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Exhibit 10.05
April 21, 1997
Campbell Strategic Allocation Fund, L.P.
c/o Campbell & Company Management Inc.
Court Towers Building
000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
Xxxxxxxx & Company Inc.
Court Towers Building
000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Swiss Bank Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This letter is to confirm our agreement that in connection with foreign
currency spot and forward transactions entered into by Xxxxxxxx & Company
Management Inc. ("Xxxxxxxx") on behalf of Xxxxxxxx Strategic Allocation Fund,
L.P. ("Fund") with each of Xxxxxxx, Xxxxx & Co. ("GS&Co.") and Xxxxxx Guaranty
Trust Company of New York ("Xxxxxx Guaranty") and Swiss Bank Corporation, New
York Branch ("SBC") (GS&Co., Xxxxxx Guaranty and SBC being sometimes referred to
herein as a "Counterpart" or, collectively, as "Counterparts"), Fund may, from
time to time, irrevocably instruct each of Fund's Counterparts to cross-settle
its respective transaction with Fund with each other, as more fully set forth
below.
With respect to foreign currency spot and forward transactions entered
into by Xxxxxxxx on behalf of Fund with each of GS&Co., Xxxxxx Guaranty and SBC
for settlement on the same value date and in the same currencies, Fund may, from
time to time, irrevocably instruct each of Fund's Counterparts to settle its
respective transaction with Fund by making payment of the currency owed to Fund
to another of the Counterparts and, conversely, by receiving payment of the
currency which Fund owes to it directly from such other Counterpart. Xxxxxxxx
agrees to provide Fund with written telex or telefax payment instructions to
effect such a cross-settlement no later than two business days prior
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Xxxxxxxx Strategic Allocation Fund, L.P.
April 21, 1997
Page 2
to the designated settlement date of a foreign currency transaction. Fund
hereby irrevocably authorizes each of GS&Co., Xxxxxx Guaranty and SBC to settle
foreign currency transactions that each has entered into with Fund in
accordance with cross-settlement payment instructions received from Fund.
Upon receipt of such telex or telefax instructions for a
cross-settlement from Fund, the Counterparts shall confirm with each other by
telephone the receipt of such cross-settlement instructions and shall promptly
exchange with each other by facsimile payment and receipt instructions, which
shall be signed by an authorized representative of the Counterpart sending such
instructions unless standing payment and/or delivery instructions are in effect.
Fund agrees that any payment made by one Counterpart ("X") to another
Counterpart ("Y"), pursuant to cross-settlement instructions received from Fund,
shall discharge X's payment obligation to Fund to the extent of such payment;
and, conversely, any payment received by Y from X, pursuant to Fund's
cross-settlement instructions, shall discharge Fund's obligations to Y to the
extent of such payment. If the amount Fund owes Y under a transaction hereunder
exceeds the amount of any cross-settlement payment received by X, Fund shall
remit the amount of such shortfall to Y. Nothing contained herein shall be
construed to discharge the obligation of Fund to make payment under any
transaction hereunder until payment of the full amount owed by Fund has been
made by Fund or on its behalf pursuant to the terms thereof or hereof.
Any Counterpart may, at its option and in its sole discretion, elect to
settle any spot or forward foreign exchange transaction with the Fund that is
not subject to cross-settlement in escrow. In order to so elect, such
Counterpart (a "Notifying Party") must provide written notice to Fund which
precedes the settlement date of such foreign exchange transaction by more than 2
business days. Such notice shall identify the applicable foreign exchange
transaction, the amounts and currencies to be settled, the settlement date and
the escrow agent. The escrow agent shall be a commercial bank, independent of
either party, with a minimum net worth of US $100,000,000 or its equivalent in
another currency. To the extent that Fund subsequently (but not later than as
required above for cross-settlement) elects to cross-settle amounts with respect
to such foreign exchange transaction, no escrow shall be required. If an escrow
is required for a foreign exchange transaction, the deposit of each payment due
on the relevant settlement date shall be made on that date in time for same day
payment with the escrow agent accompanied by irrevocable payment instructions
(i) to release the deposited payment to the intended recipient upon receipt by
the escrow agent of the required deposit of the corresponding payment from the
other party on the same date accompanied by irrevocable payment instructions to
the same effect, or (ii) if the required deposit of the corresponding payment is
not made on that same date, to return such payment to the party that deposited
it into escrow. The Notifying Party shall pay the costs of the escrow
arrangements, and shall cause those arrangements to provide that the intended
recipient of each payment shall be entitled to interest on that deposited
payment for each day in the period of its deposit at the rate offered by the
escrow agent for that day for overnight deposits in the relevant currency in the
office where it holds the deposited payment (at 11:00 a.m. local time on that
day) if the payment is not released by 5:00 p.m. local time on the date it is
deposited for any reason other than such intended recipient's failure to make
the escrow deposit it was required to make in a timely manner.
Each party hereto represents to each of the other parties hereto that
(i) this agreement does not and will not violate or conflict with its charter or
by-laws (or comparable constituent document), any law, regulation or order of
any court or other agency of government applicable to it or any agreement to
which it is a party or by which it or any of its property is bound; (ii) its
obligations hereunder and under all agreements and transactions contemplated
hereby are legal, valid and binding on it, enforceable in accordance with their
terms; and (iii) the person signing this agreement for
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Xxxxxxxx Strategic Allocation Fund, L.P.
April 21, 1997
Page 3
such party is an officer, director, and/or partner of such party and is
authorized and duly empowered to do so. Fund represents to the Counterparts that
Xxxxxxxx is authorized to enter into the transactions that are the subject of
this agreement on behalf of Fund and to bind Fund to the terms of such
transactions.
This agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, United States of America without
giving effect to principles of conflicts of law. EACH PARTY EXPRESSLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND TO THE
FEDERAL COURTS SITUATED IN NEW YORK CITY, BOROUGH OF MANHATTAN (WITHOUT RECOURSE
TO ARBITRATION), WITH RESPECT TO ANY DISPUTES ARISING IN CONNECTION WITH
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Please indicate your agreement to the cross-settlement procedures
described herein by signing the five copies of this letter and returning the
executed copies to us. The parties agree that until such time as five original
copies of this letter agreement are duly executed by each of the parties hereto,
each of the parties shall sign a copy of this letter agreement and send the
executed copy by facsimile to Xxxx Xxxxx. The parties further agree that upon
Xxxx Xxxxx'x receipt by facsimile of all five executed copies and notification
to each of the parties to this Agreement that all five facsimile copies have
been received, this letter agreement shall be binding upon each of them as if
the original had been duly executed and received. Upon our receipt of the
executed originals, GS&Co. will then provide each party hereto with a fully
executed copy of this letter.
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Xxxxxxxx Strategic Allocation Fund, L.P.
April 21, 1997
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Any party may terminate its participation in this Agreement by giving
10 business days prior written notice thereof to each of the other parties.
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
XXXXXXX, XXXXX & CO. XXXXXXXX STRATEGIC ALLOCATION
FUND, L.P.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
Name: Xxxx X. Xxxx Name: Xxxxxxx X. Xxxxxxx, C.F.O.
Title: Managing Director Title: Xxxxxxxx & Company, Inc.
General Partner
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
XXXXXX GUARANTY TRUST COMPANY XXXXXXXX & COMPANY, INC.
OF NEW YORK
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Chief Financial Officer
ACCEPTED AND AGREED:
SWISS BANK CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director, Legal Affairs
Name: Xxxxx X. Xxxxxxxx
Title: Executive Director, Foreign Exchange Sales
