Common use of Currency Option Clause in Contracts

Currency Option. (a) Bank hereby provides to Borrowers the option to choose to have its Loans made to Borrowers in freely tradable foreign currency reasonable acceptable to the Bank (a “Foreign Currency”) instead of U.S. Dollars (the “Foreign Currency Option”). Any borrowing to be funded in a Foreign Currency is subject to the following terms and conditions, notwithstanding anything to the contrary in this Agreement: (i) Agent must give Bank written notices of its intention to use the Foreign Currency Option at least 3 days prior to the actual funding date. Such written notice shall specify the actual funding date, the principal amount of such funding and state that the Borrowers are not then in default under the terms of this Agreement. (ii) Borrowers, right to elect a Foreign Currency Option for any portion of outstanding Loans is subject to the following limitations: (A) the total number of Foreign Currency Options outstanding at any one time under this Agreement shall not exceed five; (B) Borrowers may not elect a Foreign Currency Option at a time when an Event of Default has occurred and has not been waived; (C) no Foreign Currency Option shall end later than the maturity date of the Note evidencing the borrowing of the relevant principal amount; and (D) once a Foreign Currency Option has been selected for a portion of the Loans, no other Foreign Currency Option may apply to that same portion of the Loans until the expiration of the interest period applicable to such Foreign Currency Option (but nothing in this clause (D) shall be construed as prohibiting separate Foreign Currency Options on different portions of the Loans as contemplated by clause (A) of this paragraph). (iii) Borrowers’ right to elect a Foreign Currency Option shall be suspended automatically if Bank, by telephonic or telegraphic or other written notice, notifies Borrowers that foreign currency contracts which have a maturity corresponding to the proposed interest period, in an amount equal to the amount requested to be subject to a Foreign Currency Option, are not readily available. Such suspension shall end automatically upon termination of the circumstances originally creating the suspension. (a) Notwithstanding anything herein contained to the contrary, if at any time any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for Bank to fund or maintain its funding in a Foreign Currency of any portion of the principal amount of the Loans or otherwise to give effect to Bank’s obligations as contemplated hereby, (A) Bank may by facsimile or other written notice thereof to Borrowers declare Bank’s obligations in respect of the Foreign Currency Option to be terminated forthwith, and (B) all Foreign Currency Options then in effect shall forthwith cease to be in effect, and interest shall from and after such date be calculated at the interest rate applicable to amounts to which no Foreign Currency Option applies; and (C) Borrowers’ right to elect Foreign Currency Options is terminated until Bank notifies Agent that Borrowers’ right to elect Foreign Currency Options is reinstated. (b) If. due to either (A) the introduction of or any change in or in the interpretation of any law or regulation or (B) the compliance with an guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to Bank of agreeing to make or of making, funding or maintaining Loans subject to the Foreign Currency Option, then from time to time, upon written demand by Bank if it shall at the time be the general policy or practice of Bank to demand such compensation in similar circumstances under comparable provisions of other credit agreements, Borrowers shall pay to Bank additional amounts sufficient to compensate Bank for such increased cost. A certificate as to the amount of such increased cost submitted to Borrowers by Bank shall be conclusive and binding for all purposes, absent manifest error. (c) Each Borrower hereby indemnifies Bank and holds Bank harmless from and against any and all losses or expenses that Bank may sustain or incur as a consequence of any prepayment or any default by any Borrower in the payment of the principal of or interest on any Foreign Currency Option or failure by a Borrower to complete a borrowing of, a prepayment of or conversion of or to a Foreign Currency Option after notice thereof has been given by any Borrower including (but not limited to) any interest payable by Bank to lenders of funds obtained by it in order to make or maintain its Foreign Currency Option hereunder, and any other loss obtained by it in order to make or maintain its Foreign Currency Option hereunder, and any other loss or expense incurred by Bank by reason of the liquidation or re-employment of deposits or other funds acquired by Bank to make, continue, convert into or maintain, a Foreign Currency Option. (d) Without limiting and in addition to the provisions of this Agreement, if for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Loan Document to which a Borrower is party it becomes necessary to convert into the currency of such jurisdiction (the “Judgment Currency”) any amount due hereunder in any currency other than the Judgment Currency, then conversion shall be made at the rate of exchange prevailing on the business day before the day of which judgment is given. For the purpose, “rate of exchange” means the rate at which Bank would, on the relevant date at or about 12:00 noon (New York time), be prepared to sell a similar amount of such currency in New York against the Judgment Currency. In the event that there is a change in the rate of exchange prevailing between the business day before the day on which the judgment is given and the date of payment of the amount due, the applicable credit party shall, on the date of payment, pay such additional amounts (if any) as may be necessary to ensure that the amount paid on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of payment is the amount then due under this Agreement or such other applicable Loan Document in such other currency. Any additional amount due from Borrowers under this Section will be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of any of the Loan Documents.

Currency Option. (a) Bank hereby provides to Borrowers the option to ---------------- choose to have its Loans made to Borrowers in freely tradable foreign currency reasonable acceptable to the Bank (a “"Foreign Currency”") instead of U.S. Dollars (the “"Foreign Currency Option”"). Any borrowing to be funded in a Foreign Currency is subject to the following terms and conditions, notwithstanding anything to the contrary in this Agreement: (i) Agent must give Bank written notices of its intention to use the Foreign Currency Option at least 3 days prior to the actual funding date. Such written notice shall specify the actual funding date, the principal amount of such funding and state that the Borrowers are not then in default under the terms of this Agreement. (ii) Borrowers, ' right to elect a Foreign Currency Option for any portion of outstanding Loans is subject to the following limitations: (A) the total number of Foreign Currency Options outstanding at any one time under this Agreement shall not exceed five; (B) Borrowers may not elect a Foreign Currency Option at a time when an Event of Default has occurred and has not been waived; (C) no Foreign Currency Option shall end later than the maturity date of the Note evidencing the borrowing of the relevant principal amount; (D) the principal amount that can be subject to a Foreign Currency Option is $500,000 (U.S. Dollars) or a whole multiple thereof, but shall not exceed $6,000,000 in the aggregate at any time; and (DE) once a Foreign Currency Option has been selected for a portion of the Loans, no other Foreign Currency Option may apply to that same portion of the Loans until the expiration of the interest period applicable to such Foreign Currency Option (but nothing in this clause (DE) shall be construed as prohibiting separate Foreign Currency Options on different portions of the Loans as contemplated by clause (A) of this paragraph). (iii) Borrowers’ ' right to elect a Foreign Currency Option shall be suspended automatically if Bank, by telephonic or telegraphic or other written notice, notifies Borrowers that foreign currency contracts which have a maturity corresponding to the proposed interest period, in an amount equal to the amount requested to be subject to a Foreign Currency Option, are not readily available. Such suspension shall end automatically upon termination of the circumstances originally creating the suspension. (ab) Notwithstanding anything herein contained to the contrary, if at any time any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for Bank to fund or maintain its funding in a Foreign Currency of any portion of the principal amount of the Loans or otherwise to give effect to Bank’s 's obligations as contemplated hereby, (A) Bank may by facsimile or other written notice thereof to Borrowers declare Bank’s 's obligations in respect of the Foreign Currency Option to be terminated forthwith, and (B) all Foreign Currency Options then in effect shall forthwith cease to be in effect, and interest shall from and after such date be calculated at the interest rate applicable to amounts to which no Foreign Currency Option applies; and (C) Borrowers’ ' right to elect Foreign Currency Options is terminated until Bank notifies Agent that Borrowers’ ' right to elect Foreign Currency Options is reinstated. (bc) If. , due to either (A) the introduction of or any change in or in the interpretation of any law or regulation or (B) the compliance with an guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to Bank of agreeing to make or of making, funding or maintaining Loans subject to the Foreign Currency Option, then from time to time, upon written demand by Bank if it shall at the time be the general policy or practice of Bank to demand such compensation in similar circumstances under comparable provisions of other credit agreements, Borrowers shall pay to Bank additional amounts sufficient to compensate Bank for such increased cost. A certificate as to the amount of such increased cost submitted to Borrowers by Bank shall be conclusive and binding for all purposes, absent manifest error. (cd) Each Borrower hereby indemnifies Bank and holds Bank harmless from and against any and all losses or expenses that Bank may sustain or incur as a consequence of any prepayment or any default by any Borrower in the payment of the principal of or interest on any Foreign Currency Option or failure by a Borrower to complete a borrowing of, a prepayment of or conversion of or to a Foreign Currency Option after notice thereof has been given by any Borrower including (but not limited to) any interest payable by Bank to lenders of funds obtained by it in order to make or maintain its Foreign Currency Option hereunder, and any other loss obtained by it in order to make or maintain its Foreign Currency Option hereunder, and any other loss or expense incurred by Bank by reason of the liquidation or re-employment of deposits or other funds acquired by Bank to make, continue, convert into or maintain, a Foreign Currency Option. (de) Without limiting and in addition to the provisions of this Agreement, if for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Loan Document to which a Borrower is party it becomes necessary to convert into the currency of such jurisdiction (the “Judgment "Judgement Currency”") any amount due hereunder in any currency other than the Judgment Judgement Currency, then conversion shall be made at the rate of exchange prevailing on the business day before the day of which judgment is given. For the purpose, “"rate of exchange” " means the rate at which Bank would, on the relevant date at or about 12:00 noon (New York time), be prepared to sell a similar amount of such currency in New York against the Judgment Judgement Currency. In the event that there is a change in the rate of exchange prevailing between the business day before the day on which the judgment judgement is given and the date of payment of the amount due, the applicable credit party shall, on the date of payment, pay such additional amounts (if any) as may be necessary to ensure that the amount paid on such date is the amount in the Judgment Judgement Currency which when converted at the rate of exchange prevailing on the date of payment is the amount then due under this Agreement or such other applicable Loan Document in such other currency. Any additional amount due from Borrowers under this Section will be due as a separate debt and shall not be affected by judgment judgement being obtained for any other sums due under or in respect of any of the Loan Documents.