D 28 April 2020 - Purecircle · Matter ref 759815.000011 F3FB/6679396 Hogan Lovells International...

DATED 2020

THE COMPANIES LISTED IN SCHEDULE 1 AS OBLIGORS

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INGREDION INCORPORATED

DEED OF INDEMNITY

Matter ref 759815.000011

F3FB/6679396

Hogan Lovells International LLP

Atlantic House, Holborn Viaduct, London EC1A 2FG

28 April

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LIB01/F3FB/6679396.3 Hogan Lovells

CONTENTS

CLAUSE PAGE

1. DEFINITIONS AND INTERPRETATION 1

2. INDEMNITY 2

3. WAIVER OF DEFENCES 3

4. UNDERTAKINGS 3

6. PAYMENTS 4

7. EXCLUSION OF LIABILITY 4

8. INTEREST DUE TO LATE PAYMENT 5

9. NOTICES 5

10. TERMINATION 6

11. MISCELLANEOUS 6

12. COUNTERPARTS 6

13. GOVERNING LAW 6

14. SERVICE OF PROCESS 7

SCHEDULE 8

EXECUTION PAGES 9


THIS DEED OF INDEMNITY IS MADE ON 2020

BETWEEN:

(1) The companies listed in the Schedule to this Indemnity (the "Obligors" and each an

"Obligor"); and

(2) Ingredion Incorporated, a Delaware corporation ("Ingredion").

1. DEFINITIONS AND INTERPRETATION

1.1 In this Indemnity:

"Business Day" means a day (other than a Friday or Saturday) on which banks are open

for general business in New York and Kuala Lumpur.

"Claim" means any claim or demand under or pursuant to the Letter of Credit Documents

which is made by HSBC USA in accordance with the terms of the Letter of Credit

Documents.

"Company" means PureCircle Limited, a company incorporated under the laws of

Bermuda with registration number 40431 and whose registered office is at Clarendon

House, 2 Church Street, Hamilton HM11 Bermuda.

"Facility" means the USD 33,000,000 revolving credit facility made available by HSBC

Malaysia to the Company pursuant to the terms of the Facility Agreement.

"Facility Agreement" means the facility agreement dated on or about the date of this

Indemnity between HSBC Malaysia as lender and the Company as borrower.

"HSBC Malaysia" means The Hongkong and Shanghai Banking Corporation Limited,

Offshore Banking Unit Labuan, Malaysia.

"HSBC USA" means HSBC Bank USA, N.A.

"Letter of Credit" means any irrevocable standby letter of credit issued by HSBC USA or

its correspondent bank in favour of HSBC Malaysia, as beneficiary, in support of the

Facility pursuant to the terms of the Line Letter.

"Letter of Credit Documents" means the Line Letter, any Letter of Credit, any Letter of

Credit application, HSBC’s standard form of Trade Finance Services Authorization related

to the Line Letter and any other documents required to be entered into by Ingredion in

connection with the Letter of Credit in the form agreed as at the date of this Indemnity.

"Line Letter" means the line letter dated on or about the date of this Indemnity between

HSBC USA and Ingredion.

“Senior Subordination Agreement” means the Subordination Agreement, dated on or

around the date of this Indemnity by and among The Hongkong and Shanghai Banking

Corporation Limited, as senior agent, HSBC Malaysia, Ingredion and the other

subordinated creditors party thereto, and the Obligors, as debtors.


(a) a reference to the "Obligor" or "Ingredion" shall include references to any

respective successors, assignees and transferees;

28 April

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(b) a reference to the word "including" shall be deemed to be followed by the phrase

"(but not limited to)";

(c) words in the singular include the plural and in the plural include the singular;

(d) clause and paragraph headings shall not affect the interpretation of this Indemnity;

and

(e) any reference to a Clause or Schedule shall be to a clause or schedule contained

in this Indemnity.


(a) subject to Clause 7 (Exclusion of Liability), a person who is not a party to this

Indemnity may not enforce, or enjoy the benefit of, any term of this Indemnity by

virtue of the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act");

and

(b) any variation or rescission of this Indemnity or waiver of any obligation or liability

hereunder shall not require the consent of any person who is not a party hereto.

1.4 All rights and obligations of the parties to this Indemnity are subject to the terms of the

Senior Subordination Agreement.

2. INDEMNITY

2.1 In consideration for Ingredion procuring the issuance of the Letters of Credit to support

the Facility (it being acknowledged and agreed by the Obligors that the Facility would not

be provided to the Company but for the issuance of the Letters of Credit and each Obligor

will materially benefit from the making of the Facility available to the Company), each

Obligor unconditionally and irrevocably jointly and severally agrees that:

(a) if Ingredion makes any payment in respect of any Claim or in respect of any fee,

cost, expense or any other amount due pursuant to the Letter of Credit

Documents, it will pay to Ingredion an amount equal to that payment; and

(b) if Ingredion suffers any other direct loss, liability, cost or expense whatsoever in

relation to the Letter of Credit Documents (a "Loss") as a result of any Obligor's

breach of the Facility Agreement or this Indemnity, it shall indemnify Ingredion

against such Loss and hold Ingredion harmless against such loss, liability, cost or

expense except to the extent resulting from Ingredion’s gross negligence or wilful

misconduct, as determined by a final non-appealable judgment of a court of

competent jurisdiction;

in each case within five (5) Business Days following the Company's receipt of Ingredion’s

demand.

2.2 Ingredion may make any number of demands under this Indemnity.

The total amount recoverable by Ingredion from the Company under Clause 2.1

(Indemnity) in aggregate shall not exceed USD33,000,000 plus any fees payable under

the Letter of Credit Documents, default interest and other properly incurred out-of-pocket

expenses.

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3. WAIVER OF DEFENCES

3.1 The obligations of each Obligor under this Indemnity will not be affected by any act,

omission, matter or thing which, but for this Clause, would reduce, release or prejudice

any of its obligations under this Indemnity (without limitation and whether or not known to

it or any other person) including:

(a) any claim or other assertion by any Obligor that there was no sum due, or not in

the amount claimed:

(i) from the Company to HSBC Malaysia under the Facility Agreement or that

any such sum was subject to any set-off or counterclaim between the

Company and HSBC Malaysia; or

(ii) from HSBC USA to HSBC Malaysia under any Letter of Credit or that any

such sum was subject to any set-off or counterclaim between the HSBC

USA and HSBC Malaysia;

(b) any time, waiver or consent granted to, or composition with, any Obligor, HSBC

USA or HSBC Malaysia;

(c) the release of the Obligor or any other person under the terms of any composition

or arrangement with any creditor;

(d) the taking, variation, compromise, exchange, renewal or release of, or refusal or

neglect to perfect, take up or enforce, any rights against, or security over assets

of, an Obligor, HSBC USA, HSBC Malaysia, or other person or any non-

presentation or non-observance of any formality or other requirement in respect of

any instrument or any failure to realise the full value of any security;

(e) any incapacity or lack of power, authority or legal personality of or dissolution or

change in the members or status of an Obligor, HSBC USA, HSBC Malaysia or

any other person;

(f) any variation, amendment, extension or supplement (however fundamental) or

renewal or replacement of the Letter of Credit Documents, the Facility Agreement

or any other document or security, regardless of the party which requested the

amendment, extension or renewal;

(g) any unenforceability, illegality or invalidity of any obligation of any person under

the Letter of Credit Documents, the Facility Agreement or any other document or

security; and

(h) any insolvency or similar proceedings in any jurisdiction.

3.2 Failure by an Obligor to perform its obligations under this Indemnity does not affect the

obligations of any other Obligor under this Indemnity.

4. UNDERTAKINGS

4.1 The Company shall apply the proceeds of all loans made available to it under the Facility

Agreement towards settlement of the intercompany invoices between the Company and

its affiliates, PureCircle Sdn. Bhd. and PureCircle (Jiangxi) Co Ltd. The Company shall

then cause PureCircle (Jiangxi) Co Ltd to use such funds received to settle outstanding

leaf payments and meet current leaf purchases (aggregating to approximately

USD$20,000,000), purchase of Reb A for processing (aggregating to approximately

USD$6,000,000), and the balance for the payment of operating expenses in China.

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4.2 The Company shall as soon as reasonably practicable notify Ingredion any of default

notices received or delivered in respect of the Facility. Additionally the Company shall

notify Ingredion as soon as reasonably practicable of any default or event of default under

the Facility. The Company and each Obligor shall (without any obligation to do so), and in

good faith, provide to Ingredion such other information regarding the compliance with the

terms of the Facility or this Indemnity.

5. Authorisations

5.1 Each Obligor authorises Ingredion to pay any Claim without the need to consult with, or

obtain consent or any confirmation from any person, verify the authenticity of the Claim or

investigate whether HSBC USA (or any person making a Claim on its behalf) was

authorised or allowed to make any Claim. Without prejudice to the foregoing, Ingredion

shall provide details of any Claim to the Company at the Company's written request.

5.2 Each Obligor acknowledges that Ingredion deals only with documents in the context of the

Letter of Credit Documents and so will not be concerned with, and shall not be required to

take any action with respect to, the validity of any Claim or any underlying transaction

connected with the Letter of Credit Documents (including whether any set-off,

counterclaim or other defence is available to HSBC USA or any other person).

5.3 If Ingredion decides that it has received a valid Claim, that decision shall be binding on

each Obligor and any payment of that Claim by Ingredion shall be accepted by each

Obligor as conclusive evidence of Ingredion's liability in respect of that Claim.

5.4 If the terms of the Letter of Credit Documents require that a Claim should be

accompanied by one or more other documents, Ingredion is entitled to treat any such

other document as valid and genuine, where it appears on its face to comply with the

terms of the Letter of Credit Documents.

6. PAYMENTS

6.1 All payments under this Indemnity must be made in immediately available funds, in the

same currency as the relevant Claim or Loss, to such account as Ingredion specifies, and

in full without any set-off, counterclaim, withholding or deduction, unless an Obligor is

required by any applicable law to make a deduction or withholding.

6.2 If a deduction or withholding is required to be made by any applicable law, the relevant

Obligor shall only make the minimum amount so required to be deducted or withheld and

shall promptly (and, in any event, within five (5) Business Days of the date of Ingredion's

demand) pay to Ingredion an additional amount so that Ingredion receives the same

amount as it would have received if no deduction or withholding had been made.

6.3 If Ingredion receives payment in a different currency to that which was demanded,

Ingredion may convert the amount which is received in a different currency into the

currency so demanded using the rate of exchange available to Ingredion at the relevant

time. Each Obligor shall indemnify Ingredion within five (5) Business Days of the date of

the Company's receipt of Ingredion's demand for any cost, loss or liability arising out of

such conversion, including as a result of any difference between: (i) the rate of exchange

which was used by Ingredion to convert the relevant amount; and (ii) the rate of exchange

which was available to Ingredion at the time when the relevant amount was first received.

7. EXCLUSION OF LIABILITY

Ingredion shall not be liable for any action taken (or not taken) by it under or in connection

with this Indemnity, unless directly caused by its gross negligence or wilful misconduct.

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No Obligor shall sue, take any proceedings or make any claim against any officer,

employee or agent of Ingredion in respect of any right, claim or action it might have

against Ingredion or in respect of any act or omission of any kind by that officer, employee

or agent in relation to this Indemnity and any officer, employee or agent of Ingredion may

rely on this Clause subject to Clause 1.3(b) (Definitions and Interpretation) and the

provisions of the Third Parties Act.

8. INTEREST DUE TO LATE PAYMENT

8.1 If Ingredion demands payment from an Obligor under this Indemnity but such Obligor

does not pay the amount demanded when due, interest ("Late Payment Interest") shall

accrue on that unpaid amount from the due date until the date when that unpaid amount

is actually paid in full.

8.2 Late Payment Interest shall accrue from day to day at a rate equal the Base Rate plus 3

per cent. per annum.

8.3 For the purposes of Clause 8.2, "Base Rate" means a variable per annum rate equal to

the rate of interest which is identified in the “Money Rates” section of The Wall Street

Journal or another national publication selected by Ingredion as the “Prime Rate” (or, if

more than one rate is published as the Prime Rate, then the highest of such rates). Any

change in the Base Rate will become effective as of the date the rate of interest which is

so identified as the “Prime Rate” is different from that published on the preceding

Business Day. If The Wall Street Journal no longer reports the Prime Rate, or if such

“Money Rates” section no longer exists, or if Ingredion determines in good faith that the

rate so reported no longer accurately reflects an accurate determination of the prevailing

Prime Rate, Ingredion may select a reasonably comparable index or source to use as the

basis for the Base Rate.

8.4 Each Obligor shall pay Late Payment Interest immediately on demand by Ingredion.

8.5 If any accrued Late Payment Interest remains unpaid following a written demand, then

such interest shall be added to the relevant unpaid amount at the end of the calendar

month in which such demand was made. Further Late Payment Interest shall then accrue

on that unpaid amount plus the unpaid Late Payment Interest (so as to compound, but

without double counting) as set out above.

9. NOTICES

9.1 Without prejudice to any other provision in this Indemnity, every notice, request or other

communication in relation to this Indemnity shall:

(a) be made in writing;

(b) be delivered personally or by prepaid recorded post or electronic mail;

(c) in the case of an Obligor, be deemed to have been received by such Obligor, in

the case of a letter when delivered personally or 48 hours after it has been sent by

prepaid recorded post or, in the case of electronic mail, at the time of receipt in

legible form (provided that if such date is not a Business Day, it shall be deemed

to have been received on the next Business Day).

9.2 All communications to Ingredion shall be effective only on actual receipt by Ingredion.

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10. TERMINATION

This Indemnity and the rights and obligations created hereunder shall terminate and

cease to have effect on the earlier of (a) the date falling six months from the date on

which the Facility is terminated and (b) the date on which HSBC Malaysia and HSBC

USA, as applicable, confirms in writing that neither the Obligors nor Ingredion has any

actual or contingent liabilities under the Facility or Letter of Credit Documents except that

in each case, this Indemnity shall not terminate where there is an outstanding claim on

any Obligor under this Indemnity (or, in the event Ingredion is not permitted to make a

claim pursuant to the terms of the Senior Subordination Agreement, but would otherwise

be entitled to do so under this Indemnity, where there is any such outstanding obligation

owing by any of the Obligors to Ingredion) and until that claim (or obligation) has been

satisfied.

11. MISCELLANEOUS

11.1 No Obligor shall be released from any of its obligations under this Indemnity, unless and

until Ingredion confirms such release in writing to such Obligor, which Ingredion shall do

promptly after Ingredion is satisfied (acting reasonably and in good faith) that (i) all

amounts demanded by Ingredion under this Indemnity have been unconditionally and

irrevocably paid in full and (ii) Ingredion has or shall have no further liability under or in

connection with the Letter of Credit Documents.

11.2 Ingredion will not lose any right which it has under this Indemnity if it chooses not to use

that right or Ingredion delays before using or enforcing it. Using or enforcing any right (in

whole or in part) will not prevent Ingredion from using that right again or any other right.

11.3 Ingredion's rights under this Indemnity are in addition to any other rights of Ingredion in

respect of the liabilities covered by this Indemnity. Ingredion may enforce any of its rights

under this Indemnity without first having recourse to any other rights it may have.

11.4 This Indemnity shall be a continuing security and shall extend to the ultimate balance of

the sums payable by Ingredion in respect of the Letter of Credit Documents as referred to

in Clause 2.1 (Indemnity), and shall not be discharged by any intermediate payment or

intermediate satisfaction of the whole or any part of any such sums.

11.5 If any provision of this Indemnity is or becomes invalid or unenforceable to any extent, the

remainder of this Indemnity shall not be affected and each such provision shall be valid

and enforceable to the fullest extent permitted by law.

11.6 No Obligor may assign or transfer any of its rights and/or obligations in respect of this

Indemnity. Ingredion may assign or transfer all (but not part) of its rights and/or obligations

in respect of this Indemnity to any person.

12. COUNTERPARTS

This Indemnity may be executed in any number of counterparts, and this has the same

effect as if the signatures on the counterparts were on a single copy of this Indemnity.

13. GOVERNING LAW

13.1 This Indemnity and any non-contractual obligations arising out of or in connection with it

shall be governed by, and shall be construed in accordance with, English law.

13.2 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in

connection with this Indemnity (including a dispute relating to the existence, validity or

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termination of this Indemnity or any non-contractual obligation arising out of or in

connection with this Indemnity) (a "Dispute").

13.3 The courts of England are the most appropriate and convenient courts to settle Disputes

and accordingly no Party will argue to the contrary.

13.4 This Clause 13 is for the benefit of Ingredion only. As a result, Ingredion shall not be

prevented from taking proceedings relating to a Dispute in any other courts with

jurisdiction. To the extent allowed by law, Ingredion may take concurrent proceedings in

any number of jurisdictions.

14. SERVICE OF PROCESS

14.1 Without prejudice to any other mode of service allowed under any relevant law, each

Obligor (other than an Obligor incorporated in England and Wales):

(a) irrevocably appoints PureCircle (UK) Limited as its agent for service of process in

relation to any proceedings before the English courts in connection with this

Indemnity and PureCircle (UK) Limited, by its execution and delivery of this

Indemnity, accepts such appointment; and

(b) agrees that failure by an agent for the service of process to notify the relevant

Obligor of the process will not invalidate the proceedings concerned.

14.2 If any person appointed as an agent for service of process is unable for any reason to act

as agent for service of process, the Company (on behalf of all the Obligors) must promptly

(and in any event within 10 Business Days of such event taking place) appoint another

agent on terms acceptable to Ingredion (acting reasonably). Failing this, Ingredion may

appoint another agent for this purpose.

14.3 Each Obligor expressly agrees and consents to the provisions of this Clause 14 and

Clause 13 (Governing Law).

Executed and delivered as a deed on the date first above written.

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SCHEDULE

The Obligors

NAME COMPANY NUMBER JURISDICTION

PureCircle Limited 40431 Bermuda

PureCircle Trading Sdn

Bhd

1140295-D Malaysia

PureCircle Sdn Bhd 578803-K Malaysia

PureCircle USA Inc. N/A Delaware, US

PureCircle (UK) Limited 07749843 England and Wales

PureCircle Mexico S.A. de

C.V.

492061-1 Mexico

D 28 April 2020 - Purecircle · Matter ref 759815.000011 F3FB/6679396 Hogan Lovells International...

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Transcript of D 28 April 2020 - Purecircle · Matter ref 759815.000011 F3FB/6679396 Hogan Lovells International...