MARKETING AGENT AGREEMENT
Exhibit 10.6
MARKETING AGENT AGREEMENT (the “Agreement”) made as of November 16, 2004, by and between World
Gold Trust Services, LLC, a Delaware limited liability company, as Sponsor of streetTRACKS® Gold
Trust (the “Sponsor”) and State Street Global Markets, LLC, a Delaware limited liability company
(the “Marketing Agent”).
W
I T N E S S E
T H :
WHEREAS, the streetTRACKS® Gold Trust is governed by the Trust Indenture dated as of the date
hereof (the “Trust Indenture”) between the Sponsor and The Bank of New York, a New York banking
corporation, not in its individual capacity, but solely as the trustee (the “Trustee”), pursuant to
which the Trust will issue
streetTRACKS® Gold Shares (the “Shares”), which represent units of fractional
undivided beneficial interest in and ownership of the Trust, upon the deposit of gold with
HSBC Bank USA, N.A., as custodian of the Trust.
WHEREAS, the Sponsor has filed with the U.S. Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-1 (Registration No. 333-105202) and amendments
thereto, including as part thereof a prospectus, under the Securities Act of 1933, as amended (the
“1933 Act”), the forms of which have heretofore been delivered to the Marketing Agent;
WHEREAS, pursuant to the Trust Indenture the Sponsor wishes to retain the Marketing Agent to
provide certain assistance with respect to the marketing of the Shares and the development of other
gold related exchange-traded funds;
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the
Sponsor and the Marketing Agent hereby agree as follows:
Section 1
Definitions
Definitions
1.1 Definitions. In addition to the other terms which are defined in this Agreement,
the following terms shall have the following meanings assigned to them. All other capitalized terms
used herein, but not otherwise defined herein, shall have the meanings assigned to such terms in
the Trust Indenture.
“Act” means the Securities Act of 1933, as amended.
“Affiliate” means, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common
Control with, such Person.
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“Business Day” means any day that is not a Saturday, Sunday or a day on which banking
institutions in New York, New York are not required to be open or the New York Stock Exchange, Inc.
is not open for trading.
“Control” means, with respect to any Person, the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
“Distribution Agreement” means the Distribution Agreement dated the date hereof,
between the Sponsor and UBS.
“ETF” means (i) an open-ended trust, (ii) a unit investment trust, (iii) a mutual
fund, (iv) a collective investment scheme or (v) any other investment company or pooled, collective
or commingled investment vehicle that has the following characteristics: (a) the shares, units or
similar interests therein are or will be listed and traded on an exchange or other secondary market
or crossing facility, and (b) for which creation and/or redemption of shares is effected (1) in
large aggregations (sometimes referred to as “baskets” or “blocks”) only, (2) by authorized
participants, (3) through the transfer of the requisite amount and composition of the underlying
assets, including, without limitation, assets such as gold or other commodities (also known as
in-kind creation and redemption).
“Governmental Entity” means any supranational, national, state, local, foreign,
political subdivision, court, administrative agency, commission or department or other governmental
authority or instrumentality.
“Law” means any law, statute, treaty, rule, directive, regulation or guideline or
Order of any Governmental Entity.
“Orders” means judgments, writs, decrees, compliance agreements, injunctions or orders
of any Governmental Entity or arbitrator.
“Person” shall be construed broadly and shall include an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or another entity, including a Governmental Entity (or any
department, agency or political subdivision thereof).
“Preliminary Prospectus” means the preliminary prospectus dated ___, 2004 relating
to the Shares and any other prospectus dated prior to effectiveness of the Registration Statement
relating to the Shares.
“Prospectus” means, except when otherwise specified, the prospectus, in the form filed
by the Sponsor on behalf of the Trust with the Commission on or before the second business day
after the date hereof (or such earlier time as may be required under the Act) or, if no such filing
is required, the form of final prospectus included in the Registration Statement at the time it
became effective.
“Reimbursement Agreement” means the Reimbursement Agreement dated as of the date
hereof between the Marketing Agent and the Trustee
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“Related Agreements” means the Marketing Agent License and the WGC/WGTS License.
“Related ETF” means an ETF based significantly on the performance of gold bullion,
involving, but not limited to, leverage, inverse performance, dividend and income products.
“Representative” means officers, directors, employees, agents, attorneys, accountants
and financial advisors of a Person, as the case may be.
“Registration Statement” means, except when otherwise specified, the Trust’s
registration statement on Form S-1 (File No. 333-105202) filed by the Sponsor with the Commission
as amended when it becomes effective under the Act, including all documents filed as a part
thereof.
“Similar ETF” means (a) an ETF or other exchange-traded security whose investment
objective or investment method is tied to gold bullion or a derivative thereof and (b) both of the
following conditions are fulfilled at any relevant date of calculation for such ETF: (i) eighty
percent (80%) or more of the assets comprising the ETF are from gold or gold-indexed securities
(for the avoidance of doubt, gold-indexed securities includes synthetic gold products and gold
futures) and (ii) the index or other benchmark on which the ETF is based has a correlation
(measured by an “r” squared coefficient) of 0.85 or greater (based on daily changes) to the
performance of gold bullion over the previous three (3) year period.
“UBS” means UBS Securities LLC.
Section 2
Representations and Warranties of the Sponsor
Representations and Warranties of the Sponsor
2.1 Representations and Warranties of the Sponsor. The Sponsor, on its own behalf and
in its capacity as sponsor of the Trust, represents and warrants to, and agrees with, the Marketing
Agent that:
(a) At the time of purchase of the Shares by UBS under the Distribution Agreement, the
Registration Statement shall have become effective and no stop order of the SEC with respect
thereto has been issued and no proceedings for such purpose has been instituted or, to the
Sponsor’s knowledge after due inquiry, is contemplated by the SEC; any Preliminary Prospectus
provided to prospective investors, at the time of filing thereof, complied in all material respects
to the requirements of the Act and the last Prospectus distributed in connection with the offering
of the Shares purchased by UBS did not, as of its date, and does not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading;
the Registration Statement complies and will comply when it becomes effective and at the time of
purchase of the Shares by UBS under the Distribution Agreement, in all material respects with the
requirements of the Act and the Prospectus will comply, as of its date and at the time of purchase
of the Shares by UBS under the Distribution Agreement, in all material respects with the
requirements of the Act and any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been and will be so
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described or filed; the conditions to the use of Form S-1 have been satisfied; the
Registration Statement does not and will not when it becomes effective and at the time of purchase
of the Shares by UBS under the Distribution Agreement contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus will not, as of its date and at the time of
purchase of the Shares by UBS under the Distribution Agreement, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading;
provided, however, that the Sponsor makes no warranty or representation with respect to any
statement contained in any Preliminary Prospectus, the Registration Statement or any Prospectus in
reliance upon and in conformity with information concerning the Marketing Agent and furnished in
writing by or on behalf of the Marketing Agent to the Sponsor expressly for use in the Registration
Statement or such Prospectus; and neither the Sponsor nor the Trustee has distributed nor will
distribute any offering material in connection with the offering or creation of the Shares
purchased by UBS under the Distribution Agreement other than any Preliminary Prospectus provided to
prospective investors, the Registration Statement or the Prospectus;
(b) as of the date of this Agreement, and as of the time of purchase of Shares by UBS under
the Distribution Agreement, respectively, the statement of financial position as set forth in the
section of the Registration Statement and the Prospectus entitled “Statement of Financial
Condition” accurately reflects the financial condition of the Trust as of the date specified in
such statement of financial position;
(c) at the time of purchase of Shares by UBS under the Distribution Agreement, the Trust has
been duly formed and is validly existing as an investment trust under the laws of the State of New
York, as described in the Registration Statement and the Prospectus, and the Trust Indenture
authorizes the Trustee to issue and deliver the Shares to UBS under the Distribution Agreement as
contemplated in the Registration Statement and the Prospectus;
(d) the Sponsor has been duly organized and is validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with full power and authority to conduct
its business as described in the Registration Statement and the Prospectus, and has all requisite
power and authority to execute and deliver this Agreement;
(e) the Sponsor is duly qualified and is in good standing in each jurisdiction where the
conduct of its business requires such qualification; and the Trust is not required to so qualify in
any jurisdiction;
(f) complete and correct copies of the Trust Indenture, and any and all amendments thereto,
have been delivered to the Marketing Agent, and no changes thereto will have been made prior to the
time of purchase of Shares by UBS under the Distribution Agreement;
(g) at the time of purchase of the Shares by UBS under the Distribution Agreement, the Shares
will have been duly and validly authorized and, when issued and delivered against payment therefor
as provided in the Distribution Agreement, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, rights of first refusal and
similar rights;
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(h) at the time of purchase of the Shares by UBS under the Distribution Agreement,
the Shares will conform in all material respects to the description thereof contained in the
Registration Statement and the Prospectus and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and delivered by the Sponsor and
constitutes the valid and binding obligations of the Sponsor, enforceable against the Sponsor in
accordance with its terms;
(j) neither the Sponsor nor the Trustee on behalf of the Trust is in breach or violation of or
in default under (nor has any event occurred which with notice, lapse of time or both would result
in any breach or violation of, constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) its respective constitutive documents, or
any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument to which the Sponsor
or the Trustee on behalf of the Trust is a party or by which any of them or any of their properties
may be bound or affected, and the execution, delivery and performance of this Agreement, the
issuance and sale of Shares to UBS under the Distribution Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with notice, lapse of time or both would
result in any breach or violation of or constitute a default under), respectively, the amended and
restated limited liability company agreement of the Sponsor or the Trust Indenture, or any
indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument to which the Sponsor
or the Trustee on behalf of the Trust is a party or by which, respectively, the Sponsor or any of
its properties or the Trustee or the property of the Trust may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Sponsor, the Trust or the Trustee;
(k) no approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares to UBS under the Distribution Agreement or the
consummation by the Sponsor, the Trust and the Trustee on behalf of the Trust of the transactions
contemplated by the Distribution Agreement other than registration of the Shares under the Act,
which has been or will be effected, and any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being offered or under the rules and
regulations of the National Association of Securities Dealers (the “NASD”);
(l) except as set forth in the Registration Statement and the Prospectus (i) no person has the
right, contractual or otherwise, to cause the Trust to issue or sell to it any Shares or other
equity interests of the Trust, and (ii) no person has the right to act as an underwriter or as a
financial advisor to the Trust in connection with the offer and sale of the Shares, in the case of
each of the foregoing clauses (i), and (ii), whether as a result of the filing or effectiveness of
the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no
person has the right, contractual or otherwise, to cause the Sponsor on behalf of the Trust or the
Trust to
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register under the Act any other equity interests of the Trust, or to include any such
shares or interests in the Registration Statement or the offering contemplated thereby, whether as
a result of
the filing or effectiveness of the Registration Statement or the sale of the Shares as
contemplated thereby or otherwise;
(m) each of the Sponsor and the Trust has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its respective business; neither the Sponsor nor the Trustee on
behalf of the Trust is in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Sponsor or the Trustee on behalf of the Trust;
(n) all legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed as required;
(o) except as set forth in the Registration Statement and the Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or threatened or, to the Sponsor’s
knowledge after due inquiry, contemplated to which the Sponsor, the Trust or the Trustee on behalf
of the Trust, or (to the extent that is or could be material in the context of the offering and
sale of the Shares to UBS under the Distribution Agreement) any of the Sponsor’s directors or
officers, is or would be a party or of which any of their respective properties are or would be
subject at law or in equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency;
(p) Deloitte & Touche LLP, whose report on the audited financial statements of the Trust is
filed with the Commission as part of the Registration Statement and the Prospectus, are independent
public accountants as required by the Act;
(q) the audited financial statement included in the Prospectus, together with the related
notes and schedules, presents fairly the financial position of the Trust as of the date indicated
and has been prepared in compliance with the requirements of the Act and in conformity with
generally accepted accounting principles; there are no financial statements (historical or pro
forma) that are required to be included in the Registration Statement and the Prospectus that are
not included as required; and the Trust does not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not disclosed in the
Registration Statement and the Prospectus;
(r) subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, and prior to the purchase by UBS of Shares under the Distribution
Agreement, there has not been (i) any material adverse change, or any development involving a
prospective material adverse change affecting the Sponsor or the Trust, (ii) any transaction which
is material to the Sponsor or the Trust taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the Sponsor, the Trust or the
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Trustee on behalf of the Trust, which is material to the Trust, (iv) any change in the Shares
purchased by UBS or outstanding indebtedness of the Sponsor or the Trust or (v) any dividend or
distribution of any kind declared, paid or made on such Shares;
(s) the Trust is not and, after giving effect to the offering and sale of the Shares, will not
be an “investment company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(t) except as set forth in the Registration Statement and the Prospectus, the Sponsor and the
Trust own, or have obtained valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information described in the
Registration Statement and the Prospectus as being owned or licensed by them or which are necessary
for the conduct of their respective businesses, (collectively, “Intellectual Property”); (i) to the
knowledge of the Sponsor or the Trust, there are no third parties who have or will be able to
establish rights to any Intellectual Property, except for the ownership rights of the owners of the
Intellectual Property which is licensed to the Sponsor or the Trust; (ii) to the knowledge of the
Sponsor or the Trust, there is no infringement by third parties of any Intellectual Property; (iii)
there is no pending or, to the knowledge of the Sponsor or the Trust, threatened action, suit,
proceeding or claim by others challenging the Sponsor’s or the Trust’s rights in or to any
Intellectual Property, and the Sponsor and the Trust are unaware of any facts which could form a
reasonable basis for any such claim; (iv) there is no pending or, to the knowledge of the Sponsor
or the Trust, threatened action, suit, proceeding or claim by others challenging the validity or
scope of any Intellectual Property, other than the patents and patent applications licensed to the
Sponsor by the Bank of New York, as to which the Sponsor and the Trust have no knowledge of any
such pending or threatened claims, and the Sponsor and the Trust are unaware of any facts which
could form a reasonable basis for any such claim; (v) there is no pending or, to the knowledge of
the Sponsor or the Trust, threatened action, suit, proceeding or claim by others that the Sponsor
or the Trust infringes or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of others, and the Sponsor and the Trust are unaware of any facts which
could form a reasonable basis for any such claim; (vi) to the knowledge of the Sponsor or the
Trust, there is no patent or patent application that contains claims that interfere with the issued
or pending claims of any of the Intellectual Property; and (vii) to the knowledge of the Sponsor or
the Trust, there is no prior art that may render any patent application licensed to the Sponsor by
The Bank of New York unpatentable;
(u) all tax returns required to be filed by the Sponsor have been filed, and all taxes and
other assessments of a similar nature (whether imposed directly or through withholding) including
any interest, additions to tax or penalties applicable thereto due or claimed to be due from such
entities have been paid; and no tax returns or tax payments are due with respect to the Trust as of
the date of this Agreement;
(v) neither the Sponsor nor the Trustee on behalf of the Trust has sent or received any
communication regarding termination of, or intent not to renew, any of the contracts or agreements
referred to or described in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Sponsor the Trustee on behalf of the Trust
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or
any other party to any such contract or agreement;
(w) with respect to its activities on behalf of the Trust, as provided for in the Trust
Indenture, the Trustee maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with the Trust Indenture and
the Trustee’s duties thereunder; (ii) transactions with respect to the Trust are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; and (iii) assets are held for the
Trust by the Custodian in accordance with the Trust Indenture;
(x) on behalf of the Trust, the Sponsor has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a14 and 15d-14 under the Exchange Act of 1934 (the
“Exchange Act”), giving effect to the rules and regulations, and SEC staff interpretations (whether
or not public), thereunder)); such disclosure controls and procedures are designed to ensure that
material information relating to the Trust, is made known to the Sponsor, and such disclosure
controls and procedures are effective to perform the functions for which they were established; on
behalf of the Trust, the Sponsor has been advised of. (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect the Trust’s ability to
record, process, summarize, and report financial data; and (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the Trust’s internal controls; any
material weaknesses in internal controls have been identified for the Trust’s auditors;
(y) any statistical and market-related data included in the Registration Statement and the
Prospectus are based on or derived from sources that the Sponsor believes to be reliable and
accurate, and the Sponsor has obtained the written consent to the use of such data from such
sources to the extent required; and
(z) neither the Sponsor, nor any of the Sponsor’s directors, members, officers, affiliates or
controlling persons (but excluding the members of the World Gold Council and their controlling
persons) nor the Trustee has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security or asset of the Trust to
facilitate the sale or resale of the Shares; and (cc) to the Sponsor’s knowledge after due inquiry,
there are no affiliations or associations between any member of the NASD and any of the Sponsor’s
officers, directors or 5% or greater securityholders, except as set forth in the Registration
Statement and the Prospectus.
In addition, any certificate signed by any officer of the Sponsor and delivered to the
Marketing Agent or counsel for the Marketing Agent in connection with the offering of the Shares
shall be deemed to be a representation and warranty by the Sponsor as to matters covered thereby,
to the Marketing Agent.
Section 3
Exclusive Marketing Agent and Structure of Trust
Exclusive Marketing Agent and Structure of Trust
3.1 Appointment. Pursuant to Section 3.08 of the Trust Indenture, the Sponsor hereby
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appoints the Marketing Agent as the exclusive Marketing Agent for Shares on the terms and for the
periods set forth in this Agreement, and the Marketing Agent hereby accepts such appointment and
agrees to act in such capacity hereunder.
3.2 Name of the Trust; License. For the term of this Agreement, the Sponsor shall
cause the name of the Trust to be “streetTRACKS® Gold Trust,” provided that the Marketing
Agent or one of its Affiliates has granted to the Sponsor for the benefit of the Trust a
non-exclusive license, dated as of the date hereof and substantially in the form of Exhibit A
attached hereto (“the Marketing Agent License”), to use the “streetTRACKS®” name in
connection with the operation and marketing of the Trust.
3.3 Fee and Expenses.
(a) Marketing Agent Fee. The Marketing Agent shall be paid, solely from and to the
extent of the assets of the Trust, for the services of the Marketing Agent and its Affiliates as
marketing agent to the Trust hereunder, a fee from the Trust in an annual amount equal to fifteen
basis points (0.15%) per annum of the daily Adjusted Net Asset Value of the Trust (as calculated
pursuant to the Trust Indenture as in effect on the date hereof), subject to reduction as provided
in Section 3.3(b) below. Such fee shall be computed and payable monthly in arrears.
(b) Expenses Cap. If, at the end of any month during the period beginning from the
inception of the Trust until the seventh anniversary of the date of the Trust Indenture or upon the
earlier termination of this Agreement, the estimated ordinary expenses of the Trust for such month
(including the Marketing Agent’s fees hereunder and the Sponsor’s fees under the Trust Indenture
for such month) exceed an amount equal to forty basis points (0.40%) per annum of the daily
Adjusted Net Asset Value of the Trust for such month (as calculated pursuant to the Trust Indenture
as in effect on the date hereof), the fees payable to the Sponsor and the Marketing Agent for such
month shall be reduced by the amount of such excess in equal shares up to the amount of such fees.
3.4 WGC/WGTS License. The Sponsor and World Gold Council, a not-for-profit association
registered under Swiss laws and the parent of the Sponsor, have provided to the Marketing Agent and
its Affiliates a non-exclusive license, dated as of the date hereof and substantially in the form
of Exhibit B attached hereto, (“WGC/WGTS License”) to use certain intellectual
property in connection with the marketing of the Trust and the Marketing Agent’s obligations
hereunder.
3.5 Expenses. Except as otherwise expressly provided in this Agreement or the Related
Agreements or agreed to in writing by the parties, each party hereto shall bear its own fees and
expenses incurred in connection with this Agreement or the Related Agreements and the transactions
contemplated hereby and thereby (including, without limitation, the legal, accounting and due
diligence fees, costs and expenses incurred by such party).
Section 4
Covenants of the Sponsor
Covenants of the Sponsor
4.1 Certain Covenants of the Sponsor. The Sponsor, on its own behalf and in its
capacity as sponsor of the Trust, covenants and agrees:
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(a) to furnish such information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale under the securities or blue sky laws of such states and foreign
jurisdictions as the Marketing Agent may reasonably designate and to maintain such qualifications
in effect so long as the Marketing Agent may request during the term of this Agreement; provided
that the Trust shall not be required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Shares); and to promptly advise the
Marketing Agent of the receipt by the Sponsor or the Trust of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to take all necessary action to register an indefinite number of Shares under the 1933
Act, as amended and take, from time to time, such steps, including payment of the related filing
fees, as may be necessary to register Shares under the 1933 Act to the end that all Shares will be
properly registered under the 1933 Act and to keep the Registration Statement effective and current
during the term of this Agreement;
(c) to make available to the Marketing Agent, as soon as practicable after the Registration
Statement becomes effective, and thereafter from time to time to furnish to the Marketing Agent, as
many copies of the Prospectus (or of the Prospectus as amended or supplemented if any amendments or
supplements have been made thereto after the effective date of the Registration Statement) as the
Marketing Agent may request for the purposes contemplated by the 1933 Act; and in case the
Marketing Agent is required to deliver a prospectus after the nine-month period referred to in
Section 10(a)(3) of the 1933 Act in connection with the sale of the Shares, the Sponsor will
prepare, at the expense of the Trust, promptly upon request such amendment or amendments to the
Registration Statement and the Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the 1933 Act;
(d) to advise the Marketing Agent promptly and, if requested by the Marketing Agent, to
confirm such advice in writing when the Registration Statement and any post-effective amendment
thereto has become effective, and upon receipt of request from the Marketing Agent therefor, to
file a post-effective amendment removing any reference to the Marketing Agent thereunder;
(e) to prepare, at the expense of the Trust, such amendments or supplements to the
Registration Statement or the Prospectus and to file such amendments or supplements with the
Commission, when and as required, by the 1933 Act, the 1934 Act and the rules and regulations of
the Commission thereunder, including if requested by the Marketing Agent; to advise the Marketing
Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus
and to provide the Marketing Agent and the Marketing Agent’s counsel copies of any such documents
for review and comment within a reasonable amount of time prior to any proposed filing and to file
no such amendment or supplement to which the Marketing Agent or its counsel shall reasonably object
in writing; and to advise the Marketing Agent promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order
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suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal of such order as
soon as possible;
(f) subject to Section 4.1(d) hereof, to file promptly all reports and any information
statement required to be filed by the Trust with the Commission in order to comply with the
Securities Exchange Act of 1934 (the “1934 Act”) subsequent to the date of the Prospectus and
for so long as the term of this Agreement; and to provide the Marketing Agent and the
Marketing Agent’s counsel with a copy of such reports and statements and other documents to be
filed by the Trust pursuant to Section 13, 14 or 15(d) of the 1934 Act (excluding filings under
Rule 12b-25) during such period for review and comment within a reasonable amount of time prior to
any proposed filing and to file no such amendment or supplement to which the Marketing Agent or its
counsel shall reasonably object in writing;
(g) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b)
under the 1933 Act;
(h) to advise the Marketing Agent promptly of the happening of any event during the term of
this Agreement which could require the making of any change in the Prospectus then being used so
that such Prospectus would not include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they are made, not misleading, and, during such time, subject to Section 4.1(d) hereof, to
prepare and furnish, at the expense of the Trust, to the Marketing Agent promptly such amendments
or supplements to such Prospectus as may be necessary to reflect any such change;
(i) to make generally available to the Trusts securityholders, and to deliver to the Marketing
Agent, an earnings statement of the Trust (which will satisfy the provisions of Section 11(a) of
the 0000 Xxx) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the 0000 Xxx) as soon as is reasonably
practicable after the termination of such twelve-month period but not later than November 16, 2005;
(j) to furnish to the Trust’s securityholders and beneficial
owners as soon as practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders’ equity and cash flow of the Trust for such
fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized
independent certified public accountants);
(k) to furnish to the Marketing Agent a copy the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits thereto);
(l) to (1) furnish to the Marketing Agent promptly during the
term of this Agreement (i) copies of any reports, proxy statements, or other communications
which are sent to the Trust’s securityholders and beneficial owners or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated
by the Commission, (iii) copies of documents or reports filed with any national securities exchange
on which any class of securities of the Trust is listed, and (iv) such other information as the
Marketing
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Agent may reasonably request regarding the Trust and (2) make available for inspection by
the Marketing Agent, its attorneys, accountants and other advisors or agents, all financial and
other records, pertinent corporate or trust documents and properties, and cause the officers,
directors and employees of the Trustee, the Custodian and the Sponsor and the Trust’s attorneys and
independent accountants to supply all information reasonably requested by the Marketing Agent, its
attorneys, accounts and other advisors and agents;
(m) to use its best efforts to cause the Shares to be listed on the NYSE;
(n) to furnish to the Marketing Agent (i) at the time of the effectiveness of the Distribution
Agreement and the purchase of the Shares by UBS, (ii) at each time the Registration Statement or
the Prospectus is amended or supplemented, (iii) at each time the Trust files any report, statement
or other document pursuant to Section 13, 14 or 15(d) (excluding filings required by Rule 12b-25)
of the 1934 Act, and (iv) at such other times as the Marketing Agent reasonably requests, an
opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP, counsel for the Sponsor, addressed to the Marketing Agent
and dated such dates in form and substance satisfactory to the Marketing Agent, stating that:
| 1. | the Trust is validly existing as an investment trust under the laws of the State of New York, as described in the Registration Statement and the Prospectus, and the Trustee has all power and authority to issue and deliver the Shares as contemplated therein and to execute and deliver the Reimbursement Agreement; | ||
| 2. | the Sponsor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, with full corporate power and authority to conduct its business as described in the Registration Statement and the Prospectus and to execute and deliver this Agreement; | ||
| 3. | the Sponsor is duly qualified and is in good standing in each jurisdiction where the conduct of its business requires such qualification; | ||
| 4. | this Agreement has been duly authorized, executed and delivered by the Sponsor; | ||
| 5. | the Shares issuable by the Trust as described in the Registration Statement, when issued in accordance with the terms of the Trust Indenture as described in the Registration Statement, will have been duly authorized and validly issued and fully paid and nonassessable; | ||
| 6. | the Shares conform to the description thereof contained in the Registration Statement and the Prospectus; | ||
| 7. | the Registration Statement and the Prospectus (except as to the financial statements and schedules and other financial information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act; | ||
| 8. | the Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge, no stop order proceedings with respect thereto are pending |
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| or threatened under the 1933 Act and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the 1933 Act has been made in the manner and within the time period required by such Rule 424; | |||
| 9. | no approval, authorization, consent or order of or filing with any federal, or New York State governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance and sale of the Shares and consummation by the Sponsor of the transactions contemplated in the Prospectus other than registration of the Shares under the 1933 Act (except such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of any state or the laws of any jurisdictions outside the United States); | ||
| 10. | the execution, delivery and performance of this Agreement by the Sponsor, the issuance and delivery of the Shares by the Trust and the consummation by the Sponsor and the Trustee on behalf of the Trust of the transactions contemplated hereby do not and will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) the amended and restated limited liability company agreement of the Sponsor or the Trust Indenture, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument known to such counsel after reasonable investigation (based on a certificate of an officer of the Sponsor) to which the Sponsor or the Trustee is a party or by which either of them or any of their respective properties may be bound or affected, or any federal, or New York State law, regulation or rule or any decree, judgment or order applicable to the Sponsor or the Trust and known to such counsel; | ||
| 11. | to such counsel’s knowledge, neither the Sponsor nor the Trust is in breach or violation of or in default under (nor has any event occurred which with notice, lapse of time, or both would result in any breach or violation of, or constitute a default under) their respective constitutive documents, or any federal or New York State law, regulation or rule applicable to the Sponsor or the Trust; | ||
| 12. | to such counsel’s knowledge, there are no affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character which are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been so described or filed; | ||
| 13. | to such counsel’s knowledge, there are no actions, suits, claims, investigations or proceedings pending, or threatened to which the Sponsor or the Trustee is or would be a party or to which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement or the Prospectus but |
- 13 -
| are not so described; | |||
| 14. | the Trust is not and, after giving effect to the offering and sale of the Shares, will not be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended; and | ||
| 15. | the information in the Registration Statement and the Prospectus under the headings “Risk Factors-Competing claims over ownership of intellectual property rights related to the Trust could adversely affect the Trust and an investment in the Shares,” “Business of the Trust-License Agreement,” “Description of the Shares,” “United States Federal Tax Consequences,” “Description of the Trust Indenture,” “Description of the Custody Agreements” and “Legal Proceedings” insofar as such statements constitute a summary of documents or matters of law are accurate in all material respects and present fairly the information required to be shown. |
In addition, such counsel shall state that such counsel has participated in conferences with
officers and other representatives of the Sponsor, representatives of the independent public
accountants of the Trust and representatives of UBS and the Marketing Agent at which the contents
of the Registration Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as and to the extent
stated in subparagraphs (6) and (15) above), on the basis of the foregoing nothing has come to the
attention of such counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became effective contained
an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and at the time of purchase
of the Shares by UBS under the Distribution Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the financial statements
and schedules and other financial information included in the Registration Statement or the
Prospectus);
(o) to cause Deloitte & Touche LLP to deliver to the Marketing Agent (i) at the time of the
effectiveness of the Distribution Agreement and the purchase of the Shares by UBS, and (ii) at each
time (A) the Registration Statement or the Prospectus is amended or supplemented by the filing of a
post-effective amendment, (B) a new Registration Statement is filed to register additional Shares
in reliance on Rule 429, and there is financial information incorporated by reference into the
Registration Statement or the Prospectus, letters dated such dates and addressed to the Marketing
Agent, containing statements and information of the type ordinarily included in accountants’
letters to underwriters with respect to the financial statements and other financial information
contained in or incorporated by reference into the Registration Statement and the Prospectus;
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(p) to deliver to the Marketing Agent (i) at the time of the effectiveness of the Distribution
Agreement and the purchase of the Shares by UBS, (ii) at each time the Registration Statement or
the Prospectus is amended or supplemented, (iii) at each time the Trust files any report, statement
or other document pursuant to Section 13, 14 or 15(d) of the 1934 Act (excluding filings required
by Rule 12b-25), and (iv) at such other times as the Marketing Agent reasonably requests, an
officer’s certificate in the form attached as Exhibit C hereto;
(q) to furnish to the Marketing Agent (i) at the time of the effectiveness of the Distribution
Agreement and the purchase of the Shares by UBS under the Distribution Agreement, (ii) at each time
the Registration Statement or the Prospectus is amended or
supplemented, (iii) at each time the Trust files any report, statement or other document
pursuant to Section 13, 14 or 15(d) of the 1934 Act (excluding filings required by Rule 12b-25),
and (iv) at such other times as the Marketing Agent reasonably requests, such other documents and
certificates as of such dates as the Marketing Agent may reasonably request;
(r) to cause the Trustee to maintain a Custodian (as defined in the Trust Indenture) and an
orderly procedure for the transfer and registration of the Shares;
(s) to cause the Trust to file a post-effective amendment to the Registration Statement no
less frequently than once per calendar quarter on or about the same time that the Trust files a
quarterly or annual report pursuant to Section 13 or 15(d) of the 1934 Act (including the
information contained in such report), until such time as the Trust’s reports filed pursuant to
Section 13 or 15(d) of the 1934 are incorporated by reference in the Registration Statement; and
(t) to deliver to the Marketing Agent at the time of the effectiveness of the Distribution
Agreement and the purchase of the Shares by UBS a favorable opinion of Xxxxx Xxxxxx & Xxxxxx LLP,
counsel for the Trustee, addressed to the Marketing Agent and dated such dates in form and
substance satisfactory to the Marketing Agent, stating that (i) each of the Trust Indenture and the
Reimbursement Agreement has been duly authorized, executed and delivered by the Trustee and
constitutes a valid and binding agreement of the Trustee enforceable against the Trustee in
accordance with its terms, except as enforcement of it may be limited by (x) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general application
relating to or affecting creditors’ rights, (y) general principles of equity and (z) the effect of
public policy considerations or court decisions that may limit rights to obtain indemnification or
contribution, (ii) upon delivery by the Trustee of Shares against the deposit of Gold in accordance
with the provisions of the Trust Indenture, those Shares will be validly issued and will entitle
the registered holders of those Shares to the rights specified in the Trust Indenture, and (iii)
the Trustee has full power and authority to enter into and perform its obligations under the Trust
Indenture and the Reimbursement Agreement.
For the purposes of this Section 4.1, the term “Registration Statement” shall mean the
Registration Statement as amended or supplemented from time to time to and including the date as of
which the relevant representation is made, and the term “Prospectus” shall mean the Prospectus as
amended or supplemented from time to time to and including the date as of which the relevant
representation is made.
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Section 5
Resource Commitments
Resource Commitments
5.1 Pre-Launch Development.
(a) The Sponsor and the Marketing Agent or one of its Affiliates will develop the Trust and
its marketing plan prior to the effective date of the Registration Statement in accordance with the
provisions of this Section 5.1.
(b) The Sponsor and the Marketing Agent will use their commercially reasonable efforts to
commit sufficient resources to:
| (i) | finalize the Registration Statement and the governing documents of the Trust and the Trust’s service providers, communicate with the Commission to obtain approval of the Registration Statement and the Trust’s no-action relief request letter and communicate with the NYSE to obtain approval of the listing of the Shares on the NYSE; | ||
| (ii) | develop the content and information to be used on the Trust’s website; and | ||
| (iii) | develop the marketing strategy for the Trust and the Shares in the United States. |
5.2 Post-Launch Activities.
(a) The Sponsor and the Marketing Agent or one of its Affiliates will market the Trust and the
Shares on an ongoing basis after the Registration Statement is declared effective and the Shares
have been listed on the NYSE in accordance with the provisions of this Section 5.2.
(b) Subject to necessary regulatory approvals and compliance with all applicable legal and
regulatory requirements, the Marketing Agent and/or its Affiliates shall:
| (i) | include the Trust in the ETF family based marketing and advertising of the Marketing Agent; | ||
| (ii) | in good faith, and subject to existing market conditions, use commercially-reasonable efforts to market the Trust (with due regard to the Marketing Agent’s efforts with respect to other comparably sized and revenue generating ETFs marketed by the Marketing Agent); | ||
| (iii) | ensure that the ETF road shows or presentations of the Marketing Agent include the Trust at least as prominently as other comparably-sized and revenue generating ETFs or future commodity-linked products marketed by them; | ||
| (iv) | include gold in strategic and tactical ETF research of the Marketing Agent; and | ||
| (v) | incorporate the Trust into the “streetTRACKS” website and into any ETF-related |
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| asset allocation model of the Marketing Agent and its Affiliates. |
(c) The Marketing Agent shall provide the Sponsor with copies of all written marketing
materials distributed by it and its Affiliates connected with the Trust.
5.3 Joint Reviews.
(a) In order to oversee the pre-launch development and post-
launch performance of the Trust on a regular basis, the parties shall:
| (i) | conduct at least once each calendar quarter in which the annual review described in clause (ii) below is not conducted, a review of the performance of the Trust, with such review to include the senior management of the Sponsor and the senior management of the Marketing Agent and to cover such topics as asset growth/decline, sales strategy, new business efforts, new product initiatives and stock exchange trading activity; and | ||
| (ii) | conduct at least once each calendar year, a review of the overall performance of the Trust, which will include a review of the most recent quarterly period, with such review to include the chief executive officer of the Sponsor and senior management of the Marketing Agent and to cover such topics as strategic direction and new business initiatives. |
(b) Prior to each of the quarterly and annual review which will take place pursuant to this
Section 5.3, the Sponsor and the Marketing Agent will jointly prepare and circulate
among the parties, a report covering the quarterly or annual period which is the subject of each
review, with such report to cover such topics described above.
5.4 Information Provided to Marketing Agent. In performing its duties hereunder the
Marketing Agent shall be entitled to rely on and shall not be responsible in any way for
information provided to it by the Trustee or the Sponsor and their respective service providers and
shall not be liable or responsible for the errors and omissions of such service providers, provided
that the foregoing shall not be construed to protect the Marketing Agent against any liability to
the Trustee, the Sponsor, the Trust or the Trust’s beneficial owners to which the Marketing Agent
would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
5.5 Conditions to Marketing Agent’s Obligations. The obligations of the Marketing
Agent hereunder is subject in the Marketing Agent’s discretion, to the condition that (i) all
representations and warranties and other statements of the Sponsor herein or delivered pursuant
hereto, and all representations and warranties of the Trustee in the Reimbursement Agreement be
true and correct (a) at and as of the date made, (b) at the time of the effectiveness of the
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Distribution Agreement and the purchase of the Shares by UBS, (c) at each time the Registration
Statement or the Prospectus is amended or supplemented, (d) at each time the Trust files any
report, statement or other document pursuant to Section 13, 14 or 15(d) of the 1934 Act (excluding
filings under Rule 12b-25), (e) at each time the Trust issues any Shares and (f) at such other
times the Marketing Agent reasonably requests, in each case as though made at and as of such dates,
and the Sponsor agrees that all such representations, warranties and other statements are expressly
made on and as of such dates (except, in all cases, that such representations, warranties and
statements relating to the Registration Statement and the Prospectus shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to such date), (ii) the
Sponsor shall have performed all of its covenants, agreements and obligations hereunder theretofore
to be performed in all respects and (iii) the Trustee shall have performed all of its covenants,
agreements and obligations under the Reimbursement Agreement theretofore to be performed in all
respects. The respective indemnities, agreements, representations, warranties and other statements
by the Sponsor set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Marketing Agent or any controlling
person of the Marketing Agent, or the Sponsor or the Trustee, or any officer or director or any
controlling person thereof, and shall survive the execution, delivery, performance and termination
of this Agreement.
Section 6
Similar ETFs and Related ETFs; Other Agreements
Similar ETFs and Related ETFs; Other Agreements
6.1 Sponsor’s Related ETF and Similar ETF Obligations. At any time
during the Term (as defined below) when the Sponsor has an idea for a Similar ETF or Related
ETF, the Sponsor shall present such idea in a reasonably detailed writing to the Marketing Agent
and, subject to the Marketing Agent’s approval of such Similar ETF or Related ETF, the parties will
negotiate in good faith to jointly develop such Similar ETF or Related ETF and will not launch such
Similar ETF or Related ETF with a third party. If the Marketing Agent does not approve such Similar
ETF or Related ETF within forty-five (45) calendar days after the Sponsor has brought the idea for
such Similar ETF or Related ETF to the Marketing Agent, Sponsor will be free to work by itself or
with third parties on such Similar ETF or Related ETF on terms that are substantially similar as
those under which the parties had discussed. If, with respect to any Similar ETF or Related ETF
which the Sponsor has agreed to develop with the Marketing Agent, a registration statement has not
been filed for such Similar ETF or Related ETF with the Commission or the Sponsor and Marketing
Agent are not able to agree on terms for such Similar ETF or Related ETF within one-hundred-eighty
(180) days after the Sponsor has brought the idea for such Similar ETF or Related ETF to the
Marketing Agent, the Sponsor will be free to work by itself or with third parties on such Similar
ETF or Related ETF on such terms as they think desirable unless (i) the Sponsor has been the
principal cause as to why no such registration statement was filed within such onehundred-eighty
(180) day period or (ii) the Marketing Agent elects by written notice to the Sponsor within ten
(10) days after the end of such one-hundred-eighty (180) day period to continue the development of
such Similar ETF or Related ETF with the Sponsor. If the Marketing Agent makes the foregoing
election and such Similar ETF or Related ETF has not been launched or Sponsor and the Marketing
Agent are not able to agree on terms for such Similar ETF or Related ETF within one-hundred-eighty
(180) additional days, both parties will be free to work by themselves or with third parties on
such Similar ETF or
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Related ETF on such terms as they think desirable, provided that a party which
has been the principal cause as to why such Similar ETF or Related ETF has not been launched in
such one-hundred-eighty (180) day period may not so work with third parties. The foregoing
agreements in this Section 6.1 shall only apply to Similar ETFs and Related ETFs which will
be organized in the United States.
6.2 Marketing Agent’s Related ETF and Similar ETF Obligations. At any time during the
Term when the Marketing Agent or its Affiliates has an idea for a Similar ETF or Related ETF, the
Marketing Agent shall present such idea in reasonably detailed writing to the Sponsor and, subject
to the Sponsor’s approval of such Similar ETF or Related ETF, the parties will negotiate in good
faith to jointly develop such Similar ETF or Related ETF and will not launch such Similar ETF or
Related ETF with a third party. If the Sponsor does not approve such Similar ETF or Related ETF
within forty-five (45) calendar days after the Marketing Agent has brought the idea for such
Similar ETF or Related ETF to the Sponsor, the Marketing Agent will be free to work by itself or
with third parties on such Similar ETF or Related ETF on terms that are
substantially similar as those under which the parties had discussed. If, with respect to any
Similar ETF or Related ETF which the Marketing Agent has agreed to develop with the Sponsor, a
registration statement has not been filed for such Similar ETF or Related ETF with the Commission
or the Sponsor and Marketing Agent are not able to agree on terms for such Similar ETF or Related
ETF within one-hundred-eighty (180) days after the Marketing Agent has brought the idea for such
Similar ETF or Related ETF to the Sponsor, the Marketing Agent will be free to work by itself or
with third parties on such Similar ETF or Related ETF on such terms as it thinks desirable unless
(i) the Marketing Agent has been the principal cause as to why no such registration statement was
filed within such one-hundred-eighty (180) day period or (ii) the Sponsor elects by written notice
to the Marketing Agent within ten (10) days after the end of such one-hundred-eighty (180) day
period to continue the development of such Similar ETF or Related ETF with the Marketing Agent. If
the Marketing Agent makes the foregoing election and such Similar ETF or Related ETF has not been
launched or the Sponsor and the Marketing Agent are not able to agree on terms for such Similar ETF
or Related ETF within one-hundred eighty (180) additional days, both parties will be free to work
by themselves or with third parties on such Similar ETF or Related ETF on such terms as they think
desirable, provided that a party which has been the principal cause as to why such Similar ETF or
Related ETF has not been launched in such one-hundred-eighty (180) day period may not so work with
third parties. The foregoing agreements in this Section 6.2 shall only apply to Similar
ETFs and Related ETFs which will be organized in the United States.
6.3 Development Efforts; Status After Termination.
(a) The Marketing Agent and Sponsor shall use their commercially reasonable efforts to develop
any Related ETFs or Similar ETFs which the parties have agreed to develop pursuant to Section
6.1 or Section 6.2. For the avoidance of doubt, unless otherwise agreed to in writing
by the parties, the parties shall bear their own costs and expenses connected with any such
development.
(b) If at the time of the termination of this Agreement a registration statement or similar
document has been formally filed with the SEC for any Similar ETF or Related ETF which the parties
have agreed to develop pursuant to Section 6.1 or Section 6.2, unless otherwise
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agreed to in writing signed by the parties, the parties shall cease such development and each party
shall have the right to develop such Similar ETF or Related ETF on its own or with any third party.
6.4 Dual Listing Rights. The Marketing Agent and the Sponsor shall jointly negotiate
any unlisted trading privileges (“UTP”) and dual listing rights relating to the Trust and any
Similar ETF or Related ETF which they bring to market and determine the specialist for such rights.
Any revenue derived from such listings will be shared equally between the Marketing Agent, on the
one hand, and Sponsor, on the other.
6.5 Options and Derivatives. The Marketing Agent, on the one hand, and Sponsor, on the
other hand, will share equally any and all fees earned from licensing the right to list option
contracts and other exchange-traded derivatives that are specific to the Trust and to any Similar
ETF or Related ETF which they bring to market.
6.6 Press Release. As soon as, and to the extent, legally permissible after the
execution of this Agreement, the parties shall jointly issue a press release which has been or
is approved by all parties announcing the execution of this Agreement and the commencement of
negotiations on the international marketing agent agreement referred to in Section 8.5.
Section 7
Indemnification
Indemnification
7.1 Indemnification of Marketing Agent. The Sponsor agrees to indemnify, defend and
hold harmless the Marketing Agent, its partners, stockholders, members, directors, officers and
employees and any Affiliate of the foregoing, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Marketing Agent or any such person may incur under the
1933 Act, the 1934 Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon:
(a) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended or supplement) or in a
Prospectus (the term Prospectus for the purpose of this Section 7 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or supplemented), or arises
out of or is based upon any omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information concerning the Marketing Agent furnished in writing
by or on behalf of the Marketing Agent to the Sponsor expressly for use in such Registration
Statement;
(b) any untrue statement or alleged untrue statement of a material fact or breach by the
Sponsor of any representation or warranty contained in Section 2 hereof or in any certificate
delivered by the Sponsor pursuant to paragraph (p) or (q) of Section 4.1 hereof;
(c) the failure by the Sponsor to perform when and as required any agreement or
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covenant
contained herein;
(d) any untrue statement or alleged untrue statement of any material fact contained in any
audio or visual materials provided by the Sponsor or based upon written information furnished by or
on behalf of the Sponsor or the Trustee including, without limitation, slides, videos, films or
tape recordings used in connection with the marketing of the Shares;
(e) circumstances surrounding the third party allegations relating to patent and contract
disputes as described in the sections of the Prospectus and the Registration Statement entitled
“Risk Factors—Competing claims over ownership of intellectual property rights related to the
Trust could adversely affect the Trust and an Investment in the Shares,” “Business of the
Trust-License Agreement” and “Legal Proceedings”;
(f) the Marketing Agent’s performance of its duties under this Agreement except in the case of
this clause (f), for any loss, damage, expense, liability or claim resulting from the gross
negligence or willful misconduct of the Marketing Agent; provided, however, that the indemnity
agreement contained in clause (a) above with respect to any Preliminary Prospectus or
amended Preliminary Prospectus shall not inure to the benefit of the Marketing Agent (or to
the benefit of any person controlling the Marketing Agent) from whom the person asserting any such
loss, damage, expense, liability or claim purchased the Shares which is the subject thereof if the
Prospectus corrected any such alleged untrue statement or omission in any case where the Marketing
Agent was required to send or give a copy of the Prospectus to such person by the 1933 Act, the
Sponsor or the Trustee had notified the Marketing Agent of the amendment or supplement prior to the
sending of the written confirmation of sale and the Marketing Agent failed to send or give a copy
of the Prospectus to such person, unless the failure is the result of noncompliance by the Sponsor
with paragraph (c) of Section 4.1 hereof.
In no case is the indemnity of the Sponsor in favor of the Marketing Agent and such other
persons as are specified in this Section 7.1 to be deemed to protect the Marketing Agent and such
persons against any liability to the Sponsor, the Trustee or the Trust to which the Marketing Agent
would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
If any action, suit or proceeding (each, a “Proceeding”) is brought against the Marketing
Agent or any such person in respect of which indemnity may be sought against the Sponsor pursuant
to the foregoing paragraph, the Marketing Agent or such person shall promptly notify the Sponsor in
writing of the institution of such Proceeding and the Sponsor shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the omission to so notify the Sponsor
shall not relieve them from any liability which they may have to the Marketing Agent or any such
person except to the extent that they have been materially prejudiced by such failure and has not
otherwise learned of such Proceeding. The Marketing Agent or such person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of the Marketing Agent or of such person unless the employment of such counsel
shall have been authorized in writing by the Sponsor in connection with the defense of such
Proceeding or the Sponsor shall not have, within a reasonable period
of
- 21 -
time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them which are different from, additional to or in conflict with those available to the
Sponsor (in which case the Sponsor shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Sponsor and paid as incurred (it being understood, however, that the
Sponsor shall not be liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The Sponsor shall not be
liable for any settlement of any Proceeding effected without the Sponsor’s written consent but if
settled with the Sponsor’s written consent, the Sponsor agrees to indemnify and hold harmless the
Marketing Agent and any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 Business
Days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 Business Days’ prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
7.2 The Marketing Agent agrees to indemnify, defend and hold harmless each of the Sponsor and
its partners, stockholders, members, directors, officers, employees and any person who controls the
Sponsor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
successors and assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which the Sponsor any such
person may incur under the 1933 Act, the 1934 Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with information
furnished in writing by or on behalf of the Marketing Agent to the Sponsor expressly for use in the
Registration Statement (or in the Registration Statement as amended or supplemented by any
post-effective amendment thereof) or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Sponsor or any person referred to in the preceding
paragraph in respect of which indemnity may be sought against the Marketing Agent pursuant to the
foregoing paragraph, the Sponsor or such person shall promptly notify the Marketing Agent in
writing of the institution of such Proceeding and the Marketing Agent shall
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assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission to so notify the
Marketing Agent shall not relieve the Marketing Agent from any liability which the Marketing Agent
may have to the Sponsor or any such person or otherwise. The Sponsor or such person shall have the
right to employ their own counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of the Sponsor or such person unless the employment of such counsel shall have
been authorized in writing by the Marketing Agent in connection with the defense of such Proceeding
or the Marketing Agent shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or them which are
different from or additional to or in conflict with those available to the Marketing Agent (in
which case the Marketing Agent shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but the Marketing Agent may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel shall be at the
expense of the Marketing Agent), in any of which events such fees and expenses shall be borne by
the Marketing Agent and paid as incurred (it being understood, however, that the Marketing Agent
shall not be liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The Marketing Agent shall
not be liable for any settlement of any such Proceeding effected without the written consent of the
Marketing Agent but if settled with the written consent of the Marketing Agent, the Marketing Agent
agrees to indemnify and hold harmless the Sponsor and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more than 60 Business Days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying party at least 30
Business Days’ prior notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such Proceeding.
7.3 If the indemnification provided for in this Section 7 is unavailable to an indemnified
party under Sections 7.1 or 7.2 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then each applicable
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sponsor and the Trust, on the one
hand, and the Marketing Agent, on the other hand, from the services provided hereunder or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i)
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above but
also the relative fault of the Sponsor and the Trust on the one hand and of the Marketing Agent on
the other in connection with the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Sponsor and the Trust on the one hand and the Marketing Agent on
the other shall be deemed to be in the same respective proportions as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting expenses) received by
the Trust, plus the fees received by the Sponsor, on the one hand, and the total fees received by
the Marketing Agent, on the other hand, bear to the aggregate public offering price of the Shares.
The relative fault of the Sponsor and the Trust on the one hand and of the Marketing Agent on the
other shall be determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission relates to information
supplied by the Sponsor, the Marketing Agent and the Trust or by the Marketing Agent and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this Section 7.3 shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any
Proceeding.
7.4 The Sponsor and the Marketing Agent agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations referred to in
Section 7.3 above. Notwithstanding the provisions of this Section 7, the Marketing Agent shall not
be required to contribute any amount in excess of the amount of the fees received by it hereunder.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.5 The indemnity and contribution agreements contained in this Section 7 and the covenants,
warranties and representations of the Sponsor contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of the Marketing Agent, its
partners, stockholders, members, directors, officers, employees and or any person (including each
partner, stockholder, member, director, officer or employee of such person) who controls the
Marketing Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, or
by or on behalf of each of the Sponsor, the Trust, their partners, stockholders, members,
directors, officers, employees or any person who controls the Sponsor or the Trust within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and shall survive any
termination of this Agreement or the initial issuance and delivery of the Shares. The Sponsor and
the Marketing Agent agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Sponsor, against any of the Sponsor’s officers or directors in
connection with the issuance and sale of the Shares, or in connection. with the Registration
Statement or the Prospectus.
7.6 The statements set forth in the first paragraph under the caption “The Marketing Agent” in
the Prospectus constitute the only information furnished by or on behalf of the Marketing Agent as
such information is referred to in Sections 2.1 and 7.1 hereof.
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Section 8
Duration
Duration
8.1 Duration. This Agreement shall become effective on the date hereof and continue
for an initial term of seven (7) years from the date of this Agreement and will include any renewal
term of this Agreement and will last until the expiration of this Agreement or the earlier
termination of this Agreement in accordance with its terms (the “Term”). This Agreement will
automatically be renewed for successive three (3) year periods unless, no later than thirty (30)
calendar days prior to the end of the then-current Term, either the Marketing Agent, on the one
hand, or the Sponsor, on the other hand, elects to terminate this Agreement by delivering written
notice thereof to the other party; provided that if the Sponsor is the terminating party, the
Sponsor shall pay to the Marketing Agent an amount equal to the present fair market value of the
future payments the Marketing Agent would otherwise receive over the subsequent ten (10) year
period, determined by an independent third party in accordance with Section 8.4 hereunder.
Notwithstanding the foregoing, this Agreement may be terminated by any party upon written notice to
the other parties if (a) the Trust is terminated pursuant to the Trust Indenture, (b) any other
party becomes insolvent or bankrupt or files a voluntary petition, or is subject to an involuntary
petition, in
bankruptcy or attempts to or makes an assignment for the benefit of its creditors or consents
to the appointment of a trustee or receiver, provided that the Sponsor may not terminate this
Agreement pursuant to this provision if the event relates to the Sponsor, the Trust or the Trustee
or (c) any other party willfully and materially breaches its obligations under this Agreement and
such breach has not been cured to the reasonable satisfaction of the non-breaching party prior to
the expiration of ninety (90) days after notice by the non-breaching party to the breaching party
of such breach.
8.2 Sponsor Buy-Out Options.
(a) If the Trust’s average assets under management do not exceed (i) $1.25 billion for the
thirty (30) day period prior to the end of the first year of the Trust’s operations (“First
Benchmark”), (ii) $2.25 billion for the thirty (30) day period prior to the end of the third
year of Trust’s operations (“Second Benchmark”), or (iii) $3.0 billion for the thirty (30)
day period prior to the end of the fifth year of the Trust’s operations (“Third
Benchmark”), the Sponsor may within thirty (30) days after the end of each such year period:
| (i) | elect by written notice to the Marketing Agent to terminate this Agreement by paying to the Marketing Agent one of the following payments: |
| (A) | if the First Benchmark has not been exceeded, an amount equal to the present fair market value of the future payments the Marketing Agent and its Affiliates would otherwise receive from the Trust hereunder over the subsequent ten (10) year period, plus ten percent (10%) of such value; | ||
| (B) | if the Second Benchmark has not been exceeded, an amount equal to the present fair market value of the future payments the Marketing Agent and its Affiliates would otherwise receive from |
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| the Trust hereunder over the subsequent ten (10) year period, plus twenty percent (20%) of such value; or | |||
| (C) | if the Third Benchmark has not been exceeded, an amount equal to the present fair market value of the future payments the Marketing Agent and its Affiliates would otherwise receive from the Trust hereunder over the subsequent ten (10) year period, plus thirty percent (30%) of such value; |
| provided, that, if at the time of such election any Similar ETF or Related ETF has been listed on an exchange in the United States for more than a year and such Similar ETF or Related ETF is not Controlled or sponsored by the Sponsor, on the one hand, or the Marketing Agent or any of its Affiliates, on the other hand (a “Competing ETF” ), such election will not be available; or | |||
| (ii) | elect by written notice to the Marketing Agent to terminate this Agreement by paying to the Marketing Agent an amount equal to the present fair market value of the future payments the Marketing Agent and its Affiliates would otherwise receive from the Trust hereunder over the subsequent ten (10) year period, provided that such election may only be made if the percentage growth in the Trust’s assets under management for the relevant year of the Trust’s operations are less than the percentage growth in the assets under management of any Competing ETF for the same twelve-month period represented by such year of the Trust’s operations. |
(b) The Sponsor shall not have the right to terminate this Agreement even if the Trust’s
average assets under management do not meet either the First Benchmark, the Second Benchmark or the
Third Benchmark within the time periods referred to in Section 8.2(a) above if the percentage
growth in the Trust’s assets under management for the relevant year of the Trust’s operations are
equal to or greater than the percentage growth in the assets under management of any Competing ETF
for the same twelve-month period represented by such year of the Trust’s operations.
(c) The calculation of any payments to be made under this Section 8.2 shall be made in
accordance with Section 8.4, and, upon the final determination of any such payment under
Section 8.4, such payment shall be paid to the Marketing Agent within thirty (30) days of
such determination date.
(d) In connection with the making any such payment to the Marketing Agent under this
Section 8.2, this Agreement shall automatically terminate, and, for a period of one year
following the date of such termination, the Marketing Agent shall not, and shall cause its
Affiliates to not, directly or indirectly, develop or launch any Similar ETF in the United States
without the prior written consent of Sponsor.
8.3 Resource Reduction Control. If the amount expended or allocated by either the
Sponsor or the Marketing Agent in any one year period on promoting and marketing the Trust in the
US is 25% less than the yearly average of such amount over the preceding two year period
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and the
amount of the shortfall of any such party is not spent during the following 12 month period, the
unspent amount will be paid over to the other party who will add such unspent amount to the amount
the other party spends during the next 12 month period.
8.4 Fair Market Value Determination.
(a) For payment amounts which are required to be calculated in accordance with this
Section 8.4 (“Payment Amount”), the party responsible for the Payment Amount shall
within 30 days of the creation of the obligation to make such payment by written notice to the
other party designate a nationally recognized investment bank (“Investment Bank”). The
designating party may not designate any investment bank (i) which would create a conflict of
interest or (ii) which has provided to the designating party or its Affiliates in the two years
preceding the designation, any services related to ETFs. Each party shall provide the Investment
Bank, during normal business hours, with access to such personnel and records as the Investment
Bank may reasonably request for the sole purpose of calculating the Payment Amount. As soon as
practical (but in any event no later than 90 days after the date of its designation), the
Investment Bank will provide each party which a statement of the calculation of the Payment Amount
(“Payment Statement”), with such statement to reasonably detail the method of calculation
of the Payment Amount.
(b) Following receipt of the Payment Statement, each party shall have a period of sixty (60)
days to review the Payment Statement, during which period the parties and their advisors shall have
the right to inspect the work papers generated by the Investment Bank in preparation of the Payment
Statement. At or before the end of such sixty (60) day period, each party will each either (i)
accept the Payment Statement in its entirety, or (ii) deliver to the other parties written notice
and a written explanation of those items in the Payment Statement which are disputed, in which case
the items so identified shall be deemed to be in dispute. Within a further period of thirty (30)
days from the delivery of any such dispute notice or notices, the parties will attempt to resolve
in good faith any disputed items. Failing such resolution, the unresolved disputed items will be
referred within ten (10) Business Days for final binding resolution to an independent
nationally-recognized firm of certified public accountants mutually acceptable to the parties or,
if no such agreement is reached, such firm as shall be jointly designated within such ten (10)
Business Day period for such purpose by the independent accountants of both parties (the
“Dispute Accountants”). In such event, the Payment Amount will be deemed to be as
determined by the Dispute Accountants within thirty (30) Business Days of such reference. The
decision of the Dispute Accountants will be nonappealable and incontestable by any party and will
not be subject to collateral attack for any reason.
(c) Sponsor, on the one hand, and the Marketing Agent, on the other hand, shall equally share
the costs and expenses of the Investment Bank and any Dispute Accountants.
8.5 Option to Terminate Following the Failure to Conclude an International Marketing Agent
Agreement. The World Gold Council and the Marketing Agent shall negotiate in good faith to
conclude as soon as practical after the execution and delivery of this Agreement, but in any event
within forty-five (45) days of the effectiveness of the Registration Statement, an international
marketing agent agreement between the Marketing Agent and the World Gold Council (or its affiliate)
relating to the distribution of Similar ETFs and Related ETFs outside the
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United States. In the
event the World Gold Council and the Marketing Agent do not conclude such an international
marketing agent agreement within forty-five (45) days after the effectiveness of the Registration
Statement for any reason, then the Sponsor shall have the option, exercisable by written notice
thereof to the Marketing Agent and the Trustee at any time during the period commencing on and
including the forty-sixth (46th) day after effectiveness of the Registration Statement and ending
on and including the ninetieth (90th) day after effectiveness of the Registration Statement (such
period, the “Exercise Period”), to terminate this Agreement; provided that the
World Gold Council and the Marketing Agent shall continue to negotiate in good faith during the
Exercise Period until such time (if at all) that such option is exercised in order to conclude an
international marketing agent agreement. If the Sponsor exercises its right to terminate the
Marketing Agent Agreement pursuant to this Section, then (i) the Marketing Agent License and the
WGC/WGTS License shall forthwith terminate in accordance with the terms and conditions of the
Marketing Agent License and the WGC/WGTS License, respectively (including the survival provisions
thereof), without the requirement of any notice or further action on the part of any of the
Sponsor, the Council or the Marketing Agent, and the Sponsor shall immediately cease and desist
(and shall cause the Trust to immediately cease and desist) from all use of the “streetTRACKS®”
xxxx and any other trade name or trademark then licensed under the Marketing Agent License; and (B)
the Sponsor shall promptly (but in any event within five (5) business days or such shorter period
as may be required by or advisable under applicable laws, rules and regulations) amend the
then-current Registration Statement and Prospectus and effect such other filings with or
submissions or notices to the SEC,
any state securities commission, the New York Stock Exchange, the National Association of
Securities Dealers and any other governmental authority or regulatory agency as may be required or
advisable under applicable laws, rules or regulations in each case in a manner reasonably
satisfactory to the Marketing Agent to reflect the termination of the Marketing Agent Agreement,
the Marketing Agent License and the WGC/WGTS License, and to remove all references to
“streetTRACKS®”, “streetTRACKS® Gold Trust”, “streetTRACKS® Shares”, “State Street Global Markets,
LLC”, “State Street Corporation” or any variation of the foregoing from the Registration Statement
and Prospectus.
8.6 Consequences of Termination.
(a) Upon any termination of this Agreement, the following will
occur:
| (i) | The Related Agreements shall each terminate in accordance with their terms; | ||
| (ii) | The parties shall, as soon as practical; take such actions as may be necessary to change the name of the Trust from “streetTRACKS® Gold Trust” and to cease using the “street TRACKS®” name for any other purpose connected with the Trust; | ||
| (iii) | The Marketing Agent will no longer use the service marks Gold Trust and Gold Shares and may not use such service marks without the express written approval of the Sponsor; and | ||
| (iv) | The parties shall cooperate reasonably with each other in connection with any |
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| notices or filings to be made with any governmental or regulatory body required as a result of such termination, including the filing of any supplement or amendment to the Registration Statement or Prospectus as a result of such termination. |
(b) In the event of the expiration or termination of this Agreement, this Agreement shall be
of no further force or effect, provided that such expiration or termination shall not affect any
obligation or liability of a party for breach of any provisions of this Agreement prior to the date
of such expiration or termination and that Sections 2, 3.3 (any fee due under such Section to be
pro rated to the date of termination), 3.5, 5.5, 7, 9 and 10 of this Agreement will each survive
the expiration or termination of this Agreement.
Section 9
Confidentiality
Confidentiality
9.1 Confidentiality.
(a) The Sponsor and the Marketing Agent shall during the Term and for one (1) year thereafter
maintain in confidence, use only for the purposes provided for in this Agreement and the Related
Agreements, and not disclose to any third party, without first obtaining the other party’s consent
in writing, any and all Confidential Information (as defined below) such party receives from the
other party; provided, however, that either party may disclose Confidential
Information received from the other party to those of its Representatives as may be necessary
for such party to carry out its obligations under this Agreement and the Related Agreements.
“Confidential Information” shall mean all information or data of a party that is disclosed
to or received by the other party, whether orally, visually or in writing, in any form, including,
without limitation, information or data which relates to such party’s business or operations,
research and development, marketing plans or activities, or actual or potential products.
(b) Notwithstanding the provisions of this Agreement to the contrary, a party shall have no
liability to the other party for the disclosure or use of any Confidential Information of the other
party if the Confidential Information:
| (i) | is known to such party at the time of disclosure other than as the result of a breach of this Section 9 by such party; | ||
| (ii) | has been or becomes publicly known, other than as the result of a breach of this Section 9 by such party, or has been or is publicly disclosed by the other party; | ||
| (iii) | is received by such party after the date of this Agreement from a third party (unless such third party breaches an obligation of confidentiality to the other party); or | ||
| (iv) | is required to be disclosed by Law or similar compulsion or in connection with any legal proceeding, provided that such party shall promptly inform the other party in writing of such requirement and that such disclosure shall be limited to the extent so required and, except to the extent prohibited by Law, such party shall reasonably cooperate with the other party (at the expense of the other party) |
- 29 -
| in seeking a protective order or other suitable confidentiality protections. |
(c) The parties recognize and acknowledge that a breach or threatened breach by a party of the
provisions of this Section 9 may cause irreparable and material loss and damage to the other party
which cannot be adequately remedied at law and that, accordingly, in addition to, and not in lieu
of, any damages or other remedy to which the non-breaching party may be entitled, the issuance of
an injunction or other equitable remedy (without the requirement that a bond or other security be
posted) is an appropriate remedy for the non-breaching party for any breach or threatened breach of
the obligations set forth in this Section 9.
(d) Each party agrees that it will use the same degree of care, but no less than a reasonable
degree of care, in safeguarding the Confidential Information of the other party as it uses for its
own Confidential Information of a similar nature. Each party shall promptly notify the other party
in writing of any misuse, misappropriation or unauthorized disclosure of the Confidential
Information of the other party which may come to such party’s attention.
(e) Upon the termination of this Agreement, if requested in writing by the other party, each
party shall, at such party’s option, promptly destroy or return to the other party all Confidential
Information received from the other party, all copies and extracts of such Confidential Information
and all documents or other media containing any such Confidential Information.
Section 10
Miscellaneous
Miscellaneous
10.1 No Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto, the indemnities referred to in this
Agreement and their respective successors and assigns.
10.2 Entire Agreement. This Agreement and the Related Agreements (including any
schedules and exhibits attached hereto and thereto) contain all of the agreements among the parties
hereto and thereto with respect to the transactions contemplated hereby and thereby and supersede
all prior agreements or understandings, whether written or oral, among the parties with respect
thereto.
10.3 Amendment and Modification. This Agreement may be amended, modified or
supplemented only by a written instrument executed by all the parties.
10.4 Successors and Assigns; Assignment. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. This Agreement shall not be assigned by any party without the
prior written consent of the other parties and any assignment without such consent shall be null
and void.
10.5 Waiver of Compliance. Except as otherwise provided in this Agreement, any failure
of any of the parties to comply with any obligation, covenant, agreement or condition herein may be
waived by the party entitled to the benefits thereof only by a written instrument
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signed by the
party granting such waiver, but any such waiver, or the failure to insist upon strict compliance
with any obligation, covenant, agreement or condition herein, shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure or breach.
10.6 Severability. The parties hereto desire that the provisions of this Agreement be
enforced to the fullest extent permissible under the Law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the
remaining provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall,
as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of such provision in any other
jurisdiction.
10.7 Notices. All notices, waivers, or other communications pursuant to this Agreement
shall be in writing and shall be deemed to be sufficient if delivered personally, by facsimile
(and, if sent by facsimile, followed by delivery by nationally-recognized express courier), sent by
nationally-recognized express courier or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
| (a) | if to Sponsor, to: World Gold Trust Services, LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: J. Xxxxxx Xxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
||
| (b) | if to the Marketing Agent, to: State Street Global Markets, LLC Xxx Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxx Xxxxxxx Telephone: 000 000 0000 Facsimile: 000 000 0000 and State Street Global Markets, LLC Xxx Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxx Xxxxxx Telephone: 000 000 0000 Facsimile: 000 000 0000 |
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All such notices and other communications shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by facsimile or email, on the date of such
delivery if delivered during business hours on a Business Day or, if not delivered during business
hours on a Business Day, the first Business Day thereafter, (ii) in the case of delivery by
nationally-recognized express courier, on the first Business Day following dispatch, and (iii) in
the case of mailing, on the third Business Day following such mailing.
10.8 Governing Law; Jurisdiction.
(a) All questions concerning the construction, interpretation and validity of this Agreement
shall be governed by and construed and enforced in accordance with the domestic laws of the State
of New York, without giving effect to any choice or conflict of law provision or rule (whether in
the State of New York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York. In furtherance of the foregoing, the internal
law of the State of New York will control the interpretation and construction of this Agreement,
even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily or necessarily apply.
(b) Each party irrevocably consents and agrees, for the benefit of the other parties, that any
legal action, suit or proceeding against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement or any Related Agreement may be
brought in the courts of the State of New York or the courts of the United States of America
located in the Borough of Manhattan, The City of New York and hereby irrevocably consents and
submits
to the non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any action, suit or proceeding for itself and in respect of its
properties, assets and revenues. Each party irrevocably waives any immunity to jurisdiction to
which it may otherwise be entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment and execution) in any legal suit, action or proceeding against it arising
out of or based on this Agreement or any Related Agreement or the transactions contemplated hereby
or thereby which is instituted in any court of the State of New York or any court of the United
States of America located in the Borough of Manhattan, The City of New York.
The provisions of this Section 10.8 shall survive any termination of this Agreement and the
Related Agreements, in whole or in part.
10.9 No Partnership. Nothing in this Agreement is intended to, or will be construed to
constitute the Sponsor or the Trust, on the one hand, and the Marketing Agent or any of its
Affiliates, on the other hand, as partners or joint venturers; it being intended that the
relationship between them will at all times be that of independent contractors.
10.10 Force Majeure. Neither party will be liable to any other party for any delay or
failure to perform its obligations under this Agreement (except for the payment of money) if such
delay or failure arises from or is due to any cause or causes beyond the reasonable control of the
party affected which impedes, delays or aggravates any obligation under this Agreement, including,
without limitation, acts of God, acts of any Governmental Entity, labor disturbances, act of
terrorism or act of public enemy due to war, the outbreak or escalation of hostilities, riot, fire,
flood, civil commotion, insurrection, severe or adverse weather conditions, power failure or
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computer
or communications line failure.
10.11 Interpretation. The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the parties and shall not in
any way affect the meaning or interpretation of this Agreement.
10.12 No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party.
10.13 Counterparts; Facsimile Signatures. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Facsimile counterpart signatures to this Agreement shall be
acceptable and binding.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
day and year first written above.
| WORLD GOLD TRUST SERVICES, LLC | ||||||
| By: Name: |
/s/ X. Xxxxxx Xxxxxx
|
|||||
| Title: | Managing Director | |||||
| STATE STREET GLOBAL MARKETS, LLC | ||||||
| By: Name: |
/s/ Xxxxxxxxx X. Xxxxxxx
|
|||||
| Title: | Managing Director | |||||
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EXHIBIT A
MARKETING AGENT LICENSE
- 35 -
EXHIBIT B
WGC/WGTS LICENSE
- 36 -
EXHIBIT C
WORLD GOLD TRUST SERVICES, LLC
OFFICER’S CERTIFICATE
The undersigned, a duly authorized officer of World Gold Trust Services, LLC, a Delaware
limited liability company (the “Company”), and pursuant to Section 4.1(p) of the Marketing
Agent Agreement (the “Agreement”) dated as of November___, 2004, by and between the
Company and State Street Global Markets, LLC, a Delaware limited liability company (the
“Marketing Agent”), hereby certifies that:
| 1. | Each of the representations and warranties of the Company contained in the Section 2.1 of the Agreement is true and correct in all material respects as if such representations and warranties were made as of the date hereof. For purposes of this paragraph, the term “Registration Statement” as used in Section 2.1 of the Agreement shall mean the Registration Statement as amended or supplemented from time to time to the date hereof, and the term “Prospectus” as used in Section 2.1 of the Agreement shall mean the Prospectus as amended or supplemented from time to time to the date hereof.” | ||
| 2. | Each of the obligations of the Company to be performed by it on or before the date hereof pursuant to the terms of the Agreement, and each of the provisions thereof to be complied with by the Company on or before the date hereof, has been duly performed and complied with in all material respects |
Capitalized terms used, but not defined herein shall have the meaning assigned to such term in
the Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, I have hereunto, on behalf of the Company, subscribed my name this day of
November, 2004.
| By: | ||||||
| Name: | ||||||
| Title: |
I, , in my capacity as [Vice President], hereby certify that [
]
is the duly elected [President] of the Company, and that the signature set forth immediately above
is his genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first set forth above.
| By: | ||||||
| Name: | ||||||
| Title: |
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