EXHIBIT 1.1
Execution Copy
Dated 3 August 2021
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
AMENDED AND RESTATED 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 | 7 | ||||
| 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 | 18 | ||||
| 10 | Termination of Appointment of Dealers | 19 | ||||
| 11 | Appointment of New Dealers | 19 | ||||
| 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 | 22 | ||||
| 17 | Stabilisation | 22 | ||||
| 18 | Notices and Communications | 23 | ||||
| 19 | Contractual Recognition of UK Bail-In Powers | 23 | ||||
| 20 | Recognition of the U.S. Special Resolution Regime | 24 | ||||
| 21 | No Fiduciary Duties | 25 | ||||
| 22 | Power of Attorney | 25 | ||||
| 23 | Governing Law, Place of Jurisdiction | 25 | ||||
| 24 | Confirmation | 26 | ||||
| 25 | Severability and Partial Invalidity | 26 | ||||
| 26 | Counterparts | 26 | ||||
| SCHEDULE 1 Documentation List | 27 | |||||
| SCHEDULE 2 Selling Restrictions | 28 | |||||
| SCHEDULE 3 Dealer Accession | 33 | |||||
| SCHEDULE 4 Letter regarding increase in the Programme Amount | 38 | |||||
| SCHEDULE 5 Form of Subscription Agreement | 40 | |||||
| SCHEDULE 6 Issuer Effectuation Authorisation | 48 | |||||
| SCHEDULE 7 List of Communication Details | 50 | |||||
| Signature Page to the Dealer Agreement |
S-1 | |||||
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This AMENDED AND RESTATED DEALER AGREEMENT is made on 3 August 2021
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 BANK (EUROPE) S.A., DEUTSCHE BANK AKTIENGESELLSCHAFT, HSBC BANK PLC, J.P. MORGAN AG, MIZUHO SECURITIES EUROPE GMBH, UNICREDIT BANK AG, WELLS FARGO SECURITIES EUROPE S.A. 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 have established a debt issuance programme 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) | In connection with the Programme, Linde plc, Linde Finance, the Arranger and the Dealers entered into a dealer agreement, dated 11 May 2020 (the “Original Dealer Agreement”). |
| (E) | Linde plc, Linde Finance, the Arranger and the Dealers now wish to record the agreement to amend and replace the Original Dealer Agreement by this amended and restated dealer agreement (the “Dealer Agreement” or the “Agreement”). |
| (F) | In connection with the Programme, Linde plc and Linde Finance will also enter into an amended and restated agency agreement, dated 3 August 2021 (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;
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“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;
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“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;
“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;
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“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;
“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;
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“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;
“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 |
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| (ii) | if the Relevant Clearing System is CBL and Euroclear |
| (a) | to a common depositary for CBL and Euroclear, or |
| (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.
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| 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 am Main business days of receipt of the documents and confirmations described in the Documentation List if it considers any to be unsatisfactory. |
| 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 Moody’s Investors Service, Inc., S&P Global Ratings Europe Limited, their respective affiliates 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; |
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| 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. |
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| 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 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 |
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| 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; |
| 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; |
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| 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 affiliate’s 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; |
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| 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; |
| 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 Majesty’s 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 Majesty’s Treasury, respectively. |
| This representation is only made to the extent that it does not result in a violation of 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 any member state of the European Union or, with respect to the United Kingdom, as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”)) 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; |
| 4.1.20 | 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; and |
| 4.1.21 | Market Abuse Regulation: none of the Issuers is aware of any inside information as defined in Article 7 Market Abuse Regulation with respect to the Issuers, the Notes to be issued or outstanding securities of the Issuers that is required to be published in accordance with Article 17(1) Market Abuse Regulation; none of the Issuers is making use of its rights under Article 17(4) Market Abuse Regulation to temporarily exempt itself from its obligation to publicly disclose inside information relating to itself. |
| 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. |
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| 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. |
| 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.
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| 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 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.
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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.
| 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.
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| 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. |
| 5.9 | Ratings. Each of Linde plc and Linde Finance undertakes promptly to notify the Dealers of any change in the ratings given by Moody’s Investors Service, Inc., S&P Global Ratings Europe Limited, their respective affiliates 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 any member state of the European Union or, with respect to the United Kingdom, as it forms part of United Kingdom domestic law by virtue of the EUWA) 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 |
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| 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. |
| 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 Retail Investors” legend and the “Prohibition of Sales to 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”) and/or the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR 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 and/or the UK MiFIR Product Governance Rules, respectively. |
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| 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): |
| 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. |
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| 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: |
| 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 am Main 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. |
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| 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 am Main 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. |
| 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).
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The obligation of an Indemnifying Dealer to indemnify a Non-participating Dealer under this Clause 13 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: |
| (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 |
| 14.1 | No transfer by Issuers. 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. |
| 14.2 | Transfer by Dealers. Subject to Clause 20, 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. |
| 14.3 | Use of Affiliates: Linde plc and Linde Finance agree that the Dealers may perform the services contemplated hereby in conjunction with its affiliates, and that any Dealer affiliates performing services hereunder shall be entitled to the benefits and be subject to the terms of this Agreement, and that any references herein to the Dealers shall be deemed to include any such Dealer affiliates where the context so requires or permits. |
| 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,
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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 am Main 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. |
| 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.
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| 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: |
| 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 | Contractual Recognition of UK Bail-In Powers |
| 19.1 | Notwithstanding and to the exclusion of any other term of this Dealer Agreement or any other agreements, arrangements, or understanding between a UK Bail-in Party and any other party to this Dealer Agreement, each party to this Dealer Agreement acknowledges and accepts that a UK Bail-in Liability arising under this Dealer Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by: |
| 19.1.1 | the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of a UK Bail-in Party (“Relevant UK Bail-in Party”) to any other party under this Dealer Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Relevant UK Bail-in Party or another person, and the issue to or conferral on any other party to this Agreement of such shares, securities or obligations; |
| (iii) | the cancellation of the UK Bail-in Liability; |
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| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; |
| 19.1.2 | the variation of the terms of this Dealer Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority. |
| 19.2 | In this Clause 19: |
| 19.2.1 | “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); |
| 19.2.2 | “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised; |
| 19.2.3 | “UK Bail-in Party” means any party under this Agreement whose liabilities under the Agreement or any Subscription Agreement may now or in the future be subject to bail-in under the UK Bail-in Legislation. |
| 19.2.4 | “UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability. |
| 20 | Recognition of the U.S. Special Resolution Regime |
| 20.1 | 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. |
| 20.2 | 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); |
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| (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.
| 21 | No Fiduciary Duties |
Each Issuers acknowledges and agrees that each Dealer is acting solely pursuant to a contractual relationship with the Issuers on an arm’s 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.
| 22 | 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 attorney’s or attorneys’ authority and the effects of the exercise thereof.
| 23 | Governing Law, Place of Jurisdiction |
| 23.1 | 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. |
| 23.2 | 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. |
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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.
| 24 | Confirmation |
For purposes of identifying the contracting party and beneficial owner pursuant to Anti-Money Laundering Laws the Issuers confirms that they conducts the arrangements made by this Agreement for their own account, in accordance with the terms of this Agreement.
| 25 | 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.
| 26 | 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.
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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 PricewaterhouseCoopers 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.
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SCHEDULE 2
Selling Restrictions
| 1. | General |
Each Dealer represents and agrees, that it will comply with all applicable laws and regulations in force in any jurisdiction in which it purchases, offers, sells or delivers Notes or possesses or distributes the Prospectus and will obtain any consent, approval or permission required by it for the purchase, offer, sale or delivery by it of Notes under the laws and regulations in force in any jurisdiction to which it is subject or in which it makes such purchases, offers, sales or deliveries and neither the Issuers nor any other Dealer shall have any responsibility therefore.
| 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). |
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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 affiliate’s 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”.
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| 3. | European Economic Area |
Unless the Final Terms in respect of any Notes specify the “Prohibition of Sales to EEA 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. For the purposes of this provision:
the expression “retail investor” means a person who is one (or more) of the following:
| (a) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
| (b) | 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 |
Prohibition of Sales to UK Retail Investors
Unless the relevant Final Terms in respect of any Notes specify “Prohibition of Sales to Retail Investors in the United Kingdom” 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 United Kingdom. For the purposes of this provision:
the expression retail investor means a person who is one (or more) of the following:
| (a) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (b) | a customer within the meaning of the provisions of the Financial Services and Markets Act 2000, as amended (“FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA. |
Other Regulatory Restrictions
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. |
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| 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).
| 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 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 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
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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; or |
| e) | as specified in Regulation 37A of the Securities and Futures (Offers of Investments)(Securities and Securities-based Derivatives Contracts) Regulations 2018. |
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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 Sir or Madam,
We refer to the Dealer Agreement dated 3 August 2021 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.
This letter is governed by, and shall be construed in accordance with, German law.
Yours faithfully,
| [Name of New Dealer] | ||
| By: | ||
33
| cc: | Deutsche Bank Aktiengesellschaft, |
| as Fiscal Agent |
34
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 Sir or Madam,
We refer to the Dealer Agreement dated 3 August 2021 (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
35
PART III
Form of Dealer Accession Letter—Note Issue
[Date]
| To: | Linde plc |
Linde Finance B.V.
[Description of issue]
(the “Notes”)
Dear Sir or Madam,
We refer to the Dealer Agreement dated 3 August 2021 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 |
36
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 Sir or Madam,
We refer to the Dealer Agreement dated 3 August 2021 (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
37
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 3 August 2021,
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 Sir or Madam,
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 am Main 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 am Main 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.
Terms used in this letter have the meanings given to them in the Dealer Agreement.
Yours faithfully,
Linde plc
|
|
| |||
| By: | By: | |||
38
Linde Finance B.V.
|
|
| |||
| By: | By: | |||
| cc: | Deutsche Bank Aktiengesellschaft, |
as Fiscal Agent
39
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
40
| (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 3 August 2021 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 |
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.
41
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, email address 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 am Main]) 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.
42
| 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 clause; |
| (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.
43
| 7 | Product Governance Rules |
| 7.1 | EEA MiFID II 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 [insert names of Manager(s) who is/are deemed to be MiFID manufacturer(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) | [insert name(s) of Manager(s) who is/are not deemed to be MiFID manufacturer(s) if any] [and] [,] the Issuer [and the Guarantor] note[s] the application of the Product Governance Rules and acknowledge[s] 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. |
| 7.2 | [UK MiFIR Product Governance Rules |
Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
| (a) | each of [insert names of Manager(s) who is/are deemed to be UK MiFIR manufacturer(s)] (each a “UK Manufacturer” and together the “UK Manufacturers”) acknowledges to each other UK Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR 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) | [insert name(s) of Manager(s) who is/are not deemed to be UK MiFIR manufacturer(s) if any] [and] [,] the Issuer [and the Guarantor] note[s] the application of the UK MiFIR Product Governance Rules and acknowledge[s] the target market and distribution channels identified as applying to the Notes by the UK Manufacturer[s] and the related information set out in the Final Terms in connection with the Notes.] |
| 8 | Miscellaneous |
| 8.1 | Clauses 19 and 20 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. |
44
The Issuer
| [LINDE PLC] [LINDE FINANCE B.V.] | ||
| ____________________ | ____________________ | |
| [The Guarantor | ||
| [LINDE PLC] | ||
| ____________________ | ____________________] | |
| The Managers | ||
| [NAMES OF MANAGERS] | ||
| ____________________ | ||
45
ANNEX A
to the Subscription Agreement
[The Conditions]
46
ANNEX B
to the Subscription Agreement
The Commitments of the Managers
| [insert Managers] | [insert Commitments] | |
| [•] | [•] | |
| [•] | [•] | |
| [•] | [•] | |
| [•] | [•] | |
47
SCHEDULE 6
Issuer Effectuation Authorisation
(Letterhead of Issuers)
Linde plc
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
Linde Finance B.V.
Havenstraat 23A
3115 HC Schiedam,
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 Sir or Madam,
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 |
48
| (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]
49
SCHEDULE 7
List of Communication Details
THE ISSUERS
Linde plc
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
Telephone: +44 7799 342124,
Attention: Treasury
Linde Finance B.V.
Havenstraat 23A
3115 HC Schiedam,
The Netherlands
Telephone: +31 20 301 3800
Telefax: +31 20 301 3809
Attention: The Managing Director
THE ARRANGER
Deutsche Bank Aktiengesellschaft
Mainzer Landstrasse 11-17 60329
Frankfurt am Main Germany
Telephone: +49 69 910 32502
Telefax: +49 69 910 38884
Attention: Debt Capital Markets—Origination Corporates
THE DEALERS
BofA Securities Europe SA
51 rue La Boétie
75008 Paris
France
Telephone: +33(0) 1 8770 0000
Email: dcm_eea@bofa.com
Attention: EMTN Trading and Distribution Desk
50
Citigroup Global Markets Europe AG
Reuterweg 16
60323 Frankfurt am Main
Germany
Telephone: +33 1 7075 5014
E-mail: mtndesk@citi.com
Attention: MTN Desk
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Telephone: +44 20 7986 1984
E-mail: mtndesk@citi.com
Attention: MTN Desk
Commerzbank Aktiengesellschaft
Kaiserstr. 16 (Kaiserplatz)
60311 Frankfurt am Main
Germany
Telephone: +49 69 136 8 95 46
Fax: +49 69 136 8 57 19
E-Mail: GM-L-6-Bonds@commerzbank.com
Attention: Group Legal Debt Securities
Credit Suisse Bank (Europe) S.A.
Calle de Ayala, 42
28001 Madrid
Spain
Email: tmg.documentation@credit-suisse.com
Attention: DCM Transaction Management]
Deutsche Bank Aktiengesellschaft
Mainzer Landstrasse 11-17
60329 Frankfurt am Main
Germany
Telephone: +49 69 910 32502
Telefax: +49 69 910 38884
Attention: Debt Capital Markets—Origination Corporates
HSBC Bank plc
8 Canada Square
London E14 5HQ
United Kingdom
Telephone: +44 20 7991 8888
Telefax: +44 20 7992 4973
Email: transaction.management@hsbcib.com
Attention: Head of DCM Legal
51
J.P. Morgan AG
Taunustor 1 (Taunusturm)
60310 Frankfurt am Main
Germany
Email: DCM_programmes@jpmorgan.com
Attention: Euro Medium Term Note Desk
Mizuho Securities Europe GmbH
Address: Taunustor 1
60310 Frankfurt am Main
Germany
Attention: Primary Debt Department
Telephone: +49 69427293140
Email: PrimaryDebt@eu.mizuho-sc.com
UniCredit Bank AG
Arabellastrasse 12
81925 Munich
Federal Republic of Germany
Telephone: +49 89 378 15921
Telefax: +49 89 378 33 15921
Attention: DCM Documentation
E-mail: dcmdocumentation@unicredit.de
Wells Fargo Securities Europe S.A.
1-5 rue Paul Cezanne
75008 Paris
France
Telephone: +33 1 85 14 06 62
Attention: DCM & Syndicate
E.Mail: Olivier.Gardella@wellsfargo.com
Sarah.A.Gibson@wellsfargo.com
Wells Fargo Securities International Limited
33 King William Street,
London EC4R 9AT
United Kingdom
Telephone: +44 20 3942 8530
Telefax: +44 207 149 8391
Attention: DCM & Syndicate
52
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/ Regina McKeon |
| By: Regina McKeon |
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/ [signature illegible] | /s/ [signature illegible] | |||
| By: | By: | |||
| BOFA SECURITIES EUROPE SA | ||||
| /s/ Greg Brennan |
| |||
| By: Greg Brennan, Authorised Signatory | ||||
| CITIGROUP GLOBAL MARKETS EUROPE AG | ||||
| /s/ Tim Odell | /s/ Simi Alabi | |||
| By: Tim Odell | By: Simi Alabi | |||
| Delegated Signatory | Delegated Signatory | |||
| CITIGROUP GLOBAL MARKETS LIMITED | ||||
| /s/ Tim Odell |
| |||
| By: Tim Odell | ||||
| Delegated Signatory | ||||
| CREDIT SUISSE BANK (EUROPE) S.A. | ||||
| /s/ Emilio Gallego | /s/ Wenceslao Bunge | |||
| By: Emilio Gallego | By: Wenceslao Bunge | |||
| COO | CEO | |||
| COMMERZBANK AKTIENGESELLSCHAFT | ||||
| /s/ Nicole Behringer | /s/ Wolfgang Reichel | |||
| By: Nicole Behringer | By: Wolfgang Reichel | |||
S-2
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
| HSBC BANK PLC | ||||
| /s/ K. Allen |
| |||
| By: K. Allen | By: | |||
| J.P. MORGAN AG | ||||
| /s/ Alexander Voigt | /s/ Andreas Noe | |||
| By: Alexander Voigt | By: Andreas Noe | |||
| Managing Director |
Vice President | |||
| MIZUHO SECURITIES EUROPE GMBH | ||||
| /s/ [signature illegible] | /s/ [signature illegible] | |||
| By: | By: | |||
| WELLS FARGO SECURITIES INTERNATIONAL LIMITED | ||||
| /s/ Patrick Duhig |
| |||
| By: Patrick Duhig |
By: | |||
| WELLS FARGO SECURITIES EUROPE S.A. | ||||
| /s/ Nicholas Bennett |
| |||
| By: Nicholas Bennett, CEO | By: | |||
| UNICREDIT BANK AG | ||||
| (by its duly authorised attorney) |
||||
| /s/ [signature illegible] |
| |||
| By: |
||||
S-3