Exhibit 10.8
FCX SUBORDINATED LOAN AGREEMENT
THIS SUBORDINATED LOAN AGREEMENT (this "Subordinated Loan
Agreement") is made and entered into as of March 21, 1997, by and
between FREEPORT-McMoRan COPPER & GOLD INC., a corporation
organized under the laws of the State of Delaware, United States
of America (the "Subordinated Lender"), and PT NUSAMBA MINERAL
INDUSTRI, a limited liability company organized under the laws of
the Republic of Indonesia (the "Borrower").
RECITALS
WHEREAS, the Borrower and the Bakrie Group (as defined in
the Loan Agreement referred to below) have entered into the
Purchase Agreement (as defined in the Loan Agreement referred to
below), pursuant to which the Borrower will purchase from the
Bakrie Group the Subject Shares (as defined in the Loan Agreement
referred to below);
WHEREAS, the Borrower has entered into that certain Loan
Agreement dated as of March 21, 1997, as the same may be amended
and/or restated and in effect from time to time (the "Loan
Agreement"), among the Borrower, the banks parties thereto (the
"Banks"), The Chase Manhattan Bank, as administrative agent and
as security agent for the Banks, and Union Bank of Switzerland,
as managing agent for the Banks;
WHEREAS, pursuant to the Loan Agreement, the Banks will make
Advances (as defined in the Loan Agreement) to the Borrower in
order to finance not more than $254,000,000.00 of the amount
payable by the Borrower on account of the purchase of the Subject
Shares and related fees and expenses; and
WHEREAS, the Borrower has requested that the Subordinated
Lender make, at any time at which the amounts in the Dividend
Reserve Account (as defined in the Loan Agreement) are
insufficient to meet any scheduled payment of interest and
related fees due on the Advances, loans to cover such
insufficiency (referred to in the Loan Agreement as the "Interest
Shortfall Loans'), and the Subordinated Lender has agreed to make
such Interest Shortfall Loans subject to the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the promises and mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not
defined herein shall have the meanings assigned to them,
respectively, in the Loan Agreement.
Section 2. Subordinated Loans. At any time at which the
amounts in the Dividend Reserve Account are insufficient to meet
any scheduled payment of interest on the Advances or fees due
under the Loan Agreement, the Subordinated Lender shall make a
subordinated loan to the Borrower (each a "Subordinated Loan";
collectively, the "Subordinated Loans") in an amount, in United
States Dollars, equal to the amount by which the amounts in the
Dividend Reserve Account shall be insufficient to meet such
scheduled payment (the "Interest Shortfall Amount"). The
Borrower shall give the Subordinated Lender written notice of
such insufficiency not less than ten (10) days prior to the date
of such scheduled payment (the "Payment Date"), which notice
shall specify (a) the Interest Shortfall Amount and (b) the
Payment Date. Not later than 11:00 a.m. (New York time) on the
Payment Date, the Subordinated Lender shall make available a
Subordinated Loan in an amount equal to the Interest Shortfall
Amount by paying such Interest Shortfall Amount, in immediately
available funds, to the Security Agent for deposit into the
Dividend Reserve Account.
Section 3. Promise to Pay. For value received, the
Borrower hereby promises to pay to the Subordinated Lender the
aggregate unpaid principal balance of the Subordinated Loans made
to the Borrower pursuant to the terms of this Subordinated Loan
Agreement, together with interest thereon as provided in Section
5 hereof, and all other amounts due to the Subordinated Lender by
the Borrower hereunder, all at the times and on the terms and
conditions set forth herein.
Section 4. Evidence of Outstanding Amounts. The
aggregate amount of the Subordinated Loans owed to the
Subordinated Lender, each payment of interest and principal on
account of such Subordinated Loans, and the unpaid balance of
such Subordinated Loans shall, absent manifest error, be as
recorded on the books and records of the Subordinated Lender.
Section 5. Interest; Payments.
(a) Each Subordinated Loan shall bear interest
(computed on the basis of the actual number of days elapsed
over a year of 360 days) on the aggregate unpaid principal
amount thereof from time to time outstanding at the rate
(the "Prescribed Rate") equal to the weighted average daily
cost of borrowings by the Subordinated Lender under the FCX
Revolver during the applicable period when each such
Subordinated Loan is outstanding, as determined by the
Subordinated Lender in its sole discretion, or if no such
borrowings by the Subordinated Lender under the FCX Revolver
are outstanding during such period, then at a rate
approximately equivalent to such rate, as determined by the
Subordinated Lender in its sole discretion.
(b) Interest shall be due and payable on the aggregate
unpaid principal amount of the Subordinated Loans from time
to time outstanding hereunder on the last day of each
calendar quarter, subject, however, to the provisions of
Section 5(d) below. There shall be added to and become part
of each Subordinated Loan, on the last day of each calendar
quarter, interest accrued on such Subordinated Loan, to the
extent not paid in accordance with the terms hereof.
(c) The Subordinated Lender shall give to he Borrower
such explanation regarding the calculation of the Prescribed
Rate and the amounts due hereunder as the Borrower may
reasonably request.
(d) Subject to Section 7 hereof and the Terms of
Subordination (as hereafter defined), the Borrower shall
make no payments of principal or interest, or any other
amount, on account of the Subordinated Loans until the
maturity thereof; provided that, in accordance with the Loan
Agreement, any amounts in the Dividend Reserve Account in
excess of the amounts required to pay interest on the
Advances or fees under the Loan Agreement to become due
during the next 90 days shall be applied to repay
outstanding principal and interest on account of the
Subordinated Loans upon receipt by the Security Agent of a
certificate signed by an authorized financial officer of the
Subordinated Lender calculating the amount of such excess
and directing the Security Agent to pay such amount to the
Subordinated Lender; provided that no default or Event of
Default shall have occurred and be continuing.
Section 6. Maturity. Subject to Section 7 hereof and
the Terms of Subordination (as hereafter defined), the principal
of all Subordinated Loans outstanding on the fifth (5th)
anniversary of the date hereof shall mature and be payable on
such date, together with all accrued and unpaid interest on such
Subordinated Loans.
Section 7. Subordination. The Subordinated Loans and
all amounts payable under this Subordinated Loan Agreement,
including upon any acceleration thereof, shall be and hereby are
subordinated in accordance with the Terms of Subordination
attached as Exhibit A hereto and made a part hereof (the "Terms
of Subordination").
Section 8. Collateral Security. Subject to Section 7
hereof and the Terms of Subordination, the prompt payment when
due of the Subordinated Loans, in principal and accrued interest,
and all other amounts payable under this Subordinated Loan
Agreement shall be secured by the FCX Liens, as further provided
in the Share Pledges.
Section 9. Order of Application of Payments. Subject to
Section 7 hereof and the Terms of Subordination, all payments
made by the Borrower hereunder shall be credited in the following
order of priority:
(a) First, to any fees, costs and expenses (including,
without limitation, attorneys fees) incurred in connection
with the administration and enforcement of the Subordinated
Loans and the Subordinated Lender's rights hereunder;
(b) Second, to accrued and unpaid interest on the
outstanding Subordinated Loans;
(c) Third, to current interest then due on the
outstanding Subordinated Loans; and
(d) Fourth, to principal on the outstanding
Subordinated Loans.
The Borrower shall make payments of principal and interest
in accordance with the terms hereof without presentment, demand,
protest, or notice of any kind, all of which are hereby waived by
the Borrower.
Section 10. Withholding Taxes. All payments of principal
of and interest on the Subordinated Loans, and all other amounts
payable by the Borrower hereunder, shall be made free and clear
of and without reduction by reason of any present or future
taxes, duties, levies, imposts, assessments, or other
governmental charges, other than taxes, duties, levies, imposts,
assessments or other governmental charges based upon net income
payable by the Subordinated Lender or franchise taxes, in each
case imposed by the jurisdiction of incorporation of the
Subordinated Lender or the jurisdiction in which the Subordinated
Lender has its principal executive office, or any department,
agency or other political subdivision or taxing authority in
either of such jurisdictions, ("Withholding Taxes"), all of which
will be for the account of and paid in full when due by the
Borrower. In case any deduction or withholding for or on account
of any Withholding Taxes is (a) levied by the government of the
Republic of Indonesia on the amounts payable to the Subordinated
Lender pursuant to this Subordinated Loan Agreement and (b)
required to be withheld from such payments, the Borrower shall
make the required deduction or withholding, promptly pay the
amount of such Withholding Taxes to the appropriate taxing
authorities, and pay to the Subordinated Lender such additional
amounts as may be required, after the deduction or withholding of
such Withholding Taxes, to enable the Subordinated Lender to
receive from the Borrower on the due date thereof an amount equal
to the full amount that the Subordinated Lender should have
received had the relevant deduction or withholding not been made
from such payment for or on account of such Withholding Taxes.
The Subordinated Lender shall cooperate with the Borrower to
reduce the rate of such Withholding Taxes to the lowest legal
rate. Promptly after each such payment of Withholding Taxes, the
official tax receipts or other evidence of such payment issued by
the tax authorities concerned shall be forwarded to the
Subordinated Lender.
Section 11. Notices. All notices hereunder shall be in
writing and delivered personally or sent by telecopier or by
registered or certified mail (return receipt requested) to the
Subordinated Lender or the Borrower at the following addresses
(or such other addresses as shall be specified by like notice):
If to the Subordinated Lender, to:
Freeport-McMoRan Copper & Gold Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxx
Treasurer
Telecopier: (000) 000-0000
If to the Borrower, to:
PT Nusamba Mineral Industri
Wisma Kalimanis, Lt. 8
J1. Let. Jen. Xxxxxxx XX Xxx 00
Xxxxxxx 00000
Attention: Mr. AbdulMadjid, President Director
Mr. Paulce D. Wenas, Director
Telecopier: 62-21-798-19333 or 799-6328
All notices shall be deemed given as of (a) the date upon
which such notice is first delivered by hand or sent by
telecopier (receipt confirmed, with a copy simultaneously mailed
by registered mail), (b) one (1) day after depositing for
delivery, fee prepaid, with Federal Express or similar overnight
delivery service, or (c) five (5) days after mailing, postage
prepaid and properly addressed.
Section 12. Prepayment. Subject to Sections 5 and 7 hereof
and the Terms of Subordination, principal and/or interest on the
Subordinated Loans may be prepaid by the Borrower, in whole or in
part, at any time without penalty or premium.
Section 13. Acceleration; Termination of Commitment.
Subject to Section 7 hereof and the Terms of Subordination, the
Subordinated Loans, together with all accrued and unpaid interest
thereon and all other amounts then payable with respect thereto,
shall be accelerated and due and payable in full by the Borrower,
and the commitment of the Subordinated Lender to make any further
Subordinated Loans shall terminate, in each case, at the option
of the Subordinated Lender, upon: (a) the acceleration of the
Senior Debt (as defined in the Terms of Subordination), or (b)
the repayment in full of the Senior Debt (regardless of whether
then due). The commitment of the Subordinated Lender to make any
further Subordinated Loans shall also terminate, at the option of
the Subordinated Lender, upon (x) the occurrence of an Event of
Default, or (y) the occurrence of any default or other breach of
the Borrower's obligations under the Acquisition Documents.
Section 14. Choice of Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT
SITTING IN NEW YORK COUNTY FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 15. Miscellaneous. This Subordinated Loan
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall
constitute one and the same instrument. The provisions of this
Subordinated Loan Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs,
successors and assigns. In the event any suit, legal action or
proceeding arising out of or in connection with this Agreement is
brought in the Republic of Indonesia against the Borrower or the
Subordinated Lender or any of their property, each of the
Borrower and Subordinated Lender elects its legal and permanent
domicile at the Clerk's Office of the District Court in Central
Jakarta (Xxxxxx Panitera Pengadilan Negeri Jakarta Pusat).
IN WITNESS WHEREOF, the parties have caused this
Subordinated Loan Agreement to be duly executed as of the date
first above written.
SUBORDINATED LENDER:
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/X. Xxxxxx Xxxxxx
--------------------
X. Xxxxxx Xxxxxx
Its: Treasurer
BORROWER:
PT NUSAMBA MINERAL INDUSTRI
By: Signed
Name:
Title:
EXHIBIT "A"
TO
FCX SUBORDINATED LOAN AGREEMENT
Terms of Subordination
Capitalized terms used and not defined herein shall have the
meanings assigned to them, respectively, in the Loan Agreement
referred to below.
(a) All obligations of PT Nusamba Mineral Industri (the
"Borrower"), howsoever created, arising, or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter
existing, due or to become due, including, without limitation,
all amounts owing from time to time in respect of the Advances,
and the fees, indemnities, and expenses payable by the Borrower
under the Loan Agreement referred to below and the related
documentation, and all amounts owing from time to time by the
Borrower to any of the Banks pursuant to any Permitted Secured
Hedge and the related documentation, are hereinafter called
"Liabilities". All Liabilities arising under or in connection
with (i) the Loan Agreement dated as of March 21, 1997, and the
related documentation (including the other Loan Documents), as
the same may be amended and/or restated and in effect from time
to time (the "Loan Agreement"), among the Borrower, the banks
from time to time parties thereto (the "Banks"), The Chase
Manhattan Bank, as administrative agent and as security agent for
the Banks (in such capacities, the "Agent"), and Union Bank of
Switzerland, as managing agent for the Banks, and (ii) any and
all Permitted Secured Xxxxxx; in each case whether acquired
directly, by assignment, or otherwise, and any refunding (it
being understood that any person extending credit in a
transaction that shall constitute such a refunding may waive in
writing (or be deemed to have waived by the agreement pursuant to
which such credit is issued) its rights hereunder as a holder of
Senior Debt), renewal, or extension thereof, are hereinafter
collectively called "Senior Debt", and all Liabilities to FCX
(the "Subordinated Lender") arising under the FCX Subordinated
Loan Agreement dated as of March 21, 1997, as the same may be
amended and/or restated and in effect from time to time (the "FCX
Subordinated Loan Agreement"), between the Borrower and the
Subordinated Lender are hereinafter called "Subordinated Debt",
it being expressly understood and agreed that the term "Senior
Debt" as used herein shall include, without limitation, any and
all interest accruing on any of the Senior Debt after the
commencement of any proceedings referred to in paragraph (c)
hereof, notwithstanding any provision or rule of law that might
restrict the rights of the holders of the Senior Debt, as against
the Borrower or anyone else, to collect such interest.
(b) So long as any amount of Senior Debt shall be
outstanding, and until the Senior Debt shall have been paid in
full, (i) the payment of all Subordinated Debt shall be postponed
and subordinated as herein provided to the payment in full of all
Senior Debt, (ii) the Borrower will not make and the Subordinated
Lender will not take or receive from the Borrower, in any manner,
payment of the whole or any part of the principal of or interest
on the Subordinated Debt, and (iii) the Subordinated Lender will
not xxx or seek to enforce any judgment for, and will not take
any action towards the enforcement of the FCX Liens or any other
Liens in respect of, such Subordinated Debt, or exercise any
rights granted under the FCX Liens or any other such Liens in
respect of the collateral subject thereto, as further provided in
the Share Pledges; provided, however, that payments of principal
and interest, or any other amount, on account of Subordinated
Debt, including any applicable Withholding Taxes (as defined in
the FCX Subordinated Loan Agreement), may be made as permitted
under the Loan Agreement.
(c) Upon any distribution of assets of the Borrower to its
creditors upon any dissolution, winding-up, total or partial
liquidation, readjustment of debt, reorganization, or similar
proceeding of the Borrower or its property, or in any bankruptcy,
insolvency, receivership, assignment for the benefit of
creditors, marshaling of assets and liabilities of the Borrower,
or other proceeding, whether any of the foregoing is voluntary or
involuntary, partial or complete, all amounts due in respect of
the Senior Debt shall first be paid in full before the
Subordinated Lender shall be entitled to receive or retain any
payment or distribution from the Borrower in respect of the
Subordinated Debt.
(d) Upon any such dissolution, winding-up, liquidation,
readjustment, reorganization, or other proceeding, the
Subordinated Lender irrevocably authorizes the holders of the
Senior Debt to file all claims, proofs of debt, petitions,
consents, and other documents related to the Subordinated Debt or
the FCX Liens or any other Liens on any collateral granted in
favor of the Subordinated Lender to the extent not filed by the
Subordinated Lender (in form and substance reasonably
satisfactory to the Agent) by the thirtieth (30th) day before the
bar date or other similar date on which any claim in connection
with any such proceeding would be barred from being asserted if
such document were not filed; and any payment or distribution of
assets or securities of the Borrower of any kind or character,
whether in cash, property, or securities, to which the
Subordinated Lender would be entitled shall be paid by the
Borrower or by any receiver, trustee in bankruptcy, liquidating
trustee, agent, or other person making such payment or
distribution directly to the holders of the Senior Debt to the
extent necessary to pay all the Senior Debt in full before any
payment or distribution is made to the Subordinated Lender in
respect of the Subordinated Debt.
(e) If any payment or any distribution of assets or
securities of the Borrower of any kind or character, whether in
cash, property, or securities, shall be received by the
Subordinated Lender in respect of the Subordinated Debt, whether
upon any such dissolution, winding-up, liquidation, readjustment,
reorganization, or other proceeding, pursuant to the
subordination of any other indebtedness or obligation to the
Subordinated Debt, or pursuant to any realization on any
collateral for the Subordinated Debt, or otherwise, before all
the Senior Debt is paid in full, such payment or distribution
will be held in trust for the benefit of, and shall promptly be
paid over in trust for the benefit of, and in the form received
(duly endorsed, if necessary, to the holders of the Senior Debt),
to, the holders of the Senior Debt (or their appointed trustee or
agent) for application to the payment of the Senior Debt until
all the Senior Debt shall have been paid in full; provided,
however, that this subsection (e) shall not in any way be deemed
to include or apply to payments received by the Subordinated
Lender in accordance with the proviso in subsection (b) above.
(f) The Subordinated Lender will xxxx its books and
records, and cause the Borrower to xxxx its books and records, so
as to clearly indicate that the Subordinated Debt is subordinated
in accordance with the terms hereof.
(g) All payments and distributions received by the holders
of the Senior Debt in respect of the Subordinated Debt, to the
extent received in or converted into cash, may be applied by the
holders of the Senior Debt, first to the payment of any and all
expenses (including attorneys' fees and legal expenses) paid or
incurred by the holders of the Senior Debt in enforcing the
provisions hereof or in endeavoring to collect or realize upon
any of the Subordinated Debt or any security herefor or therefor,
and any balance thereof shall, solely as between the Subordinated
Lender and the holders of the Senior Debt, be applied by the
holders of the Senior Debt to the payment of the Senior Debt held
by the holders of the Senior Debt until paid in full in such
order of application as the holders of the Senior Debt may from
time to time select; provided that, as between the Borrower and
its creditors generally, no such payments or distributions of any
kind or character shall be deemed to be payments or distributions
in respect of the Senior Debt; provided further that,
notwithstanding any such payments or distributions received by
the holders of the Senior Debt in respect of the Subordinated
Debt and so applied by the holders of the Senior Debt toward the
payment of the Senior Debt, the Subordinated Lender shall be
subrogated to the then existing rights of the holders of the
Senior Debt, if any, in respect of the Senior Debt only at such
time as the holders of the Senior Debt shall have received final
payment of the full amount of the Senior Debt.
(h) The Subordinated Lender hereby waives notice of
acceptance by the holders of the Senior Debt hereof.
(i) Until all the Senior Debt shall have been indefeasibly
paid in full, the Subordinated Lender will not: (i) subordinate
any Subordinated Debt or any rights in respect thereof to any
Liabilities other than the Senior Debt; (ii) take from the
Borrower or any of the Borrower's Affiliates for any Subordinated
Debt any collateral security not specifically permitted under the
Loan Agreement or the Share Pledges; or (iii) commence, or join
with any other creditor in commencing, any bankruptcy,
reorganization, readjustment of debt, or any dissolution,
receivership, liquidation, or insolvency proceedings with respect
to the Borrower; provided (but without affecting any rights or
remedies that any holder of any Senior Debt may have as a
consequence thereof) that the foregoing shall not prevent the
Borrower from voluntarily commencing any proceeding described in
paragraph (c) above.
(j) The subordination provisions hereof shall in all
respects be a continuing agreement and shall remain in full force
and effect until the payment in full of the Senior Debt (or, in
the case of any such provisions that are specifically applicable
until the indefeasible payment in full of the Senior Debt, until
such indefeasible payment in full) and any and all expenses paid
or incurred by any holder of the Senior Debt in endeavoring to
collect or realize upon any of the foregoing or any security
therefor.
(k) As far as the Subordinated Lender is concerned, the
holders of the Senior Debt, or any of them, may, from time to
time, at their sole discretion and without notice to the
Subordinated Lender and without affecting the subordination
hereunder, take all or any of the following actions: (i) retain
or obtain a Lien on any property to secure any of the Senior
Debt, (ii) retain or obtain the primary or secondary obligation
of any other obligor or obligors with respect to any of the
Senior Debt, (iii) extend or renew for one or more periods
(whether or not longer than the original period), alter, or
exchange any of the Senior Debt, or release or compromise any
obligation of any nature of any obligor with respect to any of
the Senior Debt, and (iv) release, or fail to perfect their Lien
on, or surrender, release, or permit any substitution or exchange
for, all or any part of any property securing any of the Senior
Debt, or extend or renew for one or more periods (whether or not
longer than the original period), or release, compromise, alter,
or exchange any obligations of any nature of any obligor with
respect to any such property. This paragraph (k) shall not be
deemed to be an agreement by the Borrower to enlarge the rights
of the holders of the Senior Debt under the Loan Agreement or any
Permitted Secured Xxxxxx.
(l) The holders of the Senior Debt, or any of them, may,
from time to time, without notice to the Subordinated Lender,
assign or transfer any or all of the Senior Debt or any interest
therein except as expressly prohibited by the Loan Agreement or
the Permitted Secured Xxxxxx; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer
thereof, such Senior Debt shall be and remain Senior Debt for the
purposes hereof, and every immediate and successive assignee or
transferee of any of the Senior Debt or of any interest therein
shall, to the extent of the interest of such assignee or
transferee in the Senior Debt, be entitled to the full benefits
hereof.
(m) The holders of the Senior Debt shall not be prejudiced
in their rights hereunder by any act or failure to act of the
Borrower or the Subordinated Lender, or any noncompliance of the
Borrower or the Subordinated Lender with any agreement or
obligation, regardless of any knowledge thereof that the holders
of the Senior Debt may have or with which the holders of the
Senior Debt may be charged, and no action of the holders of the
Senior Debt permitted hereunder shall in any way affect or impair
the rights of the holders of the Senior Debt and the obligations
of the Subordinated Lender hereunder.
(n) No delay on the part of any holder of the Senior Debt,
or of any agent of such holders, in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or
partial exercise by the holders of the Senior Debt, or any of
them, of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy,
nor shall any modification, waiver, or discharge of any of the
provisions hereof be binding upon the holders of the Senior Debt
except as expressly set forth in a writing duly signed and
delivered on behalf of the holders of the Senior Debt. The
subordination herein contained shall be effective notwithstanding
any right or power of the Borrower or anyone else to assert any
claim or defense as to the invalidity or unenforceability here
or of the Senior Debt, in whole or in part, or any determination
by any court or other tribunal of such invalidity or
unenforceability, and no such claim, defense, or determination
shall affect or impair the agreements and rights of the holders
of the Senior Debt hereunder.
(o) The provisions hereof shall be binding upon the
Subordinated Lender and upon its successors. All references to
the Borrower and the Subordinated Lender, respectively, shall be
deemed to include their respective successors, whether immediate
or remote.
(p) Nothing herein contained shall impair, as between the
Borrower and the Subordinated Lender, the obligation of the
Borrower, which is absolute and unconditional, to make payments
of the Subordinated Debt as and when the same shall become due
and payable in accordance with its terms, or affect the relative
rights of the Subordinated Lender and creditors of the Borrower
other than holders of Senior Debt.
(q) THE PROVISIONS HEREOF RELATING TO SUBORDINATION SHALL
BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REFERENCE TO ANY
CONFLICT OR CHOICE OF LAW RULES THAT MIGHT OTHERWISE APPLY.
Wherever possible, each provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision hereof shall be prohibited by or be invalid
under such law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions
hereof.
(r) Any suit, action, or proceeding arising out of or in
connection with the provisions hereof relating to subordination
may be brought against the Borrower or the Subordinated Lender in
a court of record of the State of New York, County of New York,
or the United States District Court for the Southern District of
New York, and each of the Borrower and the Subordinated Lender
hereby irrevocably submits and consents to the jurisdiction of
each such court and agrees that any summons, complaint, writ,
judgment, or other notice or service of legal process may be
sufficiently served upon it in connection with any such suit,
action, or proceeding if mailed to it by certified or registered
mail at its address set forth in the Loan Agreement. In any
suit, action, or proceeding relating to the subordination
hereunder, each of the Borrower and the Subordinated Lender
waives, to the fullest extent not prohibited by applicable law
any objection that it may now or hereafter have to the laying of
the venue of any suit, action, or proceeding brought in such
court and any claim that the same was brought in an inconvenient
forum. The submission to the said jurisdiction shall not (and
shall not be construed so as to) limit the right of the holders
of the Senior Debt, or any of them, or any agent on their behalf,
to take proceedings against the Borrower or the Subordinated
Lender in whatsoever jurisdictions shall to it seem appropriate,
nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not. In the event any
suit, legal action or proceeding arising out of or in connection
with the provisions hereof relating to subordination is brought
in the Republic of Indonesia against the Borrower or the
Subordinated Lender or any of their property, each of the
Borrower and Subordinated Lender elects its legal and
domicile at the Clerk's Office of the District Court in Central
Jakarta (Xxxxxx Panitera Pengadilan Negeri Jakarta Pusat).
