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LONDON:622803.15
Execution
THE PARTIES SET OUT IN SCHEDULE 1
as Original Subordinated Creditors
and
THE PARTIES SET OUT IN SCHEDULE 2
as Original Debtors
as Senior Agent
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Dated 28 April 2020
SUBORDINATION AGREEMENT
LONDON:622803.15
Table of Contents 1. DEFINITIONS AND INTERPRETATION ............................................................................................. 3 2. SUBORDINATION .................................................................................................................................. 7 3. SUBORDINATION ON INSOLVENCY ................................................................................................. 7 4. COVENANTS .......................................................................................................................................... 9 5. CONSENTS ............................................................................................................................................ 11 6. CHANGES TO THE PARTIES ............................................................................................................. 11 7. AMENDMENTS .................................................................................................................................... 13 8. REPRESENTATIONS............................................................................................................................ 13 9. SEVERABILITY .................................................................................................................................... 14 10. NOTICES ................................................................................................................................................ 14 11. PROTECTION OF SUBORDINATION ................................................................................................ 15 12. RIGHTS AND RESPONSIBILITIES OF THE SENIOR AGENT ........................................................ 17 13. TREATMENT OF DISTRIBUTION ..................................................................................................... 18 14. MISCELLANEOUS ............................................................................................................................... 18 15. WAIVERS .............................................................................................................................................. 19 16. ENTIRE AGREEMENT ......................................................................................................................... 20 17. PARTIAL INVALIDITY ....................................................................................................................... 20 18. COUNTERPARTS ................................................................................................................................. 20 19. GOVERNING LAW ............................................................................................................................... 20 20. JURISDICTION...................................................................................................................................... 20 NAME .............................................................................................................................................................. 20 COMPANY NUMBER ........................................................................................................................................ 20
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(B) The parties hereto have agreed to enter into this Agreement for the purpose of effecting the
subordination arrangements referred to in recital (A) above.
THIS AGREEMENT PROVIDES:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following terms shall have the following meanings:
“Accession Undertaking” means a deed substantially in the form set out in Schedule 3
(Form of Accession Undertaking).
“Authorisation” has the meaning given to it in the Facilities Agreement.
“Business Day” has the meaning given to it in the Facilities Agreement.
“Creditor” means the Senior Creditors and the Subordinated Creditors.
“Debt Documents” means the Senior Finance Documents and the Subordinated Finance
Documents.
“Debtor” means an Original Debtor and any person which becomes a Party as a Debtor
in accordance with the terms of Clause 6 (Changes to the Parties).
“Debtor Liabilities” means, in relation to any member of the Group, any Liabilities owed
to an Original Debtor (whether actual or contingent and whether incurred solely or jointly)
by that member of the Group in respect of any proceeds of utilisation under the
Subordinated Finance Documents that has been on-lent by an Original Debtor to such
member of the Group.
Subordinated Liabilities owed to it on the terms set out in this Agreement.
Debtors on the condition that the Subordinated Creditors agree to subordinate all Facilities Agreement, the incurrence of the Subordinated Liabilities by the Original
(A) The Senior Creditors (as defined below) have agreed to permit, under the terms of the
WHEREAS:
Debtors").
(3) THE PARTIES SET OUT IN SCHEDULE 2 (Original Debtors) (the "Original
“Original Subordinated Creditors”); and
(2) THE PARTIES SET OUT IN SCHEDULE 1 (Original Subordinated Creditors) (the
“Original Senior Agent”);
its capacity as facility agent under the Facilities Agreement (as defined below) (the
(1) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, in
BETWEEN:
A SUBORDINATION AGREEMENT made on 28 April 2020
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“Facilities Agreement” means the US$200,000,000 secured term and revolving facilities
agreement dated 30 November 2017 as amended from time to time including by
amendment letters dated 21 December 2018, 6 May 2019, 5 September 2019 and 28
November 2019, 23 December 2019, 11 February 2020 and 25 March 2020 and as further
amended by an amendment letter dated on or about the date of this Agreement and made
between, among others, the Senior Agent, PureCircle Trading SDN BHD as borrower,
and the financial institutions listed in Part 2 of Schedule 1 therein as lender.
“Final Discharge Date” means the date on which the Senior Agent confirms that all
moneys and liabilities whatsoever which now are or at any time hereafter may become due,
owing or payable to the Finance Parties in respect of the Senior Debt have been
unconditionally and irrevocably repaid in full and the Finance Parties have no further
liability (actual or contingent) in respect of the Senior Debt (including, for the avoidance
of doubt, any obligation to provide financial accommodation to any of the Debtors under
any of the Senior Finance Documents);
“Group” has the meaning given to it in the Facilities Agreement.
"HSBC Malaysia" means The Hong Kong and Shanghai Banking Corporation Limited,
Offshore Banking Unit Labuan, Malaysia.
"HSBC USA" means HSBC Bank USA, National Association.
"Indemnity" means the counter-indemnity dated on or around the date hereof and
entered into between the Original Debtors and Ingredion, pursuant to which (among other
things) the Debtors agree to indemnify Ingredion in respect of any payment made by
Ingredion in connection with any claim or demand under or pursuant to the SBLC which
is made against Ingredion by HSBC USA in accordance with the terms of the SBLC.
"Ingredion" means Ingredion Incorporated.
“Insolvency Event” means the occurrence of an event falling with clause 22.6 (Insolvency)
or clause 22.7 (Insolvency proceedings) of the Facilities Agreement in respect of any
Debtor.
“Liabilities” means all present and future liabilities and obligations at any time of any
Debtor or any member of the Group to any Creditor under the Debt Documents (including
by way of the grant of Security under such documents), both actual and contingent and
whether incurred solely or jointly or in any other capacity together with any of the
following matters relating to or arising in respect of those liabilities and obligations:
(a) any permitted refinancing, novation, deferral or extension of those obligations or
liabilities;
(b) any claim for breach of representation, warranty or undertaking or on an event of
default or under any indemnity given under or in connection with any document or
agreement evidencing or constituting any other liability or obligation falling within
this definition;
(c) any further advance which may be made under any agreement expressed to be
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supplemental to any document in respect of those obligations or liabilities, together
with all related interest, fees and costs;
(d) any claim for damages or restitution; and
(e) any claim as a result of any recovery by any Debtor of a Payment on the grounds
of preference or otherwise,
and any amounts which would be included in any of the above but for any discharge, non-
provability, unenforceability or non-allowance of those amounts in any insolvency or other
proceedings.
“Party” means a person that is party to this Agreement.
“Payment” means, in respect of any Liabilities (or any other liabilities or obligations), a
payment, prepayment, repayment, redemption, repurchase, defeasance or discharge of
those Liabilities (or other liabilities or obligations).
“Permitted Payments” means a Payment that is made in respect of
(a) any non-cash interest or fees made by way of the capitalisation of such interest or
fees or by the issuance of a non-cash pay financial instrument evidencing the same
which is subordinated to the Senior Liabilities on the same terms as the
Subordinated Liabilities;
(b) the payment of interest payable in the ordinary course of business (for the
avoidance of doubt, not extending to default interest or late payment interest) and
the roll-over of Loans (as such term is defined in the Subordinated Facility
Agreement) where applicable under the Subordinated Facility Agreement;
(c) payments under the Indemnity in respect of the reimbursement to Ingredion of
accrued letter of credit fees incurred in respect of the SBLC in an aggregate
amount up to but not exceeding 1.50% of the total credit available under the
SBLC; or
(d) any amount to which the Senior Agent, acting on the instruction of the Majority
Lenders under (and as defined in the Facilities Agreement), has given prior consent.
"PureCircle" means PureCircle Limited, a company incorporated in Bermuda with
registration number 40431 and whose registered office is at Clarendon House, 2 Church
Street, Hamilton HM11 Bermuda.
"SBLC" means the standby letter of credit of up to USD33,000,000 dated on or around
the date of this Agreement issued by HSBC USA in favour of HSBC Malaysia in respect
of the principal, interest, cost and other monies due and payable under the Subordinated
Facility Agreement.
"SBLC Payment" means any payment made by HSBC USA to HSBC Malaysia pursuant
to the SBLC.
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“Senior Agent” means the Original Senior Agent and any other person who becomes a
Party as Senior Agent in accordance with the terms of clause 6 (Changes to the Parties).
“Senior Creditors” means the Senior Agent, the Senior Lenders and the other “Finance
Parties” as defined in the Facilities Agreement.
“Senior Finance Documents” means the Facilities Agreement, this Agreement and each
other “Finance Document” under and as defined in the Facilities Agreement.
"Senior Lenders" means the "Lenders" under (and as defined in) the Facilities
Agreement.
“Senior Liabilities” means the Liabilities owed by the Debtors to the Senior Creditors
under or in connection with the Senior Finance Documents.
“Subordinated Creditors” means the Original Subordinated Creditors and any other
person who becomes a Party as Subordinated Creditor in accordance with the terms of
clause 6 (Changes to the Parties).
"Subordinated Facility Agreement" means the revolving credit facility agreement dated
on or around the date hereof and entered into between PureCircle and HSBC Malaysia.
“Subordinated Finance Documents” means the Subordinated Facility Agreement and
the Indemnity or any other documents designated by the Borrower and the Senior Agent
as a "Subordinated Finance Document".
“Subordinated Liabilities” means the Liabilities owed by the Debtors to the Subordinated
Creditors under or in connection with the Subordinated Finance Documents.
1.2 The rules of construction contained in clauses 1.2 (Construction) and 1.6 (Currency
symbols and definitions) of the Facilities Agreement shall apply to the construction of this
Agreement, or in any notice given under or in connection with this Agreement, except that
references to the Facilities Agreement shall be construed as references to this Agreement.
In addition, the “original form” of a Debt Document or any other agreement or instrument
is a reference to that Debt Document, agreement or instrument as originally entered into;
1.3 Capitalised terms defined in the Facilities Agreement have the same meaning in this
Agreement unless expressly defined in this Agreement;
1.4 Any covenant of a Debtor or the Subordinated Creditors under this Agreement (other than
a payment obligation which has been discharged) remains in force until the Final Discharge
Date;
1.5 If the Senior Agent considers that an amount paid to a Finance Party under or in connection
with a Senior Finance Document is capable of being avoided or otherwise set aside on the
liquidation or administration of the payer or otherwise, then that amount shall not be
considered to have been irrevocably paid for the purposes of this Agreement.
1.6 Unless expressly provided to the contrary in this Agreement, a person who is not a Party
has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy
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any term of this Agreement.
1.7 Subject paragraph 7.1 of Clause 7 (Amendments), but otherwise not withstanding any
term of any Finance Document, the consent of any person who is not a Party is not
required to rescind or vary this Agreement at any time.
2. SUBORDINATION
2.1 Each of the Original Debtors and Subordinated Creditors agree that, until the Final
Discharge Date:
(a) the Subordinated Liabilities and the Debtor Liabilities are postponed and
subordinated to the Senior Liabilities in the manner provided in this Agreement;
(b) in the event of a Subordinated Creditor or an Original Debtor receiving or
recovering any payment or distribution in cash or in kind in respect of, or on account
of or in relation to, any of the Subordinated Liabilities or Debtor Liabilities
(including by way of set-off) from any member of the Group at any time other than
by means of a Permitted Payment, that Subordinated Creditor or Original Debtor
(as applicable) shall hold such sum on trust for the benefit of the Senior Creditors
and promptly pay such sum received or recovered to the Senior Agent for the
account of the Senior Creditors in accordance with the Senior Finance Documents
promptly after receiving or recovering the same for application towards the Senior
Liabilities; and
(c) if, for any reason, any of the Subordinated Liabilities or Debtor Liabilities is
discharged in any manner including (but not limited to) by set-off (except in any
case by means of a Permitted Payment or in respect of the Subordinated Facility
Agreement, by way of any SBLC Payment), the Subordinated Creditors or
Original Debtor (as applicable) shall promptly pay to the Senior Agent an amount
equal to the sum discharged for application towards the Senior Liabilities.
2.2 This Agreement does not purport to rank any of the Subordinated Liabilities or Debtor
Liabilities as between themselves.
3. SUBORDINATION ON INSOLVENCY
3.1 Subordination events
If any Insolvency Event occurs the Debtor Liabilities and the Subordinated Liabilities shall
be subordinate in right of payment to the Senior Liabilities.
3.2 Consequences of insolvency
Upon the occurrence of an Insolvency Event in relation to any member of the Group, until
the occurrence of the Final Discharge Date:
(a) the Senior Agent may:
(i) claim, enforce and prove for any Senior Liabilities or any Debtor
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Liabilities owed by that member of the Group;
(ii) file claims and proofs, give receipts, take any proceedings and do all other
things as the Senior Agent considers reasonably necessary to recover any
Senior Liabilities owed by that member of the Group; and
(iii) receive all distributions on or on account of any Subordinated Liabilities or
Debtor Liabilities (up to a maximum of an amount equal to the Senior
Liabilities) for application against the Senior Liabilities, provided that any
surplus distribution received by the Senior Agent after the Senior Liabilities
have been discharged in full shall be applied by the Senior Agent in payment
to the Subordinated Creditors towards the discharge of the Subordinated
Liabilities;
(b) each Subordinated Creditor may claim, enforce and prove for any Subordinated
Liabilities or any Debtor Liabilities owed to such Subordinated Creditor by that
member of the Group and hereby irrevocably authorises, empowers and appoints
Senior Agent its agent and attorney-in-fact to execute, verify, deliver and file (but
not vote) such proofs of claim upon the failure of such Subordinated Creditor
promptly to do so prior to 30 days before the expiration of the time to file any
such proof of claim; provided Senior Agent shall have no obligation to execute,
verify, deliver, file and/or vote any such proof of claim;
(c) each Subordinated Creditor agrees not to initiate, prosecute or participate in any
claim, action or other proceeding challenging the enforceability, validity,
perfection or priority of the Senior Liabilities or any liens and security interests
securing the Senior Liabilities; and
(d) each Original Debtor and the Subordinated Creditors shall:
(i) hold all payments and distributions in cash or in kind it receives in respect
of, or on account of or in relation to, any Debtor Liabilities or Subordinated
Liabilities owed by the relevant member of the Group and which is made as
a result of, or after, the occurrence of the Insolvency Event in respect of that
member of the Group (up to a maximum of an amount equal to the Senior
Liabilities) on trust for the Senior Agent;
(ii) promptly pay any such payment or distribution to the Senior Agent for
application towards the discharge of the Senior Liabilities; and
(iii) direct the liquidator, receiver, administrative receiver, administrator,
compulsory manager, assignee or other person distributing the assets of the
relevant member of the Group or their proceeds to pay all payments and
distributions in respect of, or on account of or in relation to, the Debtor
Liabilities or the Subordinated Liabilities (up to a maximum of an amount
equal to the Senior Liabilities) direct to the Senior Agent
provided that (A) any surplus payment or distribution received or held by the
Senior Agent after the Senior Liabilities have been discharged in full shall be
applied by the Senior Agent in payment to the Subordinated Creditors towards the
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discharge of the Subordinated Liabilities and (B) this paragraph (d) shall not
apply to any SBLC Payment made in respect of HSBC Malaysia's liabilities under
the Subordinated Facility Agreement.
3.3 Further assurance
The Subordinated Creditors and the Debtors shall promptly take whatever action the Senior
Agent may require to give effect to this Clause 3.
4. COVENANTS
4.1 Each Subordinated Creditor covenants that, until the occurrence of the Final Discharge
Date:
(a) it shall not:
(i) assign, sell or dispose of any of the Subordinated Liabilities owed to it, other
than (subject always to the terms of the Subordinated Facility Agreement),
to another Subordinated Creditor or any person who (if not already a Party
as a Subordinated Creditor) has acceded to this Agreement as a
Subordinated Creditor in accordance with clause 6 (Changes to the Parties);
(ii) accelerate any of the Subordinated Liabilities or make any declaration that
the Subordinated Liabilities is prematurely due and payable, or that the
Subordinated Liabilities is payable on demand (other than in respect of a
Permitted Payment or to the extent such Subordinated Creditor determines
that this necessary to make a demand for payment to preserve any claim or
its rights and remedies against an Obligor);
(iii) save as provided in Clause 3 (Insolvency Event) above:
(A) enforce any Subordinated Liabilities by execution or otherwise; or
(B) make any demand in relation to or receive any payment of, or any
distribution in respect or on account of any Subordinated Liabilities,
whether in cash or in kind from any source (unless it is a Permitted
Payment or a SBLC Payment);
(iv) receive any Payment in respect of any Subordinated Liabilities from any
member of the Group unless it is a Permitted Payment;
(v) allow any Subordinated Liabilities owed to it to be evidenced by a
negotiable instrument;
(vi) take or omit to take any action which might impair the priority or
subordination achieved or intended to be achieved by this Agreement;
(vii) agree to amend, waive or release any term of any agreement evidencing the
terms of the Subordinated Liabilities (including, for the avoidance of doubt,
any term of the Subordinated Finance Documents) unless the prior consent
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of the Senior Agent is obtained;
(viii) initiate or take any steps (whether by petition, convening a meeting, voting
for a resolution or otherwise) in respect of any Subordinated Liabilities
owed to it with a view to:
(A) any winding up, administration, insolvency, reorganisation or
dissolution proceedings in respect of any member of the Group or a
moratorium in relation to any indebtedness of any member of the
Group;
(B) any composition, compromise, assignment or arrangement with the
creditors of any member of the Group;
(C) any analogous procedure or step in relation to any member of the
Group in any jurisdiction; or
in each case, without the prior written consent of the Senior Agent
(ix) bring or support any legal proceedings against any member of the Group in
respect of the Subordinated Liabilities owed to it; or
(x) otherwise exercise any remedy under the Subordinated Finance Documents
for the recovery of any Subordinated Liabilities against any member of the
Group.
(b) it shall not receive any security for or with respect to the Subordinated Liabilities
from any member of the Group;
(c) it shall:
(i) notify the Senior Agent of any event of default or potential event of default
under their respective Subordinated Finance Documents promptly upon
becoming aware of its occurrence; and
(ii) upon request by the Senior Agent, notify the Senior Agent of details of the
amount of the Subordinated Liabilities owing to the Subordinated Creditors;
and
(d) it shall not permit any other member of the Group to assume Subordinated
Liabilities and shall not receive any guarantee or indemnity or other similar
assurance credit support, of or with respect to the Subordinated Liabilities, from
any other member of the Group unless it has satisfied the conditions set forth in
Schedule 4 (Conditions to Assumption of Liabilities) to the satisfaction of the
Senior Agent (acting on the instructions of the Majority Lenders), acting
reasonably and in good faith.
4.2 The Debtors shall not (and shall procure that no other member of the Group will), until the
Final Discharge Date:
(a) make any Payment in respect of any Subordinated Liabilities unless it constitutes a
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Permitted Payment;
(b) allow any person to purchase or acquire any of the Subordinated Liabilities unless
that person is another Subordinated Creditor or (if not already a Party as a
Subordinated Creditor) has acceded to this Agreement as a Subordinated Creditor
in accordance with clause 6 (Changes to the Parties);
(c) receive any Payment in respect of any Debtor Liabilities from any member of the
Group unless it is a Payment made to facilitate (and solely to the extent that it
facilitates) any Permitted Payment;
(d) allow any Subordinated Liabilities to be evidenced by a negotiable instrument;
(e) agree to amend, waive or release any term of any agreement evidencing the terms
of the Subordinated Liabilities (including, for the avoidance of doubt, any term of
the Subordinated Finance Documents) unless the prior consent of the Senior Agent
is obtained; or
(f) take or omit to take any action which might impair the priority or subordination
achieved or intended to be achieved by this Agreement.
4.3 If the Senior Liabilities are wholly or partially paid out of any proceeds received in
respect of or on account of the Subordinated Liabilities, each Subordinated Creditor will
to the extent of its share of such payment be subrogated to the Senior Liabilities so paid
(and all securities and guarantees for that Senior Liabilities) but not before the Final
Discharge Date has occurred.
5. CONSENTS
5.1 The Subordinated Creditors shall not have any remedy against any member of the Group
or any Senior Finance Party by reason of any transaction entered into between a Senior
Finance Party and a member of the Group (including any Finance Document) which may
conflict with or constitute a default under any Subordinated Finance Document.
5.2 Any waiver or consent granted by or on behalf of any Senior Finance Party in respect of
any Senior Finance Document will also be deemed to have been given by the Subordinated
Creditors, if any transaction or circumstances would, in the absence of that waiver or
consent by the Subordinated Creditors conflict with or constitute a default under any
Subordinated Finance Document.
6. CHANGES TO THE PARTIES
6.1 No person shall become a Senior Agent unless, at the same time, it accedes to this
Agreement in such capacity pursuant to an Accession Undertaking.
6.2 A Subordinated Creditor may only assign any of its rights and benefits or transfer by
novation any of its rights, benefits and obligations in respect of any Subordinated Finance
Documents or the Subordinated Liabilities if:
(a) that assignment or transfer is in accordance with the terms of the Subordinated
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Facility Agreement or the Indemnity (as the case may be); and
(b) any assignee or transferee has (if not already party to this Agreement as a
Subordinated Creditor) acceded to this Agreement, as a Subordinated Creditor,
pursuant to Clause 6.4 below; and
(c) the Senior Agent has performed all necessary “know your customer” or other
similar checks under all applicable laws and regulations in relation to such
assignment or transferee, the completion of which the Senior Agent shall
promptly notify to the existing Subordinated Creditor and the proposed
Subordinated Creditor.
6.3 With effect from the date that an Accession Undertaking is duly executed and delivered by
the relevant acceding party to PureCircle and the Senior Agent or, if later, the date
specified in that Accession Undertaking:
(a) any Party ceasing to be a Subordinated Creditor shall be discharged from further
obligations towards the Senior Creditors and the other Parties under this Agreement
and their respective rights against one another shall be cancelled (except in each
case for those rights which arose prior to that date); and
(b) as from that date the replacement or new Subordinated Creditor shall assume the
same obligations and become entitled to the same rights, as if it had been an original
party in the capacity as Subordinated Creditor.
6.4 PureCircle shall procure that a member of the Group shall only incur Subordinated
Liabilities and accede to this Agreement in accordance with this Clause 6, if it has
previously given any guarantee, indemnity or other similar assurance against loss in
respect of the Senior Liabilities or contemporaneously with the incurrence of Subordinated
Liabilities it also guarantees, indemnifies or provides other similar assurance against loss
in respect of the Senior Liabilities and procures that such member of the Group accedes to
this Agreement in accordance with this Clause 6.
6.5 If in accordance with this Clause 6, any Obligor:
(a) incurs Subordinated Liabilities; or
(b) gives any guarantee, indemnity or other similar assurance against loss in respect of
the Subordinated Liabilities,
PureCircle will procure that the person incurring those Liabilities or giving that
guarantee, indemnity or other similar assurance accedes to this Agreement as a Debtor, in
accordance with Clause 6.6 below and Schedule 4 (Conditions to Assumption of
Liabilities), no later than contemporaneously with the incurrence or assumption of those
Liabilities or the giving of that guarantee, indemnity or similar assurance.
6.6 With effect from the date of that an Accession Undertaking is duly executed and delivered
by the relevant acceding party to the Senior Agent or, if later, the date specified in the
Accession Undertaking, the new Debtor shall assume the same obligations and become
entitled to the same rights as if it had been an original Party to this Agreement as a Debtor.
13
6.7 Save as expressly provided for in this Clause 6, neither the Debtors nor the Subordinated
Creditors may assign any of their rights or transfer any of their rights or obligations under
this Agreement without the prior consent of the Senior Agent.
6.8 Any Senior Finance Party may assign or otherwise dispose of all or any of its rights under
this Agreement in accordance with the Senior Finance Documents to which it is a party.
6.9 References to the Senior Agent in this Agreement include any successor Senior Agent
appointed under the Facilities Agreement.
7. AMENDMENTS
7.1 No variation of this Agreement shall be valid unless it is in writing and signed by
PureCircle on behalf of the Original Debtors, the Senior Creditors and the Subordinated
Creditors.
7.2 Unless expressly agreed, no variation shall constitute a general waiver of any provisions of
this Agreement, nor shall it affect any rights, obligations or liabilities under or pursuant to
this Agreement which have already accrued up to the date of variation, and the rights and
obligations of the parties under or pursuant to this Agreement shall remain in full force and
effect, except and only to the extent that they are so varied.
8. REPRESENTATIONS
8.1 Each Subordinated Creditor and each Original Debtor (or, in respect of sub-paragraph (f)
below, the Original Debtors only) represents and warrants, as to itself only, to the Senior
Agent that:
(a) it is a corporation, duly incorporated or formed and validly existing under the
laws of its jurisdiction of incorporation;
(b) it has full corporate authority, power and capacity to enter into and carry out its
obligations under this Agreement and that all necessary acts and things have been
taken or done to enable it lawfully to enter into and carry out its obligations under
this Agreement;
(c) this Agreement creates obligations which are valid and binding on it and
enforceable in accordance with their terms;
(d) the entry into and performance by it of this Agreement does not and will not (i)
conflict with any law or regulation applicable to it, its constitutional documents or
any agreement or instrument binding upon it or any of its assets; or (ii) constitute a
default or termination event (howsoever described) under any agreement or
instrument binding on it or any of its assets;
(e) in the case of a Subordinated Creditor, it is the sole legal and beneficial owners of
the Subordinated Liabilities owed to it; and
(f) HSBC USA has no direct claim or right to claim against any Debtor in relation to
(A) any SBLC Payment or (B) any claim it may have against Ingredion
14
Incorporated in connection with any SBLC Payment.
8.2 All the representations and warranties in this Clause 8 are made by Each Subordinated
Creditor and each Original Debtor on the date of this Agreement.
8.3 Each representation or warranty deemed to be made after the date of this Agreement shall
be deemed to be made by reference to the facts and circumstances then existing.
9. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, then such
provision shall (so far as invalid or unenforceable) be given no effect and shall be deemed
not to be included in this Agreement but without invalidating any of the remaining
provisions of this Agreement.
10. NOTICES
10.1 All notices or other communications under or in connection with this Agreement shall be
given in writing and shall be delivered by hand or by overnight courier service, mailed by
certified or registered mail or facsimile or email. Any such notice will be deemed to be
given as follows:
(a) if by hand, courier service or mail, when delivered;
(b) if by facsimile, when received; and
(c) if by email, when actually received.
A notice given in accordance with the above but received on a non-working day or after
business hours in the place of receipt will only be deemed to be given at opening of business
on the next working day in that place.
10.2 The relevant addresses and fax numbers and email addresses of any Party for the purpose
of this clause 10 shall be those set out below or such other address as otherwise notified to
the other Parties by not less than 5 Business Days’ notice:
The Senior Agent
The Hongkong and Shanghai Banking Corporation Limited
Level 30, HSBC Main Building,
1 Queen’s Road Central,
Hong Kong
Fax: +852 3478 9198
Attention: Issuer Services
The Subordinated Creditors
Ingredion Incorporated
5 Westbrook Corporate Center
15
Westchester, Illinois 60154
USA,
Attention: Kevin Wilson, Vice President and Corporate Treasurer
(Telecopy No. (708) 551-2630),
CC: Senior Vice President, General Counsel, Corporate Secretary and Chief Compliance
Officer
HSBC Malaysia
The Hongkong and Shanghai Banking Corporation Limited
Offshore Banking Unit Labuan
Level 11(B1), Main Office Tower, Financial Park Labuan,
Jalan Merdeka, 87000 Wilayah Persekutuan Labuan, Malaysia.
Attention: Joel Ng Han Yang
VP, Relationship Manager | International Subsidiary Banking
Phone: +60 3 889 41110
Email: joel.han.yang.ng@hsbc.com.my
The Original Debtors
PureCircle Limited
Level 12, Rohas PureCircle
9, Jalan P. Ramlee
50250 Kuala Lumpur
Malaysia
Tel: +60 (3) 2380-9300
Email: chinyf@purecircle.com
Attention: Chin Yoong Foo
or as otherwise notified to the other Parties by not less than 5 Business Days’ notice.
10.3 All notices under or in connection with this Agreement shall be in the English language.
11. PROTECTION OF SUBORDINATION
11.1 Continuing subordination
The subordination provisions in this Agreement constitute a continuing subordination and
will benefit the ultimate balance of the Senior Liabilities, regardless of any intermediate
payment or discharge in whole or in part.
11.2 Waiver of defences
The subordination in this Agreement and the obligations of the Debtors and the
Subordinated Creditors under this Agreement will not be affected by any act, omission,
matter or thing (whether or not known to the Debtors or the Subordinated Creditors or
16
any Senior Finance Party) which, but for this provision, would reduce, release or
prejudice the subordination or any of those obligations. This includes:
(a) any time or waiver or consent granted to, or composition with, any person;
(b) any release of any person under the terms of any composition or arrangement;
(c) 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,
any 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;
(d) any incapacity or lack of power, authority or legal personality of or dissolution or
change in the members or status of any person;
(e) any amendment of any Senior Finance Document or any other document or security
including without limitation any change in the purpose of, any extension of or any
increase in any facility or the addition of any new facility under any Senior Finance
Document or other document or security;
(f) any unenforceability, illegality, invalidity or non-provability of any obligation of
any person under any Senior Finance Document or any other document or security;
or
(g) any insolvency, resolution or similar proceedings.
11.3 Immediate recourse
The Subordinated Creditors waives any right it may have of first requiring any Senior
Finance Party (or any trustee or other agent on its behalf) to proceed against or enforce any
other rights or security or claim payment from any person before claiming the benefit of
this Agreement. This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.
11.4 Appropriations
Until the Final Discharge Date, each Senior Finance Party (or any trustee or agent on its
behalf) may:
(a) refrain from applying or enforcing any other moneys, security or right held or
received by that Senior Finance Party (or any trustee or agent on its behalf) against
the Senior Debt, or apply and enforce the same in such manner and order as it sees
fit (whether against the Senior Debt or otherwise) and the Subordinated Creditors
shall not be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from the
Subordinated Creditors or on account of the Subordinated Creditors’ liability under
this Agreement.
11.5 Deferral of Debtors’ and Subordinated Creditors’ rights
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(a) Until the Final Discharge Date or the Senior Agent otherwise directs, the Debtor
and the Subordinated Creditors will not exercise any rights which it may have by
reason of performance by it of its obligations under this Agreement or by reason of
any amount being payable, or liability arising under this Clause 11:
(i) to be indemnified by an Obligor;
(ii) to claim any contribution from any other guarantor of any Obligor's
obligations under the Senior Finance Documents;
(iii) to take the benefit (in whole or in part and whether by way of subrogation
or otherwise) of any rights of the Senior Finance Parties under the Senior
Finance Documents or of any other guarantee or security taken pursuant to,
or in connection with, the Senior Finance Documents by any Senior Finance
Party;
(iv) to bring legal or other proceedings for an order requiring any Obligor to
make any payment, or perform any obligation, in respect of which the
Subordinated Creditors has given a guarantee, undertaking or indemnity
under this Clause 11;
(v) to exercise any right of set-off against any Obligor; and/or
(vi) to claim or prove as a creditor of any Obligor in competition with any Senior
Finance Party.
(b) If a Debtor or the Subordinated Creditor receives any benefit, payment or
distribution in relation to such rights set out in paragraph (a) above it shall hold
that benefit, payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Senior Finance Parties by the Obligors
under or in connection with the Senior Finance Documents to be repaid in full on
trust for the Senior Finance Parties and shall promptly pay or transfer the same to
the Senior Agent or as the Senior Agent may direct for application in accordance
with the Facilities Agreement.
(c) Notwithstanding the foregoing, in no event shall this section 11.5 prohibit the
receipt of any Permitted Payment.
12. RIGHTS AND RESPONSIBILITIES OF THE SENIOR AGENT
12.1 Rights and responsibilities of the Senior Agent
The Senior Agent will not be liable to the Subordinated Creditors for the manner of exercise
of or for any non-exercise of its powers under this Agreement or failure to collect or
preserve the Subordinated Liabilities.
12.2 Indemnity
Each of the Debtors shall jointly and severally indemnify the Senior Agent and every
attorney appointed by it in respect of any cost, loss or liability incurred by it in connection
18
with any of its rights, powers, discretions and remedies under this Agreement, unless that
liability arises as a result of the Senior Agent's gross negligence, wilful misconduct or
fraud.
12.3 Non-derogation
Nothing in this Agreement in any manner affects the rights or remedies of any Senior
Finance Party under the Senior Finance Documents.
13. TREATMENT OF DISTRIBUTION
13.1 Non-cash distributions
If any Senior Finance Party receives any distribution otherwise than in cash in respect of
the Subordinated Liabilities from the Debtors or from any other source, the Senior
Liabilities will not be deemed reduced by the distribution until and except to the extent that
the realisation proceeds are applied towards the Senior Liabilities.
13.2 Transfer of distributions
Each of the Subordinated Creditors and the Debtors shall do anything which the Senior
Agent may reasonably require as being necessary or desirable to transfer to the Senior
Agent all payments and distributions which shall be made to or held in trust for the Senior
Finance Parties, including endorsements and execution of formal transfers.
13.3 Currencies
(a) All moneys received or held by the Senior Agent under this Agreement at any time
on or after the enforcement of this Agreement in a currency other than a currency
in which the Senior Liabilities is denominated may be sold for any one or more of
the currencies in which the Senior Liabilities is denominated and which the Senior
Agent considers necessary or desirable.
(b) The Debtors shall promptly indemnify the Senior Agent against any cost, loss or
liability incurred by any Senior Finance Party in relation to any sale. The Senior
Agent will have no liability to any Party in respect of any loss resulting from any
fluctuation in exchange rates after any such sale.
14. MISCELLANEOUS
14.1 Trust
Each of the Subordinated Creditors and the Debtors acknowledge that:
(a) the undertakings given by it and contained in this Agreement;
(b) the other rights, title and interests constituted by this Agreement; and
(c) all other monies and assets paid to, held by or received or recovered by the Senior
Agent under or in connection with this Agreement,
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are held by the Senior Agent the benefit of and for and on behalf of the Senior Finance
Parties.
14.2 Power of attorney
Each of the Subordinated Creditors and the Debtors, by way of security for the obligations
of the Subordinated Creditor under this Agreement, irrevocably and severally appoints the
Senior Agent and any of its delegates or sub-delegates to be its attorney with full power
and authority to take any action which the Subordinated Creditor or the Debtors is obliged
to take under this Agreement but has failed to take. Each of the Subordinated Creditors
and the Debtors ratifies and confirms whatever any attorney does or purports to do under
its appointment under this Clause 14.2.
14.3 Set-off
A Senior Finance Party may set off any matured obligation due from the Subordinated
Creditors under this Agreement (to the extent beneficially owned by that Senior Finance
Party) against any matured obligation owed by that Senior Finance Party to the
Subordinated Creditor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the Senior Finance Party
may convert either obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.
14.4 Interest on demand
Without duplication of any default interest payable under any Debt Document, if any
Creditor or Debtor fails to pay any amount payable by it under this Agreement on its due
date, interest shall (to the extent such accrual does not result in any double counting under
the provisions of this Agreement and the provisions of the other Debt Documents) accrue
on the overdue amount (and be compounded with it) from the due date up to the date of
actual payment (both before and after judgment and to the extent interest at a default rate
is not otherwise being paid on that sum) at the rate which is 1 per cent per annum over the
rate at which the recipient was being offered, by leading banks in the London interbank
market, deposits in an amount comparable to the unpaid amounts in the currencies of those
amounts for any period(s) that the recipient may from time to time select.
14.5 Certificates and determinations
Any certification or determination by a Senior Finance Party of a rate or amount in respect
of any Senior Liabilities is, in the absence of manifest error, conclusive evidence of the
matters to which it relates.
15. WAIVERS
No failure or delay by any Party in exercising any right or remedy provided by law under
or pursuant to this Agreement shall impair such right or remedy or operate or be construed
as a waiver or variation of it or preclude its exercise at any subsequent time and no single
or partial exercise of any such right or remedy shall preclude any other or further exercise
of it or the exercise of any other right or remedy.
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16. ENTIRE AGREEMENT
This Agreement and the other Debt Documents set out the entire agreement and
understanding between the parties in respect of the subject matter of this Agreement.
17. PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be affected or
impaired.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the parties to it on
separate counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
19. GOVERNING LAW
This Agreement and any non-contractual obligations arising out of it shall be governed by,
and interpreted in accordance with, English law.
20. JURISDICTION
20.1 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including a dispute relating to the existence, validity or
termination of this Agreement or any non-contractual dispute arising out of it (a “Dispute”)
20.2 The Parties agree that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no Party will argue to the contrary.
20.3 Notwithstanding paragraph 20.1 above, the Senior Agent shall be prevented from taking
proceedings relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Senior Agent may take concurrent proceedings in any number of
jurisdictions.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement
and executed as a deed by the Subordinated Creditors and the Original Debtors, and is intended
to be and is delivered by them as a deed on the date specified above.
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SCHEDULE 1
ORIGINAL SUBORDINATED CREDITORS
Ingredion Incorporated
The Hong Kong and Shanghai Banking Corporation Limited, Offshore Banking Unit Labuan,
Malaysia.
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LONDON:622803.15
SCHEDULE 2
ORIGINAL DEBTORS
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
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LONDON:622803.15
SCHEDULE 3
FORM OF ACCESSION UNDERTAKING
To: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as
Senior Agent under the Subordination Agreement mentioned below
PURECIRCLE LIMITED
From: [Acceding Debtor/Subordinated Creditor] [Date]
Accession Undertaking
This Accession Undertaking relates to a subordination agreement (the “Subordination
Agreement”) dated 2020 between, amongst others, PureCircle Limited as a debtor, The
Hongkong and Shanghai Banking Corporation Limited as the senior agent (the “Senior Agent”),
the parties listed in Schedule 1 therein as the original subordinated creditors and the parties listed
in Schedule 2 as the original debtors. Terms defined in the Subordination Agreement shall have
the same meaning in this Accession Undertaking.
1. [●] (the “[Acceding Debtor/Subordinated Creditor/Senior Agent]”) is, pursuant to this
Accession Undertaking, acceding to the Subordination Agreement as a
[Debtor/Subordinated Creditor/Senior Agent] and accordingly shall, subject to the terms
of this Accession Undertaking and the Subordination Agreement, become a
[Debtor/Subordinated Creditor/ Senior Agent] under the Subordination Agreement.
2. The [Debtor/Subordinated Creditor/Senior Agent] hereby:
(a) makes the representations and warranties set out in clause 8 of the Subordination
Agreement; and
(b) undertakes to perform in accordance with their terms all those obligations which by
the terms of the Subordination Agreement will be assumed by it as a
[Debtor/Subordinated Creditor/Senior Agent] and agrees that it shall be bound by
all the provisions of the Subordination Agreement, as if it had been an original
party thereto;
3. This Accession Undertaking and any non-contractual obligations arising out of or in
connection with it are governed by and interpreted in accordance with English law and
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LONDON:622803.15
clauses 20 (Jurisdiction) of the Subordination Agreement is incorporated herein by
reference.
[Deed signature blocks to be inserted.]
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LONDON:622803.15
SCHEDULE 4
CONDITIONS TO ASSUMPTION OF LIABILITIES
1. A form of Accession Undertaking and Accession Letter (as defined in and required by the
Subordinated Facility Agreement and the Facilities Agreement as the case may be), duly
executed by the Acceding Debtor.
2. A copy of the constitutional documents of the Acceding Debtor.
3. A copy of a resolution of the board of directors of the Acceding Debtor:
(a) approving the terms of, and the transactions contemplated by, the Accession
Undertaking, the Subordinated Facility Agreement or the Facilities Agreement as
the case may be, and resolving that it executes the relevant Debt Documents;
(b) authorising a specified person or persons to execute the Accession Undertaking and
the relevant Debt Documents on its behalf;
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all
other documents and notices to be signed and/or despatched by it under or in
connection with the Accession Undertaking and the relevant Debt Documents; and
(d) resolving that it is in the best interests of that Acceding Debtor to enter into the
transactions contemplated by the Accession Undertaking and the relevant Debt
Documents to which that Acceding Debtor is a party, giving reasons.
4. A specimen of the signature of each person authorised by the resolution referred to in
paragraph 3 above.
5. If required, a copy of a resolution signed by all the holders of the issued shares of the
Acceding Debtor, approving the terms of, and the transactions contemplated by, the
Accession Undertaking and the relevant Debt Documents to which the Acceding Debtor is
a party.
6. A certificate of the Acceding Debtor (signed by a director) confirming that borrowing or
guaranteeing, the obligations constituted by the Accession Undertaking and the relevant
Debt Documents to which that Acceding Debtor is a party would not cause any borrowing,
guaranteeing or similar limit binding on it to be exceeded.
7. A good standing certificate for any Acceding Debtor incorporated in the United States of
America from its jurisdiction of incorporation or organisation, dated not earlier than 5
Business Days prior to the date of the relevant Accession Undertaking and the relevant
Debt Documents to which that Acceding Debtor is a party.
8. A certificate of an authorised signatory of the Acceding Debtor certifying that each copy
document listed in this Schedule 4 is correct, complete and in full force and effect as at a
24
date no earlier than the date of the of the relevant Accession Undertaking and the relevant
Debt Documents to which that Acceding Debtor is a party.
9. A copy of any other Authorisation or other document, opinion or assurance which the
Senior Agent considers to be necessary or desirable (including any documents or
evidence to comply with “know your customer” checks) in connection with the entry into
and performance of the transactions contemplated by the Accession Letter or for the
validity and enforceability of any Finance Document.
10. A legal opinion in relation to English law from Allen & Overy LLP addressed to the
Senior Creditors.
11. A legal opinion as to the law of the jurisdiction of incorporation of the Acceding Debtor,
if other than England and Wales, from a law firm appointed by the Senior Agent
addressed to the Senior Creditors.
12. If the proposed Acceding Debtor is incorporated in a jurisdiction other than England and
Wales, evidence that the process agent specified in Clause 42.2 of the Facilities
Agreement (Service of process) if applicable has accepted its appointment in relation to
the proposed Acceding Debtor.
13. Evidence that any fee payable under Clause 24.3 of the Facilities Agreement (Additional
Guarantor accession fee) if applicable has been paid.
Recommended