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EXHIBIT 10.22(v)
August 26, 1999
Horizon High Reach, Inc.
0000 Xxxx Xxxx Xxxxxx, Xxx. 000
Attention: Xx. Xxxxxxx Xxxxxxx
Chief Financial Officer/Secretary
RE: Foreign Exchange Agreement
Ladies and Gentlemen:
You, the customer to whom this letter agreement (the "Agreement") is
addressed, may from time to time request that we, Xxxxx Fargo Bank, National
Association, enter into foreign exchange contracts with you (each, a "Contract"
and collectively, "Contracts") for spot or forward delivery of foreign
currencies that you want to purchase from us or sell to us. When we receive each
request from you we will decide, in our sole discretion, whether to enter into a
Contract with you. This Agreement sets forth the terms and conditions governing
the Contracts we enter into and the transactions contemplated thereby.
1. REQUESTS TO ENTER INTO, AMEND OR CANCEL CONTRACTS. All requests to us
to enter into, amend or cancel Contracts must be made by telephone. Requests to
enter into Contracts must specify (a) whether the request is to purchase or sell
foreign currency, (b) the type of foreign currency, (c) the amount of foreign
currency, and (d) the value date for the Contract. Requests to amend or cancel
Contracts must identify the number of the Contract to be amended or cancelled.
Each request for a Contract for spot delivery of foreign currency also must
specify where and how the currency is to be delivered. With respect to each
request for a Contract for forward delivery of foreign currency, you also must
send us settlement instructions by telephone or facsimile transmission before
the settlement date informing us where and how the currency is to be delivered.
Each request to enter into, amend or cancel a Contract and all settlement
instructions must be directed to your primary foreign exchange advisor or an
alternate advisor designated by us. You authorize us to rely on all information
and directions contained in each such request and settlement instruction. We
have no obligation to, and we will determine in our sole discretion whether or
not to, enter into, amend or cancel any Contract. If we do enter into, amend or
cancel any Contract at your request, we will not be obligated to enter into,
amend or cancel any other Contract.
2. CONFIRMATIONS OF CONTRACTS AND AMENDMENTS TO CONTRACTS. If we accept a
request to enter into or amend a Contract, we will mail or send you by facsimile
transmission a confirmation of the Contract or amendment within a reasonable
time after our acceptance. Immediately upon your receipt of each confirmation,
you will sign and return a copy to us by mail or facsimile transmission. The
definitive terms of each Contract and each amendment to a Contract will be found
only in the confirmation of such Contract or amendment. We will not be bound by
any Contract or amendment that is not confirmed by us as provided in this
Section. If you do not sign and return to us a copy of any confirmation we send
you pursuant to this Section, you will indemnify and reimburse us for, and hold
us harmless from and against, any and all losses, liabilities, claims, damages,
obligations, penalties, actions, judgments, suits, costs and expenses, of any
kind whatsoever and howsoever caused, including without limitation, attorneys'
fees (to include outside counsel fees and all allocated costs of our in-house
counsel) and other legal costs and expenses, (collectively, "Losses"), paid,
suffered or
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August 26, 1999
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incurred by, or imposed upon, us directly or indirectly as a result of, or in
any way connected with, your failure to sign and return such confirmation.
3. VERIFYING CONFIRMATIONS, REQUESTS TO ENTER INTO, AMEND OR CANCEL
CONTRACTS, AND SETTLEMENT INSTRUCTIONS. We will verify each request to enter
into, amend or cancel a Contract, each instruction for the settlement of a
Contract, and the signature on each confirmation of a Contract or amendment by
determining if the name used by the person requesting the Contract or the
amendment or cancellation of a Contract, giving us settlement instructions, or
signing the confirmation of a Contract or amendment is the name of one of the
persons you designate to us in writing as being authorized by you to make such
requests and instructions and to sign such confirmations. We have no obligation
to confirm in any other way the identify of any person making such requests or
instructions or signing such confirmations. You agree to be bound by each
request to enter into, amend or cancel a Contract, each instruction for the
settlement of a Contract, and each confirmation of a Contract or amendment if
such request, instruction or confirmation was (a) authorized or transmitted by
you, or (b) made in your name and accepted by us in good faith and in compliance
with the procedures in this Section, even if such request, instruction or
confirmation was not properly authorized by you. We shall have no liability to
you for any Losses you suffer or incur as a result of, and you will indemnify us
for any Losses we suffer or incur as a result of, any breach of your security
procedures in connection with any request to enter into, amend or cancel a
Contract, any instruction for the settlement of a Contract, and the signing of
any confirmation of a Contract or amendment. Any actions we take to detect
erroneous requests to enter into, amend or cancel Contracts or erroneous
instructions for the settlement of Contracts, or any actions we take beyond
those described above in an attempt to detect unauthorized requests,
instructions or confirmations, will be taken at our sole discretion. No matter
how many times we take these actions they will not become part of our standard
procedures for attempting to detect such erroneous or unauthorized requests,
instructions or confirmations, and we will not in any situation be liable for
failing to take or to correctly perform these actions.
4. WARRANTY CONCERNING LEGALITY OF CONTRACTS. Each request by you that we
enter into or amend a Contract shall be deemed a representation and warranty by
you that the terms of the Contract or such amendment are in conformity with all
applicable laws and regulations. You understand that we are not an investment
advisor. We do not give, and we hereby disclaim, all investment advice with
respect to any Contract or any amendment of a Contract. You bear the sole risk
of any and all market fluctuations in any currency traded pursuant to the terms
of this Agreement or any Contract.
5. LOSSES RESULTING FROM EXTENSIONS OR CANCELLATIONS OF CONTRACTS. In the
event that (a) you request that we cancel a Contract or amend a Contract by
extending its term, and (b) we, in our sole discretion agree to such request,
you will indemnify and reimburse us for, and hold us harmless from and against,
any and all Losses paid, suffered or incurred by, or imposed upon, us directly
or indirectly as a result of, or in any way connected with, our cancellation of,
or extension of the term of, the Contract, including without limitation, any and
all Losses resulting from the liquidation of our position in the currency of the
Contract.
6. EURO CURRENCY AND CONTRACT SETTLEMENTS. Contracts may be entered into
with respect to the currency of a country that later makes Euro currency its
sole or alternate currency of legal tender. If a Contract entered into in the
original national currency of such a
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country (the "National Currency") is scheduled to settle during the period when
Euro currency is an alternate currency of legal tender in such country, the
Contract will be settled in the National Currency of such country unless you
give us with written instructions to settle the Contract in Euro currency. If a
Contract is scheduled to settle on a date when the National Currency of a
country is no longer legal tender, the Contract shall be converted from the
National Currency of such country into Euro currency on or before the date Euro
currency becomes that country's sole currency, and the Contract will be settled
in Euro currency.
7. DEFAULT AND REMEDIES. If you fail fully to perform your obligations
under this Agreement or under any Contract on the date such obligations are to
be performed, or if you breach any of your representations or warranties made to
us under this Agreement or any Contract, (a) we may, in our sole discretion and
without limitation of our rights and remedies under applicable law, cancel any
Contract and liquidate our position in the currency of such Contract; (b) you
will indemnify and reimburse us for, and defend and hold us harmless from and
against, any and all Losses paid, suffered or incurred by, or imposed upon, us
arising directly or indirectly as a result of, or in any way connected with, (i)
any such failure or breach, (ii) the exercise of our rights and remedies under
this Agreement and applicable law, (iii) the liquidation of our position in the
currencies of the Contracts affected by such failure or breach, and (iv)
reasonable attorneys' fees (to include outside counsel fees and all allocated
costs of our in-house counsel), expended or incurred by us in pursuance of our
rights and remedies under this Agreement and the Contracts; and (c) we may
setoff and apply against your liability to us any deposits you have with us or
any other obligations we have to you, without regard to the nature or due date
of such deposits or obligations, and notwithstanding that such setoff may give
rise to penalties for early withdrawal of funds.
8. LIMITATION OF LIABILITY AND INDEMNITY. We shall not be liable to you
for any Losses paid, suffered or incurred by or imposed upon you, and you shall
indemnify and reimburse us for and hold us harmless from and against any and all
Losses paid, suffered or incurred by or imposed upon us, arising directly or
indirectly as a result of, or in any way connected with, (a) any present or
future laws, regulations, guidelines or other directives of any government, (b)
the errors, acts or omissions of others, such as communications carriers or
correspondents through which we may perform, or receive or transmit information
in performing, our obligations under this Agreement or any Contract, (c) any
event or circumstances beyond our control, or (d) any actions performed by us
pursuant to the terms of this Agreement or any Contract. The limitation of our
liability and your indemnification set out in the preceding sentence shall not
apply to the extent any of your or our Losses result directly from our gross
negligence or willful misconduct. IN NO EVENT WILL WE BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS
BASED ON CONTRACT OR TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO
US AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION. Any action against us
under or related to this Agreement or any Contract must be brought within twelve
(12) months after the cause of action arises. The provisions of this Section
will survive the termination or expiration of this Agreement and all the
Contracts.
9. TERMINATION. Either of us may terminate this Agreement with or without
cause upon notice in writing to the other party at any time. Upon such
termination your obligations to us and our obligations to you under this
Agreement will also terminate, except for (a) any obligations in connection with
Contracts that are not cancelled at the time of such termination, and (b) any
obligations which, by the terms of this Agreement, survive such termination.
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10. MODIFICATIONS, AMENDMENTS, AND WAIVERS. This Agreement may not be
modified or amended, or any provision hereof waived, except in a writing signed
by you and us.
11. NOTICES. All notices from either of us to the other shall be in
writing, or be made by a telecommunications device capable of creating a written
record, shall be delivered to the addressee at its address specified above, or
to any other address either of us may designate by written notice to the other,
and shall be effective upon receipt.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of each of our respective heirs, legal representatives,
successors and assigns; provided however, that you may not assign or otherwise
transfer any of your rights or obligations under this Agreement or any Contract
without our prior written consent.
13. GOVERNING LAW. This Agreement and all Contracts shall be governed by
and be construed in accordance with the laws of the State of California.
14. SEVERABILITY. If any provision of this Agreement shall be prohibited
or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or any remaining provisions of this Agreement.
15. ENTIRE AGREEMENT. This Agreement, together with each Contract and any
writing referring specifically to this Agreement or any Contract or referring in
general to agreements or contracts which would include this Agreement or any
Contract, contains the entire and only agreement between you and us with respect
to your purchase from us or sale to us of foreign currencies and the terms of
all Contracts for any such purchase or sale.
Please indicate your acceptance of the terms and conditions of this
Agreement by signing, dating and returning a copy of this Agreement to us at our
address specified above.
Very truly yours,
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /S/ Xxx Xxxxxx
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Xxx Xxxxxx
Vice President
Agreed to and accepted as of
AUG. 26, 1999:
HORIZON HIGH REACH, INC.
By: /s/ Xxxxxxx XxXxx
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Title: CFO
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