ADDITIONAL GUARANTOR SUPPLEMENT
Exhibit 10.2
EXECUTION VERSION
| To: |
Bank of America, N. A., as Administrative Agent (the “Administrative Agent”)
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| From: |
Linde Aktiengesellschaft
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| Date: |
September 3, 2019
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| Re: |
The Credit Agreement dated as of March 26, 2019 among Linde plc, the Subsidiary Borrowers referred to therein, the Lenders listed therein, the Guarantors referred to therein and the Administrative Agent (as extended, renewed, amended
or restated from time to time, the “Credit Agreement”)
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Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not defined herein which are defined in the Credit Agreement shall have for the purposes hereof the meaning provided therein.
The undersigned, Linde Aktiengesellschaft, a stock corporation organized under the laws of the Federal Republic of Germany, (“Xxxxx XX”) hereby elects to be a “Subsidiary
Guarantor” for all purposes of the Credit Agreement, effective from the date hereof.
The undersigned hereby agrees to perform all the obligations of a Subsidiary Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement, including without limitation Article 10 (Guaranty)
thereof, to the same extent and with the same force and effect as if the undersigned were a signatory thereto as a Subsidiary Guarantor.
The obligations of Xxxxx XX as Subsidiary Guarantor under Article 10 (Guaranty) of the Credit Agreement shall, in accordance with Section 10.07 (Additional Guarantors),
be subject to the limitations set out below:
At any time when Xxxxx XX is organized in the form of a German stock corporation (Aktiengesellschaft), the obligations of Xxxxx XX as Subsidiary Guarantor under Article 10 (Guaranty) of the Credit Agreement shall be enforceable (vollstreckbar) against Xxxxx XX only
| (a) |
if at the time of the respective payment demand a profit and loss sharing agreement (Gewinnabführungsvertrag) and/or a domination agreement (Beherrschungsvertrag)
between Xxxxx XX (as dominated entity (beherrschtes Unternehmen)) and the direct shareholder of Xxxxx XX (as dominating entity (beherrschendes Unternehmen))
(“DPLTA”) is in place; and
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| (b) |
if and to the extent that the payment by Xxxxx XX under the guarantee would not result in an annual loss to Xxxxx XX which would not be compensated for by a compensation claim (Verlustausgleichsanspruch)
under the DPLTA that can be accounted for in the balance sheet of Xxxxx XX at full value (vollwertig).
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At any time when Xxxxx XX, after a change of its current legal form after the date of this Additional Guarantor Supplement, is organized in the form of a German limited liability company (Gesellschaft mit
beschränkter Haftung), it may refuse to make any payments under the guarantee to the extent any such payment would result in a violation of Sections 30 et seq. or Section 43 of the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung) (or a successor provision of such law or comparable provision under any successor law) or would otherwise lead to personal liability of its managing
directors (Geschäftsführer). Xxxxx XX covenants to use all commercially reasonable efforts to maximize the amount payable under the guarantee to the extent permitted by applicable German law.
The undersigned acknowledges that this Additional Guarantor Supplement shall be effective upon its execution and delivery by the undersigned to the Administrative Agent (which is the date set forth above) and the acceptance of this Additional
Guarantor Supplement by the Administrative Agent on its own behalf and on behalf of the Lenders and the Issuing Lenders. This Additional Guarantor Supplement shall be construed in accordance with and governed by the laws of the State of New York.
The provisions of Section 11.08 and 11.09 of the Credit Agreement are incorporated herein as if a part hereof mutatis mutandis.
[Signature Pages Follow]
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Very truly yours,
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LINDE AKTIENGESELLSCHAFT
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By:
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/s/ Matthias xxx Xxxxxx
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Name:
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Matthias xxx Xxxxxx
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Title:
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Member of the Executive Board
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Senior Counsel - Finance
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Acknowledged and agreed:
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BANK OF AMERICA, N. A., on its own behalf and on behalf of the Lenders and Issuing Lenders
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx
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Title:
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Director
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