Linde PLC 8-K, filed Jun 5, 2025
Linde PLC (LIN)
About this 8-K
Linde PLC filed this 8-K on June 5, 2025.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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| Item 8.01. | Other Events. |
On May 21, 2025, Linde plc (the “Company”) issued ₣225 million aggregate principal amount of 0.6150% Notes due 2029 (the “2029 Notes”), and issued ₣275 million aggregate principal amount of 1.0629% Notes due 2033 (the “2033 Notes”). The 2029 Notes and the 2033 Notes were issued pursuant to a Subscription Agreement, dated June 3, 2025, by and among the Company, as issuer, and the financial institutions named as bookrunners and other managers therein (the “Managers”). The terms of the 2029 Notes and the 2033 Notes are set out in the Final Terms filed as Exhibit 4.1 which is incorporated herein by reference.
The net proceeds of the offering were approximately ₣498.6 million, after giving effect to the fees to the Managers but before other fees and expenses of the offering. Net proceeds of the offering will be used for general corporate purposes.
The 2029 Notes and the 2033 Notes have been admitted to the official list of the SIX Swiss Exchange and for trading on the Swiss Franc foreign market operated by the SIX Swiss Exchange.
The 2029 Notes and the 2033 Notes were issued under the Swiss Prospectus incorporating the base prospectus dated May 8, 2025 of the European debt issuance programme (the “Program”) established on May 11, 2020 by the Company, as subsequently updated on May 8, 2025. Under the Program, the Company may issue unsecured notes (“Notes”) with such terms, including currency, interest rate and maturity, as agreed by the Company and the purchasers of such Notes at the time of sale and as set out in the final terms (“Final Terms”) for the relevant issue of Notes. The current Program will be valid for a period of one year from May 8, 2025 after which it will require updating prior to any further issuance of Notes. Upon occurrence of any material event concerning the Company, such as the publication of new financial information, the Program must be supplemented prior to any further issuance of Notes. The aggregate principal amount of Notes authorized under the Program to be outstanding from time to time is €20 billion (or the equivalent in other currencies).
Notes issued by the Company under the Program will be guaranteed by Linde GmbH, a wholly owned subsidiary of the Company organized under the laws of Germany, and Linde Inc., a wholly owned subsidiary of the Company organized under the laws of Delaware (such guarantees of Linde GmbH and Linde Inc. were filed as Exhibits 4.4 and 4.5, respectively, to Linde plc’s Current Report on Form 8-K dated May 26, 2020, Filing No. 001-38730, and confirmations of such guarantees of Linde GmbH and Linde Inc. are filed as Exhibits 4.6 and 4.7 respectively, in respect of the increased aggregate principal amount of Notes authorized under the Program, and are incorporated herein by reference).
Pursuant to an Amended and Restated Dealer Agreement, dated May 8, 2025, by and among the Company and Citigroup Global Markets Limited, as arranger and dealer, and the other dealers party thereto from time to time (together the “Dealers”), the Company has appointed the Dealers to subscribe and pay for Notes issued under the Program on the terms set out therein. The Company has appointed Citibank, N.A., London Branch, as fiscal agent and paying agent for Notes issued under the Program pursuant to a Fiscal Agency Agreement, dated May 8, 2025. The Company has appointed UBS AG, as Swiss listing and paying agent for the 2029 Notes and the 2033 Notes issued under the Program pursuant to a Swiss Agency Agreement, dated June 3, 2025. The Fiscal Agency Agreement, Swiss Agency Agreement and the Dealer Agreement are filed as Exhibits 4.2, 4.3 and 1.1, respectively, and are incorporated herein by reference.
Notes issued under the Program by the Company will be issued pursuant to Regulation S under the U.S. Securities Act of 1933, as amended (the “Securities Act”), will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent registration or an applicable exemption from registration requirements under the Securities Act. This Current Report on Form 8-K shall not constitute an offer to sell, or the solicitation of an offer to buy, any securities, including any securities of the Company. The foregoing description is qualified in its entirety by reference to the exhibits filed herewith.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibit. The following exhibit is filed herewith:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| LINDE PLC | ||||||
| Date: June 5, 2025 | By: | /s/ Guillermo Bichara | ||||
| Name: | Guillermo Bichara | |||||
| Title: | Executive Vice President & Chief Legal Officer | |||||
Exhibit 1.1
Execution Copy
Dated 8 May 2025
LINDE PLC
as Issuer
and
CITIGROUP GLOBAL MARKETS LIMITED
as Arranger and Dealer
and
THE OTHER DEALERS
AMENDED AND RESTATED DEALER AGREEMENT
relating to the
EUR 20,000,000,000 Debt Issuance Programme
Linklaters LLP
Table of Contents
| Contents | Page | |||
| 1 Definitions and Interpretation |
2 | |||
| 2 Agreements to Issue and Purchase |
5 | |||
| 3 Conditions of Issue, Updating of Legal Opinions |
6 | |||
| 4 Warranties |
9 | |||
| 5 Undertakings by the Issuer |
12 | |||
| 6 Indemnity |
15 | |||
| 7 Authority to Distribute Documents |
15 | |||
| 8 Dealers’ Undertakings |
16 | |||
| 9 Fees, Expenses and Stamp Duties |
16 | |||
| 10 Termination of Appointment of Dealers |
17 | |||
| 11 Appointment of New Dealers |
17 | |||
| 12 Increase in the Programme Amount |
18 | |||
| 13 Status of the Arranger, Indemnity Arrangements among the Dealers and Obligations Several |
18 | |||
| 14 Assignment of Agreement |
20 | |||
| 15 Currency Indemnity |
20 | |||
| 16 Calculation Agent |
20 | |||
| 17 Stabilisation |
21 | |||
| 18 Notices and Communications |
21 | |||
| 19 Contractual Recognition of UK Bail-In Powers |
22 | |||
| 20 Recognition of the U.S. Special Resolution Regime |
23 | |||
| 21 No Fiduciary Duties |
23 | |||
| 22 Governing Law, Place of Jurisdiction |
24 | |||
| 23 Confirmation |
24 | |||
| 24 Severability and Partial Invalidity |
24 | |||
| 25 Amendments |
24 | |||
| 26 Counterparts |
24 | |||
| SCHEDULE 1 Documentation List | 25 | |||
| SCHEDULE 2 Selling Restrictions | 26 | |||
| SCHEDULE 3 Dealer Accession | 31 | |||
| SCHEDULE 4 Letter regarding increase in the Programme Amount | 35 | |||
| SCHEDULE 5 Form of Subscription Agreement | 36 | |||
| SCHEDULE 6 List of Communication Details | 44 | |||
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This AMENDED AND RESTATED DEALER AGREEMENT is made on 8 May 2025
BETWEEN
| (1) | LINDE PLC (the “Issuer”); |
| (2) | CITIGROUP GLOBAL MARKETS LIMITED (“Citigroup” or the “Arranger”); |
| (3) | BANK OF CHINA (EUROPE) S.A., BOFA SECURITIES EUROPE SA, CITIGROUP GLOBAL MARKETS LIMITED, HSBC BANK PLC, J.P. MORGAN SE, MIZUHO BANK EUROPE N.V., SOCIÉTÉ GÉNÉRALE, TD GLOBAL FINANCE UNLIMITED COMPANY, THE TORONTO-DOMINION BANK, UBS AG LONDON BRANCH and UNICREDIT BANK GMBH (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 606357. Linde plc is the parent company of the Group (as defined below). |
| (B) | On 18 January 2023, the shareholders of the predecessor of the Issuer (also named Linde plc and referred to herein as the “Legacy Holding Company”) approved the Legacy Holding Company’s proposal for an intercompany reorganization that resulted in the delisting of the Legacy Holding Company’s ordinary shares from the Frankfurt Stock Exchange, on 1 March 2023, after the completion of legal and regulatory approvals. In connection with the closing of the intercompany reorganization on 1 March 2023, the Issuer assumed by operation of law all obligations of the Legacy Holding Company and shareholders automatically received one share of the new holding company, listed on the New York Stock Exchange in exchange for each share in the Legacy Holding Company that was previously owned (the “Reorganization”). The Issuer as the new holding company of the Group is also named “Linde plc” and trades under the existing ticker LIN. On 6 November 2023, the Issuer transferred the listing of its ordinary shares from the New York Stock Exchange to the Nasdaq Stock Market. |
| (C) | All references to “the Issuer” or “Linde plc” in this Agreement in relation to events or circumstances prior to 1 March 2023 (being the effective date of the Reorganization) are references to the Legacy Holding Company as legal predecessor of the Issuer. |
| (D) | On 11 May 2020, the Legacy Holding Company 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 a specified programme limit (the “Programme”). Following the Reorganization, the Programme will now be continued by the Issuer as legal successor of the Legacy Holding Company. |
| (E) | The Issuer has decided to increase the amount of the Programme from EUR 15,000,000,000 to EUR 20,000,000,000. |
| (F) | In connection with the Programme, the Issuer, Deutsche Bank Aktiengesellschaft in its capacity as previous arranger and the Dealers entered into a dealer agreement (as amended and restated on 8 May 2024, the “Original Dealer Agreement”). |
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| (G) | The Issuer, 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”). |
| (H) | In connection with the Programme, the Issuer will also enter into an agency agreement, dated 8 May 2025 (such agreement amended from time to time the “Agency Agreement”) and made between Linde plc and Citibank, N.A., London Branch 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;
“Arranger” means Citigroup and any company appointed to the position of arranger for the Programme and “Arrangers” means Citigroup 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 Aktiengesellschaft, 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 |
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| (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, Belgium;
“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 Citibank, N.A., London Branch as Fiscal Agent under the Agency Agreement and any successor fiscal agent appointed by the Issuer in accordance with the Agency Agreement;
“FSMA” means the Financial Services and Markets Act 2000, as amended;
“Global Note” means a Temporary Global Note or a Permanent Global Note;
“Group” means the Issuer and its consolidated subsidiaries taken as a whole;
“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;
“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;
“Luxembourg Prospectus Law” means the Luxembourg law on prospectuses for securities (Loi relative aux prospectus pour valeurs mobilières) dated 16 July 2019;
“MAR” 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;
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“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 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 20,000,000,000, 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 Issuer has agreed the issue and purchase of such Tranche;
“Securities Act” means the United States Securities Act of 1933, as amended;
“Series” means a Tranche of Notes together with any further Tranche or Tranches of Notes (i) which are expressed to be consolidated and form a single series and (ii) are identical in all respects (including as to listing) except for their respective Issue Dates and/or issue prices;
“Stabilisation Manager” means, in relation to any Tranche of Notes, the Dealer or Dealers (if any) specified as the stabilisation manager in the Final Terms in relation to such Tranche;
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“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 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 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, 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. The 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 the 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 Issuer shall cause the Notes, which shall be initially represented by a Temporary Global Note or a Permanent Global Note, as indicated in the applicable Final Terms, to be issued and delivered on the agreed Issue Date to |
| (i) | if the Relevant Clearing System is CBF, to CBF, or |
| (ii) | if the Relevant Clearing System is CBL and Euroclear |
| (a) | to a common depositary for CBL and Euroclear, or |
| (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
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| 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 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 the 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 the Issuer agrees with two or more Dealers to issue, and such Dealers agree to purchase, Notes on a syndicated basis, the Issuer shall enter into a Subscription Agreement with such Dealers. The 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. |
The 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 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 Issuer (which shall not include the names of clients) so that the Issuer may make any required reports to the competent authority of Japan for itself or through its designated agent.
The restrictions relating to Yen Notes shall only apply insofar as they are consistent with the relevant regulations of the appropriate regulatory bodies or are necessary to comply with applicable laws and regulations from time to time. On each occasion when any such regulatory body amends or introduces any relevant regulation, the restrictions above shall be deemed to be amended accordingly.
| 3 | Conditions of Issue, Updating of Legal Opinions |
| 3.1 | First Issue. Before the 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 Citigroup and the Issuer 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. |
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| 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 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 Issuer under this Agreement, any relevant Subscription Agreement, any Notes or the Agency Agreement 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 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 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 the Issuer by Moody’s Investors Service, Inc., S&P Global Ratings Europe Limited, their respective affiliates or any other rating agency instructed by the Issuer which has assigned a rating to the Issuer or its 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 Issuer, 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; |
| 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 of the Issuer 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 Issuer, the Relevant Dealer and the Fiscal Agent; |
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| 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; and |
| 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 material 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 material 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. |
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 Issuer waive any of the conditions precedent contained in Clauses 3.1 and 3.2 (save for the condition precedent contained in Clause 3.2.4) in so far as they relate to an issue of Notes to that Dealer. |
| 3.4 | Updating of Legal Opinions. On each occasion on which the Prospectus is updated, the Issuer shall procure that legal opinions in such form and with such content as the Dealers may reasonably require, is delivered, at the expense of the Issuer, to the Dealers from legal advisers in the jurisdiction of the Issuer. In addition, on such other occasions as a Dealer reasonably so requests, the Issuer 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 Issuer, to the Dealers from legal advisers in the jurisdiction of the Issuer. 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 Issuer for the relevant issue. |
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| 4 | Warranties |
| 4.1 | Warranties. As at the date of this Agreement, the Issuer hereby warrants to the Dealers and each of them as follows that: |
| 4.1.1 | Financial Statements: the most recently published audited consolidated annual financial statements of the Issuer and its consolidated subsidiaries as well as any interim financial statements, if any, published subsequently thereto were prepared in accordance with the accounting principles generally accepted in United States of America consistently applied and they give a true and fair view of the financial condition of the Issuer and its consolidated subsidiaries as at the date to which they were prepared (the “Relevant Date”) and of the results of the operations of the Issuer and its consolidated subsidiaries 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 the Issuer and its consolidated subsidiaries taken as a whole 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 the Issuer 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 the Issuer and the Notes is accurate and complete in all material respects and is not misleading, (iii) the opinions and intentions expressed therein with respect to the Issuer and the Notes are honestly held, (iv) there are no other facts with respect to the Issuer 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 the Issuer has 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 the Issuer: 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 | Agreements Valid: the issue of Notes and the execution and delivery of this Agreement and the Agency Agreement by the Issuer have been duly authorised by the Issuer and, in the case of this Agreement and the Agency Agreement 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 the Issuer, enforceable in accordance with their respective terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally; |
| 4.1.6 | No Infringement or Violation: the establishment of the Programme, the execution and delivery of this Agreement and the Agency Agreement, the issue, offering and distribution of Notes and the performance of the terms of any Notes, this Agreement and/or the Agency Agreement will not infringe any law or regulation of its jurisdiction of incorporation and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in any violation of the terms of any instrument or agreement to which the Issuer is a party or by which the Issuer or its respective property is bound; |
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| 4.1.7 | 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; |
| 4.1.8 | Proceedings: other than as set forth in the Prospectus, the Issuer is not engaged (whether as defendant or otherwise) in, nor has the Issuer 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 the Issuer or the Group; |
| 4.1.9 | Approvals in Effect: all licences, consents, approvals, authorisations, orders and clearances of all regulatory authorities required by the Issuer for or in connection with the creation and offering of Notes under the Programme, the execution and issue of, and compliance by the Issuer with the terms of Notes issued under the Programme and the execution and delivery of, and compliance with the terms of, this Agreement and the Agency Agreement have been obtained and are in full force and effect; |
| 4.1.10 | 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 the Issuer, and to the redemption of Notes to be redeemed by the Issuer, on or prior to such Issue Date, the aggregate principal amount of Notes issued by the Issuer outstanding will not exceed the Programme Amount; |
| 4.1.11 | Directed Selling Efforts: neither the Issuer nor any of its affiliates (as defined in Rule 405 under the Securities Act) nor any persons acting on its 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; |
| 4.1.12 | Offering Restrictions: in respect of any issue of Notes under the Programme, the Issuer and each of its 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; |
| 4.1.13 | Ranking of Notes: any Notes will be unsecured obligations of 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 Issuer from time to time outstanding; |
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| 4.1.14 | 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 the Issuer in respect of the Programme and to take any action and to sign any document on behalf of the Issuer with binding effect on the Issuer; |
| 4.1.15 | ICSD 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; |
| 4.1.16 | 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 His Majesty’s Treasury has imposed any sanctions against the Issuer or, to the best knowledge of the Issuer, against any of its subsidiaries, directors, or officers, or any of its 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 His 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;
| 4.1.17 | Anti-Bribery: the Issuer has instituted and maintains anti-bribery and corruption policies and procedures and that neither the Issuer nor, to the knowledge of the Issuer, any of its 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; |
| 4.1.18 | Money-Laundering: no formal action, suit or proceeding by or before any court or governmental agency, authority or body involving the Issuer 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 the Issuer 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 |
| 4.1.19 | MAR: the Issuer is not aware of any inside information as defined in Article 7 MAR with respect to the Issuer, the Notes to be issued or outstanding securities of the Issuer that is required to be published in accordance with Article 17(1) MAR; the Issuer is not making use of its rights under Article 17(4) MAR 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 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 Issuer 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 |
| 5.1 | Notification of Material Developments. 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 any of them; and |
| 5.1.2 | Material Developments: any development or information which (i) relates, directly or indirectly, to the Issuer, its 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 MAR, the disclosure of which the Issuer has delayed in accordance with Article 17(4) MAR, 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 Issuer becomes aware that the conditions specified in Clause 3.2 will not be satisfied in relation to that issue, the Issuer 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 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 Issuer shall from time to time promptly furnish to each Dealer such information relating to the Issuer as such Dealer may reasonably request.
| 5.2 | Updating of Prospectus. |
| 5.2.1 | Annual Update: On or before each anniversary of the date of this Agreement, the Issuer 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. |
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| 5.2.2 | Supplement: The Issuer 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 material 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 the Issuer publishes an annual report in a form setting out the audited consolidated 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 Issuer 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: The Issuer 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, the Issuer shall prepare and publish a new Prospectus or supplement. |
| 5.3 | Listing. The Issuer confirms that it will make or cause to be made an application at the expense of the Issuer 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 Issuer and the Relevant Dealer to list such Notes on any other or further Stock Exchange, 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 Issuer shall use its best endeavours promptly to list such Notes on another stock exchange to be agreed between the Issuer and the Relevant Dealer.
For the avoidance of doubt, the Issuer 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.
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.
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| 5.4 | Agency Agreement. The Issuer undertakes that it will not: |
| 5.4.1 | without prior consultation with the Dealers terminate the Agency Agreement 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. |
The Issuer shall promptly notify each of the Dealers of any termination of, or amendment to, the Agency Agreement, and of any change in the Fiscal Agent or paying agent(s) under the Agency Agreement.
| 5.5 | Lawful Compliance. The Issuer 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 it may lawfully comply with its obligations under all Notes, this Agreement and the Agency Agreement, and, so that it 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. The Issuer complies and undertakes that it will continue to comply with the requirements of the FSMA. |
| 5.6 | Authorised Representatives. The Issuer 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 the Issuer 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. The Issuer 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 the Issuer to the Dealers a comfort letter from independent auditors of the Issuer in such form and with such content as the Dealers may reasonably request, provided that no such letter will be delivered in connection with the publication or issue of the audited annual financial statements of the Issuer. |
If at or prior to the time of any payment of net issue proceeds as set forth in Clause 2.2.2 such a request is made with respect to the Notes to be issued, the receipt of the relevant comfort letter or letters in a form satisfactory to the Relevant Dealer shall be a condition for the issue of those Notes to that Dealer.
| 5.8 | No other Issues. During the period commencing on an Agreement Date and ending on the Issue Date with respect to any Notes which are issued on a syndicated basis and are to be listed, the 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. The Issuer 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 the Issuer. |
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| 5.10 | Sanctions. The Issuer 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. |
The aforementioned undertakings are 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, the Issuer undertakes with each of the Dealers that it 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 the 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 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 the Issuer pursuant to this Agreement or any Subscription Agreement; or |
| 6.1.4 | Inaccuracy of Prospectus: any inaccurate or misleading, or allegedly inaccurate or misleading, untrue or (in case of a claim not brought by any of the Dealers) alleged untrue statement in, or omission, or alleged omission, from, the Prospectus or any part thereof; or |
| 6.1.5 | Inaccuracy of Information Provided: any inaccurate or misleading, or allegedly inaccurate or misleading, statement in any additional written information provided by the Issuer to the Dealers pursuant to Clause 7 below. |
| 6.2 | The Issuer 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 | The Issuer hereby authorises each of the Dealers on behalf of the Issuer to provide copies of and make oral statements consistent with the Prospectus and such additional written information as the Issuer 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 the Issuer to actual and potential purchasers of Notes. |
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| 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 the Issuer, each of the Dealers severally undertakes with the Issuer that it will indemnify the Issuer its affiliates and each of its 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 the Issuer 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. |
| 9 | Fees, Expenses and Stamp Duties |
The Issuer undertakes that it will:
| 9.1 | pay to each Dealer all commissions agreed between the 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; |
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| 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 the Issuer and the Fiscal Agent; and |
| 9.2.8 | all expenses in connection with the preparation of this Agreement, the Agency Agreement 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 Citigroup 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 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 and Citigroup; 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 or any Note and indemnify each Dealer against any liability with respect to or resulting from any delay in paying or omission to pay any such duty or tax. |
| 10 | Termination of Appointment of Dealers |
The Issuer or (as to itself) a Dealer may terminate this Agreement by giving not less than 30 days’ written notice to the other parties hereto. The Issuer 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 the Issuer 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 Issuer an appropriate Dealer Accession Letter; and |
| 11.1.2 | the Issuer shall have delivered to such New Dealer an appropriate Confirmation Letter. |
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| 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 Issuer 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 the Issuer may wish to increase the aggregate principal amount of the Notes that may be issued under the Programme. In such circumstances, it may give notice of such an increase (subject as set out in Clause 12.2) by delivering to 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 or any other agreement or document in relation to the Programme to a Debt Issuance Programme of a certain principal amount, shall be and shall be deemed to be references to a Debt Issuance Programme of the increased principal amount. |
| 12.2 | Documentation. The right of the Issuer 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 the Issuer 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 the Issuer 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 the Issuer 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. |
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| 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 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 itself is not also liable to the relevant Non-participating Dealer as set out in Clause 6.1.4.
“Indemnifying Dealer” means, where the relevant issue of Notes is subscribed by only one Dealer, that Dealer or, in any other case, the (Joint-) Lead Manager(s) or Joint Bookrunners of that issue (each as defined in the respective Subscription Agreement). “Non-participating Dealer” means any Dealer which is not an Indemnifying Dealer and in this definition, “Dealer” and “Indemnifying Dealer” includes, in each case, its affiliates and any person who controls it (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act).
The obligation of an Indemnifying Dealer to indemnify a Non-participating Dealer under this Clause 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 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. |
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| 14 | Assignment of Agreement |
| 14.1 | No transfer by Issuer. The Issuer may not assign its rights or transfer its 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 the Issuer. |
| 14.3 | Use of Affiliates: The Issuer agrees 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 the Issuer or in the liquidation, insolvency or analogous process of the Issuer or for any other reason, any payment under or in connection with this Agreement is made or falls to be satisfied in a currency (the “other currency”) other than that in which the relevant payment is expressed to be due (the “required currency”) under this Agreement, then, to the extent that the payment (when converted into the required currency at the rate of exchange on the date of payment or, if it is not practicable for the Relevant Dealer to purchase the required currency with the other currency on the date of payment, at the rate of exchange as soon thereafter as it is practicable for it to do so or, in the case of a liquidation, insolvency or analogous process, at the rate of exchange on the latest date permitted by applicable law for the determination of liabilities in such liquidation, insolvency or analogous process) actually received by the Relevant Dealer falls short of the amount due under the terms of this Agreement, the Issuer undertakes that it 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 |
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| (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 Stabilisation Manager or any person acting for such Stabilisation 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 stabilisation, if commenced, may be discontinued at any time, and must be brought to an end after a limited period. Such stabilisation 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 Stabilisation Manager(s) (or person(s) acting on behalf of any Stabilisation Manager(s)) in accordance with all applicable laws and rules. Any loss or profit sustained as a consequence of any such over-allotment or stabilisation shall, as against the Issuer, be for the account of the Stabilisation Manager. The Issuer shall authorise the Stabilisation 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 Issuer. The relevant Stabilisation 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 MAR.
| 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 6 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.
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| 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; |
| (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. |
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| 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); |
| (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 |
The Issuer acknowledges and agrees that each Dealer is acting solely pursuant to a contractual relationship with the Issuer 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 Issuer or any other person. Additionally, the Issuer acknowledges that none of the Dealers is advising the Issuer or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The 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 Issuer with respect thereto. The Issuer further acknowledges and agrees that any review by the Dealers of the Issuer, 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 Issuer or any other person. The foregoing is without prejudice to any obligation of the relevant Dealers to make recommendations to the Issues concerning the pricing of any offerings under the Programme in accordance with applicable laws and regulations.
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| 22 | Governing Law, Place of Jurisdiction |
| 22.1 | Governing Law. This Agreement, any non-contractual obligations arising out of or in connection with it and every agreement for the issue and purchase of Notes as referred to in Clause 2 shall be governed by, and construed in accordance with, German law. |
| 22.2 | Place of Jurisdiction. Any action or other legal proceedings (“Proceedings”) arising out of or in connection with this Agreement shall be brought in the District Court (Landgericht) in Frankfurt am Main, Federal Republic of Germany. |
Nothing contained herein shall limit the right of any party hereto to take Proceedings against any other party hereto in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
| 23 | Confirmation |
For purposes of identifying the contracting party and beneficial owner pursuant to Anti-Money Laundering Laws the Issuer confirms that it conducts the arrangements made by this Agreement for its own account, in accordance with the terms of this Agreement.
| 24 | 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.
| 25 | Amendments |
No provision of this Agreement, including this Clause 25 may be amended or supplemented unless the Issuer and the Dealers so agree in writing.
| 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. |
| 2. | An extract of most recent date from the Commercial Registers pertaining to Linde plc. |
| 3. | Copies of the resolution of the board of management of the Issuer passed in connection with the update and the increase of the programme amount of the Programme. |
| 4. | A list of the names and titles and specimen signatures of the persons authorised to sign on behalf of the Issuer. |
| 5. | Conformed copies of each of this Agreement and the Agency Agreement. |
| 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 the Issuer. |
| 9. | A copy of the ICSD Agreement of the Issuer with the ICSDs regarding Notes in NGN format. |
| 10. | Legal opinions in form and substance satisfactory to the Arranger from: |
| (a) | Arthur Cox (legal advisers to the Issuer as to the laws of Ireland); and |
| (b) | Hengeler Mueller Partnerschaft von Rechtsanwälten mbB (legal advisers to the Dealers as to the laws of the Federal Republic of Germany). |
| 11. | A Comfort letter from PricewaterhouseCoopers LLP, as independent auditors of Linde plc. |
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 Issuer nor any other Dealer shall have any responsibility therefore.
| 2. | United States of America |
| (a) | Each Dealer acknowledges that the Notes 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 (the “Insurance Distribution Directive”), 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 UK 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 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; 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. | Switzerland |
| (a) | Each Dealer acknowledges that, subject to paragraph (b) below: |
| (i) | Notes may not be publicly offered directly or indirectly, in, into or from Switzerland within the meaning of the Swiss Financial Services Act of 15 June 2018, as amended (the “FinSA”) and will not be admitted to trading on any exchange or other trading venue in Switzerland; |
| (ii) | Neither the Prospectus nor any Final Terms nor any other offering or marketing material relating to the Notes (x) constitutes a prospectus as such term is understood pursuant to the FinSA or (y) has been or will be filed with or approved by a Swiss review body pursuant to Article 52 of the FinSA; and |
| (iii) | neither the Prospectus nor any Final Terms nor any other offering or marketing material relating to the Notes may be publicly distributed or otherwise made publicly available in Switzerland. |
| (b) | Notwithstanding paragraph (a) above, in respect of any Tranche of Notes to be issued, the Issuer and the relevant Dealers may agree that (x) such Notes may be publicly offered in Switzerland within the meaning of the FinSA and/or (y) an application will be made by (or on behalf of) the Issuer to admit such Notes to trading on a trading venue (exchange or multilateral trading facility) in Switzerland, provided that: |
| (i) | the Issuer is able to rely, and is relying, on an exemption from the requirement to prepare and publish a prospectus under the FinSA in connection with such public offer and/or application for admission to trading; |
| (ii) | in the case of any such public offer, the relevant Dealers have agreed to comply with any restrictions applicable to the offer and sale of such Notes that must be complied with in order for the Issuer to rely on such exemption; and |
| (iii) | the applicable Final Terms will specify that such Notes may publicly offered in Switzerland within the meaning of the FinSA and/or the trading venue in Switzerland to which an application will be made by (or on behalf of) the Issuer to admit such Notes to trading thereon. |
| 6. | Singapore |
Each Dealer acknowledges that the Prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, each Dealer represents and agrees, that it has not offered or sold any Notes or cause the Notes to be made the subject of an invitation for subscription or purchase and will not offer or sell any Notes or cause the Notes to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor (as defined in Section 4A of the Securities and Futures Act 2001 of Singapore, as modified or amended from time to time (the “SFA”)) pursuant to Section 274 of the SFA or (ii) to an accredited investor (as defined in Section 4A of the SFA) pursuant to and in accordance with the conditions specified in Section 275 of the SFA.
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| 7. | Canada |
The Notes may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Notes must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
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SCHEDULE 3
Dealer Accession
PART I
Form of Dealer Accession Letter - Programme
[Date]
| To: | Linde plc |
Linde plc
EUR 20,000,000,000 Debt Issuance Programme
Dear Sir or Madam,
We refer to the Dealer Agreement dated 8 May 2025 entered into in respect of the above Debt Issuance Programme and made between Linde plc 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: | ||
| cc: | Citibank, N.A., London Branch, |
| as Fiscal Agent |
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PART Il
Form of Confirmation Letter - Programme
[Date]
| To: | [Name and address of New Dealer] |
Linde plc
EUR 20,000,000,000 Debt Issuance Programme
Dear Sir or Madam,
We refer to the Dealer Agreement dated 8 May 2025 (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: | |||
| cc: | Citibank, N.A., London Branch, as Fiscal Agent |
| The other Dealers |
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PART III
Form of Dealer Accession Letter - Note Issue
[Date]
| To: | Linde plc |
[Description of issue]
(the “Notes”)
Dear Sir or Madam,
We refer to the Dealer Agreement dated 8 May 2025 and made between Linde plc 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: | Citibank, N.A., London Branch, |
| as Fiscal Agent |
33
PART IV
Form of Confirmation Letter – Note Issue
[Date]
| To: | [Name and address of New Dealer] |
Linde plc
(the “Issuer”)
[Description of issue]
(the “Notes”)
Dear Sir or Madam,
We refer to the Dealer Agreement dated 8 May 2025 (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: | |||||
| cc: |
Citibank, N.A., London Branch, | |
| as Fiscal Agent |
34
SCHEDULE 4
Letter regarding increase in the Programme Amount
[Date]
| To: | The Dealers |
(as those expressions are defined
in the Dealer Agreement
dated 8 May 2025,
as amended, supplemented or restated from
time to time (the “Dealer Agreement”))
Linde plc
EUR 20,000,000,000 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 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: | |||
| cc: |
Citibank, N.A., London Branch, | |
| as Fiscal Agent |
35
SCHEDULE 5
Form of Subscription Agreement
Dated [•]
LINDE PLC
as Issuer
and
[insert Lead Manager]
as Lead Manager
and
OTHERS
SUBSCRIPTION AGREEMENT
relating to the
EUR 20,000,000,000 Debt Issuance Programme
Ref:
Linklaters LLP
36
| (1) | Linde plc (the “Issuer”) |
| (2) | [Insert name of lead manager] |
(the “Lead Manager”)
| (3) | [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 20,000,000,000 Debt Issuance Programme established by it. The terms of the issue shall be as set out in the Conditions.
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 8 May 2025 made between the Issuer and the Dealers party thereto. All terms with initial capitals used herein without definition have the meanings given to them in the Dealer Agreement.
[The [Lead] Managers agree as between themselves that they will be bound by and will comply with the International Capital Market Association Standard Form Agreement Among Managers German Version 1 (the “Agreement Among Managers”) and further agree that references in the Agreement Among Managers to the “Lead Manager” shall mean [Lead] Managers, as defined in this Agreement and references to the “Settlement Lead Manager” shall mean [•].]
| 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.
or the purposes of the Dealer Agreement the details of the New Dealer[s] for service of notices are as follows:
[insert name, address, telephone, facsimile, email address and attention].
37
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 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. The Issuer 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] (the “Net Proceeds”)[. Such payment will be made by the [Lead Manager out of its Commissionaire Account (as defined below)][common service provider/common depositary] on behalf of the Managers, in [currency] in immediately available funds to such [currency] account as shall be notified by the Issuer to the Lead Manager]; |
| (ii) | [the Lead Manager acknowledges that the Notes represented by the Global Note[s] will initially be credited to the Lead Manager’s account held with an ICSD (the “Commissionaire Account”) the terms of which include a third-party beneficiary clause (stipulation pour autrui) with the Issuer as the third-party beneficiary and provide that such Notes are to be delivered to others only against payment of the Net Proceeds set out in Clause [3].2(i) hereof into the Commissionaire Account on a delivery against payment basis; |
| (iii) | the Lead Manager acknowledges that (i) the Notes represented by the Global Note[s] shall be held to the order of the Issuer as set out above and (ii) the Net Proceeds set out in Clause [3].2(i) hereof in the Commissionaire Account will be held on behalf of the Issuer until such time as they are transferred to the Issuer’s order. The Lead Manager undertakes that the Net Proceeds will be transferred to the Issuer’s order promptly following receipt of such monies in the Commissionaire Account; |
| (iv) | the Issuer acknowledges and accepts the benefit of the third-party beneficiary clause (stipulation pour autrui) pursuant to the [Belgian][Luxembourg] Civil Code in respect of the Commissionaire Account;] |
| (v) | “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; |
38
| (vi) | “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 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 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.
| 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 8 May 2025 [, as supplemented by [•],] containing all material information relating to the assets and liabilities, financial position and profits and losses of the Issuer 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] or reliance letter[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] [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 giving confirmation to the effect stated in sub-paragraph (a) of this clause; and |
| (iii) | [a] comfort letter[s] dated the [date hereof and the] Payment Instruction Date from the independent auditors of the Issuer, in such form and with such content as the Managers may reasonably request. |
| 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 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. |
39
| 6 | Force Majeure |
The Lead Manager, on behalf of the Managers, may, by notice to the Issuer, 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, 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 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.
| 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 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][the] “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 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.] |
40
| 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, any non-contractual obligations arising out of or in connection with it, as well as all rights and obligations of the parties arising from it shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany. |
| 8.3 | 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, Federal Republic of Germany. |
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.
| 8.4 | 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. |
| 8.5 | No provision of this Agreement, including this Clause [8.5], may be amended or supplemented unless the Issuer and the Managers agree so in writing. |
| 8.6 | 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. |
41
| The Issuer | ||||
| LINDE PLC | ||||
| The Managers | ||||
| [NAMES OF MANAGERS] | ||||
ANNEX A
to the Subscription Agreement
[The Conditions]
42
ANNEX B
to the Subscription Agreement
The Commitments of the Managers
| [insert Managers] | [insert Commitments] | |
| [•] | [•] | |
| [•] | [•] | |
| [•] | [•] | |
| [•] | [•] |
43
SCHEDULE 6
List of Communication Details
THE ISSUER
Linde plc
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
| Telephone: | +44 7799 342124, | |
| Attention: | Treasury |
THE ARRANGER
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
| Telephone: | +44 20 7986 1984 | |
| Email: | mtndesk@citi.com | |
| Attention: | MTN Desk |
THE DEALERS
Bank of China (Europe) S.A.
55, Boulevard Royal
2449 Luxembourg
Luxembourg
| Telephone: | +352 268 688 362 | |
| Email: | DCM_eu.lu@bank-of-china.com | |
| Attention: | BOC EU DCM Centre |
BofA Securities Europe SA
51 rue La Boétie
75008 Paris
France
| Telephone: | +33(0) 1 8770 0000 | |
| Email: | dcm_eea@bofa.com | |
| Attention: | Syndicate Desk |
44
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
| Telephone: | +44 20 7986 1984 | |
| Email: | mtndesk@citi.com | |
| Attention: | MTN Desk |
HSBC Bank plc
8 Canada Square
London E14 5HQ
United Kingdom
| Telephone: | +44 20 7991 8888 | |
| Email: | transaction.management@hsbcib.com | |
| Attention: | Head of DCM Legal |
J.P. Morgan SE
Taunustor 1 (TaunusTurm)
60310 Frankfurt am Main
Federal Republic of Germany
| Email: | DCM_programmes@jpmorgan.com | |
| Attention: | Euro Medium Term Note Desk |
Mizuho Bank Europe N.V.
Strawinskylaan 3053
Amsterdam Atrium 3rd Floor
1077 ZX Amsterdam
The Netherlands
| Attention: | Primary Debt | |
| Telephone: | +49 69 4272 93140 | |
| Email: | PrimaryDebt@eu.mizuho-sc.com |
Société Générale
Immeuble Basalte
17 Cours Valmy
CS 50318
92972 Paris La Défense Cedex
France
| Attention: | Syndicate Desk GLBA/SYN/CAP/BND | |
| Telephone: | +33 (0)1 42 13 32 16 | |
| Email: | eur-glba-syn-cap@sgcib.com |
45
TD Global Finance unlimited company
5th Floor, One Molesworth Street
Dublin 2, D02 RF29
Ireland
| Attention: | Head of Syndicate & Origination | |
| Telephone: | +353 1 267 6000 | |
| Email: | TransactionAdvisoryGroup@tdsecurities.com |
The Toronto-Dominion Bank
60 Threadneedle Street
London EC2R 8AP
United Kingdom
| Attention: | Head of Syndicate & Origination | |
| Telephone: | +44 20 7628 2262 | |
| Email: | TransactionAdvisoryGroup@tdsecurities.com |
UBS AG London Branch
5 Broadgate
London EC2M 2QS
United Kingdom
| Attention: | MTN Desk | |
| Email: | ol-emtndesk-london@ubs.com |
UniCredit Bank GmbH
Arabellastrasse 12
81925 Munich
Germany
| Telephone: | +49 89 378 15780 | |
| Telefax: | +49 89 378 33 34100 | |
| Attention: | DCM Documentation MFS1DM | |
| Email: | dcmdocumentation@unicredit.de |
46
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
| LINDE PLC | ||
| By: | /s/ CJ Cossins | |
| CJ Cossins | ||
S-1
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
| CITIGROUP GLOBAL MARKETS LIMITED | ||
| (as Arranger and Dealer) | ||
| By: | /s/ Carlos Vera Franco | |
| Carlos Vera Franco | ||
| Delegated Signatory | ||
| BANK OF CHINA (EUROPE) S.A. | ||
| By: | /s/ Zhang Jinchun | |
| Zhang Jinchun | ||
| EAMC | ||
| BOFA SECURITIES EUROPE SA | ||
| By: | /s/ Susan Mann | |
| Susan Mann | ||
| Authorised Signatory | ||
| HSBC BANK PLC | ||
| By: | /s/ Samantha Riley | |
| Samantha Riley | ||
| J.P. MORGAN SE | ||||||||
| By: | /s/ Alexander Voigt | By: | /s/ Andreas Noe | |||||
| Alexander Voigt, Managing Director | Andreas Noe, Executive Director | |||||||
| MIZUHO BANK EUROPE N.V. | ||||||||
| By: | /s/ Christoph Paul | By: | /s/ Borja Zamorano | |||||
| Managing Director Head of Northern Europe DCM |
Managing Director Head of Madrid Branch | |||||||
S-2
Signature Page
to the Dealer Agreement
This Agreement has been entered into on the date stated at the beginning.
| SOCIÉTÉ GÉNÉRALE | ||
| By: | /s/ Fernando Garcia | |
| Fernando Garcia | ||
| Managing Director, DCM | ||
| TD GLOBAL FINANCE UNLIMITED COMPANY | ||
| By: | /s/ Frances Watson | |
| Frances Watson | ||
| THE TORONTO-DOMINION BANK | ||
| By: | /s/ Frances Watson | |
| Frances Watson | ||
| UBS AG LONDON BRANCH | ||||||||
| By: | /s/ Suzanna Gwyn-Thomas | By: | /s/ Anjali Chhania | |||||
| Suzanna Gwyn-Thomas | Anjali Chhania | |||||||
| Executive Director | Managing Director | |||||||
| UNICREDIT BANK GMBH | ||||||||
| By: | /s/ Pamela Steckel | By: | /s/ Maximilian Hagendorff | |||||
| Pamela Steckel, MD DCM | MAXIMILIAN HAGENDORFF, DIRECTOR DCM ORIGINATION | |||||||
S-3
Exhibit 4.1
Linde plc
CHF 225 million 0.6150% Senior Bonds due 2029 (”Tranche A”)
CHF 275 million 1.0629% Senior Bonds due 2033 (”Tranche B”)
| Final Terms and Conditions |
||||
| Tranche A1 | Tranche B1 | |||
| Issuer: |
Linde plc (the “Issuer”) | |||
| Instrument Rating: |
Expected: A2 (Moody’s) / A (S&P) | |||
| Market: |
Swiss Franc foreign market | |||
| Format: |
Public fixed rate bonds | |||
| Status: |
Senior, unsecured and unsubordinated obligations of the Issuer ranking pari passu | |||
| Amount: |
CHF 225 million | CHF 275 million | ||
| Pricing Date |
21 May 2025 | |||
| Settlement Date: |
5 June 2025 | |||
| Maturity Date: |
5 June 2029 | 7 June 2033 | ||
| Interest Rate (Coupon): |
0.6150% p.a., payable annually in arrears on 5 June, commencing on 5 June 2026 | 1.0629% p.a., payable annually in arrears on 7 June, commencing on 7 June 2026 (long first coupon) | ||
| Day Count Fraction: |
30/360, following, unadjusted | |||
| Business Days: |
Zurich | |||
| Issue/Reoffer Price: |
100.00% (before commissions and expenses) | |||
| Reoffer Spread vs SARON Mid Swap: |
+60 bps | +69 bps | ||
| SARON Mid Swap Reference (GOTTEX): |
0.0150% | 0.3729% | ||
| Investor Yield: |
0.6150% | 1.0629% | ||
| Joint Lead Managers: |
UBS Investment Bank; BNP PARIBAS, Paris, Lancy/Geneva Branch | |||
| Costs |
||||
| Joint Lead Manager Commission: |
0.225% | 0.275% | ||
| Paying Agency Fees: |
0.01% (on principal amount) for each coupon payment 0.01% (on principal amount) for redemption |
|||
| Documentation Costs (Lump Sum): |
CHF 62,500 | CHF 62,500 | ||
| All-in Cost p.a.: |
0.6918% | 1.1132% | ||
| All-in Cost vs. SARON Mid Swap |
+67.68 bps | +74.03 bps | ||
| Legal and Documentation |
||||
| Tranche A | Tranche B | |||
| Documentation: |
Swiss Prospectus incorporating the base prospectus dated 8 May 2025 of the Issuer’s EUR 20,000,000,000 Debt Issuance Programme and the pricing supplements for each tranche | |||
| FinSA Prospectus: |
Delayed prospectus approval, in accordance with art. 51(2) FinSA | |||
| Governing Law: |
German law | |||
| Place of Jurisdiction: |
The District Court (Landgericht) in Frankfurt am Main | |||
| 1 | If only one column is displayed in any row in this document, this applies to both Tranches (Tranche A and Tranche B) unless specified otherwise |
|
1 |
| Early Redemption: | The Issuer may elect to redeem the Bonds, in whole but not in part, at par (together with any accrued and unpaid interest thereon, if any, to (but excluding) the relevant redemption date) in the following circumstances: (i) if 75% or more of the aggregate principal amount of the Bonds have been redeemed;
(ii) at any time during the three-month period ending on (but excluding) the Maturity Date;
(iii) upon the occurrence of certain tax events; and
(iv) at the option of the Noteholder upon occurrence of a Change of Control Event.
Early Redemption amount to be par. | |||
| Selling Restrictions: | United States (Reg. S, Cat. 2, TEFRA D in accordance with usual Swiss practice), EEA, UK, Singapore, Canada (as per Base Prospectus, except for Switzerland) | |||
| Target Market (MiFID II Product Governance): | As defined by the manufacturer domiciled in the EEA (MiFID II): Eligible counterparties, professional clients and retail clients in Switzerland only (all channels for distribution), subject to applicable selling restrictions | |||
| Use of Proceeds | General corporate purposes | |||
| Listing and Principal Paying Agent: | UBS AG. No further Swiss paying agents. | |||
| Listing: | SIX Swiss Exchange | |||
| Date of Provisional Admission of the Bonds on SIX: | 3 June 2025 | |||
| Form: | The Bonds will be issued in bearer form and represented by a permanent global note, constituting intermediated securities (Bucheffekten). | |||
| Denomination: | CHF 5,000 and multiples thereof | |||
| Primary Clearing System and CSD: | SIX SIS AG | |||
| Valoren Number: | 144.958.373 | 144.958.374 | ||
| ISIN: | CH1449583736 | CH1449583744 | ||
| Cash Flows | ||||
| Tranche A | Tranche B | |||
| Gross Proceeds | CHF 225,000,000.00 | CHF 275,000,000.00 | ||
| - Lead Manager Commission |
- CHF 506,250.00 | - CHF 756,250.00 | ||
| - Documentation |
- CHF 62,500 | - CHF 62,500 | ||
| Net Proceeds | CHF 224,431,250.00 | CHF 274,181,250.00 | ||
| First Coupon (incl. paying agency fee) |
CHF 1,406,250.00 | CHF 2,966,713.75 | ||
| Regular Annual Coupon (incl. paying agency fee) |
CHF 1,406,250.00 | CHF 2,950,475.00 | ||
| Redemption Incl. Last Coupon (incl. paying agency fee on last coupon and redemption) |
CHF 226,428,750.00 | CHF 277,977,975.00 | ||
|
|
2 |
GOTTEX Screenshot
4yr
8yr
|
|
3 |
Disclaimer
Provenance and purpose. This document has been issued by UBS AG and BNP PARIBAS, Paris, Lancy/Geneva Branch (together, with their respective subsidiaries, branches and affiliates, the “Joint Lead Managers”) for the exclusive use of the party to whom this document is delivered (the “Recipient”).
Information only. This document has been prepared solely for the information of the issuer of the securities described herein and the Joint Lead Managers and may not be relied upon by any potential investor or any other person for any purpose. It is not intended to create any legally binding obligations on the Joint Lead Managers and should not be construed as an underwriting commitment or a recommendation to conclude any transaction. The transaction described in this document is subject to execution of definitive legal contracts, including the relevant underwriting or subscription agreement, the delivery of conditions precedent and the completion of any applicable disclosure document.
No distribution. This document has been prepared on a confidential basis solely for the information of the Recipient. Distribution of this document to any person other than the Recipient and those persons retained to advise the Recipient, who agree to maintain the confidentiality of this material and be bound by the limitations outlined herein, is unauthorised. This material must not be copied, reproduced, published, distributed, passed on or disclosed (in whole or in part) to any other person or used for any other purpose at any time without the prior written consent of the Joint Lead Managers.
No advice given. The Recipient should not construe the contents of this document as legal, tax, accounting or investment advice or a personal recommendation. The Recipient should consult its own counsel, tax and financial advisers as to legal and related matters concerning any matters described herein. This document does not purport to be all-inclusive or to contain all of the information that the Recipient may require.
Other activities. Each of the Joint Lead Managers may from time to time, as principal or agent, have positions in, or may buy or sell, or make a market in any securities, currencies, financial instruments or other assets underlying the transaction to which this document relates. The Joint Lead Managers trading and/or hedging activities related to the transaction to which this document relates may have an impact on the price of the securities to which this document relates.
UBS AG is authorized and regulated by the Swiss Financial Market Supervisory Authority FINMA in Switzerland.
Prohibition of Sales to EEA Retail Investors. The Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any retail investor in the European Economic Area (“EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive 2016/97/EU as amended (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.
Prohibition of Sales to UK Retail Investors. The Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any retail investor in the United Kingdom (“UK”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or (ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000, as amended (the “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.
MiFID II Product Governance / Professional investors and eligible counterparties only target market. Solely for the purposes of the manufacturer’s product approval process, the target market assessment in respect of the Bonds has led to the conclusion that: (i) the target market for the Bonds is only eligible counterparties, and professional clients and, only in Switzerland, retail clients, each as defined in MiFID II; and (ii) all channels for distribution of the securities to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the securities (a “distributor”) should take into consideration the manufacturer’s target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Bonds (by either adopting or refining the manufacturer’s target market assessment) and determining appropriate distribution channels.
SWISS PUBLIC OFFER. For the avoidance of doubt, the Bonds will be offered to the public in Switzerland only.
© UBS 2025. All rights reserved. The Joint Lead Managers specifically prohibit the redistribution of this material and accept no liability whatsoever for the actions of third parties in this respect.
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Exhibit 4.2
Execution Copy
Dated 8 May 2025
LINDE PLC
as Issuer
and
CITIBANK, N.A., LONDON BRANCH
as Fiscal Agent and Paying Agent
FISCAL AGENCY AGREEMENT
relating to the
EUR 20,000,000,000 Debt Issuance Programme
of Linde plc
Ref:
Linklaters LLP
Table of Contents
| Contents | Page | |||
| 1 Definitions and Interpretation |
1 | |||
| 2 Appointment of Fiscal Agent and Paying Agent(s) |
4 | |||
| 3 The Notes |
5 | |||
| 4 Issuance of Notes |
6 | |||
| 5 Exchange of Notes |
8 | |||
| 6 Payments |
8 | |||
| 7 Miscellaneous Duties of the Fiscal Agent and the Paying Agent(s) |
10 | |||
| 8 Appointment and Duties of the Calculation Agent |
12 | |||
| 9 Early Redemption of Notes |
13 | |||
| 10 Fees and Expenses |
14 | |||
| 11 Terms of Appointment |
14 | |||
| 12 Warranties and Undertakings |
16 | |||
| 13 Know-your Customer |
17 | |||
| 14 Changes in Agents |
17 | |||
| 15 Merger and Consolidation |
18 | |||
| 16 Notification of Changes in Agents |
19 | |||
| 17 Communication between the Parties |
19 | |||
| 18 Taxes and Stamp Duties |
19 | |||
| 19 Notices and Communications |
19 | |||
| 20 Governing Law, Place of Jurisdiction and Process Agent |
21 | |||
| 21 Severability and Partial Invalidity |
21 | |||
| 22 Amendment |
21 | |||
| 23 Entire Agreement |
21 | |||
| 24 Counterparts |
21 | |||
| Schedule 1 Form of Temporary and Permanent Global Note |
22 | |||
| Schedule 2 Calculation Agent Appointment Letter |
43 | |||
| Schedule 3 Specific duties of the Fiscal Agent in the case of NGNs |
46 | |||
| Schedule 4 The Specified Offices of the Fiscal Agent and Paying Agent |
47 | |||
| Schedule 5 Part I: English Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder |
48 | |||
| Schedule 5 Part II: German Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder |
50 | |||
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This FISCAL AGENCY AGREEMENT is made on 8 May 2025
BETWEEN
| (1) | LINDE PLC (the “Issuer”); and |
| (2) | CITIBANK, N.A., LONDON BRANCH (the “Fiscal Agent” and “Paying Agent”, which expressions shall include any successor agent appointed in accordance with Clause 14, and, in case any additional paying agent has been appointed, the “Paying Agents”). |
RECITALS:
| (A) | Linde plc is a public limited company incorporated under the laws of Ireland with its registered office in Dublin, Republic of Ireland and registered in Ireland with registration number 606357. Linde plc is the parent company of the Group (as defined below). |
| (B) | The parties wish to enter into this agreement (the “Agreement”). |
| (C) | In connection with the Programme, the Issuer has entered into an amended and restated dealer agreement dated of even date herewith (the “Dealer Agreement”) with the financial institutions named therein (the “Dealers”, which expression shall include any new dealers appointed, and exclude any institution whose appointment as a dealer has been terminated, in accordance with the Dealer Agreement). |
| (D) | Notes may be issued on a listed or unlisted basis. Linde plc has caused an application to be made to the Luxembourg Stock Exchange for Notes issued under the Programme to be listed on the Euro MTF Market. In connection with such application it has procured the preparation of the Prospectus (as defined herein). Notes may be listed on such other stock exchange or stock exchanges as the Issuer and the relevant Dealer(s) may agree. |
IT IS HEREBY AGREED as follows:
| 1 | Definitions and Interpretation |
| 1.1 | Definitions. In this Agreement: |
“Agents” means the Fiscal Agent, the Calculation Agent, the Paying Agent(s) or any of them.
“Applicable Law” means any law or regulation.
“Authority” means any competent regulatory, prosecuting, Tax or governmental authority in any jurisdiction.
“Calculation Agent” means, in relation to any Series of Notes, the institution appointed as calculation agent for the purposes of such Notes and named as such in the relevant Final Terms, in the case of the Fiscal Agent, pursuant to Clause 8 hereof, in the case of a Dealer or any other institution, pursuant to Clause 16 of the Dealer Agreement and, in any case, any successor to such institution in its capacity as such.
“CBF” means Clearstream Banking Aktiengesellschaft, Frankfurt am Main, Germany.
“CBL” means Clearstream Banking S.A., Luxembourg.
“Clearing System” has the meaning set forth in § 1(4) of the Terms and Conditions.
“Common Safekeeper” means an ICSD in its capacity as common safekeeper or a person nominated by the ICSDs to perform the role of common safekeeper.
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“Conditions” means in relation to any Tranche of Notes, the set of terms and conditions applicable to such Tranche of Notes as set out in the Prospectus and as determined and completed by the relevant Final Terms as described therein. The Conditions may be documented either by (i) replicating the relevant provisions of Option I or Option II, and completing the relevant placeholders in Option I or Option II, as relevant, in which case the replicated and completed provisions of Option I or Option II alone shall constitute the Conditions applicable to any Tranche of Notes, or by (ii) referring to the relevant provisions of Option I or Option II in Part I of the Final Terms only, in which case Option I or Option II and the relevant Final Terms taken together shall constitute the Conditions applicable to any Tranche of any Series of Notes. The Conditions will be attached to each Global Note representing the Notes.
“Euroclear” means Euroclear Bank SA/NV, Belgium.
“Exchange Act” means the United States Securities Exchange Act of 1934.
“Exchange Date” means the date occurring 40 days after the issuance of the Notes, on or after which interests in a Temporary Global Note can be exchanged, whether in whole or in part, for interests in a Permanent Global Note;
“FATCA Withholding” means any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).
“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.
“Frankfurt Business Day” means a day (other than Saturdays and Sundays) on which commercial banks and foreign exchange markets are open for business (including dealings in foreign exchange and foreign currency deposits) in Frankfurt am Main.
“Global Note” means a Temporary Global Note or a Permanent Global Note, as applicable.
“Group” means the Issuer and its consolidated subsidiaries taken as a whole.
“Holder” means in respect of Notes deposited with any Clearing System or other central securities depositary, any holder of a proportionate co-ownership or other beneficial interest or right in the Notes so deposited, and otherwise the bearer of a Note.
“ICSDs” means CBL and Euroclear and “ICSD” means either one of them.
“Luxembourg Prospectus Law” means the Luxembourg law on prospectuses for securities (Loi relative aux prospectus pour valeurs mobilières) dated 16 July 2019.
“NGN” means a Temporary Global Note or a Permanent Global Note in the form of a New Global Note.
“Note” means any note in bearer form, including any Global Note, issued or to be issued by any Issuer under the Programme.
“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.
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“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 (or in such other form as may be agreed between 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 relating to the Programme, dated 8 May 2025, as amended, varied or supplemented from time to time.
“Prospectus” means the base prospectus relating to the Notes in accordance with Part IV of the Luxembourg Prospectus Law, prepared in connection with the listing of Notes issued under the Programme on the Euro MTF Market, as supplemented or updated from time to time, including, in relation to each Tranche of Notes, the Final Terms relating to such Tranche and such other documents as are from time to time incorporated therein by reference.
“Relevant Agreement” means an agreement between the Issuer and any Dealer(s) for the sale by the Issuer and the purchase by the Dealer(s) of any Notes.
“Relevant Dealer” means, in respect of any Tranche of Notes, the institution specified as such in the relevant Final Terms.
“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.
“Specified Office” of any Agent means the office specified against its name in Schedule 4 hereto or, in the case of any Agent not originally party hereto, specified in its terms of appointment (or, in the case of a Calculation Agent which is a Dealer, specified for the purposes of Clause 16 of the Dealer Agreement) or such other office in the same country as such Agent may specify by notice to the Issuer and the other parties hereto in accordance with Clause 14.9.
“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.
“Syndicated Closing” means that it has been agreed between the Issuer and the Relevant Dealer(s) that any Series of Notes will be settled via CBL and/or Euroclear under the new syndicated closing rules applicable since 14 March 2022.
“Tax” means any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of any Authority having power to tax.
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“Temporary Global Note” means a temporary global note substantially in the form set out in Schedule 1 to this Agreement (or in such other form as may be agreed between the Issuer, the Fiscal Agent and the Relevant Dealer) and initially representing Notes of the same Tranche.
“Terms and Conditions” means the set of terms and conditions of Option I or Option II, as the case may be, substantially in the form set out in the Prospectus.
“Tranche” means Notes issued hereunder which are identical in all respects (including as to listing).
| 1.2 | Expressions. Expressions defined elsewhere in this Agreement shall have the meanings so indicated. Expressions defined in the sets of Terms and Conditions and not otherwise defined in this Agreement shall have the same meanings in this Agreement, except where the context otherwise requires. |
| 1.3 | References. All references in this Agreement to costs or charges or expenses shall include any value added tax or similar tax charged or chargeable in respect thereof, if applicable. |
All references in this Agreement to principal and/or interest or both in respect of the Notes or to any moneys payable by either Issuer under this Agreement shall have the meaning set out in § 4(6) of the Terms and Conditions.
All references in this Agreement to an agreement, instrument or other document (including, without limitation, this Agreement, the Dealer Agreement, the Procedures Memorandum, the Notes and any Conditions appertaining thereto) shall be construed as a reference to that agreement, instrument or document as the same may be amended, varied or supplemented from time to time.
| 2 | Appointment of Fiscal Agent and Paying Agent(s) |
| 2.1 | The Issuer hereby appoints the Fiscal Agent, and the Fiscal Agent hereby agrees to act, as agent of the Issuer in relation to Notes, upon the terms and subject to the conditions set out below, for the purposes of: |
| 2.1.1 | authenticating and delivering Global Notes; |
| 2.1.2 | in respect of Global Notes which are NGNs, giving effectuation instructions for each such Global Note; |
| 2.1.3 | exchanging or instructing the Relevant Clearing System to exchange Temporary Global Notes for Permanent Global Notes in accordance with the terms of such Temporary Global Notes and the Conditions and making, or procuring the making of, all notations on Global Notes as may be required, and, in respect of any exchange of Global Notes which are NGNs, instructing CBF, CBL and Euroclear to make appropriate entries in their records; |
| 2.1.4 | paying sums due on Global Notes and, in respect of Global Notes which are NGNs, instructing CBL or Euroclear to make appropriate entries in their records; |
| 2.1.5 | determining the end of the restricted period applicable to each Tranche in the case that the Relevant Clearing System does not determine such period; |
| 2.1.6 | arranging on behalf and at the expense of the Issuer for notices to be communicated to Holders; |
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| 2.1.7 | ensuring that, as directed by the Issuer (and with prior approval from the Fiscal Agent) where information is required to be provided by the Issuer, all necessary action is taken to comply with any reporting requirements of any competent Authority in respect of any relevant currency, except for Pound Sterling, as may be in force from time to time with respect to the Notes to be issued under the Programme; |
| 2.1.8 | acting as Calculation Agent in respect of Notes where named as such in the relevant Final Terms and agreed between the Issuer and the Fiscal Agent; and |
| 2.1.9 | performing all other obligations and duties imposed upon it by the Conditions and this Agreement and, in relation to each issue of Notes, the Procedures Memorandum. The Fiscal Agent shall have no implied duties. |
| 2.2 | In relation to each issue of NGNs, the Issuer hereby authorises and instructs the Fiscal Agent to elect CBL or Euroclear as Common Safekeeper. From time to time, the Issuer and the Fiscal Agent may agree to vary this election. The Issuer acknowledges that any such election is subject to the right of CBL and Euroclear to jointly determine that the other shall act as Common Safekeeper in relation to any such issue and agrees that no liability shall attach to the Fiscal Agent in respect of any such election made by it. |
| 2.3 | The Issuer hereby appoints the Paying Agent, and the Paying Agent hereby agrees to act, as paying agent of the Issuer in relation to the Notes, upon the terms and subject to the conditions set out below, for the purposes of paying sums due on Notes and of performing all other obligations and duties imposed upon it by the Conditions and this Agreement. The Paying Agent shall have no implied duties. |
| 3 | The Notes |
| 3.1 | Each Global Note shall: |
| 3.1.1 | be printed or typewritten in substantially the form (duly completed) set out in the relevant Schedule hereto (or in such other form as the Issuer, the Fiscal Agent and the Relevant Dealer shall have agreed); |
| 3.1.2 | have attached thereto the Conditions which may consist of (i) the replicated relevant provisions of either Option I or Option II and the completed relevant placeholders in Option I or Option II, as relevant or (ii) Option I or Option II and the relevant Final Terms taken together; |
| 3.1.3 | be executed manually by an authorised signatory of the Issuer; |
| 3.1.4 | be authenticated manually by or on behalf of the Fiscal Agent; |
| 3.1.5 | if the Global Note is an NGN, be effectuated manually by a Common Safekeeper; and |
| 3.1.6 | bear a unique serial number (if applicable). |
| 3.2 | The Issuer shall promptly notify in writing the Fiscal Agent of any change in the names of the person or persons whose signatures are to be used. |
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| 4 | Issuance of Notes |
| 4.1 | Upon the conclusion of any Relevant Agreement, the Issuer shall, as soon as practicable but in any event, not later than 2:00 p.m. (Frankfurt am Main time) on the fourth Frankfurt business day prior to the proposed Issue Date in relation to each Tranche: |
| 4.1.1 | confirm to the Fiscal Agent by email or any electronic information system agreed between the Fiscal Agent and the Issuer all such information as the Fiscal Agent may reasonably require to carry out its functions under this Agreement and such details as are necessary to enable it to authenticate and deliver the Global Note; |
in case of settlement via CBF and in case of non-syndicated issues: (if no standard payment instructions have been given to the Fiscal Agent) designate by email or any other form of communication agreed between the Fiscal Agent and the Issuer the account of the Issuer to which payment of the proceeds of issue should be made;
| 4.1.2 | deliver to the Fiscal Agent a copy of the Final Terms; and |
| 4.1.3 | deliver to the Fiscal Agent the completed Global Note (in unauthenticated form but executed on behalf of the Issuer) in relation to the relevant Tranche, with the Conditions to be attached to the Global Note (in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant) or a copy of the Final Terms, duly executed on behalf of the Issuer to be attached by the Fiscal Agent to the Global Note together with the relevant set of the Terms and Conditions of the Notes (in the case Part I of Final Terms only refers to the relevant provisions of Option I or Option II). |
| 4.2 | On or before 10:00 a.m. (Frankfurt am Main time) on the Frankfurt business day prior to the Issue Date in relation to each Tranche or such other time as may be agreed between the Fiscal Agent and the Relevant Clearing System, the Fiscal Agent shall |
| 4.2.1 | authenticate the Global Note; |
| 4.2.2 | deliver the Global Note to, or to a depositary for, the Relevant Clearing System (which, in the case of CBL and Euroclear, shall be a specified common depositary) or specified Common Safekeeper (if the Global Note is an NGN), and instruct the Common Safekeeper to effectuate the Global Note (if the Global Note is an NGN); |
| 4.2.3 | if the Global Note is an NGN, instruct CBL and Euroclear to make the appropriate entries in their records to reflect the initial (in the case of the first Tranche of Notes of any Series) or increased (in the case of a subsequent Tranche of Notes of any Series) outstanding aggregate principal amount of the relevant Series; |
| 4.2.4 | in case of a settlement via CBF and in case of non-syndicated issues: instruct the Relevant Clearing System to credit Notes represented by a Global Note to the Fiscal Agent’s distribution account and to hold each such Note to the order of the Issuer pending delivery to the Relevant Dealer(s) on a delivery against payment basis (or on such other basis as shall have been agreed between the Issuer and the Relevant Dealer and notified to the Fiscal Agent) in accordance with the normal procedures of the Relevant Clearing System and, following payment, to credit the Notes represented by such Global Note to such securities account(s) as shall have been notified to the Fiscal Agent by the Relevant Dealer(s). The Fiscal Agent shall on the Issue Date in respect of the relevant Tranche and against receipt of funds from the Relevant Dealer(s), transfer the proceeds of issue to the Issuer to the account notified in accordance with Clause 4.1 above; and |
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| 4.2.5 | in case of a Syndicated Closing: instruct the relevant ICSD to credit the Notes represented by the Global Note to the Relevant Dealer’s distribution account held with an ICSD (the “Commissionaire Account”), the terms of which include a third-party beneficiary clause (stipulation pour autrui) with the Issuer as the third-party beneficiary. The relevant ICSD transfers with respect to the relevant Tranche and against receipt of funds from the Relevant Dealer(s) the proceeds of issue to the Issuer to such account as shall have been notified by the Relevant Dealer(s) accordance with Clause 4.1 above. |
| 4.3 | Where the Fiscal Agent delivers any authenticated Global Note to a Common Safekeeper for effectuation using electronic means, it is authorised to destroy the Global Note retained by it following its receipt of confirmation from the Common Safekeeper that the relevant Global Note has been effectuated. |
| 4.4 | In case of a settlement via CBF and in case of non-syndicated issues: Where the Fiscal Agent acts as receiving bank for the Issuer in respect of the proceeds of issue of Notes being issued, if on the relevant Issue Date the Fiscal Agent does not receive the full proceeds of issue in respect of any Note (the “Defaulted Note”) and, as a result, the Defaulted Note remains in the Fiscal Agent’s distribution account with the Clearing System after such Issue Date, the Fiscal Agent shall: |
| 4.4.1 | subject to this sub-clause 4.4, continue to hold the Defaulted Note to the order of the Issuer; |
| 4.4.2 | notify the Issuer promptly of the non-receipt of the proceeds of issue in respect of the Defaulted Note; and, subsequently, |
| 4.4.3 | notify the Issuer forthwith upon receipt of the full proceeds of issue in respect of such Defaulted Note and pay to the Issuer the amounts so received. |
If by the third Business Day following the intended closing date for the Defaulted Notes, such Defaulted Notes remain in the Fiscal Agent’s distribution account, the Fiscal Agent may cancel such Defaulted Notes.
| 4.5 | The Fiscal Agent shall hold in safe custody all unauthenticated Global Notes delivered to it in accordance with this Clause 4 and shall ensure that the same are authenticated and delivered only in accordance with the terms hereof and, if applicable, the relevant Global Note. The Issuer shall ensure that each of the Fiscal Agent holds sufficient Global Notes to fulfil its respective obligations under this Clause 4. The Fiscal Agent undertakes to notify the Issuer if it holds insufficient Global Notes for such purposes. |
| 4.6 | The Fiscal Agent is authorised by the Issuer to authenticate such Global Notes as may be required to be authenticated hereunder by the signature of any person duly authorised for the purpose by the Fiscal Agent. |
| 4.7 | In the event that a person who has signed on behalf of the Issuer any Note not yet issued but held by the Fiscal Agent in accordance with Clause 4.5 ceases to be authorised, the Fiscal Agent shall (unless the Issuer gives written notice to the Fiscal Agent that Notes signed by that person do not constitute valid and binding obligations of the Issuer or otherwise until replacements have been provided to the Fiscal Agent) continue to have authority to issue any such Global Notes, and the Issuer hereby warrants to the Fiscal Agent that such Global Notes shall, unless notified as aforesaid, be valid and binding obligations of the Issuer. Promptly upon such person ceasing to be authorised, the Issuer shall provide the Fiscal Agent with replacement Global Notes and upon receipt of such replacement Global Notes the Fiscal Agent shall cancel and destroy the Notes held by it which are signed by such person and shall provide to the Issuer a confirmation of destruction in respect thereof specifying the Notes so cancelled and destroyed. |
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| 4.8 | Subject to the procedures set out in the Procedures Memorandum, for the purposes of this Clause 4 the Fiscal Agent is entitled to treat a telephone or email communication from a person purporting to be (and who the Fiscal Agent believes in good faith to be) the authorised representative of the Issuer named in the list referred to in, or notified pursuant to, Clause 11.7 as sufficient instructions and authority of the Issuer for the Fiscal Agent to act in accordance with this Clause 4. |
| 4.9 | In case of a settlement via CBF and in case of non-syndicated issues: If the Fiscal Agent, in its discretion, pays an amount (the “Advance”) to the Issuer on the basis that a payment (the “Payment”) has been or will be, received from a Dealer and if the Payment is not received by the Fiscal Agent on the date the Fiscal Agent pays the Issuer, the Issuer shall repay to the Fiscal Agent the Advance and shall pay interest on the Advance (or the unreimbursed portion thereof) from (and including) the date such Advance is made to (but excluding) the earlier of repayment in full of the Advance and receipt in full by the Fiscal Agent of the Payment from the Dealer (at a rate quoted at that time by the Fiscal Agent as its cost of funding the Advance). |
| 5 | Exchange of Notes |
Upon any exchange of all or a part of the Notes represented by a Temporary Global Note for Notes represented by a Permanent Global Note, the Fiscal Agent shall:
| 5.1 | prepare, complete and authenticate such Permanent Global Note in accordance with the terms hereof and of such Global Note; |
| 5.2 | deliver such Permanent Global Note to, or to the depositary for, the Relevant Clearing System which is holding the Temporary Global Note (if such Permanent Global Note is an NGN, to the Common Safekeeper to effectuate the same, as applicable); |
| 5.3 | instruct the Relevant Clearing System to make all notations on the Global Notes as may be required reflecting the reduction, respectively the increase, of the aggregate principal amount of the respective Global Note; and |
| 5.4 | in the case of any Global Note which is an NGN, instruct CBL and Euroclear to make appropriate entries in their records to reflect such exchange. |
In the case of a total exchange, the Fiscal Agent shall cancel or arrange for the cancellation of the relevant Global Note.
| 6 | Payments |
| 6.1 | The Issuer shall not later than |
| (i) | 9:00 a.m. (local time in the relevant financial centre of the currency payable which include Japanese yen, New Zealand dollar, Hong Kong dollar and Australian dollar as well as euro); or |
| (ii) | in case of Pound sterling not later than 10:00 a.m. (Frankfurt am Main time); or |
| (iii) | in case of U.S. dollar and Canadian dollar not later than 3:00 p.m. (Frankfurt am Main time); or |
| (iv) | in relation to any currencies other than the aforementioned not later than by the time agreed in writing between the Issuer and the Fiscal Agent prior to payment. |
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on each date on which any payment in respect of any Note becomes due or, in the case of (i) to (iii) above, by such earlier time as may be determined by the Fiscal Agent, transfer to such account as the Fiscal Agent shall specify such amount in the currency in which the relevant payment falls to be made as shall be sufficient for the purposes of such funds being settled through such payment system as the Fiscal Agent and the Issuer may agree. The Fiscal Agent shall not be liable to account for interest on money paid to it by the Issuer. Money held by the Fiscal Agent need not to be segregated except as required by law. Any such monies shall be held by the Fiscal Agent as banker. As a result, such money will not be held as client money in accordance with applicable law. If the Fiscal Agent determines that payment in accordance with this Clause 6 is required to be made earlier than as set out above, it will provide the Issuer with not less than 21 days’ notice in writing of such requirement.
| 6.2 | The Issuer shall ensure that not later than 10:00 a.m. (Frankfurt am Main time) on the second Frankfurt business day immediately preceding the date on which any payment is to be made to the Fiscal Agent pursuant to Clause 6.1, the Fiscal Agent shall receive an irrevocable payment confirmation from the paying bank of the Issuer. |
| 6.3 | Subject to the receipt by the Fiscal Agent of the payment as provided in Clause 6.1 above, the Fiscal Agent or the relevant Paying Agent shall pay or cause to be paid all amounts due in respect of the Notes on behalf of the Issuer and in the manner provided in the Conditions. If any payment provided for in Clause 6.1 is made late but otherwise in accordance with the provisions of this Agreement, the Fiscal Agent and/or each Paying Agent shall nevertheless make payments in respect of the Notes as aforesaid following receipt by it of such payment. The Fiscal Agent shall, as soon as reasonably practicable and, in any event, by no later than the business day following the due date, notify the Issuer if it has not received such payment from the Issuer. |
| 6.4 | If the Fiscal Agent has reason to believe that the amounts to be received by the Fiscal Agent pursuant to Clause 6.1 will be, or the amounts actually received by it pursuant thereto are, insufficient to satisfy all claims in respect of all payments then falling due in respect of the Notes, neither the Fiscal Agent nor any Paying Agent shall be obliged to pay any such claims until the Fiscal Agent, has received the full amount of all such payments. |
| 6.5 | The Fiscal Agent shall not be obliged to repay any moneys paid to it by the Issuer in respect of any Note unless or until claims against the Issuer in respect of the relevant Notes are prescribed or the obligation to make the relevant payment ceases in accordance with the Conditions. In such event it shall upon the request of the Issuer repay, as soon as practicable, to the Issuer such portion of such amount as relates to such claim or payment by paying the same by credit transfer to such account with such bank as the Issuer may by notice to the Fiscal Agent have specified for this purpose, provided the Fiscal Agent still holds the relevant amount. |
| 6.6 | If the Fiscal Agent pays any amounts to the Holders or to any Paying Agent at a time when it has not received payment in full in respect of the relevant Notes in accordance with Clause 6.1 (the excess of the amounts so paid over the amounts so received being the “Shortfall”), the Issuer shall, in addition to paying amounts due under Clause 6.1, pay to the Fiscal Agent on demand interest (at a rate which represents the Fiscal Agent’s cost of funding the Shortfall) on the Shortfall (or the unreimbursed portion thereof) until the receipt in full by the Fiscal Agent of the Shortfall. |
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| 6.7 | Where Notes are represented by a Global Note, all payments due in respect of such Notes shall be made to, or to the order of, the holder of the Global Note, subject to and in accordance with the provisions of the Global Note and the Conditions. |
| 6.8 | lf the amount of principal and/or interest then due for payment is not paid in full (otherwise than by reason of a deduction required by law to be made therefrom), the Fiscal Agent to which a Note is presented for the purpose of making such payment shall make a record of such Shortfall on the Note and such record shall, in the absence of manifest error, be prima facie evidence that the payment in question has not to that extent been made. |
| 6.9 | Notwithstanding any other provision of this Agreement, each Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Notes for or on account of any Tax, if and only to the extent so required by Applicable Law (which for the avoidance of doubt includes FATCA Withholding), in which event the Paying Agent shall make such payment after such withholding or deduction has been made and shall account to the relevant Authorities within the time allowed for the amount so withheld or deducted or, at its option, shall reasonably promptly after making such payment return to the Issuer the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount. If such a withholding or deduction is so required, the Paying Agent will not pay an additional amount in respect of that withholding or deduction. |
In the event that the Issuer determines in its sole discretion that any deduction or withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Notes, then the Issuer will be entitled to redirect or reorganise any such payment in any way that it sees fit in order that the payment may be made without such deduction or withholding. The Issuer shall promptly notify the Fiscal Agent upon becoming aware of any such redirection or reorganisation. For the avoidance of doubt, FATCA Withholding is a deduction or withholding which is deemed to be required by Applicable Law for the purposes of this Clause 6.9.
| 7 | Miscellaneous Duties of the Fiscal Agent and the Paying Agent(s) |
| 7.1 | If the Notes of the relevant Tranche are initially represented by a Temporary Global Note the following provisions shall apply in the case that the Relevant Clearing System does not determine the Exchange Date on the end of the distribution compliance period: |
| 7.1.1 | The Fiscal Agent shall determine the Exchange Date for such Temporary Global Note in accordance with the terms thereof. As soon as reasonably practicable after determining the Exchange Date in respect of any Tranche in accordance with the Conditions, the Fiscal Agent shall notify such determination to the Issuer, the Relevant Dealer and the Clearing System. |
| 7.1.2 | In the case of a Tranche in respect of which there is only one Relevant Dealer, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the date certified by the Relevant Dealer to the Fiscal Agent as being the date as of which distribution of the Notes of that Tranche was completed. |
| 7.1.3 | In the case of a Tranche in respect of which there is more than one Relevant Dealer but which is not issued on a syndicated basis, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the latest of the dates certified by all the Relevant Dealers to the Fiscal Agent as being the respective dates as of which distribution of the Notes of that Tranche purchased by each such Relevant Dealer was completed. |
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| 7.1.4 | In the case of a Tranche issued on a syndicated basis, the Fiscal Agent will determine the end of the distribution compliance period in respect of such Tranche as being the fortieth day following the date certified by the Lead Manager to the Fiscal Agent as being the date as of which distribution of the Notes of that Tranche was completed. |
| 7.1.5 | As soon as reasonably practicable after determining the end of the distribution compliance period in respect of any Tranche, the Fiscal Agent shall notify such determination to the Issuer, the Clearing System and the Relevant Dealer(s) (in the case of a non-syndicated issue) or the Lead Manager (in the case of a syndicated issue). |
| 7.2 | In the case the Notes of the relevant Tranche are to be listed on Euro MTF market of the Luxembourg Stock Exchange or, as the case may be, any further stock exchange and where the rules of such stock exchange require submission of the Final Terms for the listing of such Notes only, the Issuer shall deliver, or cause to be delivered, a copy of the Final Terms in relation to such Tranche and, in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant, the Conditions to such stock exchange as agreed between the Issuer and the Relevant Dealer and notified to the Fiscal Agent as soon as practicable but in any event, subject to the timely receipt thereof, not later than the time required by such stock exchange for submission of Final Terms. |
| 7.3 | The Fiscal Agent shall not have any responsibility in respect of the listing of Notes to be issued under the Programme on any stock exchange. If in respect of any Tranche of Notes, the applicable Final Terms provide for the listing of such Tranche on a stock exchange, the Relevant Dealer shall attend to obtaining such listing. |
| 7.4 | Upon the receipt by the Fiscal Agent of a demand or notice from any Holder in accordance with the Conditions the Fiscal Agent shall forward a copy thereof to the Issuer. |
| 7.5 | On behalf of and at the request and expense of the Issuer the Fiscal Agent shall cause to be published, or delivered to Holders, all notices required to be given by the Issuer to the Holders in accordance with the Conditions. The final version of such notices shall be delivered to the Fiscal Agent by e-mail: |
| 7.5.1 | with respect to notices to be communicated via the Clearing System not later than 10:00 a.m. (Frankfurt am Main time) on the second Frankfurt business day prior to the date of transmission to the Clearing System; |
| 7.5.2 | with respect to notices to be published on the website of the Luxembourg Stock Exchange not later than 10:00 a.m. (Frankfurt am Main time) on the fourth Frankfurt business day prior to the date of publication; and |
In determining the time limits above the Issuer shall take into account the respective periods according to the Conditions after the expiration of which such notices are deemed to have been validly given to the Holders.
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| 7.6 | If the Issuer is, in respect of any payment, required to withhold or deduct any amount for or on account of taxes or duties of whatever nature as specifically contemplated under the Conditions, the Issuer shall give notice thereof to the Fiscal Agent as soon as it becomes aware of the requirement to make such withholding or deduction and shall give to the Fiscal Agent such information as either of them shall require to enable it to comply with such requirement. With respect to any withholding or deduction pursuant to § 7 of the Terms and Conditions, the Issuer shall contact the Fiscal Agent first to clarify if and how such requirement could technically be complied with by the Fiscal Agent. |
| 7.7 | The Paying Agent(s) shall hold available for inspection at their Specified Offices during normal business hours copies of all documents required to be so available as provided in the Prospectus, or in relation to any Notes, the Conditions or Final Terms in respect of such Notes, or as may be required by the rules of any stock exchange on which the Notes may be listed. |
| 7.8 | For the above purposes, the Issuer shall furnish to the Fiscal Agent for distribution among the Paying Agent(s) sufficient copies of each of the relevant documents. |
| 7.9 | In respect of any Series of Notes that are NGNs, each Paying Agent agrees that if any information that is required by the Fiscal Agent to perform the duties set out in Schedule 3 hereto becomes known to it, it will promptly provide such information to the Fiscal Agent. |
| 7.10 | Each of the Agents shall severally indemnify the Issuer against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which may incur, as a result or arising out of the gross negligence or wilful default by such Agent. The indemnification shall continue after the expiry or termination of this Agreement provided that the gross negligence or wilful default by such Agent occurred before the expiry or termination of this Agreement. |
| 7.11 | Upon fulfilment of all payment obligations of the Issuer in respect of any Notes, the Fiscal Agent shall procure that the relevant Global Note (other than an NGN intended to be held in a manner, which would allow Eurosystem eligibility) is cancelled and shall, upon request, deliver a certificate of destruction to the Issuer. |
| 7.12 | The Issuer undertakes to notify the Fiscal Agent of any changes in the identity of the Dealers appointed generally in respect of the Programme and the Fiscal Agent agrees to notify the other Paying Agent(s) thereof. |
| 7.13 | If the presentation period in respect of Notes as specified in § 8 of the Terms and Conditions of the Notes shall have lapsed and provided that there is no outstanding bona fide and proper claim in respect of any payment in respect of the Notes, the Fiscal Agent shall on demand pay to the Issuer sums equivalent to any amounts paid to it by the Issuer for the purposes of such payments, provided the Fiscal Agent still holds the relevant amount. |
| 8 | Appointment and Duties of the Calculation Agent |
| 8.1 | For the purposes of calculating interest pursuant to § 3 of Option II of the Terms and Conditions the Fiscal Agent may be appointed as Calculation Agent in respect of any Series of Notes by agreement with the Issuer. |
| 8.2 | If the Fiscal Agent has agreed to act as Calculation Agent, it shall perform all matters expressed to be performed by it in, and otherwise comply with, the Conditions and the provisions of this Agreement and, in connection therewith, shall take all such action as may be incidental thereto. |
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| 8.3 | The Calculation Agent shall in respect of each Series of Notes in relation to which it is appointed as such: |
| 8.3.1 | obtain such rates and/or make such calculations, adjustments, notifications and publications as may be required to be made by it by the Conditions at the times and otherwise in accordance with the Conditions; and |
| 8.3.2 | maintain a record of all amounts, rates and other items calculated by it and make such record available for inspection at all reasonable times during normal business hours by the Issuer and the Paying Agent(s). |
| 8.4 | Notwithstanding any other provision of § 3(3) of Option II of the Terms and Conditions, if, in the Calculation Agent’s opinion there is any uncertainty between two or more alternative courses of action in making any determination or calculation under § 3(3) of Option II of the Terms and Conditions, the Calculation Agent shall promptly notify the Issuer thereof and the Issuer shall direct the Calculation Agent in writing as to which alternative course of action to adopt. If the Calculation Agent is not promptly provided with such direction, or is otherwise unable to make such calculation or determination for any reason, it shall notify the Issuer thereof and the Calculation Agent shall be under no obligation to make such calculation or determination and shall not incur any liability for not doing so. |
| 8.5 | Notwithstanding any other provision of § 3(3) of Option II the Terms and Conditions, neither the Issuer nor the Independent Adviser (as the case may be) shall be able to effect any Benchmark Amendments which, in the sole opinion of the Fiscal Agent, Calculation Agent or the Paying Agent, would have the effect of increasing the obligations or duties, or decreasing the rights or protections, of the Fiscal Agent, Calculation Agent or the Paying Agent (as the case may be). |
| 9 | Early Redemption of Notes |
| 9.1 | If the Issuer decides to redeem any Notes for the time being outstanding prior to their Maturity Date in accordance with the Conditions and unless the Fiscal Agent has agreed with the Issuer to a shorter period for such notice, it shall give notice of such decision to the Fiscal Agent not less than ten Frankfurt Business Days before the date on which it will give notice to the Holders in accordance with the Conditions of such redemption in order to enable the Fiscal Agent to undertake its obligations herein and in the Conditions. |
| 9.2 | The Fiscal Agent shall publish the notice required in connection with any such redemption. Such notice shall be provided to the Fiscal Agent by or on behalf of the Issuer and shall specify the matters relevant in respect of such redemption in accordance with the provisions of the Conditions. The Fiscal Agent will also notify the other Paying Agent(s) of any date fixed for redemption of any Notes. |
| 9.3 | The Fiscal Agent will keep a stock of redemption notices (in the form of Schedule 5 attached hereto or in such form as may be agreed between the Issuer and the Fiscal Agent) and will make such notices available on demand to Holders of Notes, the Conditions of which provide for redemption at the option of Holders. The Fiscal Agent shall, promptly upon receipt of any such redemption notice, notify the Issuer thereof. At the end of each period for the exercise of such option, the Fiscal Agent shall as soon as practicable notify the Issuer of the principal amount of Notes together with their securities identification numbers in respect of which such option has been exercised. |
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| 10 | Fees and Expenses |
| 10.1 | The Issuer shall pay to the Fiscal Agent for its own account and for the account of the Paying Agent(s), as long as such Paying Agent(s) belong to the group of companies controlled by the Fiscal Agent, and, in case the Fiscal Agent acts as Calculation Agent, the Calculation Agent, such fees as may have been agreed between them and the Fiscal Agent in respect of the services of such Agents hereunder. The Issuer shall pay to any Calculation Agent such fees as may have been agreed between the Issuer and such Calculation Agent in respect of its services hereunder. |
| 10.2 | The Issuer shall reimburse each Agent for all expenses (including legal fees and any applicable value added tax) properly incurred in connection with its services hereunder. The expenses referred to in this Clause 10.2 shall include (but are not limited to) any costs or charges incurred by the relevant Paying Agent in carrying out instructions to clear and/or settle transfers of securities under this Agreement (including cash penalty charges that may be incurred under Article 7 of the Central Securities Depositaries Regulation (EU) No 909/2014 if a settlement fail occurs due to the Issuer’s failure to deliver any required securities or cash or other action or omission) which results in a settlement failure. |
| 10.3 | The Issuer shall pay all stamp, documentary, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) which may be payable upon or in connection with the execution and delivery of this Agreement and any letters of appointment under which any Agent is appointed as agent hereunder. The Issuer shall indemnify each Agent against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which it may incur or which may be made against it as a result or arising out of any failure to pay or delay in paying any of the amounts on account of any such documentary and other taxes and duties. |
| 11 | Terms of Appointment |
| 11.1 | Each of the Agents and (in the case of Clauses 11.1.2, 11.1.4, 11.1.5 and 11.1.6) each Calculation Agent may, in connection with its services hereunder: |
| 11.1.1 | except as ordered by a court of competent jurisdiction or as required by law, treat the bearer of any Note as the owner thereof and make payments thereon accordingly; |
| 11.1.2 | assume that the terms of each Note as issued are correct; |
| 11.1.3 | refer any question relating to the ownership of any Note or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Note to the Issuer for determination by such Issuer and rely upon any determination so made; |
| 11.1.4 | rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine. In the event that the Paying Agent receives conflicting, unclear or equivocal instructions, the Paying Agent shall be entitled to refrain from acting in accordance with such conflicting, unclear or equivocal instructions until those instructions have been clarified to its satisfaction and the Paying Agent shall not be or become liable in any way to any person for any failure to comply with any such conflicting, unclear or equivocal instructions. However, in case the Paying Agent receives conflicting, unclear or equivocal instructions, it will inform the instructing party as soon as practicable with regard thereto; |
| 11.1.5 | engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained. Such Agent shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith; and |
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| 11.1.6 | treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. |
| 11.2 | In acting hereunder and in connection with the Notes, the Agents shall act solely as agents of the Issuer and will thereby not assume any obligations towards or relationship of agency or trust for or with any of the Holders. |
| 11.3 | In acting hereunder and in connection with the Notes, the Agents shall not be liable for the legality, validity or enforceability of any Note. |
| 11.4 | Each Agent may purchase, hold and dispose of Notes and may enter into any transaction (including, among other transactions, any depositary, trust or agency transaction) with any Holder or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer. |
| 11.5 | The Issuer shall indemnify each Agent against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which such Agent may incur, otherwise than as a result of or arising out of the gross negligence or wilful default by such Agent. The indemnification shall continue after the expiry or termination of this Agreement. |
| 11.6 | The obligations of the Agents hereunder shall be several, and not joint. |
| 11.7 | The Issuer shall provide the Fiscal Agent with a list of persons authorised to execute documents and take action on its behalf in connection with this Agreement, such list to be signed by two duly authorised signatories of the Issuer. The Issuer shall notify the Fiscal Agent immediately if any of such persons ceases to be so authorised or if any additional person becomes so authorised by notice signed by two duly authorised signatories of Linde plc. |
| 11.8 | Notwithstanding anything else herein contained, each Agent may refrain without liability from doing anything that would or might in its reasonable opinion be contrary to any law of any state or jurisdiction (including but not limited to, the European Union, the United States of America or, in each case, any jurisdiction forming a part of it and England & Wales) or any directive or regulation of any agency of any such state or jurisdiction and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation. |
| 11.9 | Each Party shall, within ten business days of a written request by another Party, supply to that other Party such forms, documentation and other information relating to it, its operations, or the Notes as that other Party reasonably requests for the purposes of that other Party’s compliance with Applicable Law and shall notify the relevant other Party reasonably promptly in the event that it becomes aware that any of the forms, documentation or other information provided by such Party is (or becomes) inaccurate in any material respect; provided, however, that no Party shall be required to provide any forms, documentation or other information pursuant to this Clause 11.9 to the extent that: (i) any such form, documentation or other information (or the information required to be provided on such form or documentation) is not reasonably available to such Party and cannot be obtained by such Party using reasonable efforts; or (ii) doing so would or might in the reasonable opinion of such Party constitute a breach of any: (a) Applicable Law; (b) fiduciary duty; or (c) duty of |
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| confidentiality. For purposes of this Clause 11.9, “Applicable Law” shall be deemed to include (i) any rule or practice of any Authority by which any Party is bound or with which it is accustomed to comply; (ii) any agreement between any Authorities; and (iii) any agreement between any Authority and any Party that is customarily entered into by institutions of a similar nature |
| 12 | Warranties and Undertakings |
As at the date of this Agreement, the Issuer hereby warrants to the Fiscal Agent:
| 12.1 | that neither the U.S. Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State, the United Nation Security Council (“UNSC”), the European Union (the “EU”) nor His Majesty’s Treasury has imposed any sanctions against the Issuer or, to the best knowledge of the Issuer, against any of its subsidiaries, directors, or officers, or any of its 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 His Majesty’s Treasury, respectively. |
This representation is only made to the extent that it does not result in a violation of or conflict with Section 7 of the German Foreign Trade Ordinance (§ 7 Außenwirtschaftsverordnung - AWV), any provision of Council Regulation (EC) No 2271/96 (or any law or regulation imposing penalties in respect of such regulation in 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;
| 12.2 | that the Issuer 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. |
The aforementioned undertakings are 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;
| 12.3 | that Linde plc is a public limited company duly established under the laws of the Republic of Ireland with full power and authority to own its assets and to conduct its business as described in the Prospectus; |
| 12.4 | that the execution and delivery of this Agreement, have been duly authorised by the Issuer and this Agreement constitutes legal, valid and binding obligations of the Issuer enforceable in accordance with its terms subject to the laws of bankruptcy and other laws affecting the rights of creditors generally; |
| 12.5 | that the execution and delivery of this Agreement will not infringe any law or regulation of its jurisdiction of incorporation and are not contrary to the provisions of the constitutional documents of the Issuer and will not result in any violation of the terms of any instrument or agreement to which the Issuer is a party or by which the Issuer or its property is bound; and |
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| 12.6 | that all licences, consents, approvals, authorisations, orders and clearances of all regulatory Authorities required by the Issuer for or in connection with the execution and delivery of, and compliance with the terms of, this Agreement have been obtained and are in full force and effect. |
| 13 | Know-your Customer |
Upon the request of any Agent, the Issuer shall promptly supply or procure the supply of such documentation and other evidence as is reasonably required by the Agent to carry out and be satisfied to have complied with all necessary “know your customer” or similar checks under all applicable laws and regulations.
| 14 | Changes in Agents |
| 14.1 | The Fiscal Agent may (subject as provided in Clause 14.3 below) at any time resign as Fiscal Agent by giving at least 45 days’ written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective. |
| 14.2 | The Fiscal Agent may (subject as provided in Clause 14.3 below) be removed at any time by the Issuer on at least 45 days’ notice by the filing with it of an instrument in writing signed on behalf of the Issuer specifying such removal and the date when it shall become effective. |
| 14.3 | Any resignation under Clause 14.1 or removal under Clauses 14.2 or 14.4 shall only take effect upon the appointment by the Issuer as hereinafter provided, of a successor Fiscal Agent and (other than in cases of insolvency of the Fiscal Agent) on the expiry of the notice to be given under Clause 14. The Issuer agrees with the Fiscal Agent that if, by the day falling ten days before the expiry of any notice under Clause 14.1, the Issuer has not appointed a successor Fiscal Agent, then the Fiscal Agent shall be entitled, on behalf of the Issuer, to appoint as a successor Fiscal Agent in its place a reputable financial institution of good standing which the Issuer shall approve (such approval not to be unreasonably withheld or delayed). |
| 14.4 | In case at any time the Fiscal Agent resigns, or is removed, or becomes incapable of acting or is adjudged bankrupt or insolvent, or files a voluntary petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of an administrator, liquidator or administrative or other receiver of all or a substantial part of its property, or admits in writing its inability to pay or meet its debts as they mature or suspends payment thereof, or if any order of any court is entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or insolvency law a successor Fiscal Agent, which shall be a reputable financial institution of good standing may be appointed by the Issuer by an instrument in writing filed with the successor Fiscal Agent. Upon the appointment as aforesaid of a successor Fiscal Agent and acceptance by the latter of such appointment and (other than in case of insolvency of the Fiscal Agent when it shall be of immediate effect) upon expiry of the notice to be given under Clause 14, the Fiscal Agent so superseded shall cease to be the Fiscal Agent hereunder. |
| 14.5 | Subject to the applicable provisions of the Conditions, the Issuer may terminate the appointment of any Paying Agent or Calculation Agent at any time and/or appoint one or more further Paying Agent(s) or Calculation Agent by giving to the Fiscal Agent, and to the relevant Paying Agent at least 45 days’ notice in writing to that effect (other than in the case of insolvency of the Paying Agent or Calculation Agent). |
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| 14.6 | Subject to the applicable provisions of the Conditions, any Paying Agent or Calculation Agent may resign its appointment hereunder at any time by giving the Issuer and the Fiscal Agent at least 45 days’ written notice to that effect. |
| 14.7 | Upon its resignation or removal becoming effective, the Fiscal Agent: |
| 14.7.1 | shall as soon as reasonably practicable transfer all moneys held by it hereunder and, if applicable, the documents and records referred to in Clauses 7.7, 7.8 and 16 and all Notes surrendered and not yet destroyed to the successor Fiscal Agent hereunder; and |
| 14.7.2 | shall be entitled to the payment by the Issuer of its fees and expenses for the services therefore rendered hereunder in accordance with the terms of Clause 10. |
| 14.8 | Upon its appointment becoming effective, a successor Fiscal Agent or Calculation Agent and any new Paying Agent shall, without further act, become vested with all the rights, duties and obligations of its predecessor or, as the case may be, a Paying Agent with like effect as if originally named as Fiscal Agent or (as the case may be) a Paying Agent or Calculation Agent hereunder. |
| 14.9 | lf the Fiscal Agent or any Paying Agent or Calculation Agent determines to change its Specified Office it shall (after having, in any such case other than a change of Specified Office within the same country, obtained the prior written approval of the Issuer thereto) give to the Issuer and (if applicable) the Fiscal Agent written notice of such determination giving the address of the new Specified Office which shall be in the same country and stating the date on which such change is to take effect, which, unless a shorter notice period is agreed in writing by the Issuer, shall not be less than 45 days thereafter. Within 15 days of receipt of such notice (unless the appointment of the Fiscal Agent or the Paying Agent or the Calculation Agent, as the case may be, is terminated pursuant to the above Clauses on or prior to the date of such change), the Issuer shall give or cause to be given not more than 45 days’ nor less than 30 days’ notice thereof to the Holders in accordance with the Conditions, by requesting the Fiscal Agent to publish, or cause to be published, or delivered to the Holders, such notice pursuant to Clause 7.5. |
| 15 | Merger and Consolidation |
Any corporation into which the Fiscal Agent, Paying Agent or Calculation Agent may be merged or converted, or any corporation with which the Fiscal Agent, Paying Agent or Calculation Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Fiscal Agent, Paying Agent or Calculation Agent shall be a party, or any corporation to which the Fiscal Agent, Paying Agent or Calculation Agent shall sell or otherwise transfer all or substantially all the assets of the Fiscal Agent, Paying Agent or Calculation Agent shall, on the date when such merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any applicable laws, become the successor Fiscal Agent, Paying Agent or Calculation Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto, unless otherwise required by the Issuer and after the said effective date all references in this Agreement to the Fiscal Agent, Paying Agent or Calculation Agent shall be deemed to be references to such corporation. Written notice of any such merger, conversion, consolidation or transfer shall be given to the Issuer by the Fiscal Agent, Paying Agent or Calculation Agent concerned.
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| 16 | Notification of Changes in Agents |
Following receipt of notice of resignation from the Fiscal Agent, Paying Agent or Calculation Agent and forthwith upon appointing a successor Fiscal Agent, Paying Agent or Calculation Agent or on giving notice to terminate the appointment of any Fiscal Agent, Paying Agent or Calculation Agent, the Fiscal Agent shall give or cause to be given not more than 45 days’ nor less than 30 days’ notice thereof to the Holders in accordance with the Conditions. Such notice shall be on behalf and at the expense of the Issuer unless the resignation from or termination of the appointment is solely attributable to the party giving notice in which case such party shall bear the costs.
| 17 | Communication between the Parties |
A copy of all communications relating to the subject matter of this Agreement between the Issuer and the Holders on the one hand and any of the Paying Agent(s) (other than the Fiscal Agent or the Calculation Agent) on the other hand shall be sent by the Paying Agent or the Calculation Agent to the Fiscal Agent.
| 18 | Taxes and Stamp Duties |
The Issuer agrees to pay any and all stamp, registration or documentary taxes or duties which may be payable in connection with the execution, delivery, performance and enforcement of this Agreement.
| 19 | Notices and Communications |
| 19.1 | All notices and communications under this Agreement shall be by letter or email, posted or delivered by hand, or (but only where specifically provided in the Procedures Memorandum) by telephone. Each notice or communication shall be given as follows or in any other form of communication agreed between the parties: |
| 19.1.1 | if to the Issuer, at: |
| Linde plc |
| Ten Earlsfort Terrace |
| Dublin 2, D02 T380 |
| Republic | of Ireland |
| Telephone: +44 7799 342124 |
| Attention: Treasury |
| 19.1.2 | if to the Fiscal Agent, at: |
| Citibank, N.A., London Branch |
| Citigroup Centre |
| Canada Square, Canary Wharf |
| London, E14 5LB |
| United Kingdom |
| Telephone: +353 1 622 2242 |
| For ISIN requests: |
| Attention: Code Requests, Issuer Services |
| E-Mail: mtn_coderequests@citi.com |
19
| For Non-Syndicated Issuances: |
| Attention: MTN Issuance Desk, Issuer Services |
| E-Mail: mtnissuance@citi.com |
| For Syndicated Issuances: |
| Attention: Depositary Closings, Issuer Services |
| E-Mail: depoclosings@citi.com |
| 19.1.3 | if to the Paying Agent, at: |
| Citibank, N.A., London Branch |
| Citigroup Centre |
| Canada Square, Canary Wharf |
| London, E14 5LB |
| United Kingdom |
| Telephone: +353 1 622 4329 |
| Attention: PPA Payments, Issuer Services |
| E-Mail: ppapayments@citi.com |
| 19.1.4 | if to the Calculation Agent where the Fiscal Agent is the Calculation Agent, at: |
| Citibank, N.A., London Branch |
| Citigroup Centre |
| Canada Square, Canary Wharf |
| London, E14 5LB |
| United Kingdom |
| Telephone: +353 1 622 2222 |
| Attention: Calculation Agent, Issuer Services |
| E-Mail: ratefixing@citi.com |
(or in the case of a Fiscal Agent not originally a party hereto, specified by notice to the other parties hereto at or about the time of its appointment as the agent of the Issuer)
| 19.1.5 | if to the Calculation Agent where the Fiscal Agent is not the Calculation Agent to it at the address, email or telephone number, specified by notice to the other parties hereto at or about the time of its appointment as agent of the Issuer. |
| 19.1.6 | or, in any case, to such other address, email or telephone number or for the attention of such other person or department as the addressee has by prior notice to the sender specified for the purpose. |
| 19.2 | Every notice or communication sent in accordance with Clause 19.1 shall be effective as follows: |
| 19.2.1 | Letter or email: if sent by letter or email, upon receipt (Zugang) by the addressee; |
| 19.2.2 | Telephone: if made on the telephone, upon being made. |
| 19.2.3 | In the case of Clause 19.2.1 or 19.2.2 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. |
20
| 20 | Governing Law, Place of Jurisdiction |
| 20.1 | This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, German law. |
| 20.2 | Any action or other legal proceedings (“Proceedings”) arising out of or in connection with this Agreement shall be brought in the District Court (Landgericht) in Frankfurt am Main, Federal Republic of Germany. |
| 20.3 | Nothing contained herein shall limit the right of any party hereto to take Proceedings against any other party hereto in any other court of the Federal Republic of Germany. |
| 21 | 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.
| 22 | Amendment |
This Agreement may be amended by agreement in writing among the parties hereto without the consent of the Holders.
| 23 | Entire Agreement |
| 23.1 | This Agreement contains the whole agreement between the parties relating to the subject matter of this Agreement at the date of this Agreement to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in this Agreement. |
| 23.2 | Each party acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly incorporated into it. |
| 23.3 | So far as is permitted by law and except in the case of fraud, each party agrees and acknowledges that its only right and remedy in relation to any representation, warranty or undertaking made or given in connection with this Agreement shall be for breach of the terms of this Agreement to the exclusion of all other rights and remedies (including those in tort or arising under statute). |
| 23.4 | In Clauses 23.1 to 23.3, “this Agreement” includes any fee letters and all documents entered into pursuant to this Agreement. |
| 24 | Counterparts |
This Agreement may be signed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.
21
Schedule 1
Form of Temporary and Permanent Global Note
Part I: German language form of Global Note
| Serien Nr. [•] | ||
| Common Code Nr. [•] | WKN [•] | |
| ISIN Nr. [•] | [Sonstige Wertpapier-Kenn-Nr. [•]] | |
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES OF AMERICA) WHO HOLDS THIS OBLIGATION, DIRECTLY OR INDIRECTLY, 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 OF THE UNITED STATES OF AMERICA.
LINDE PLC
Dublin, Republik Irland
[Vorläufige] [Dauer-] Globalurkunde
über
[bis zu]1 [Währung und Gesamtnennbetrag der Emission]
SCHULDVERSCHREIBUNGEN
fällig [Fälligkeitsjahr]
Diese [Vorläufige] [Dauer-] Globalurkunde verbrieft eine ordnungsgemäß genehmigte Emission von [bis zu]2 [Währung und Gesamtnennbetrag der Emission] Schuldverschreibungen, fällig [Fälligkeitsjahr] (die “Schuldverschreibungen”) der Linde plc (die “Emittentin”). Bezugnahmen in dieser Urkunde auf die “Bedingungen” verstehen sich auf [Falls Teil I der Endgültigen Bedingungen nur auf die betreffenden Angaben der Option I oder der Option II verweist: den Satz der Anleihebedingungen für [Nullkupon-] Schuldverschreibungen [mit [fester] [variabler] Verzinsung] in der durch die endgültigen Bedingungen für die Schuldverschreibungen (die “Endgültigen Bedingungen”) festgelegten und vervollständigten Form. Die Bedingungen und Endgültigen Bedingungen sind dieser Urkunde beigefügt] [Falls Teil I der Endgültigen Bedingungen die betreffenden Angaben der Option I oder der Option II wiederholt und die betreffenden Leerstellen in Option I oder Option II, je nachdem vervollständigt: die Bedingungen, die dieser Urkunde beigefügt sind]. Die Bedingungen sind Teil dieser [Vorläufigen] [Dauer-] Globalurkunde. Die in den Bedingungen definierten Begriffe haben, soweit hierin verwendet, in dieser Urkunde die gleiche Bedeutung.
Die Emittentin verpflichtet sich, dem Inhaber dieser Urkunde die auf die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieften Schuldverschreibungen zahlbaren Beträge gemäß den Bedingungen zu zahlen.
| 1 | Einzufügen im Falle von TEFRA D und falls die Globalurkunde bei CBF eingeliefert wird. |
22
[Bei jeder Zahlung von Zinsen auf Schuldverschreibungen, die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieft werden, wird die Emittentin dafür Sorge tragen, dass die jeweilige Zahlung in der betreffenden Spalte in Teil I des Anhangs A zu dieser Urkunde vermerkt wird.
Bei jeder Rückzahlung oder jedem Kauf und jeder Entwertung von Schuldverschreibungen, die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieft werden, werden die Einzelheiten der Rückzahlung oder des Kaufs und der Entwertung von der oder für die Emittentin in Anhang A zu dieser Urkunde vermerkt. Der entsprechende Vermerk im Anhang A zu dieser Urkunde, in dem die Rückzahlung oder der Kauf und die Entwertung vermerkt werden, ist von der oder für die Emittentin zu unterzeichnen. Nach der Rückzahlung oder dem Kauf und der Entwertung ist der Gesamtnennbetrag dieser [Vorläufigen] [Dauer-] Globalurkunde um den Gesamtnennbetrag der zurückgezahlten oder gekauften und entwerteten Schuldverschreibungen zu reduzieren. Der Gesamtnennbetrag dieser [Vorläufigen] [Dauer-] Globalurkunde nach der Rückzahlung oder dem Kauf und der Entwertung ist dann der jeweils letzte in der betreffenden Spalte in Teil II oder III des Anhangs A zu dieser Urkunde vermerkte Gesamtnennbetrag.]2
[Falls diese Globalurkunde eine NGN ist einfügen: Bei jeder Zahlung von Zinsen auf Schuldverschreibungen, die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieft werden, werden die Einzelheiten der jeweiligen Zahlung von der oder für die Emittentin in den Registern der ICSDs vermerkt. Bei jeder Rückzahlung oder jedem Kauf durch oder für die Emittentin und jeder Entwertung von Schuldverschreibungen, die durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieft werden, werden die Einzelheiten der Rückzahlung oder des Kaufs und der Entwertung von der oder für die Emittentin in den Registern der ICSDs vermerkt. Der Gesamtnennbetrag der durch diese [Vorläufige] [Dauer-] Globalurkunde verbrieften Schuldverschreibungen entspricht dem jeweils in den Registern beider ICSDs eingetragenen Gesamtnennbetrag. Die Register der ICSDs (unter denen man die Register versteht, die jeder ICSD für die Inhaber von Schuldverschreibungen über den Betrag ihres Anteils an den Schuldverschreibungen führt) sind schlüssiger Nachweis über den Gesamtnennbetrag der durch die [Vorläufige] [Dauer-] Globalurkunde verbrieften Schuldverschreibungen, und eine zu diesen Zwecken von einem ICSD jeweils ausgestellte Bestätigung mit dem Nennbetrag der so verbrieften Schuldverschreibungen ist in jedem Zeitpunkt ein schlüssiger Nachweis über den Inhalt des Registers des jeweiligen ICSD.]
[Diese Vorläufige Globalurkunde wird gemäß § 1 der Bedingungen gegen eine Dauer-Globalurkunde ausgetauscht. Bei vollständigem Austausch ist diese Vorläufige Globalurkunde der Emissionsstelle auszuhändigen.]
Diese [Vorläufige] [Dauer-] Globalurkunde unterliegt deutschem Recht.
Diese [Vorläufige] [Dauer-] Globalurkunde ist nur gültig, wenn sie die Unterschriften einer von der Emittentin für diesen Zweck ordnungsgemäß bevollmächtigten Person sowie die Kontrollunterschrift der Emissionsstelle oder ihres Beauftragten trägt.
[Falls diese Globalurkunde eine NGN ist, einfügen: Zu ihrer Gültigkeit bedarf diese [Vorläufige] [Dauer-] Globalurkunde der Bestätigung der Wirksamkeit durch den von den ICSDs bestellten Common Safekeeper.]
| 2 | Diese beiden Absätze und Anhang A entfallen, wenn die Globalurkunde eine NGN ist und im Falle einer Emission von Schuldverschreibungen, auf die die D Rules Anwendung finden, wird Anhang B in diesem Fall zu Anhang A. |
23
Woking, im [Datum]
LINDE PLC
|
|
| Zeichnungsberechtigter |
Kontrollunterschrift ohne Obligo, Gewährleistung oder Rückgriff.
|
|
| Zeichnungsberechtigter |
[Kontrollunterschrift
als Common Safekeeper ohne Obligo, Gewährleistung oder Rückgriff.
|
|
| Zeichnungsberechtigter]3 |
[Falls Teil I der Endgültigen Bedingungen nur auf die betreffenden Angaben der Option I oder der Option II verweist:
Der Satz der Bedingungen für [Nullkupon-] [unverzinsliche] Schuldverschreibungen [mit [fester] [variabler] Verzinsung] und die endgültigen Bedingungen sind als Anlage beizufügen.]
[Falls Teil I der Endgültigen Bedingungen die betreffenden Angaben der Option I oder der Option II wiederholt und die betreffenden Leerstellen der Option I oder der Option II, je nachdem, vervollständigt:
Die Bedingungen sind als Anlage beizufügen.]
| 3 | Einzufügen, wenn die Globalurkunde eine NGN ist. |
24
Anhang A4
Teil I
Zinszahlungen
| Zinszahlungstag |
Tag des Eingangs |
Gesamtbetrag |
Betrag der |
Bestätigung der |
Erster
Zweiter
[Nummerierung fortsetzen bis die entsprechende Zahl von Zinszahlungstagen der jeweiligen Tranche der Schuldverschreibungen erreicht ist.]
| 4 | Anhang A ist nur auszufüllen, wenn die Final Terms bestimmen, dass die Globalurkunde keine NGN sein soll. |
25
Anhang A
Teil II
Tilgungen
| Tilgungstag |
Gesamtbetrag Kapitalbetrages |
Gezahlter |
Verbleibender |
Bestätigung der |
26
Anhang A
Teil III
Kauf und Entwertung
| Tag des Kaufs und der |
Betrag des Kaufs und |
Verbleibender |
Bestätigung des |
27
[Der Vorläufigen Globalurkunde wird das folgende Muster beigefügt]
Anhang [A][B]
Erfassung der vorgenommenen Austausche5
| Datum |
Nennbetrag, der gegen Dauerglobalurkunde(en) ausgetauscht wurde |
Verbleibender |
Vermerk namens der |
| 5 | Dieser Teil von Anhang [A][B] ist nur auszufüllen, wenn die Final Terms bestimmen, dass die Vorläufige Globalurkunde keine NGN sein soll. |
28
[Die folgenden Muster der Bestätigung oder andere üblicherweise verwendete Muster werden der Vorläufigen Globalurkunde beigefügt.]
Anlage I
[Form of certificate to be given in relation to exchanges of this Temporary Global Note for the Permanent Global Note:]
LINDE PLC
[Aggregate principal amount and title of Notes]
(the “Securities”)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our “Member Organisations”) substantially to the effect set forth in the Fiscal Agency Agreement, as of the date hereof, [•] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States Persons”), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms “acquired through” and “holding through” are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer’s agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the States and the District of Columbia) and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global security except as set forth herein and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as at the date hereof.
29
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
Date: [•]*
[Clearstream Banking AG / Euroclear Bank SA/NV / Clearstream Banking S.A. / other Clearing System]
|
|
[authorised signature]
| * | To be dated not earlier than the Exchange Date. |
30
Anlage II
[Form of certificate to be given in relation to payments of interest falling due before the Exchange Date:]
LINDE PLC
[Aggregate principal amount and title of Notes]
(the “Securities”)
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our “Member Organisations”) substantially to the effect set forth in the Fiscal Agency Agreement, as of the date hereof, [•] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States Persons”), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms “acquired through” and “holding through” are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer’s agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the States and the District of Columbia) and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as at the date hereof.
31
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
Date: [•]*
[Clearstream Banking AG / Euroclear Bank SA/NV / Clearstream Banking S.A. / other Clearing System]
|
|
[authorised signature]
| * | To be dated not earlier than the relevant interest payment date. |
32
Anlage III
[Form of account holders certification referred to in the preceding certificates:]
LINDE PLC
[Aggregate principal amount and title of Notes]
(the “Securities”)
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to the United States Federal income taxation regardless of its source (“United States Persons”), (ii) are owned by United States person(s) that (a) are foreign branches of a United States financial institution (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) (“financial institutions”) purchasing for their own account or for resale, or (b) acquired the Securities through and are holding through on the date hereof (as such terms “acquired through” and “holding through” are described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Issuer or the Issuer’s agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)) this is further to certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States Person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the States and the District of Columbia) and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to [•] of such interest in the above Securities with respect to which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant to, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
33
Date: [•]*
[Account Holder] as or as agent for the beneficial owner of the Notes.
[authorised signature]
| * | To be dated not earlier than fifteen days before the Exchange Date or, as the case may be, the relevant interest payment date. |
34
[if German Language is the binding language, insert: Non-binding reading translation – DO NOT EXECUTE]
Part II: English language form of Global Note
Series No. [•]
| Common Code No. [•] |
WKN [•] | |
| ISIN No. [•] |
[Other Security Identification No. [•]] | |
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES OF AMERICA) WHO HOLDS THIS OBLIGATION, DIRECTLY OR INDIRECTLY, WILL BE SUBJECT TO THE LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING LIMITATIONS PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE OF THE UNITED STATES OF AMERICA.
LINDE PLC
with statutory seat in Dublin, Republic of Ireland
[Temporary] [Permanent] Global Note
representing
[up to]6 [Currency and Aggregate Principal Amount of Issue]
NOTES
due [Year of Maturity]
This certificate constitutes a [Temporary] [Permanent] Global Note in respect of a duly authorised issue of [up to]9 [Currency and Aggregate Principal Amount of Issue] Notes due [Year of Maturity] (the “Notes”) of Linde plc (the “Issuer”). References herein to the “Conditions” shall be to the [in the case Part I of the Final Terms only refers to the relevant provisions of Option I or Option II: set of terms and conditions for [zero coupon] Notes [with [fixed] [floating] interest rates] as determined and completed by the final terms relating to the Notes (the “Final Terms”), both as annexed hereto] [in the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant: Conditions as annexed hereto]. The Conditions form part of this [Temporary] [Permanent] Global Note. Expressions defined in the Conditions shall bear the same meanings when used in this [Temporary] [Permanent] Global Note.
The Issuer agrees to pay to the bearer hereof the amounts payable with respect to the Notes represented by this [Temporary] [Permanent] Global Note in accordance with the Conditions.
| 6 | To be inserted in the case of TEFRA D and if the Global Note will be deposited with CBF. |
35
[On any occasion on which a payment of interest is made in respect of the Notes represented by this [Temporary] [Permanent] Global Note, the Issuer shall procure that the same is noted in the relevant column in Part I of Annex A hereto.
On any redemption with respect to, or purchase and cancellation of, any of the Notes represented by this [Temporary] [Permanent] Global Note details of such redemption or purchase and cancellation (as the case may be) shall be entered by or on behalf of the Issuer in Annex A hereto and the relevant space in Annex A hereto recording any such redemption or purchase and cancellation (as the case may be) shall be signed by or on behalf of the Issuer. Upon any such redemption or purchase and cancellation, the aggregate principal amount of this [Temporary] [Permanent] Global Note shall be reduced by the total principal amount of Notes so redeemed or purchased and cancelled. The nominal amount of this [Temporary] [Permanent] Global Note following any such redemption or purchase and cancellation as aforesaid shall be the aggregate principal amount most recently entered in the relevant column in Part II or III of Annex A hereto.]7
[In case this Global Note is an NGN insert: On any occasion on which a payment of interest is made in respect of the Notes represented by this [Temporary] [Permanent] Global Note, details of such payment shall be entered by or on behalf of the Issuer in the records of the ICSDs. On any redemption in respect of, or purchase by or on behalf of the Issuer and cancellation of, any of the Notes represented by this [Temporary] [Permanent] Global Note details of such redemption or purchase and cancellation (as the case may be), shall be entered by or on behalf of the Issuer in the records of the ICSDs. The aggregate principal amount of Notes represented by the [Temporary] [Permanent] Global Note shall be the aggregate principal amount from time to time entered in the records of both ICSDs. The records of the ICSDs (which expression means the records that each ICSD holds for its customers which reflect the amount of such customer’s interest in the Notes) shall be conclusive evidence of the nominal amount of Notes represented by the [Temporary] [Permanent] Global Note and, for these purposes, a statement issued by a ICSD stating the nominal amount of Notes so represented at any time shall be conclusive evidence of the records of the relevant ICSD at that time.]
[This Temporary Global Note shall be exchanged into a Permanent Global Note in accordance with § 1 of the Conditions. On an entire exchange of this Temporary Global Note, this Temporary Global Note shall be surrendered to the Fiscal Agent.]
This [Temporary] [Permanent] Global Note is governed by, and shall be construed in accordance with, German law.
This [Temporary] [Permanent] Global Note shall not be valid unless it bears the signature of an duly authorised representative of the Issuer as well as the control signature by or on behalf of the Fiscal Agent.
[In case this Global Note is an NGN, insert: This [Temporary] [Permanent] Global Note shall require to be effectuated by the entity appointed as common safekeeper by the ICSDs in order to be valid.]
| 7 | These two paragraphs as well as Annex A are to be deleted in case that the Global Note is an NGN and in the case of D Rules Global Notes Annex B is to be designated in such case Annex A. |
36
Woking, in [Date]
LINDE PLC
| Authorised signatory |
Control signature without recourse, warranty or liability.
| Authorised signatory |
[Control signature
as common safekeeper without recourse, warranty or liability.
| Authorised signatory] |
[In the case Part I of Final Terms only refers to the relevant provisions of Option I or Option II:
The Conditions for [zero coupon] [non-interest-bearing] Notes [with [fixed] [floating] interest rates] and the Final Terms are to be added by attachment hereafter.]
[In the case Part I of the Final Terms replicates the relevant provisions of Option I or Option II and completes the relevant placeholders in Option I or Option II, as relevant:
The Conditions are to be attached hereafter.]
37
Annex A8
Part I
Interest Payments
| Interest Payment Date |
Date of Payment |
Total Amount of Interest Payable |
Amount of Interest Paid |
Confirmation of payment by or on behalf of the Issuer |
First
Second
[Continue numbering until the appropriate number of interest payment dates for the particular Tranche of Notes is reached.]
| 8 | Annex A is only to be completed if the Final Terms indicate that this Temporary Global Note is not intended to be an NGN. |
38
Annex I
Part II
Redemptions
| Date of redemption |
Total amount of principal payable |
Amount of principal paid |
Remaining |
Confirmation of redemption by or on behalf of the Issuer |
39
Annex A
Part III
Purchases and Cancellations
| Date of purchase and cancellation |
Part of aggregate principal amount of this Global Note purchased and cancelled |
Remaining aggregate principal amount of this Global Note following such purchase and cancellation |
Confirmation of purchase and cancellation by or on behalf of the Issuer |
40
[The following form will be attached to the Temporary Global Note]
Annex [A][B]
Exchanges9
| Date |
Principal amount exchanged for Permanent Global Note(s) |
Remaining aggregate principal amount following such exchange |
Notation made on behalf of the Issuer |
| 9 | Annex [A][B] is only to be completed if the Final Terms indicate that this Temporary Global Note is not intended to be an NGN. |
41
[The following forms of certification (or such other form as shall customarily be used) will be attached to the Temporary Global Note.]
EXHIBIT I
[insert certificate to be given in relation to exchanges of this Temporary Global Note for the Permanent Global Note – See Exhibit I (Anlage I) to German language form of Global Note]
EXHIBIT II
[insert certificate to be given in relation to payments of interest falling due before the Exchange Date – See Exhibit II (Anlage II) to German language form of Global Note]
EXHIBIT III
[insert account holder’s certification referred to in the preceding certificates – See Exhibit III (Anlage III) to German language form of Global Note]
TERMS AND CONDITIONS OF THE NOTES
[Insert Terms and Conditions of the Notes.]
42
Schedule 2
Calculation Agent Appointment Letter
[On letterhead of Linde plc]
[Date]
[Name of Calculation Agent]
[Address]
[insert title of relevant Series of Notes]
Series No.: [•] / ISIN: [•] / Common Code [•] / WKN [•]
issued pursuant to the
EUR 20,000,000,000 Debt Issuance Programme
of Linde plc
dated 8 May 2025
Dear Sir or Madam,
We refer to the Agency Agreement dated 8 May 2025 entered into with respect to the above Debt Issuance Programme (such agreement, as modified or amended from time to time, the “Agency Agreement”) between Linde plc and Citibank, N.A., London Branch, as fiscal agent [and certain other financial institutions named therein], a copy of which has been supplied to you by us.
Expressions defined in the Agency Agreement shall have the same meanings when used herein.
[If a third party is appointed for one Series of Notes only, insert: We hereby appoint you as Calculation Agent at your Specified Office detailed in the Confirmation as our agent in relation to [specify relevant Series of Notes] (the “Notes”) upon the terms of the Agency Agreement for the purposes specified in the Agency Agreement and in the Conditions and all matters incidental thereto.]
[If a third party is appointed for more than one Series of Notes, insert: We hereby appoint you as Calculation Agent at your Specified Office detailed in the Confirmation set out below as our agent in relation to each Series of Notes with respect to which you are named as Calculation Agent in the relevant Final Terms upon the terms of the Agency Agreement and (in relation to each such Series of Notes) in the Conditions and all matters incidental thereto.]
We hereby agree that, notwithstanding the provisions of the Agency Agreement or the Conditions, your appointment as Calculation Agent may only be revoked in accordance with the terms and conditions thereof, if you have been negligent in the exercise of your obligations thereunder or have failed to exercise or perform your obligations thereunder.
Please complete and return to us the Confirmation on the copy of this letter duly signed by an authorised signatory confirming your acceptance of this appointment.
43
This letter is governed by, and construed in accordance with, German law and the provisions of Clause 21 and 22 of the Agency Agreement shall apply to this letter as if set out herein in full.
Yours faithfully
Linde plc
44
CONFIRMATION
[If a third party is appointed for one Series of Notes only, insert: We hereby accept our appointment as Calculation Agent of the Issuer in relation to the Notes, and shall perform all matters expressed to be performed by the Calculation Agent in, and shall otherwise comply with, the Terms and Conditions and the provisions of the Agency Agreement and, in connection therewith, shall take all such action as may be incidental thereto.]
[If a third party is appointed for more than one series of Notes, insert: We hereby accept our appointment as Calculation Agent of the Issuer in relation to each Series of Notes with respect to which we are named as Calculation Agent in the relevant Final Terms, and shall perform all matters expressed to be performed by the Calculation Agent in, and shall otherwise comply with (in relation to each such Series of Notes) the Terms and Conditions and the provisions of the Agency Agreement and, in connection therewith, shall take all such action as may be incidental thereto.]
Services under this Calculation Agent Appointment Letter shall be rendered free of charge.
For the purposes of the Notes and the Agency Agreement our Specified Office and communication details are as follows:
| Address: | [•] | |
| Email: | [•] | |
| Attention: | [•] | |
[Calculation Agent]
| By: | By: |
Date: [•]
45
Schedule 3
Specific duties of the Fiscal Agent in the case of NGNs
In relation to each Series of Notes that are NGNs, the Fiscal Agent will comply with the following provisions:
| 1. | The Fiscal Agent will inform each of Euroclear and CBL (the “ICSDs”), through the common service provider appointed by the ICSDs to service the Notes (the “CSP”), of the initial issue outstanding amount (“IOA”) for each Tranche on or prior to the relevant Issue Date. |
| 2. | If any event occurs that requires a mark up or mark down of the records which an ICSD holds for its customers to reflect such customers’ interest in the Notes, the Fiscal Agent will (to the extent known to it) as soon as practicable provide details of the amount of such mark up or mark down, together with a description of the event that requires it, to the ICSDs (through the CSP) to ensure that the IOA of the Notes remains at all times accurate. |
| 3. | The Fiscal Agent will regularly reconcile its record of the IOA of the Notes with information received from the ICSDs (through the CSP) with respect to the IOA maintained by the ICSDs for the Notes and will as soon as practicable inform the ICSDs (through the CSP) of any discrepancies. |
| 4. | The Fiscal Agent will as soon as practicable assist the ICSDs (through the CSP) in resolving any discrepancy identified in the IOA of the Notes. |
| 5. | The Fiscal Agent will as soon as practicable provide to the ICSDs (through the CSP) details of all amounts paid by it under the Notes (or, where the Notes provide for delivery of assets other than cash, of the assets so delivered). |
| 6. | The Fiscal Agent will (to the extent known to it) as soon as practicable provide to the ICSDs (through the CSP) notice of any changes to the Notes that will affect the amount of, or date for, any payment due under the Notes. |
| 7. | The Fiscal Agent will (to the extent known to it) as soon as practicable provide to the ICSDs (through the CSP) copies of all information that is given to the holders of the Notes. |
| 8. | The Fiscal Agent will as soon as practicable pass on to the Issuer all communications it receives from the ICSDs directly or through the CSP relating to the Notes. |
| 9. | The Fiscal Agent will (to the extent known to it) as soon as practicable notify the ICSDs (through the CSP) of any failure by the Issuer to make any payment or delivery due under the Notes when due. |
46
Schedule 4
The Specified Offices of the Fiscal Agent and Paying Agent
FISCAL AGENT
Citibank, N.A., London Branch
Citigroup Centre
Canada Square, Canary Wharf
London, E14 5LB
United Kingdom
PAYING AGENT
Citibank, N.A., London Branch
Citigroup Centre
Canada Square, Canary Wharf
London, E14 5LB
United Kingdom
47
Schedule 5
Part I: English Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder
| To: | Citibank, N.A., London Branch (the “Fiscal Agent”) |
Citigroup Centre
Canada Square, Canary Wharf
London, E14 5LB
United Kingdom
| Email: | [•] |
| Attn: | [•] |
| To: | Linde plc (the “Issuer”) |
Ten Earlsfort Terrace
Dublin 2, D02 T380
Republic of Ireland
| Email: | [•] |
| Attn: | [•] |
[insert title of relevant Series of Notes]
Series No.: [•] / ISIN: [•] / Common Code [•] / WKN [•]
issued pursuant to the
EUR 20,000,000,000 Debt Issuance Programme
of Linde plc
dated 8 May 2025
By sending the duly completed Notice via the depositary bank and/or the Clearing System to the specified office of the Fiscal Agent for the above mentioned Series of Notes (the “Notes”) the undersigned holder of such Note(s) irrevocably exercises its option to have such Note(s) redeemed on [insert Put Redemption Date].
This Notice relates to Note(s) in the total principal amount of [insert currency and total principal amount].
48
Payment Instructions
Please make payment in respect of the above-mentioned Note(s) by transfer to the following bank account:
Bank:
Branch Address:
Branch Code (e.g. BLZ, BIC):
Account Number:
IBAN:
Contact details of Holder (optional/mandatory in the case of Notes deposited with Clearstream Banking AG, Frankfurt):
................................
................................
................................
................................
................................
Signature of holder: ................................
Duly authorised on behalf of [ ]
The Holder is also requested to instruct his depositary bank to send an appropriate instruction to the relevant Clearing System via SWIFT (or other such method of communication acceptable to the relevant Clearing System) confirming the exercise of its option to redeem the Note(s) or, as the case may be, by which the Notes are delivered to the Fiscal Agent.
[To be completed by recipient Fiscal Agent:]
Note:
The Fiscal Agent is entitled to treat a Put Notice as not valid unless all of the paragraphs requiring completion are duly completed. Once validly given the Put Notice is irrevocable.
49
Schedule 5
Part II: German Language Form of a Put Exercise Notice in case of an early redemption at the option of a holder
| An: | Citibank, N.A., London Branch (die “Emissionsstelle”) | |
| Citigroup Centre Canada Square, Canary Wharf London, E14 5LB United Kingdom | ||
| Email: | [•] | |
| Zu Händen: | [•] | |
| An: | Linde plc (die “Emittentin”) | |
| Ten Earlsfort Terrace Dublin 2, D02 T380 Republic of Ireland | ||
| Email: | [•] | |
| Zu Händen: | [•] | |
[Bezeichnung der jeweiligen Serie der Schuldverschreibungen einfügen]
Serie Nr.: [•]
ISIN: [•] / Common Code [•] / WKN [•]
begeben gemäß
EUR 20,000,000,000 Debt Issuance Programme
der Linde plc
vom 8. Mai 2025
Durch die Übermittlung der ordentlich ausgefüllten Kündigungserklärung über die Depotbank und/oder das Clearingsystem an die bezeichnete Geschäftsstelle der Emissionsstelle für die oben bezeichnete Serie von Schuldverschreibungen (die “Schuldverschreibungen”) übt der unterzeichnende Gläubiger dieser Schuldverschreibungen unwiderruflich sein Wahlrecht zur Kündigung und Rückzahlung dieser Schuldverschreibungen am [Wahl-Rückzahlungstag angeben] aus.
Diese Kündigungserklärung bezieht sich auf Schuldverschreibungen im gesamten Nennbetrag von [Währung und gesamten Nennbetrag einfügen].
50
Zahlungsinstruktionen
Bitte zahlen Sie in Bezug auf die oben bezeichneten Schuldverschreibungen per Überweisung auf das nachstehende Bankkonto:
Bank:
Adresse der Geschäftsstelle:
Code der Geschäftsstelle (z.B. BLZ, BIC):
Kontonummer:
IBAN:
Kontaktdaten des Gläubigers (optional/zwingend im Fall von Schuldverschreibungen, deren Globalurkunde von Clearstream Banking AG, Frankfurt verwahrt wird):
| ................................
................................
................................
................................
................................
| ||
| Unterschrift des Gläubigers: | ................................ | |
Bevollmächtigt im Namen von [ ]
Der Gläubiger ist gebeten, seine Depotbank zu beauftragen, eine entsprechende Instruktion an das jeweilige Clearing System per SWIFT (oder eine andere, für das jeweilige Clearing System akzeptable Kommunikationsmethode) zu senden, durch die die Ausübung des Wahlrechts des Gläubiger auf Kündigung und Rückzahlung der Schuldverschreibungen bestätigt wird, oder, je nachdem, durch die die Schuldverschreibungen an die Emissionsstelle geliefert werden.
[von der Emissionsstelle zu vervollständigen:]
Hinweis:
Die Emissionsstelle ist berechtigt, eine Kündigungserklärung als unwirksam zu behandeln, wenn nicht alle erforderlichen Absätze vollständig ausgefüllt wurden. Eine wirksam abgegebene Kündigungserklärung ist unwiderruflich.
51
Signature Page
to the Fiscal Agency Agreement
This Agreement has been entered into on the date stated at the beginning.
LINDE PLC
| By |
/s/ CJ Cossins | |
| Name: CJ Cossins | ||
| Title: UK Permanent Representative |
CITIBANK, N.A., LONDON BRANCH
as Fiscal Agent and Paying Agent
| By |
/s/ Stuart Sullivan | |
| Name: Stuart Sullivan | ||
| Title: Vice President |
S-1
Exhibit 4.3
Execution Copy
Dated 3 June 2025
LINDE PLC
as Issuer
and
UBS AG
as Swiss Paying Agent
Swiss Agency Agreement
relating to the
CHF 225,000,000 0.6150 per cent. Notes due 2029
(ISIN CH1449583736)
and
CHF 275,000,000 1.0629 per cent. Notes due 2033
(ISIN CH1449583744)
issued under the
EUR 20,000,000,000 Debt Issuance Programme
of Linde plc
Ref:
Linklaters LLP
Table of Contents
| Contents |
Page | |||||
| 1 | Definitions and Interpretation | 3 | ||||
| 2 | Object | 3 | ||||
| 3 | Issuance of Notes | 4 | ||||
| 4 | Payments | 4 | ||||
| 5 | Notices | 5 | ||||
| 6 | Applicable Law and Jurisdiction | 6 | ||||
| 7 | Liability and Indemnity | 6 | ||||
| 8 | Changes in Agents | 7 | ||||
| 9 | Duration | 7 | ||||
| Annex – Form of global note |
A-1 | |||||
i
This Swiss Agency Agreement (the “Agency Agreement”), dated 3 June 2025 is made among:
| (1) | LINDE PLC, Ten Earlsfort Terrace, Dublin 2, D02 T380, Republic of Ireland (the “Issuer”); and |
| (2) | UBS AG, Bahnhofstrasse 45, 8001 Zurich, Switzerland (“UBS” or the initial “Swiss Paying Agent”). |
Whereas
| (A) | The Issuer has agreed to issue (i) CHF 225,000,000 (in words: Swiss francs two hundred twenty-five million) 0.6150 per cent. Notes due 2029 (the “2029 Notes” which term shall include any further notes to be issued from time to time and to be consolidated and form a single Series with the 2029 Notes) and (ii) CHF 275,000,000 (in words: Swiss francs two hundred seventy-five million) 1.0629 per cent. Notes due 2033 (the “2033 Notes” which term shall include any further notes to be issued from time to time and to be consolidated and form a single Series with the 2033 Notes, and together with the 2029 Notes, the “Notes” and each a “Series”). |
| (B) | The Notes will be issued pursuant to a subscription agreement dated 3 June 2025 and a dealer agreement dated 8 May 2025, and will be subject to the respective terms and conditions of the Notes (the “Terms and Conditions”) to be annexed to the respective permanent global note in the form as set out in the Annex to this Agency Agreement (each a “Swiss Permanent Global Note” and together, the “Swiss Permanent Global Notes”). |
| (C) | Each Series of Notes and all rights in connection therewith are documented in the form of a Swiss Permanent Global Note which shall be deposited by the Swiss Paying Agent with SIX SIS Ltd or any other intermediary in Switzerland recognised for such purposes by SIX Swiss Exchange Ltd (SIX SIS Ltd or any such other intermediary, the “Intermediary”). Once the Swiss Permanent Global Note is deposited with the Intermediary and entered into the accounts of one or more participants of the Intermediary, the Notes will constitute intermediated securities (Bucheffekten) (“Intermediated Securities”) in accordance with the provisions of the Swiss Federal Intermediated Securities Act (Bucheffektengesetz). |
| (D) | Neither the Issuer nor the holders of such Notes (each a “Holder” and together, the “Holders”) shall at any time have the right to effect or demand the conversion of a Swiss Permanent Global Note (Schweizer Dauerglobalurkunde) into, or the delivery of, uncertificated securities (Wertrechte) or definitive notes (Einzelurkunden). |
No physical delivery of the Notes shall be made unless and until definitive notes (Einzelurkunden) are printed. Notes may only be printed, in whole, but not in part, if the Swiss Paying Agent determines, in its sole discretion, that the printing of the definitive notes (Einzelurkunden) is necessary or useful. Should the Swiss Paying Agent so determine, it shall provide for the printing of definitive notes (Einzelurkunden) without cost to the Holders. Upon delivery of the definitive notes (Einzelurkunden), the respective Swiss Permanent Global Note will immediately be cancelled by or on behalf of the Swiss Paying Agent and the definitive notes (Einzelurkunden) shall be delivered to the Holders against cancellation of the Notes in the Holders’ securities accounts.
| (E) | Upon and subject to the terms of this Agency Agreement, the Servicing of the Notes (as defined hereafter) shall be centralised with the Swiss Paying Agent. The Swiss Paying Agent will perform its services from Switzerland. |
2
Now, therefore, the parties hereto agree as follows:
| 1 | Definitions and Interpretation |
| 1.1 | Definitions. In this Agency Agreement: |
“Additional Paying Agent” means any additional paying agent appointed from time to time in respect of the respective Series of Notes under the respective Terms and Conditions, as the case may be;
“Agents” means the Swiss Paying Agent, any Additional Paying Agent or any of them;
“Payment Event” means each event triggering a payment of interest or redemption in respect of the respective Series of Notes; and
“Swiss Paying Agent” means the initial Swiss Paying Agent and any successor thereof appointed from time to time in respect of the Notes under the Terms and Conditions and this Agency Agreement.
| 1.2 | Capitalised terms used and not otherwise defined herein shall have the meanings ascribed to them in the Terms and Conditions. |
| 2 | Object |
| 2.1 | The Issuer hereby appoints and authorises UBS AG as Swiss Paying Agent. The Issuer further confirms that the Swiss Paying Agent shall perform the Servicing of the Notes ascribed to it upon the terms of this Agency Agreement and subject to the Terms and Conditions as long as the Notes are outstanding. |
UBS hereby accepts its appointment to act as Swiss Paying Agent in relation to the Notes and perform the Servicing of the Notes ascribed to the Swiss Paying Agent upon the terms of this Agency Agreement and subject to the Terms and Conditions in accordance with standard Swiss market practice.
“Servicing” of the Notes comprises:
| 2.1.1 | authenticating or arranging for the authentication of the Swiss Permanent Global Notes and delivering them to the Intermediary upon the respective instruction of the Issuer; |
| 2.1.2 | paying, on behalf of the Issuer sums due on the Swiss Permanent Global Notes; |
| 2.1.3 | ensuring that, as directed by the Issuer and agreed by the respective Agent where information is required to be provided by the Issuer, all necessary action is taken to comply with any reporting requirements of any competent authority in respect of any relevant currency as may be in force from time to time with respect to the Notes; and |
| 2.1.4 | the performance by the Swiss Paying Agent of all other obligations and duties imposed upon it by the Terms and Conditions and this Agency Agreement. |
| 2.2 | The Issuer may appoint additional Agents or terminate the appointment of any Agent in accordance with Clause 8. |
| 2.3 | The Swiss Paying Agent may appoint a successor Swiss Paying Agent in respect of the Notes at any time, provided that the Swiss Paying Agent notifies the Issuer at least 30 days before such appointment is to take effect and obtains the prior written consent of the Issuer (such consent not to be unreasonably withheld). The terms of this Agency |
Agreement shall apply to any successor Swiss Paying Agent with effect from the date of its appointment.
3
| 3 | Issuance of Notes |
| 3.1 | The Issuer shall, as soon as practicable but in any event, not later than on the second Business Day prior to the Issue Date deliver each duly executed Swiss Permanent Global Note to the Swiss Paying Agent for onward delivery to the Intermediary. |
| 3.2 | The Swiss Paying Agent upon the respective instruction of the Issuer |
3.2.1 shall authenticate or arrange to authenticate each Swiss Permanent Global Note; and
3.2.2 deliver each Swiss Permanent Global Note to the Intermediary.
| 4 | Payments |
| 4.1 | Transfer of Funds |
4.1.1 The Issuer:
| (i) | undertakes to transfer the funds required in respect of each Payment Event, including the Paying Agency Commission referred to in Clause 4.3 below, where applicable, no later than on the relevant due date in freely disposable CHF to the Swiss Paying Agent in accordance with the Terms and Conditions. |
| (ii) | if such due date does not fall on a Business Day, transfer of such payments shall be effected for value the Business Day immediately following such due date; |
| (iii) | shall once before the issuance of the Notes inform the Swiss Paying Agent about the name of and the contact person(s) at the bank effecting the transfer of the amounts required for the Servicing of the Notes, and confirm to the Swiss Paying Agent that it has given irrevocable instructions to that bank to effect payment in full prior to or on the respective due date; and |
| (iv) | further information regarding the transfer of funds may be obtained by the Swiss Paying Agent from the Issuer at the respective address set out in Clause 5 below. |
4.1.2 The Swiss Paying Agent
| (i) | will, by email or in writing to the Issuer not less than five Business Days prior to each due date, supply the Issuer with any necessary information including reference numbers and the name of a contact person for the receipt of funds; |
| (ii) | shall promptly forward the funds received to SIX SIS Ltd for distribution to the Holders (except any funds received by the Swiss Paying Agent for its own behalf). |
Any funds received by the Swiss Paying Agent for the servicing of the Notes in respect of any Payment Event will be used, with first priority, for payment of any sums then due, without collection costs, to the Holders and, with second priority, applied to any amounts due to the Swiss Paying Agent.
4
The receipt by the Swiss Paying Agent of the due and punctual payment of the funds in CHF as above provided shall release the Issuer of its payment obligations under the Notes to the extent of such payments.
Any funds held by the Swiss Paying Agent in respect of interest or redemption moneys which are barred pursuant to the statute of limitations as set out in the Terms and Conditions shall be put at the Issuer’s disposal by the Swiss Paying Agent in CHF. The Swiss Paying Agent shall maintain a record of such barred payments and advise the Issuer promptly of their amount and effective date.
| 4.2 | Taxation |
All taxes in respect of the Notes are payable in accordance with the Terms and Conditions.
| 4.3 | Paying Agency Commission |
On the occasion of each Payment Event, the Issuer undertakes to pay to the Swiss Paying Agent for the Servicing of the Notes a paying agency commission of 0.01 per cent. of the then outstanding aggregate principal amount of the Notes (“Paying Agency Commissions”). Payment of the Paying Agency Commissions in respect of the Notes have been separately agreed between the Issuer and the Swiss Paying Agent.
| 5 | Notices |
Any notice or notification in any form to be given under this Agency Agreement shall, be (i) delivered in person or (ii) sent by registered mail letter or email transmission addressed to:
| 5.1 | the Issuer at |
Linde plc
Forge, 43 Church Street West
Woking, Surrey, GU21 6HT
United Kingdom
Telephone: +44 7799 342124
Email: Lindeplc.treasury@linde.com
Attention: Treasury
| 5.2 | The Swiss Paying Agent at |
UBS AG
Attn. O021– CAIP Mandates & OTC - CH
P.O. Box
8098 Zurich
Switzerland
Email: paying-agency-services@ubs.com
or such other address as any of the parties may notify to the other party in accordance with the above.
Email transmissions are deemed to be duly given, with retroactive effect to the date of receipt of the email transmission, after receipt of a copy of the message together with a transmission confirmation sent by registered mail letter by the respective addressee(s), if requested.
5
| 6 | Applicable Law and Jurisdiction |
| 6.1 | Applicable Law |
This Agency Agreement, as well as all rights and obligations of the parties arising therefrom, shall be exclusively governed by and construed in accordance with German law.
Any non-contractual rights and obligations arising out of or in connection with this Agency Agreement shall also be governed by and construed in accordance with German law.
| 6.2 | Jurisdiction |
The exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to this Agency Agreement shall be Frankfurt am Main, Federal Republic of Germany.
| 6.3 | Amendment |
Any provision of this Agency Agreement, including this Clause 6.3, may be amended or supplemented only if the Issuer and the Agents so agree in writing.
| 6.4 | Counterparts |
This Agency Agreement may be signed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.
| 6.5 | Annex |
The Annex to this Agency Agreement forms part of this Agency Agreement.
| 7 | Liability and Indemnity |
| 7.1 | The Swiss Paying Agent shall be protected and shall incur no liability for or in respect of any action taken by it in good faith and in accordance with this Agency Agreement and/or the Terms and Conditions, as the case may be, and in reliance on any notice, direction, certificate or other document reasonably believed by the Swiss Paying Agent to be genuine and to have been passed or signed by the Issuer. The Swiss Paying Agent shall be obliged to perform only such duties as are specifically set forth herein and shall not, other than as expressly provided herein, be under any obligation to take any action hereunder which might involve it in any expense or liability, the payment of which is not duly assured to it within a reasonable time prior thereto. |
| 7.2 | The Swiss Paying Agent shall indemnify the Issuer against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which may incur, as a result or arising out of the gross negligence or wilful default by the Swiss Paying Agent. The indemnification shall continue after the expiry or termination of this Agency Agreement provided that the gross negligence or wilful default by the Swiss Paying Agent occurred before the expiry or termination of this Agency Agreement. |
| 7.3 | The Issuer shall indemnify the Swiss Paying Agent against any claim, demand, action, liability, loss or expense (including legal fees and any applicable value added tax) which the Swiss Paying Agent may incur, otherwise than as a result of or arising out of the gross negligence or wilful default by the Swiss Paying Agent. The indemnification shall continue after the expiry or termination of this Agency Agreement. Such Agent as aforesaid undertake to inform the Issuer in writing without undue delay about any asserted claim of legal action threatened or instituted against it in this regard. |
6
| 8 | Changes in Agents |
| 8.1 | Resignation/termination of appointment: In the event UBS is to be replaced as Swiss Paying Agent in accordance with § 6(2) of the Terms and Conditions, UBS and the Issuer shall agree in writing on the appointment of an appropriate successor as Swiss Paying Agent. |
| 8.2 | Handover obligations: Upon the appointment of an appropriate successor having become effective a departing Agent will transfer to its successor all funds held by it for the purpose of making payments in respect of the Notes. It will also deliver to its successor copies of all relevant records. |
| 8.3 | Release: Once a resignation or termination of appointment takes effect, the departing Agent will be released from its obligations under this Agency Agreement but in respect of services rendered by it prior to or in connection with its resignation or termination of appointment it will remain entitled to the benefit of Clause 4.3 and Clause 7. |
| 8.4 | Swiss Paying Agent’s office: The Swiss Paying Agent will, at all times, act through its office in Switzerland. |
| 9 | Duration |
This Agency Agreement has been concluded for an indefinite period of time and is automatically terminated upon satisfaction of all obligations owed under the Terms and Conditions.
7
Signature Page
to the Swiss Agency Agreement
This Agency Agreement has been entered into on the date stated at the beginning.
LINDE PLC
as Issuer
| By | /s/ CJ Cossins | |
| Name: CJ Cossins | ||
| Title: UK Permanent Representative |
UBS AG
as Swiss Paying Agent
| By | /s/ Patrick Schütz |
By | /s/ Eric Viridén | |||||||||
| Name: | Patrick Schütz | Name: | Eric Viridén | |||||||||
| Title: | Executive Director | Title: | Associate Director | |||||||||
S-1
Annex – Form of permanent global note
| VALOR [●] | Common Code [●] | |
| ISIN [●] | ||
Schweizer Dauerglobalurkunde
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES OF AMERICA) WHO HOLDS THIS OBLIGATION, DIRECTLY OR INDIRECTLY, 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 OF THE UNITED STATES OF AMERICA.
Linde plc
Dublin, Republik Irland
CHF [●] [●] % Schuldverschreibungen fällig [●]
Serie Nr. [●]
Tranche Nr. 1
Diese Schweizer Dauerglobalurkunde verbrieft eine Emission von nominal CHF [•] Schuldverschreibungen, fällig [●] (die “Schuldverschreibungen”) der Linde plc (die “Emittentin”). Bezugnahmen in dieser Urkunde auf die “Bedingungen” verstehen sich auf die Bedingungen, die dieser Urkunde beigefügt sind. Die Bedingungen sind Teil dieser Schweizer Dauerglobalurkunde. Die in den Bedingungen definierten Begriffe haben, soweit hierin verwendet, in dieser Schweizer Dauerglobalurkunde die gleiche Bedeutung.
Die Emittentin verpflichtet sich, dem Inhaber dieser Urkunde die auf die durch diese Schweizer Dauerglobalurkunde verbrieften Schuldverschreibungen zahlbaren Beträge gemäß den Bedingungen zu zahlen.
Diese Schweizer Dauerglobalurkunde wird durch die UBS AG (die “Schweizer Zahlstelle”) bei der SIX SIS AG, Baslerstrasse 100, 4600 Olten, Schweiz, oder einer anderen in der Schweiz von der SIX Swiss Exchange AG oder dem Funktionsnachfolger der SIX Swiss Exchange AG anerkannten Verwahrungsstelle (das “SIX SIS” oder jede andere Verwahrungsstelle, die “Verwahrungsstelle”) hinterlegt und ist ausschließlich zur depotmäßigen Verwahrung durch die Verwahrungsstelle oder für Rechnung der Verwahrungsstelle ausgegeben. Jedem Inhaber einer Schuldverschreibung (ein “Gläubiger” und gemeinsam die “Gläubiger”) steht im Umfang seiner Forderung gegen den Emittenten ein sachenrechtlicher Miteigentumsanteil an der Schweizer Dauerglobalurkunde zu, wobei, solange die Schweizer Dauerglobalurkunde bei der Verwahrungsstelle hinterlegt ist, der Miteigentumsanteil sistiert ist, und, solange die Schuldverschreibungen Bucheffekten im Sinne des Schweizer Bucheffektengesetzes sind, die Schuldverschreibungen nur durch Gutschrift der übertragenen Schuldverschreibungen in ein Effektenkonto des Empfängers übertragen werden können.
A-1
Das Hauptregister sowie die Effektenkonti der Verwahrungsstelle bestimmen die Anzahl an Schuldverschreibungen, welche durch jeden Teilnehmer der Verwahrungsstelle gehalten wird. In Bezug auf Schuldverschreibungen, welche Bucheffekten darstellen, sind Gläubiger die Personen, die die Schuldverschreibungen in einem auf ihren Namen lautenden Effektenkonto halten, bzw. im Falle von Verwahrungsstellen, die die Schuldverschreibungen in einem auf ihren Namen lautenden Effektenkonto auf eigene Rechnung halten.
Weder die Emittentin noch die Gläubiger haben das Recht, die Umwandlung der Schweizer Dauerglobalurkunde in Wertrechte oder Einzelurkunden, bzw. die Auslieferung von Wertrechten oder Einzelurkunden zu verlangen oder zu veranlassen. Schuldverschreibungen werden nur dann physisch ausgeliefert, wenn sie in Einzelurkunden verbrieft werden. Einzig die Schweizer Zahlstelle hat das Recht, den Druck aller (aber nicht nur eines Teils der) Schuldverschreibungen zu beschließen, wenn dies nach Ermessen der Schweizer Zahlstelle notwendig oder nützlich ist. Beschließt die Schweizer Zahlstelle den Druck und die Auslieferung von Einzelurkunden, entstehen den Gläubigern dadurch keine Kosten. Nach Auslieferung sämtlicher Einzelurkunden wird die Schweizer Dauerglobalurkunde unverzüglich durch die Schweizer Zahlstelle entwertet und die Einzelurkunden den Inhabern, gegen Löschung der Bucheffekten in ihrem Effektenkonto, ausgeliefert.
Diese Schweizer Dauerglobalurkunde unterliegt deutschem Recht.
Diese Schweizer Dauerglobalurkunde ist nur wirksam, wenn sie die eigenhändige Unterschrift einer durch die Emittentin für diesen Zweck ordnungsgemäß bevollmächtigten Person und die Kontrollunterschrift der Schweizer Zahlstelle oder ihres Beauftragten trägt.
Woking, im 2025
Linde plc
Zeichnungsberechtigter
Kontrollunterschrift ohne Obligo, Gewährleistung oder Rückgriff.
UBS AG
|
|
||
| Zeichnungsberechtigter |
Zeichnungsberechtigter |
Die Bedingungen sind als Anlage beizufügen.
A-2
| VALOR [●] |
Common Code [●] | |
| ISIN [●] |
||
Swiss Permanent Global Note
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE OF THE UNITED STATES OF AMERICA) WHO HOLDS THIS OBLIGATION, DIRECTLY OR INDIRECTLY, 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 OF THE UNITED STATES OF AMERICA.
Linde plc
with statutory seat in Dublin, Republic of Ireland
CHF [●] [●] per cent. Notes due [●]
Series No. [●]
Tranche No. 1
This certificate constitutes a Swiss Permanent Global Note with respect to an issue of nominal CHF [●] Notes due [●] (the “Notes”) of Linde plc (the “Issuer”). References herein to the “Conditions” shall be to the Terms and Conditions of the Notes as annexed hereto. The Conditions form part of this Swiss Permanent Global Note. Expressions defined in the Conditions shall bear the same meanings when used in this Swiss Permanent Global Note.
The Issuer agrees to pay to the bearer hereof the amounts payable with respect to the Notes represented by this Swiss Permanent Global Note in accordance with the Conditions.
This Swiss Permanent Global Note shall be deposited by UBS AG (the “Swiss Paying Agent”) with SIX SIS AG, Baslerstrasse 100, 4600 Olten, Switzerland or any other intermediary in Switzerland recognised for such purposes by the SIX Swiss Exchange AG or any successor of SIX Swiss Exchange AG (“SIX SIS” or any other intermediary, the “Intermediary”) and is issued exclusively for the purpose of being held in safe custody by or for the account of the Intermediary. Each holder of a Note (a “Holder” and together, the “Holders”) is entitled to a quotal co-ownership interest in rem (Miteigentumsanteil) in the Swiss Permanent Global Note provided that for so long as the Swiss Permanent Global Note remains deposited with the Intermediary, the co-ownership interest shall be suspended and so long as the Notes are intermediated securities (Bucheffekten) in accordance with the provisions of the Swiss Federal Intermediated Securities Act (Bucheffektengesetz), the Notes may only be transferred by the entry of the transferred Notes in a securities account (Effektenkonto) of the transferee.
The main register (Hauptregister) and the securities accounts of the Intermediary will determine the number of Notes held through each participant of that Intermediary. In respect of Notes held in the form of intermediated securities (Bucheffekten), the Holders will be the persons holding the Notes in a securities account (Effektenkonto) which is in their name, or in case of intermediaries (Verwahrungsstellen), the intermediaries (Verwahrungsstellen) holding the Notes for their own account in a securities account (Effektenkonto) which is in their name.
A-3
Neither the Issuer nor the Holders of such Notes shall at any time have the right to effect or demand the conversion of the Swiss Permanent Global Note into, or the delivery of, uncertificated securities (Wertrechte) or definitive notes (Einzelurkunden). No physical delivery of the Notes shall be made unless and until definitive notes (Einzelurkunden) shall have been printed. Notes may only be printed, in whole, but not in part, if the Swiss Paying Agent determines, in its sole discretion, that the printing of the definitive notes (Einzelurkunden) is necessary or useful. Should the Swiss Paying Agent so determine, it shall provide for the printing of definitive notes (Einzelurkunden) without cost to the Holders of such Notes. Upon delivery of all definitive notes (Einzelurkunden), the Swiss Permanent Global Note will immediately be cancelled by the Swiss Paying Agent and the definitive notes (Einzelurkunden) shall be delivered to the Holders of such Notes against cancellation of the intermediated securities (Bucheffekten) in the Holders’ securities accounts (Effektenkonten).
This Swiss Permanent Global Note is governed by, and shall be construed in accordance with, German law.
This Swiss Permanent Global Note shall be valid only if it bears the handwritten signature of a duly authorised representative of the Issuer and if it bears the control signature by or on behalf of the Swiss Paying Agent.
Woking, in June 2025
Linde plc
|
|
| Authorised Signatory |
Control signature without recourse, warranty or liability
UBS AG
|
|
|
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| Authorised Signatory | Authorised Signatory | |||||
The Conditions are to be added by attachment hereafter.
A-4
Exhibit 4.6
Linde GmbH · Dr.-Carl-von-Linde-Str. 6-14 · 82049 Pullach · Germany
Linde plc
Forge
43 Church Street West
Woking, Surrey GU21 6HT
United Kingdom
Linde Finance B.V.
53 Merrion Square S.
Dublin 2, D02 PR63
Republic of Ireland
4 June 2025
Dear Sir or Madam,
Upstream Guarantee relating to the
Debt Issuance Programme
of Linde plc
Reference is made to our guarantee dated 11 May 2020 (the “Upstream Guarantee”) for the benefit of Linde plc, relating to (i) notes issued by Linde plc and (ii) the guarantee of Linde plc for the benefit of the holders of notes issued by Linde Finance B.V., in each case under the EUR 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance B.V. dated 11 May 2020 (as amended, supplemented and restated from time to time) (the “Debt Issuance Programme”). The volume of the Debt Issuance Programme was increased to EUR 15,000,000,000 in connection with the update of the Debt Issuance Programme on 8 May 2024.
We understand that with effect from 8 May 2025, the Debt Issuance Programme has been updated in accordance with customary procedure. Such update also entailed an increase of the volume of the Debt Issuance Programme (i.e. the maximum nominal amount of notes outstanding under the Debt Issuance Programme at any time) (the “Programme Volume”) to EUR 20,000,000,000.
| Linde GmbH Dr.-Carl-von-Linde-Str. 6-14 82049 Pullach Germany Telefon 089 7446-0 http://www.linde-gas.com |
Linde GmbH Registered office Pullach Court of Registration Munich HRB 256407 Ust-IdNr.: DE 322 012 334 |
Supervisory Board: Björn Schneider (Chairman) Management Board: Oliver Pfann, Matthias von Plotho |
Seite 2
This letter is to confirm that our Upstream Guarantee for the benefit of Linde plc also extends to the increased Programme Volume of the Debt Issuance Programme applicable from 8 May 2025. All references in our Upstream Guarantee to the Debt Issuance Programme and notes issued thereunder shall be construed accordingly.
Very truly yours,
Linde GmbH
| By | /s/Matthias von Plotho |
By | /s/ Daniel Geiger | |||||||
| Name: Matthias von Plotho | Name: ppa. Daniel Geiger |
Exhibit 4.7
June 4, 2025
Linde plc
Forge
43 Church Street West
Woking, Surrey GU21 6HT
United Kingdom
Linde Finance B.V.
53 Merrion Square S.
Dublin 2, D02 PR63
Republic of Ireland
Re: Upstream Guarantee relating to the Debt Issuance Programme of Linde plc
Ladies and Gentlemen,
Reference is made to our guarantee dated 11 May 2020 (the “Upstream Guarantee”) for the benefit of Linde plc, relating to (i) notes issued by Linde plc and (ii) the guarantee of Linde plc for the benefit of the holders of notes issued by Linde Finance B.V., in each case under the EUR 10,000,000,000 Debt Issuance Programme of Linde plc and Linde Finance B.V. dated 11 May 2020 (as amended, supplemented and restated from time to time) (the “Debt Issuance Programme”). The volume of the Debt Issuance Programme was increased to EUR 15,000,000,000 in connection with an update of the Debt Issuance Programme on 8 May 2024.
We understand that with effect from 8 May 2025, the Debt Issuance Programme has been updated in accordance with customary procedure. Such update also entailed an increase of the volume of the Debt Issuance Programme (i.e., the maximum nominal amount of notes outstanding under the Debt Issuance Programme at any time) (the “Programme Volume”) to EUR 20,000,000,000.
This letter is to confirm that our Upstream Guarantee for the benefit of Linde plc also extends to the increased Programme Volume of the Debt Issuance Programme applicable from 8 May 2025. All references in our Upstream Guarantee to the Debt Issuance Programme and notes issued thereunder shall be construed accordingly.
Very truly yours,
Linde Inc.
| By | /s/ Anne Boyd | |
| Name: Anne Boyd | ||
| Title: Vice President, Tax and Treasurer |