LINDE FINANCE B.V.
with statutory seat at Amsterdam, The Netherlands]2
[Temporary] [Permanent] Global Note
[unconditionally and irrevocably guaranteed by
LINDE PLC]2
representing
[up to]3 [Currency and Aggregate Principal Amount of Issue]
NOTES
due [Year of Maturity]
This certificate constitutes a [Temporary] [Permanent] Global Note in respect of a duly authorised issue of [up to]3 [Currency and Aggregate Principal Amount of Issue] Notes due [Year of Maturity] (the Notes) of [Linde plc] [Linde Finance B.V.] (the Issuer). References herein to the Conditions shall be to the [in the case Part I of the Final Terms only refers to the relevant provisions of Option I or Option II: set of terms and conditions for [zero coupon] Notes [with [fixed] [floating] interest rates] as determined and completed by the final terms relating to the Notes (the Final Terms), both as annexed hereto] [in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant: Conditions as annexed hereto]. The Conditions form part of this
1 |
This legend is not required in case of Notes with a maturity of one year or less. |
2 |
Delete if not applicable. |
3 |
To be inserted in the case of TEFRA D and if the Global Note will be deposited with CBF. |
35 |
[Temporary] [Permanent] Global Note. Expressions defined in the Conditions shall bear the same meanings when used in this [Temporary] [Permanent] Global Note.
The Issuer agrees to pay to the bearer hereof the amounts payable in respect of the Notes represented by this [Temporary] [Permanent] Global Note in accordance with the Conditions.
[On any redemption in respect of, or purchase and cancellation of, any of the Notes represented by this [Temporary] [Permanent] Global Note details of such redemption or purchase and cancellation (as the case may be) shall be entered by or on behalf of the Issuer in Annex A hereto and the relevant space in Annex A hereto recording any such redemption or purchase and cancellation (as the case may be) shall be signed by or on behalf of the Issuer. Upon any such redemption or purchase and cancellation, the aggregate principal amount of this [Temporary] [Permanent] Global Note shall be reduced by the total principal amount of Notes so redeemed or purchased and cancelled. The nominal amount of this [Temporary] [Permanent] Global Note following any such redemption or purchase and cancellation as aforesaid shall be the aggregate principal amount most recently entered in the relevant column in Part I or II of Annex A hereto.] 4
[This Temporary Global Note shall be exchanged into a Permanent Global Note in accordance with § 1 of the Conditions. On an entire exchange of this Temporary Global Note, this Temporary Global Note shall be surrendered to the Fiscal Agent.]
[In case this Global Note is an NGN5 insert: As this [Temporary] [Permanent] Global Note is an NGN, specific reference is made to § 1 of the Conditions.]
This [Temporary] [Permanent] Global Note is governed by, and shall be construed in accordance with, German law.
This [Temporary] [Permanent] Global Note shall not be valid unless authenticated by or on behalf of the Fiscal Agent.
[In case this Global Note is an NGN5 and will not bear the original signature of the Issuer due to its electronic transmission to be CBL or Euroclear as Common Safekeeper, insert: This [Temporary] [Permanent] Global Note shall require to be effectuated by the entity appointed as Common Safekeeper by the ICSDs in order to be valid.]
[Munich] [Amsterdam], [Date]
4 |
This legend as well as Annex A and Annex B are not applicable in case of a Global Note which is an NGN. |
5 |
As defined in § 1 of the Conditions. |
36 |
[LINDE PLC] [LINDE FINANCE B.V.]
|
|
|||||||
Authorised Signatory | Authorised Signatory |
Control signature
Authorised Signatory
Authenticated without recourse,
warranty or liability by
[AGENT]
By:
[Effectuated without recourse,
warranty or liability by
..
as Common Safekeeper
By:]6
6 |
To be inserted in case of a Global Note which is an NGN. |
37 |
[In the case Part I of Final Terms only refers to the relevant provisions of Option I or Option II:
The set of terms and conditions for [zero coupon] [non-interest-bearing] Notes [with [fixed] [floating] interest rates] and the Final Terms are to be added by attachment hereafter.]
[In the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant:
The Conditions are to be attached hereafter.]
38 |
Part II
Purchases and Cancellations
Date of purchase and cancellation |
Part of aggregate principal amount of this Global Note purchased and cancelled |
Remaining aggregate principal amount of this Global Note following such purchase and cancellation |
Confirmation of purchase and cancellation by or on behalf of the Issuer |
40 |
[The following forms of certification (or such other form as shall customarily be used) will be attached to the Temporary Global Note.]
EXHIBIT I
[insert certificate to be given in relation to exchanges of this Temporary Global Note for the
Permanent Global Note - See Exhibit I (Anlage I) to German language form of Global Note]
EXHIBIT II
[insert certificate to be given in relation to payments of interest falling due before the
Exchange Date - See Exhibit II (Anlage II) to German language form of Global Note]
EXHIBIT III
[insert account holders certification referred to in the preceding certificates - See Exhibit III
(Anlage III) to German language form of Global Note]
42 |
Schedule 2
Specific duties of the Fiscal Agent in the case of NGNs
In relation to each Series of Notes that are NGNs, the Fiscal Agent will comply with the following provisions:
1. |
The Fiscal Agent will inform each of Euroclear and CBL (the ICSDs), through the common service provider appointed by the ICSDs to service the Notes (the CSP), of the initial issue outstanding amount (IOA) for each Tranche on or prior to the relevant Issue Date. |
2. |
If any event occurs that requires a mark up or mark down of the records which an ICSD holds for its customers to reflect such customers interest in the Notes, the Fiscal Agent will (to the extent known to it) as soon as practicable provide details of the amount of such mark up or mark down, together with a description of the event that requires it, to the ICSDs (through the CSP) to ensure that the IOA of the Notes remains at all times accurate. |
3. |
The Fiscal Agent will regularly reconcile its record of the IOA of the Notes with information received from the ICSDs (through the CSP) with respect to the IOA maintained by the ICSDs for the Notes and will as soon as practicable inform the ICSDs (through the CSP) of any discrepancies. |
4. |
The Fiscal Agent will as soon as practicable assist the ICSDs (through the CSP) in resolving any discrepancy identified in the IOA of the Notes. |
5. |
The Fiscal Agent will as soon as practicable provide to the ICSDs (through the CSP) details of all amounts paid by it under the Notes (or, where the Notes provide for delivery of assets other than cash, of the assets so delivered). |
6. |
The Fiscal Agent will (to the extent known to it) as soon as practicable provide to the ICSDs (through the CSP) notice of any changes to the Notes that will affect the amount of, or date for, any payment due under the Notes. |
7. |
The Fiscal Agent will (to the extent known to it) as soon as practicable provide to the ICSDs (through the CSP) copies of all information that is given to the holders of the Notes. |
8. |
The Fiscal Agent will as soon as practicable pass on to the relevant Issuer all communications it receives from the ICSDs directly or through the CSP relating to the Notes. |
9. |
The Fiscal Agent will (to the extent known to it) as soon as practicable notify the ICSDs (through the CSP) of any failure by the relevant Issuer to make any payment or delivery due under the Notes when due. |
43 |
Schedule 3
The Specified Offices of the Fiscal Agent and Paying Agent
FISCAL AGENT AND PAYING AGENT
Deutsche Bank Aktiengesellschaft
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
44 |
Schedule 4
Part I: English Language Form of a Put Exercise Notice in case of an early
redemption at the option of a holder
To: | Deutsche Bank Aktiengesellschaft (the Fiscal Agent) | |
Issuer Services | ||
Operations Frankfurt | ||
Taunusanlage 12 | ||
60325 Frankfurt am Main | ||
Federal Republic of Germany | ||
Fax: | [] | |
Attn: | [] | |
To: | [Linde plc (the Issuer) | |
Ten Earlsfort Terrace | ||
Dublin 2, D02 T380 | ||
Republic of Ireland] | ||
[Linde Finance B.V. (the Issuer) | ||
Buitenveldertselaan 106 | ||
1081 AB Amsterdam | ||
The Netherlands] | ||
Fax: | [] | |
Attn: | [] |
[insert title of relevant Series of Notes]
Series No.: [] / ISIN: [] / Common Code [] / WKN []
issued pursuant to the
EUR 10,000,000,000 Debt Issuance Programme
of Linde plc and Linde Finance B.V.
dated 11 May 2020
By sending the duly completed Notice to the specified office of the Fiscal Agent for the above mentioned Series of Notes (the Notes) the undersigned holder of such Note(s) irrevocably exercises its option to have such Note(s) redeemed on [insert Put Redemption Date].
This Notice relates to Note(s) in the total principal amount of [insert currency and total principal amount].
45 |
Payment Instructions
Please make payment in respect of the above-mentioned Note(s) by transfer to the following bank account:
Bank:
Branch Address:
Branch Code (e.g. BLZ, BIC):
Account Number:
IBAN:
Contact details of Holder (optional/mandatory in the case of Notes deposited with Clearstream Banking AG, Frankfurt):
................................
................................
................................
................................
................................
Signature of holder: ................................
Duly authorised on behalf of [ ]
The Holder is also requested to instruct his depositary bank to send an appropriate instruction to the relevant Clearing System via SWIFT (or other such method of communication acceptable to the relevant Clearing System) confirming the exercise of its option to redeem the Note(s).
[To be completed by recipient Fiscal Agent:]
Note:
The Fiscal Agent is entitled to treat a Put Notice as not valid unless all of the paragraphs requiring completion are duly completed. Once validly given the Put Notice is irrevocable.
46 |
Schedule 4
Part II: German Language Form of a Put Exercise Notice in case of an early
redemption at the option of a holder
An: | Deutsche Bank Aktiengesellschaft (die Emissionsstelle) | |
Issuer Services | ||
Operations Frankfurt | ||
Taunusanlage 12 60325 Frankfurt am Main |
||
Federal Republic of Germany | ||
Fax: | [] | |
Zu Händen: | [] | |
An: | [Linde plc (die Emittentin) | |
Ten Earlsfort Terrace | ||
Dublin 2, D02 T380 | ||
Republic of Ireland | ||
[Linde Finance B.V. (die Emittentin) | ||
Buitenveldertselaan 106 | ||
1081 AB Amsterdam | ||
The Netherlands] | ||
Fax: | [] | |
Zu Händen: | [] |
[Bezeichnung der jeweiligen Serie der Schuldverschreibungen einfügen]
Serie Nr.: []
ISIN: [] / Common Code [] / WKN []
begeben gemäß
EUR 10,000,000,000 Debt Issuance Programme
der Linde plc und der Linde Finance B.V.
vom 11. Mai 2020
Durch die Übermittlung der ordentlich ausgefüllten Kündigungserklärung an die bezeichnete Geschäftsstelle der Emissionsstelle für die oben bezeichnete Serie von Schuldverschreibungen (die Schuldverschreibungen) übt der unterzeichnende Gläubiger dieser Schuldverschreibungen unwiderruflich sein Wahlrecht zur Kündigung und Rückzahlung dieser Schuldverschreibungen am [Wahl-Rückzahlungstag angeben] aus.
Diese Kündigungserklärung bezieht sich auf Schuldverschreibungen im gesamten Nennbetrag von [Währung und gesamten Nennbetrag einfügen].
47 |
Zahlungsinstruktionen
Bitte zahlen Sie in Bezug auf die oben bezeichneten Schuldverschreibungen per Überweisung auf das nachstehende Bankkonto:
Bank:
Adresse der Geschäftsstelle:
Code der Geschäftsstelle (z.B. BLZ, BIC):
Kontonummer:
IBAN:
Kontaktdaten des Gläubigers (optional/zwingend im Fall von Schuldverschreibungen, deren Globalurkunde von Clearstream Banking AG, Frankfurt verwahrt wird):
................................
................................
................................
................................
................................
Unterschrift des Gläubigers: | ................................ |
Bevollmächtigt im Namen von [ ]
Der Gläubiger ist gebeten, seine Depotbank zu beauftragen, eine entsprechende Instruktion an das jeweilige Clearing System per SWIFT (oder eine andere, für das jeweilige Clearing System akzeptable Kommunikationsmethode) zu senden, durch die die Ausübung des Wahlrechts des Gläubiger auf Kündigung und Rückzahlung der Schuldverschreibungen bestätigt wird.
[von der Emissionsstelle zu vervollständigen:]
Hinweis:
Die Emissionsstelle ist berechtigt, eine Kündigungserklärung als unwirksam zu behandeln, wenn nicht alle erforderlichen Absätze vollständig ausgefüllt wurden. Eine wirksam abgegebene Kündigungserklärung ist unwiderruflich.
48 |
Signature Page
to the Fiscal Agency Agreement
This Agreement has been entered into on the date stated at the beginning.
LINDE PLC
By |
/s/ Christopher Cossins |
|
Name: Christopher Cossins | ||
Title: U.K. Permanent Representative |
LINDE FINANCE B.V.
By |
/s/ Micha Glaser |
|
Name: Micha Glaser |
||
Title: Managing Director |
DEUTSCHE BANK AKTIENGESELLSCHAFT
as Fiscal Agent and Paying Agent
By |
/s/ Vivek Garg |
By |
/s/ Sabine Ebert |
|||||
Name: Vivek Garg Title: Assistant Vice President |
|
Name: Sabine Ebert Title: Vice President |
S-1 |