EXHIBIT 10.1
HSBC BANK USA, NATIONAL ASSOCIATION
AND
THE BANK OF NEW YORK,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE OF THE STREETTRACKS(R) GOLD TRUST
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STREETTRACKS(R) GOLD TRUST
ALLOCATED BULLION ACCOUNT AGREEMENT
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THIS AGREEMENT is made on , 2004
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BETWEEN
(1) HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States of America, whose
principal place of business in England is at 0 Xxxxxx Xxxxxx, Xxxxxx
X00 0XX ("WE" or "US"); and
(2) The BANK OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE (THE "TRUSTEE") OF STREETTRACKS(R) GOLD TRUST (THE
"STREETTRACKS(R) GOLD TRUST") as established pursuant to the Trust
Indenture (defined below) ("YOU").
INTRODUCTION
We have agreed to hold Bullion for you and to provide other services to you in
connection with such Bullion. This agreement sets out the terms under which we
will provide those services to you and the arrangements which will apply in
connection with those services.
IT IS AGREED AS FOLLOWS
1. INTERPRETATION
1.1 DEFINITIONS: In this agreement:
"ALLOCATED ACCOUNT" means any account maintained by us in your name
pursuant to this agreement.
"AVAILABILITY DATE" means the Business Day on which you wish us to
credit to your Allocated Account an amount of Bullion debited from your
Unallocated Account.
"BULLION" means the Precious Metal held for you under this agreement or
standing to your credit in your Unallocated Account, as the case may
be.
"BUSINESS DAY" means a day other than (i) a day on which the New York
Stock Exchange, Inc. is closed for regular trading or (ii), if the
transaction involves the receipt or delivery of gold or confirmation
thereof in the United Kingdom or in some other jurisdiction, (a) a day
on which banking institutions in the United Kingdom or in such other
jurisdiction, as the case may be, are authorized by law to close or a
day on which the London gold market is closed or (b) a day on which
banking institutions in the United Kingdom or in such other
jurisdiction, as the case may be, are authorized to be open for less
than a full business day or the London gold market is open for trading
for less than a full business day and transaction procedures required
to be executed or completed before the close of the business day may
not be so executed or completed..
"LBMA" means The London Bullion Market Association or its successors.
"PARTICIPANT" means a Participant as defined in the Trust Indenture.
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"PARTICIPANT AGREEMENT" means that certain Participant Agreement in
effect from time to time between the Trustee and a Participant, as
those terms are defined in the Trust Indenture.
"PARTICIPANT UNALLOCATED ACCOUNT" means the Precious Metal account a
Participant is required by the Participant Agreement to have maintained
by us for such Participant on an Unallocated Basis.
"POINT OF DELIVERY" means such date and time that the recipient or its
agent acknowledges in written form its receipt of delivery of Precious
Metal.
"PRECIOUS METAL" means gold.
"RULES" means the rules, regulations, practices and customs of the LBMA
(including without limitation the rules of the LBMA as to good
delivery), the Bank of England and such other regulatory authority or
other body as shall affect the activities contemplated by this
agreement.
"SPONSOR" means World Gold Trust Services, LLC.
"SUB-CUSTODIAN" means a sub-custodian, agent or depository (including
an entity within our corporate group) selected by us to perform any of
our duties under this agreement including the custody and safekeeping
of Bullion.
"THIRD PARTY UNALLOCATED ACCOUNT" means a Precious Metal account
maintained by us on an Unallocated Basis for a party other than you in
your capacity as Trustee of the streetTRACKS(R) Gold Trust.
"TRUST INDENTURE" means that certain Trust Indenture of streetTRACKS(R)
Gold Trust dated as of November [ ], 2004, between World Gold Trust
Services, LLC, as Sponsor, and The Bank of New York, as Trustee,
effective November [ ], 2004.
"UNALLOCATED ACCOUNT" means the account maintained by us in your name
on an Unallocated Basis pursuant to the Unallocated Bullion Account
Agreement.
"UNALLOCATED BASIS" means, with respect to a Precious Metal account
maintained with us, that the person in whose name the account is held
is entitled to delivery in accordance with the Rules of an amount of
Precious Metal equal to the amount of Precious Metal standing to the
credit of the person's account but has no ownership interest in any
Precious Metal that we own or hold.
"UNALLOCATED BULLION ACCOUNT AGREEMENT" means that certain Unallocated
Bullion Account Agreement between you and us dated on or about the date
of this agreement.
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 (as amended or re-enacted from time to time) and legislation
supplemental thereto and any
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Allocated Bullion Account Agreement - 3 -
other tax (whether imposed in the United Kingdom in substitution
thereof or in addition thereto or elsewhere) of a similar fiscal
nature.
"WITHDRAWAL DATE" means the Business Day on which you wish to withdraw
Bullion from your Allocated Account.
1.2 HEADINGS: The headings in this agreement do not affect its
interpretation.
1.3 SINGULAR AND PLURAL; OTHER USAGES:
(a) References to the singular include the plural and vice versa.
(b) "A or B" means "A or B or both."
(c) "Including" means "including but not limited to."
2. ALLOCATED ACCOUNT
2.1 OPENING THE ALLOCATED ACCOUNT: We shall open and maintain the
Allocated Account for you in respect of Bullion.
2.2 DEPOSITS AND WITHDRAWALS: The Allocated Account shall evidence and
record the holdings of Bullion in, and the movements of Bullion into
and out of the Allocated Account.
2.3 DENOMINATION OF THE ALLOCATED ACCOUNT: The Allocated Account shall be
denominated in fine ounces of gold to three decimal places.
2.4 REPORTS: For each Business Day, by no later than the following Business
Day, we will transmit to you by authenticated SWIFT message(s)
information showing the movement of Bullion into and out of your
Allocated Account, and identifying separately each transaction and the
Business Day on which it occurred. In addition, we will provide you
such information about the movement of Bullion into and out of your
Allocated Account on a same-day basis at such other times and in such
other form as you and we shall agree. In the case of any difference
between the information provided by authenticated SWIFT message and the
information we provide you pursuant to the immediately preceding
sentence, the SWIFT message will be controlling, and we shall not be
liable for your or any third party's reliance on the information we
provide to you by means other than SWIFT message. For each calendar
month, we will provide you within a reasonable time after the end of
the month a statement of account for your Allocated Account,
accompanied by one or more weight lists in respect of the Bullion in
your Allocated Account as of the last Business Day of the calendar
month, containing information sufficient to identify each bar of
Bullion held in your Allocated Account and the party having physical
possession thereof. We also will provide you additional weight lists in
respect of the Bullion in your Allocated Account from time to time upon
your request, but only on the condition that you may not request weight
lists as a way to obtain them routinely on a more frequent basis than
the monthly basis on which we are undertaking to provide them.
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2.5 REVERSAL OF ENTRIES: In order to maintain the accuracy of our books and
records, but without limiting our responsibilities or liability under
this agreement, we shall reverse or amend any entries to your Allocated
Account to correct errors that we discover or of which we are notified
with, if we deem it necessary, effect back-valued to the date upon
which the correct entry (or no entry) should have been made. Without
limiting the foregoing, if Bullion delivered to your Allocated Account
upon withdrawal from your Unallocated Account is determined to be of a
fineness or weight different from the fineness or weight we have
reported to you, (i) we shall debit your Allocated Account and credit
your Unallocated Account with the requisite amount of Bullion if the
determination reduces the total fine ounces of Bullion that should have
been credited to your Allocated Account, and (ii) we shall credit your
Allocated Account and debit your Unallocated Account with the requisite
amount of Bullion if the determination increases the total fine ounces
of Bullion that should have been credited to your Allocated Account.
2.6 ACCESS: Upon reasonable prior written notice, we will, during our
normal business hours, allow your representatives, not more than twice
during any calendar year, and your independent public accountants, in
connection with their audit of the financial statements of the
streetTRACKS(R) Gold Trust, to visit our premises and examine the
Bullion and such recordS maintained by us in relation to your Allocated
Account as they may reasonably require. You shall bear all costs
relating to such visits and exams, including any out of pocket or other
costs we may incur in connection therewith. Our providing of any such
visits or exams is conditioned on the relevant parties complying with
all our security rules and procedures and undertaking to keep
confidential all information they obtain in accordance with a form of
confidentiality agreement we will provide. If at the time of any visit
none of the Bullion is at our premises, the relevant parties will not
be permitted to visit our vault. Any visits by your representatives
pursuant to clause 2.6 of the Unallocated Bullion Account Agreement
shall be deemed to be a visit for purposes of this clause 2.6.
3. TRANSFERS INTO THE ALLOCATED ACCOUNT
3.1 PROCEDURE: We shall receive transfers of Bullion into your Allocated
Account only at your instruction given pursuant to your Unallocated
Bullion Account Agreement, by debiting Bullion from your Unallocated
Account and crediting such Bullion to your Allocated Account, unless we
otherwise agree in writing.
4. TRANSFERS FROM THE ALLOCATED ACCOUNT
4.1 PROCEDURE AND INSTRUCTIONS: We will transfer Bullion from your
Allocated Account to such persons and at such times as specified in
your instructions to us and not otherwise. Unless you instruct us
otherwise, we will transfer Bullion from your Allocated Account only by
debiting Bullion from your Allocated Account and crediting the Bullion
to your Unallocated Account. When you instruct us in accordance with
clause 4.4, we will transfer Bullion from your Allocated Account by
debiting Bullion from your Allocated Account and making such Bullion
available for collection or delivery as provided in clause 4.4. All
instructions to transfer Bullion from your Allocated Account must:
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(a) in the normal course, be received by us no later than 9:00
a.m. (London time) on (i) the day that is two Business Days
prior to the Withdrawal Date or (ii), in the case of a
transfer of Bullion to your Unallocated Account in
connection with a redemption of streetTRACKS(R) Gold Trust
shares that has been held open one Business Day, on thE
Withdrawal Date, unless we otherwise agree;
(b) specify (i) the minimum number of fine ounces of Bullion to be
debited from your Allocated Account and, if you are
identifying the Bullion to be debited, (ii) the serial numbers
of the Bullion to be debited; and
(c) provide any other information which we may from time to time
require, including, where applicable, the name of the person
that will collect the Bullion from us or, if applicable, to
whom we are to deliver it, and the Withdrawal Date.
4.2 POWER TO AMEND PROCEDURE: We may amend our procedure for the physical
withdrawal of Bullion or impose such additional procedures as we may
from time to time consider appropriate. We will notify you within a
commercially reasonable time before we amend our procedures or impose
additional ones in relation to the withdrawal of Bullion, and in doing
so we will consider your needs to communicate any such change to
Participants and others.
4.3 SPECIFICATION OF BULLION: Unless you instruct us as to the serial
numbers of the Bullion to be debited, we are entitled to select the
Bullion to be debited from your Allocated Account. When you instruct us
to debit a minimum amount of Bullion from your Allocated Account for
credit to your Unallocated Account without specifying the serial
numbers of the Bullion to be debited, we will select the Bullion to be
debited and will use commercially reasonable efforts to select for
deallocation the smallest amount of Bullion necessary to satisfy your
instruction. When you notify us of a debit of Bullion pursuant to
clause 4.1(b) in the case of a redemption that has been held open one
Business Day, you may not specify the serial numbers of the Bullion to
be debited to your Allocated Account.
4.4 PHYSICAL WITHDRAWALS OF BULLION: Upon your instruction, we will debit
Bullion from your Allocated Account and make the Bullion available for
collection by you or, if separately agreed, for delivery by us, at your
expense and risk. You and we agree nevertheless that you expect to
withdraw Bullion physically from your Allocated Account (rather than by
crediting it to your Unallocated Account) only in exceptional
circumstances, as for example when we are unable to transfer Precious
Metal on an Unallocated Basis. In the case of all physical withdrawals
of Bullion from your Allocated Account, unless we agree to undertake
delivery, you must collect, or arrange for the collection of, the
Bullion being withdrawn from us, the Sub-Custodian or other party
having physical possession thereof. We will advise you of the location
from which the Bullion may be collected no later than one Business Day
prior to the Withdrawal Date. When we have agreed separately to deliver
Bullion in connection with a physical withdrawal, we shall make
transportation and insurance arrangements on your behalf in accordance
with our usual practice unless we have agreed in writing to other
arrangements, with which we shall use commercially reasonable efforts
to comply.
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Anything in this agreement to the contrary notwithstanding, and
without limiting your right to withdraw Bullion physically, we shall
not be obliged to effect any requested delivery if, in our reasonable
opinion, this would cause us or our agents to be in breach of the
Rules or other applicable law, court order or regulation, the costs
incurred would be excessive or delivery is impracticable for any
reason. When pursuant to your instruction Bullion is physically
withdrawn from your Allocated Account, all risk in and to the Bullion
withdrawn shall pass at the Point of Delivery to the person to whom or
to or for whose account such Bullion is transferred, delivered or
collected. If you instruct us as to the serial number of one or more
whole bars of Bullion to be debited, the Bullion you specify will be
made available for collection or delivery as soon as reasonably
practicable.
5. INSTRUCTIONS
5.1 YOUR REPRESENTATIVES: We will act only on instructions given in
accordance with this clause 5.1 and clause 14 and will not otherwise
act on instructions given by any person claiming to have a beneficial
interest in the streetTRACKS(R) Gold Trust. You shall notify us
promptly iN writing of the names of the people who are authorised to
give instructions on your behalf. Until we receive written notice to
the contrary, we are entitled to assume that any of those people have
full and unrestricted power to give us instructions on your behalf. We
are also entitled to rely on any instructions which are from, or which
purport to emanate from, any person who appears to have such authority.
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5.2 AMENDMENTS: Once given, instructions continue in full force and effect
until we receive further instructions that they are cancelled, amended
or superseded. We must receive an instruction cancelling, amending or
superseding a prior instruction before the time the prior instruction
is acted upon. Instructions shall have effect only after actual
receipt by us.
5.3 UNCLEAR OR AMBIGUOUS INSTRUCTIONS: If, in our opinion, any instructions
are unclear or ambiguous, we shall use reasonable endeavours (taking
into account any relevant time constraints) to obtain clarification of
those instructions but, failing that, we may in our absolute discretion
and without any liability on our part, act upon what we believe in good
faith such instructions to be or refuse to take any action or execute
such instructions until any ambiguity or conflict has been resolved to
our satisfaction.
5.4 REFUSAL TO EXECUTE: We will, where practicable, refuse to execute
instructions if in our opinion they are or may be contrary to the Rules
or any applicable law.
6. CONFIDENTIALITY
6.1 DISCLOSURE TO OTHERS: Subject to clause 6.2, we shall treat as
confidential and will not, without your consent, disclose to any other
person any transaction or other information we acquire about you or
your business pursuant to this agreement. Subject to clause 6.2, you
shall treat as confidential and will not, without our consent, disclose
to any other person any information that we provide to you about us or
our business pursuant to this agreement and that we tell you, at or
before the time we provide it, we are providing to you on a
confidential basis.
6.2 PERMITTED DISCLOSURES: Each party accepts that from time to time the
other party may be required by law or the Rules, or requested by or
required in connection with filings made with a government department
or agency, fiscal body or regulatory or self-regulatory authority, to
disclose information acquired under this agreement. In addition, the
disclosure of such information may be required by a party's auditors,
by its legal or other advisors, by a company which is in the same group
of companies as a party (i.e. a subsidiary or holding company of a
party) or by a Sub-Custodian. Subject to the agreement of the party to
which information is disclosed to maintain it in confidence in
accordance with clause 6.1, each party irrevocably authorises the other
to make such disclosures without further reference to such party.
7. CUSTODY SERVICES
7.1 APPOINTMENT: You hereby appoint us to act as custodian of the Bullion
in accordance with this agreement and any Rules which apply to us.
7.2 SEGREGATION OF BULLION: We will be responsible for the safekeeping of
the Bullion on the terms and conditions of this Agreement. We will
segregate Bullion in your Allocated Account from any Precious Metal
which we own or hold for others by making entries in our books and
records to identify such Bullion as being held for your Allocated
Account, and we will require Sub-Custodians to segregate Bullion held
by them for us from any
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Precious Metal which they own or hold for others by making entries in
their books and records to identify such Bullion as being held for us.
It is understood that our undertaking to require Sub-Custodians to
segregate Bullion from Precious Metal they own or hold for others
reflects the current custody practice in the London market, and that
accordingly we will be deemed to have communicated that requirement
prior to the execution of this Agreement by our participation in that
market. Entries on our books and records to identify Bullion will
refer to each bar by refiner, assay, serial number and gross and fine
weight. Under current LBMA market practices, the weight lists provided
to us by our Sub-Custodians are expected to identify Bullion held for
us by serial number and may include additional identifying
information.
7.3 OWNERSHIP OF BULLION: We will identify in our books and records that
the Bullion belongs solely to you.
7.4 LOCATION OF BULLION: Subject to clause 8.1, the Bullion held for you in
your Allocated Account must be held by us at our London vault premises
or by or for any Sub-Custodian, unless otherwise agreed between us.
8. SUB-CUSTODIANS
8.1 SUB-CUSTODIANS: We may select Sub-Custodians to perform any of our
duties under this agreement including the custody and safekeeping of
Bullion. The Sub-Custodians we select may themselves select
subcustodians to perform their duties, but such subcustodians shall not
by such selection or otherwise be, or be considered to be, a
Sub-Custodian as such term is used herein. We will use reasonable care
in selecting any Sub-Custodian. As of the execution of this Agreement,
the Sub-Custodians that we use are: the Bank of England, The Bank of
Nova Scotia (ScotiaMocatta), Deutsche Bank AG, JPMorganChase Bank, and
UBS AG. We will notify you if we select any additional Sub-Custodian,
or stop using any Sub-Custodian for such purpose. Your receipt of
notice that we have selected a Sub-Custodian (including those named in
this clause 8.1) shall not be deemed to limit our responsibility in
selecting such Sub-Custodian. Not more frequently than annually, upon
your request, we will confirm to you that from time to time we may hold
Precious Metal for our own account with one or more of each of the
Sub-Custodians, provided that this confirmation shall not constitute a
representation by us regarding the solvency or creditworthiness of any
Sub-Custodian.
8.2 LIABILITY: Except for our obligation to make commercially reasonable
efforts to obtain delivery of Bullion from Sub-Custodians, we shall not
be liable for any act or omission, or for the solvency, of any
Sub-Custodian unless the selection of that Sub-Custodian was made by us
negligently or in bad faith.
9. REPRESENTATIONS
9.1 YOUR REPRESENTATIONS: You represent and warrant to us that (such
representations and warranties being deemed to be repeated upon each
occasion Bullion is credited to or debited from your Allocated Account
under this agreement):
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(a) you have all necessary authority, powers, consents, licences
and authorisations (which have not been revoked) and have
taken all necessary action to enable you lawfully to enter
into and perform your duties and obligations under this
agreement;
(b) the persons entering into this agreement on your behalf have
been duly authorised to do so; and
(c) this agreement and the obligations created under it are
binding upon you and enforceable against you in accordance
with its terms (subject to applicable principles of equity)
and do not and will not violate the terms of the Rules or any
law, order, charge or agreement by which you are bound.
9.2 OUR REPRESENTATIONS: We represent and warrant to you that (such
representations and warranties being deemed to be repeated upon each
occasion Bullion is credited to or debited from your Allocated Account
under this agreement):
(a) we have all necessary authority, powers, consents, licences
and authorisations (which have not been revoked) and have
taken all necessary action to enable us lawfully to enter into
and perform our duties and obligations under this agreement;
(b) the persons entering into this agreement on our behalf have
been duly authorised to do so; and
(c) this agreement and the obligations created under it are
binding upon us and enforceable against us in accordance with
its terms (subject to applicable principles of equity) and do
not and will not violate the terms of the Rules or any law,
order, charge or agreement by which we are bound.
10. FEES AND EXPENSES
10.1 FEES: For our services under this agreement you shall pay us an annual
fee equal to 0.10% of the average daily aggregate value of the Gold
held in the Allocated Account and the Unallocated Account. The gold
held in the Allocated Account and the Unallocated Account shall be
determined based on our end of Business Day balances, and the value of
the Gold shall be computed on the basis of the price of an ounce of
gold as fixed by the five members of the London gold fix at or about
3:00 p.m. London time (the "London P.M. Fix"), or if no London P.M. Fix
is made on such day, on the basis of the last prior London "fix" (A.M.
or P.M.). Our fee shall be paid in monthly installments in arrears.
10.2 EXPENSES: You must pay us on demand all costs, charges and expenses
(including any relevant taxes, duties and reasonable legal fees but not
including fees of Sub-Custodians) incurred by us in connection with the
performance of our duties and obligations under this agreement or
otherwise in connection with the Bullion.
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10.3 DEFAULT INTEREST: If you fail to pay us any amount when it is due, we
reserve the right to charge you interest (both before and after any
judgement) on any such unpaid amount calculated at a rate equal to 1%
above the overnight London Interbank Offered Rate (LIBOR) for the
currency in which the amount is due. Interest will accrue on a daily
basis and will be due and payable by you as a separate debt.
11. VALUE ADDED TAX
11.1 VAT INCLUSIVE: All sums payable under this agreement by you to us shall
be deemed to be inclusive of VAT.
12. SCOPE OF RESPONSIBILITY
12.1 EXCLUSION OF LIABILITY: We will use reasonable care in the performance
of our duties under this agreement and will only be responsible to you
for any loss or damage suffered by you as a direct result of any
negligence, fraud or wilful default on our part in the performance of
our duties, in which case our liability will not exceed the market
value of the Bullion at the time such negligence, fraud or wilful
default is discovered by us, provided that we notify you promptly after
we discover such negligence, fraud or wilful default. If we credit
Bullion to your Allocated Account that is not of the fine weight we
have represented to you, recovery by you, to the extent such recovery
is otherwise allowed, shall not be barred by your delay in asserting a
claim because of the failure to discover such loss or damage regardless
of whether such loss or damage could or should have been discovered.
12.2 NO DUTY OR OBLIGATION: We are under no duty or obligation to make or
take, or require any Sub-Custodian to make or take, any special
arrangements or precautions beyond those required by the Rules or as
specifically set forth herein.
12.3 INSURANCE: We shall maintain insurance in regard to our business,
including our bullion and custody business, on such terms and
conditions as we consider appropriate. Upon reasonable prior written
notice, in connection with the preparation of the initial registration
statement under the United States federal Securities Act of 1933, as
amended, covering shares of the streetTRACKS(R) Gold Trust, we will
allow our insurance to be reviewed by you, by the Sponsor anD by UBS
Securities LLC as underwriter in connection with such initial
registration statement. We also will allow you and the Sponsor to
review such insurance in connection with any amendment to that initial
registration statement and from time to time, in each case upon
reasonable prior written notice from you. Any permission to review our
insurance is limited to the term of this agreement and is conditioned
on the reviewing party executing a form of confidentiality agreement we
will provide, or if the confidentiality agreement is already in force,
acknowledging that the review is subject to it. The foregoing
permissions for the Sponsor and UBS Securities LLC to review our
insurance shall cease when the Sponsor or UBS Securities LLC, as the
case may be, ceases to serve the streetTRACKS(R) Gold Trust as such
Sponsor oR underwriter.
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12.4 FORCE MAJEURE: We shall not be liable to you for any delay in
performance, or for the non-performance of any of our obligations under
this agreement by reason of any cause beyond our reasonable control.
This includes any act of God or war or terrorism, any breakdown,
malfunction or failure of transmission in connection with or other
unavailability of any wire, communication or computer facilities, any
transport, port, or airport disruption, industrial action, acts and
regulations and rules of any governmental or supra national bodies or
authorities or regulatory or self-regulatory organisations or failure
of any such body, authority, or organisation for any reason, to perform
its obligations.
12.5 INDEMNITY: You shall, solely out of the assets of the streetTRACKS(R)
Gold Trust, indemnify anD keep us, and each of our directors,
shareholders, officers, employees, agents, affiliates (as such term is
defined in Regulation S-X adopted by the United States Securities and
Exchange Commission under the United States federal Securities Act of
1933, as amended) and subsidiaries (us and each such person a
"Custodian Indemnified Person" for purposes of this clause 12.5)
indemnified (on an after tax basis) on demand against all costs and
expenses, damages, liabilities and losses which any such Custodian
Indemnified Person may suffer or incur, directly or indirectly in
connection with this agreement except to the extent that such sums are
due directly to our negligence, wilful default or fraud or that of such
Custodian Indemnified Person.
12.6 THIRD PARTIES: You are our sole customer under this agreement and we do
not owe any duty or obligation or have any liability towards any person
who is not a party to this agreement. This agreement does not confer a
benefit on any person who is not a party to it. The parties to this
agreement do not intend that any term of this agreement shall be
enforceable by any person who is not a party to it, except Custodian
Indemnified Persons, and do intend that the Contracts (Rights of Third
Parties) 1999 Act shall not apply to this Agreement. Nothing in this
paragraph is intended to limit the obligations hereunder of any
successor Trustee of the streetTRACKS(R) Gold Trust or to limit the
right of any successor Trustee of the streetTRACKS(R) Gold Trust to
enforce our obligations hereunder.
12.7 NO LIENS: We will not create any right, charge, security interest, lien
or claim against the Bullion, except those in our favor arising under
this agreement or the Unallocated Bullion Account Agreement, and we
will not loan, hypothecate, pledge or otherwise encumber any Bullion
except pursuant to your instructions.
12.8 OTHER ACTIVITIES: We and any of our affiliates may act as a Participant
or own or hold Precious Metal or shares issued by the streetTRACKS(R)
Gold Trust or both and may deal with theM in any manner, including
acting as underwriter for the shares, with the same rights and powers
as if we were not the custodian hereunder.
13. TERMINATION
13.1 NON-TERMINATION: This agreement may not be terminated for one year
following the "Initial Date of Deposit", as that term is defined in the
Trust Indenture, unless the streetTRACKS(R) GolD Trust is terminated
during that period.
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13.2 METHOD: Subject to the requirements of clause 13.1, either party may
terminate this agreement by giving not less than 90 Business Days'
written notice to the other party. Any such notice given by you must
specify:
(a) the date on which the termination will take effect;
(b) the person to whom the Bullion is to be made available; and
(c) all other necessary arrangements for the redelivery of the
Bullion to you.
13.3 RESIGNATION OF TRUSTEE: In the event you resign or are discharged or
removed as Trustee, this agreement will terminate 90 Business Days
following your resignation, discharge or removal unless a successor
trustee to the streetTRACKS(R) Gold Trust is appointed before the end
of thE 90 Business Day period or a full liquidation of the
streetTRACKS(R) Gold Trust is started durinG the 90 Business Day period
and you request us to continue the agreement in effect until the
liquidation is completed.
13.4 REDELIVERY ARRANGEMENTS: Following any termination of this agreement,
if you do not make arrangements acceptable to us for the redelivery of
the Bullion we may continue to store the Bullion, in which case we will
continue to charge the fees and expenses payable under clause 10. If
you have not made arrangements acceptable to us for the redelivery of
the Bullion within 6 months of the date specified in the termination
notice as the date on which the termination will take effect, we will
be entitled to sell the Bullion and account to you for the proceeds
after deducting any amounts due to us under this agreement.
13.5 EXISTING RIGHTS: Termination shall not affect rights and obligations
then outstanding under this agreement which shall continue to be
governed by this agreement until all obligations have been fully
performed.
14. NOTICES
14.1 FORM: Subject to clause 14.5, any notice, notification, instruction or
other communication under or in connection with this agreement shall be
given in writing. References to writing include electronic
transmissions that are of the kind specified in clause 14.2.
14.2 METHOD OF TRANSMISSION: Any notice, notification, instruction or other
communication required to be in writing may be delivered personally or
sent by first class post, pre-paid recorded delivery (or air mail if
overseas), authenticated electronic transmission (including tested
telex and authenticated SWIFT) or such other electronic transmission as
the parties may from time to time agree to the party due to receive the
notice or communication, at its address, number or destination set out
in this agreement or another address, number or destination specified
by that party by written notice to the other.
14.3 DEEMED RECEIPT ON NOTICE: A notice, notification, instruction or other
communication under or in connection with this agreement will be deemed
received only if actually received or delivered.
STREETTRACKS(R) Gold Trust
Allocated Bullion Account Agreement - 13 -
14.4 RECORDING OF CALLS: We may record telephone conversations without use
of a warning tone. Such records will be our sole property and accepted
by you as evidence of the orders or instructions given that are
permitted to be given orally under this agreement.
14.5 INSTRUCTIONS RELATING TO BULLION: All notices, notifications,
instructions and other communications relating to the movement of
Bullion in relation to your Allocated Account shall be by way of
authenticated electronic transmission (including tested telex and
authenticated SWIFT), and shall be addressed to:
Precious Metals Operations
HSBC Bank USA, National Association
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Tested Telex: 889217 RNB
SWIFT: BLIC GB2L
15. GENERAL
15.1 NO ADVICE: Our duties and obligations under this agreement do not
include providing you with investment advice. In asking us to open and
maintain the Allocated Account, you do so in reliance of your own
judgment and we shall not owe to you any duty to exercise any judgment
on your behalf as to the merits or suitability of any deposits into, or
withdrawals from, your Allocated Account.
15.2 RIGHTS AND REMEDIES: Our rights under this agreement are in addition
to, and independent of, any other rights which we may have at any time
in relation to the Bullion, except that we will not have any right to
set off against any account we maintain or property that we hold for
you under this agreement any claim or amount that we may have against
you or that may be owing to us other than pursuant to this agreement,
no matter how that claim or amount arose.
15.3 ASSIGNMENT: This agreement is for the benefit of and binding upon us
both and our respective successors, including any successor trustees,
and assigns. This agreement may not be assigned by either party without
the written consent of the other party; except that this clause shall
not restrict our power to merge or consolidate with any party, or to
dispose of all or part of our custody business.
15.4 AMENDMENTS: Any amendment to this agreement must be agreed in writing
and be signed by us both. Unless otherwise agreed, an amendment will
not affect any legal rights or obligations which may already have
arisen.
15.5 PARTIAL INVALIDITY: If any of the clauses (or part of a clause) of this
agreement becomes invalid or unenforceable in any way under the Rules
or any law, the validity of the remaining clauses (or part of a clause)
will not in any way be affected or impaired.
15.6 ENTIRE AGREEMENT: This document represents the entire agreement, and
supersedes any previous agreements between us relating to the subject
matter of this agreement.
STREETTRACKS(R) Gold Trust
Allocated Bullion Account Agreement - 14 -
15.7 JOINT AND SEVERAL LIABILITY: If there is more than one of you, your
responsibilities under this agreement apply to each of you individually
as well as jointly.
15.8 COUNTERPARTS: This agreement may be executed in any number of
counterparts each of which when executed and delivered is an original,
but all the counterparts together constitute the same agreement.
15.9 BUSINESS DAYS: If any obligation of either you or us falls due to be
performed on a day which is not a Business Day in respect of the
Allocated Account in question, then the relevant obligations shall be
performed on the next succeeding Business Day applicable to such
account.
15.10 PROCESSING OF ACCOUNT ENTRIES: Except for physical withdrawals as to
which transfer of ownership is determined at the Point of Delivery,
records of (i) all deposits to and withdrawals from the Allocated
Account and all debits and credits to the Unallocated Account which,
pursuant to instructions given in accordance with this agreement and
the Unallocated Bullion Account Agreement, occur on a Business Day and
(ii) all end of Business Day account balances in the Allocated Account
and the Unallocated Account are prepared overnight as at the close of
our business (usually 4:00 p.m. London time) on that Business Day. For
avoidance of doubt, the foregoing sentence is illustrated by the
following examples, which are not intended to create any separate
obligations on our part:
Reports of a transfer of Precious Metal from a Third Party
Unallocated Account for credit to your Unallocated Account
on a Business Day and a debit of Bullion from your
Unallocated Account for credit to your Allocated Account on
that Business Day pursuant to the standing instruction
contained in the Unallocated Bullion Account Agreement and
of the balances in your Allocated Account and your
Unallocated Account for that Business Day shall be prepared
overnight as at the close of our business on that Business
Day.
Reports of a transfer of Bullion which we debit from your
Allocated Account for credit to your Unallocated Account on
a Business Day and a transfer of Bullion which we debit from
your Unallocated Account for credit to a Third Party
Unallocated Account on that Business Day and of the balances
in your Allocated Account and Unallocated Account for that
Business Day shall be prepared overnight as at the close of
our business on that Business Day.
When you instruct us to debit Bullion from your Allocated Account for
credit to your Unallocated Account and direct us to execute such
instruction on the same Business Day as and in connection with one or
more instructions that you give to us to debit Bullion from your
Unallocated Account, we will use commercially reasonable efforts to
execute the instructions in a manner that minimizes the time the
Bullion to be debited from your Allocated Account stands to your credit
in your Unallocated Account, save that we shall not be responsible for
any delay caused by late, incorrect or garbled instructions or
information from you or any third party.
15.11 MAINTENANCE OF THIS AGREEMENT. Concurrently with this agreement, we and
you are entering into the Unallocated Bullion Account Agreement. That
agreement shall remain
STREETTRACKS(R) Gold Trust
Allocated Bullion Account Agreement - 15 -
in effect as long as this agreement remains in effect, and if that
agreement is terminated, this agreement terminates with immediate
effect.
15.12 PRIOR AGREEMENTS: The Agreement supersedes and replaces any prior
existing agreement between you and us relating to the same subject
matter.
15.13 COOPERATION. During the term of this agreement, we and you will
cooperate with each other and make available to each other upon
reasonable request any information or documents necessary to insure
that each of our respective books and records are accurate and current.
16. GOVERNING LAW AND JURISDICTION
16.1 GOVERNING LAW: This agreement is governed by, and will be construed in
accordance with, English law.
16.2 JURISDICTION: We both agree the courts of the State of New York, in the
United States of America, and the United States federal court located
in the Borough of Manhattan in such state are to have jurisdiction to
settle any disputes or claims which may arise out of or in connection
with this agreement and, for these purposes we both irrevocably submit
to the non-exclusive jurisdiction of such courts, waive any claim of
forum non conveniens and any objections to the laying of venue, and
further waive any personal service.
16.3 WAIVER OF IMMUNITY: To the extent that you may in any jurisdiction
claim for yourself or your assets any immunity from suit, judgment,
enforcement or otherwise howsoever, you agree not to claim and
irrevocably waive any such immunity which you would otherwise be
entitled to (whether on grounds of sovereignty or otherwise) to the
full extent permitted by the laws of such jurisdiction.
16.4 SERVICE OF PROCESS: Process by which any proceedings are begun may be
served by being delivered to the addresses specified below. This does
not affect the right of either of us to serve process in another manner
permitted by law.
Our address for service of process: Your address for service of process
HSBC Bank USA, National Association, London Branch The Bank of New York
8 Canada Square 0 Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Precious Metals Department Attention: ADR Administration
Legal Department
EXECUTED by the parties as follows
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
STREETTRACKS(R) Gold Trust
Allocated Bullion Account Agreement - 16 -
Signed on behalf of
HSBC BANK USA, NATIONAL ASSOCIATION
by
Signature
....................................................
Name
....................................................
Title
....................................................
Signature
....................................................
Name
....................................................
Title
....................................................
Signed on behalf of
THE BANK OF NEW YORK,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE OF THE STREETTRACKS(R) GOLD TRUST,
by
Signature
......................................
Name
......................................
Title
.....................................
Signature Page
streetTRACKS(R) Gold Trust
Allocated Bullion Account Agreement
