EXHIBIT 10.2
HSBC BANK USA, NATIONAL ASSOCIATION
AND
THE BANK OF NEW YORK,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE OF THE STREETTRACKS(R) GOLD TRUST
-----------------------------------------------------
STREETTRACKS(R) GOLD TRUST
UNALLOCATED BULLION ACCOUNT AGREEMENT
-----------------------------------------------------
THIS AGREEMENT is made on November , 2004
BETWEEN
(1) HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States of America, whose
principal place of business in England is at 0 Xxxxxx Xxxxxx, Xxxxxx
X00 0XX ("WE" or "US"); and
(2) THE BANK OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE (THE "TRUSTEE") OF STREETTRACKS(R) GOLD TRUST (THE
"STREETTRACKS(R) GOLD TRUST") as established pursuant to the Trust
Indenture (defined below) ("YOU").
INTRODUCTION
We have agreed to open and maintain for you an Unallocated Account and to
provide other services to you in connection with your Unallocated Account. This
agreement sets out the terms under which we will provide those services to you
and the arrangements which will apply in connection with those services and your
Unallocated Account.
IT IS AGREED AS FOLLOWS
1. INTERPRETATION
1.1 DEFINITIONS: In this agreement:
"ACCOUNT BALANCE" means the balance from time to time standing to your
credit in your Unallocated Account.
"ALLOCATED ACCOUNT" means the account maintained by us in your name
pursuant to the Allocated Bullion Account Agreement.
"ALLOCATED BULLION ACCOUNT AGREEMENT" means that certain Allocated
Bullion Account Agreement between you and us dated on or about the date
of this Agreement.
"AVAILABILITY DATE" means the Business Day on which you wish us to
credit to your Unallocated Account either Bullion from your Allocated
Account or Precious Metal from a Third Party Unallocated Account.
"BULLION" means the Precious Metal standing to your credit in your
Unallocated Account or held for you in your Allocated Account, as the
case may be.
"BUSINESS DAY" means a day other than (i) a day on which the New York
Stock Exchange, Inc. is closed for regular trading or (ii), if the
transaction involves the receipt or delivery of gold or confirmation
thereof in the United Kingdom or in some other jurisdiction, (a) a day
on which banking institutions in the United Kingdom or in such other
jurisdiction, as the case may be, are authorized by law to close or a
day on which the London gold market is closed or (b) a day on which
banking institutions in the United Kingdom or in such other
jurisdiction, as the case may be, are authorized to be open for
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 2 -
less than a full business day or the London gold market is open for
trading for less than a full business day and transaction procedures
required to be executed or completed before the close of the business
day may not be so executed or completed.
"LBMA" means The London Bullion Market Association or its successors.
"PARTICIPANT" means a Participant as defined in the Trust Indenture.
"PARTICIPANT AGREEMENT" means that certain Participant Agreement in
effect from time to time among the Trustee and each Participant, as
those terms are defined in the Trust Indenture.
"PARTICIPANT UNALLOCATED ACCOUNT" means the Precious Metal account a
Participant is required by the Participant Agreement to have maintained
by us for such Participant on an Unallocated Basis.
"PARTICIPANT UNALLOCATED BULLION ACCOUNT AGREEMENT" means that certain
Participant Unallocated Bullion Account Agreement in effect from time
to time between us and each Participant pursuant to which we maintain
the Participant's Participant Unallocated Account.
"POINT OF DELIVERY" means such date and time that the recipient or its
agent acknowledges in written form its receipt of delivery of Precious
Metal.
"PRECIOUS METAL" means gold.
"RULES" means the rules, regulations, practices and customs of the LBMA
(including without limitation the rules of the LBMA as to good
delivery), the Bank of England and such other regulatory authority or
body as shall affect the activities contemplated by this agreement.
"SPONSOR" means World Gold Trust Services, LLC.
"THIRD PARTY UNALLOCATED ACCOUNT" means a Precious Metal account
maintained by us on an Unallocated Basis in the name of a person other
than you in your capacity as Trustee of the streetTRACKS(R) Gold Trust.
"TRUST INDENTURE" means that certain Trust Indenture of streetTRACKS(R)
Gold Trust dated as of November , 2004, between World Gold Trust
Services, LLC, as Sponsor, and The Bank of New York, as Trustee,
effective November , 2004.
"UNALLOCATED ACCOUNT" means the account maintained by us in your name
on an Unallocated Basis pursuant to this agreement.
"UNALLOCATED BASIS" means, with respect to a Precious Metal account
maintained with us, that the person in whose name the account is held
is entitled to delivery in accordance with the Rules of an amount of
Precious Metal equal to the amount of Precious Metal
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 3 -
standing to the credit of the person's account but has no ownership
interest in any Precious Metal that we own or hold.
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 (as amended or re-enacted from time to time) and legislation
supplemental thereto and any other tax (whether imposed in the United
Kingdom in substitution thereof or in addition thereto or elsewhere) of
a similar fiscal nature.
"WITHDRAWAL DATE" means the Business Day on which you wish to debit
Bullion from your Unallocated Account and credit such Bullion either to
your Allocated Account or to a Third Party Unallocated Account.
1.2 HEADINGS: The headings in this agreement do not affect its
interpretation.
1.3 SINGULAR AND PLURAL; OTHER USAGES:
(a) References to the singular include the plural and vice versa.
(b) "A or B" means "A or B or both."
(c) "Including" means "including but not limited to."
2. UNALLOCATED ACCOUNT
2.1 OPENING UNALLOCATED ACCOUNT: We shall open and maintain the Unallocated
Account for you in respect of Bullion.
2.2 TRANSFERS INTO AND OUT OF UNALLOCATED ACCOUNT: The Unallocated Account
shall evidence and record the amount of Bullion standing to your credit
therein and increases and decreases to that amount.
2.3 DENOMINATION OF UNALLOCATED ACCOUNT: The Unallocated Account shall be
denominated in fine ounces of gold to three decimal places.
2.4 REPORTS: For each Business Day, by no later than the following Business
Day, we will transmit to you by authenticated SWIFT message(s)
information showing the increases and decreases to the Bullion standing
to your credit in your Unallocated Account, and identifying separately
each transaction and the Business Day on which it occurred. On each
Business Day that is a Withdrawal Date, we will send you a notification
as of 2:00 p.m. (London time) (i) as to each Participant, of the amount
of Precious Metal transferred from the Participant's Participant
Unallocated Account to your Unallocated Account, (ii) of the amount of
Bullion transferred from your Unallocated Account to your Allocated
Account and (iii) of the amount of any remaining Bullion in your
Unallocated Account, and we will use commercially reasonable efforts to
send the notification by approximately 2:00 p.m. (London time). In
addition, we will provide you such information about the increases and
decreases to the Bullion standing to your credit in your Unallocated
Account on a same-day basis at such other times and in such other form
as you and we shall agree. In the case of any difference between the
information provided
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 4 -
by authenticated SWIFT message and the information we provide you
pursuant to either of the two immediately preceding sentences, the
SWIFT message will be controlling, and we shall not be liable for your
or any third party's reliance on the information we provide to you by
means other than SWIFT message. For each calendar month, we will
provide you within a reasonable time after the end of the month a
statement of account for your Unallocated Account.
2.5 REVERSAL OF ENTRIES: In order to maintain the accuracy of our books and
records, but without limiting our responsibilities or liability under
this agreement, we shall reverse or amend any entries to your
Unallocated Account to correct errors that we discover or of which we
are notified with, if we deem it necessary, effect back-valued to the
date upon which the correct entry (or no entry) should have been made.
Without limiting the foregoing, if Bullion delivered to your Allocated
Account upon withdrawal from your Unallocated Account is determined to
be of a fineness or weight different from the fineness or weight we
have reported to you, (i) we shall debit your Allocated Account and
credit your Unallocated Account with the requisite amount of Bullion if
the determination reduces the total fine ounces of Bullion that should
have been credited to your Allocated Account, and (ii) we shall credit
your Allocated Account and debit your Unallocated Account with the
requisite amount of Bullion if the determination increases the total
fine ounces of Bullion that should have been credited to your Allocated
Account.
2.6 ACCESS: Upon reasonable prior written notice, we will, during our
normal business hours, allow your representatives, not more than twice
during any calendar year, and your independent public accountants, in
connection with their audit of the financial statements of the
streetTRACKS(R) Gold Trust, to visit our premises and examine such
records maintained by us in relation to your Unallocated Account as
they may reasonably require. You shall bear all costs relating to such
visits and exams, including any out of pocket or other costs we may
incur in connection therewith. Our providing of any such visits or
exams is conditioned on the relevant parties complying with all our
security rules and procedures and undertaking to keep confidential all
information they obtain in accordance with a form of confidentiality
agreement we will provide. Any visits by your representatives pursuant
to clause 2.6 of the Allocated Bullion Account Agreement shall be
deemed to be a visit for purposes of this clause 2.6.
3. TRANSFERS INTO THE UNALLOCATED ACCOUNT
3.1 PROCEDURE: We will credit to your Unallocated Account only the amount
of Bullion we receive from your Allocated Account or the amount of
Precious Metal we receive from a Third Party Unallocated Account for
credit to your Unallocated Account. Unless we otherwise agree in
writing, the only Precious Metal we will accept in physical form for
credit to your Unallocated Account is Bullion you have transferred from
your Allocated Account. By 9:00 a.m. (London time) on the day that is
two Business Days prior to the Availability Date, you will notify us
regarding each amount of Bullion or Precious Metal that you are
expecting to be credited to your Unallocated Account from a Participant
Unallocated Account, and the identity of the Participant Unallocated
Account from which such credit will be made. If, on any Business Day, a
Participant's instruction to us to transfer Bullion to your Unallocated
Account is revoked pursuant to clause 5.5 of that
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 5 -
Participant's Participant Unallocated Bullion Account Agreement, we
shall send you a notification by email identifying such Participant by
the close of business in London on that day. We shall use commercially
reasonable efforts to send you such notification by 5:00 p.m. (London
time). When by reference to your notifications and instructions to us
we reasonably believe an amount of Bullion has been credited to your
Unallocated Account in error, we will notify you promptly and, pending
our joint resolution of the error, will treat such amount as not being
subject to the standing instruction in clause 4.5 below.
3.2 RIGHT TO REFUSE BULLION OR AMEND PROCEDURE: We may refuse to accept
transfers of Bullion into your Unallocated Account, amend the procedure
in relation to the transfer of Bullion into your Unallocated Account or
impose such additional procedures in relation to the transfer of
Bullion into your Unallocated Account as we may from time to time
consider appropriate. Any such refusal will be promptly notified to
you. We will notify you within a commercially reasonable time before we
amend our procedures or impose additional ones in relation to the
transfer of Bullion into your Unallocated Account, and in doing so we
will consider your needs to communicate any such change to Participants
and others.
4. TRANSFERS FROM THE UNALLOCATED ACCOUNT
4.1 PROCEDURE: We will transfer Bullion from your Unallocated Account to
such persons and at such times and on such terms as specified in your
instructions to us and not otherwise. A transfer of Bullion from your
Unallocated Account may only be made by:
(a) transfer of Bullion to a Third Party Unallocated Account; or
(b) transfer of Bullion to your Allocated Account, including
pursuant to the standing instruction provided in clause 4.5;
or
(c) subject to clause 4.4, by either (i) making the Bullion
available for collection at our vault premises, or as we may
direct or (ii), if separately agreed, delivering the Bullion
to such location as we agree at your expense and risk.
Any Bullion to be made available in physical form pursuant to clause
4.1(b) or (c) will be in a form which complies with the Rules or in
such other form as may be agreed between us, and in all cases will
comprise one or more whole bars selected by us (or other form as
agreed), the combined fine weight of which will not exceed the number
of fine ounces of Bullion you have instructed us to debit.
4.2 INSTRUCTION REQUIREMENTS: You may at any time instruct us to transfer
Bullion standing to the credit of your Unallocated Account. Any
instruction relating to a transfer of Bullion other than pursuant to a
standing instruction must:
(a) if it relates to a transfer pursuant to clause 4.1(a), be
received by us no later than 3:00 p.m. (London time) on the
Withdrawal Date or 3:30 p.m. (London time) on a Withdrawal
Date occurring when London is and New York is not on daylight
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 6 -
savings time unless otherwise agreed and specify the details
of the Third Party Unallocated Account(s) to which the Bullion
is to be transferred;
(b) if it relates to a transfer pursuant to clause 4.1(b), be
received by us no later than 9:00 a.m. (London time) on the
day that is two Business Days prior to the Withdrawal Date
unless otherwise agreed, and specify the details of your
Allocated Account to which the Bullion is to be transferred;
(c) if it relates to a withdrawal pursuant to clause 4.1(c), be
received by us no later than 9:00 a.m. (London time) on the
day that is two Business Days prior to the Withdrawal Date
unless otherwise agreed, and specify the name of the person or
carrier that will collect the Bullion from us or the identity
of the person to whom delivery is to be made, as the case may
be; and
(d) in all cases, specify the number of fine ounces of Bullion to
be debited to the Unallocated Account, the Withdrawal Date and
any other information which we may from time to time require.
4.3 POWER TO AMEND PROCEDURE AND NOTICE OF AMENDMENTS TO AGREEMENTS: We may
amend the procedure for the transfer of Bullion from your Unallocated
Account or impose such additional procedures as we may from time to
time consider appropriate. We will notify you within a commercially
reasonable time before we amend our procedures or impose additional
ones in relation to the transfer of Bullion from your Unallocated
Account, and in doing so we will consider your needs to communicate any
such change to Participants and others. We also will provide you a copy
of any proposed amendment to the form of the Participant Unallocated
Bullion Account Agreement no later than 15 Business Days before the
amendment's scheduled effectiveness.
4.4 PHYSICAL WITHDRAWALS OF BULLION: Upon your instruction, we will debit
Bullion from your Unallocated Account and make the Bullion available
for collection by you or, if separately agreed, for delivery by us at
your expense and risk. You and we agree nevertheless that you expect to
withdraw Bullion physically from your Unallocated Account (rather than
by crediting it to a Third Party Unallocated Account) only in
exceptional circumstances, as for example when we are unable to
transfer Precious Metal on an Unallocated Basis. In the case of all
physical withdrawals of Bullion from your Unallocated Account, unless
we agree to undertake delivery, you must collect, or arrange for the
collection of, the Bullion being withdrawn from us, the Sub-Custodian
or other party having physical possession thereof. We will advise you
of the location from which the Bullion may be collected no later than
one Business Day prior to the Withdrawal Date. When we have agreed
separately to deliver Bullion in connection with a physical withdrawal,
we shall make transportation and insurance arrangements on your behalf
in accordance with our usual practice unless we have agreed in writing
to other arrangements, with which we shall use commercially reasonable
efforts to comply. Anything in this agreement to the contrary
notwithstanding, and without limiting your right to withdraw Bullion,
we shall not be obliged to effect any requested delivery if, in our
reasonable opinion, this would cause us or our agents to be in breach
of the Rules or other applicable law, court order or regulation, the
costs incurred would be excessive or
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 7 -
delivery is impracticable for any reason. When pursuant to your
instruction Bullion is physically withdrawn from your Unallocated
Account, all right, title, risk and interest in and to the Bullion
withdrawn shall pass at the Point of Delivery to the person to whom or
to or for whose account such Bullion is transferred, delivered or
collected.
4.5 STANDING INSTRUCTION: We will use commercially reasonable efforts to
comply with the following instruction, which we acknowledge you are
giving to us for execution as a standing instruction:
As early as we can but in any event by the close of business
(London time) on each Business Day, we will transfer to your
Allocated Account from the Bullion standing to your credit in
your Unallocated Account an amount of Bullion such that the
amount of Bullion that remains standing to your credit in your
Unallocated Account after any transfers on that day pursuant
to clause 4.1 does not exceed 430 fine ounces.
4.6 PHYSICAL WITHDRAWAL OF ENTIRE UNALLOCATED ACCOUNT BALANCE. If, when you
notify us in connection with a physical withdrawal of Bullion from your
Unallocated Account under clause 4.4 that you are withdrawing the
entire balance in your Unallocated Account (or when a physical
withdrawal under clause 4.4 would, in our determination, result in the
entire balance in your Unallocated Account being withdrawn), the
physical withdrawal instruction may not be effected by our selection of
one or more whole bars of Bullion the combined fine weight of which
does not exceed the balance of your Unallocated Account that you are
withdrawing, then we will make available to you in accordance with
clause 4.4 the number of whole bars that can be accommodated under your
instruction, and will purchase for cash the remainder of the Bullion in
your Unallocated Account based on the price of an ounce of gold as
fixed by the five members of the London gold fix at or about 10:30 a.m.
London time (the "London A.M. Fix") on the date you are withdrawing the
Bullion physically, or if there is no London A.M. Fix for Gold for such
date, then the London A.M. Fix for Gold for the next Business Day.
5. INSTRUCTIONS
5.1 YOUR REPRESENTATIVES: We will act only on instructions given in
accordance with this clause 5.1 and clause 11 and will not otherwise
act on instructions given by any person claiming to have a beneficial
interest in the streetTRACKS(R) Gold Trust. You shall notify us
promptly in writing of the names of the people who are authorized to
give instructions on your behalf. Until we receive written notice to
the contrary, we are entitled to assume that any of those people have
full and unrestricted power to give us instructions on your behalf. We
are also entitled to rely on any instructions which are from, or which
purport to emanate from, any person who appears to have such authority.
5.2 AMENDMENTS: Once given, instructions continue in full force and effect
until they are cancelled, amended or superseded. We must receive an
instruction canceling, amending or superseding a prior instruction
before the time the prior instruction is acted upon. Any instructions
shall have effect only after actual receipt by us.
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 8 -
5.3 UNCLEAR OR AMBIGUOUS INSTRUCTIONS: If, in our opinion, any instructions
are unclear or ambiguous, we will use reasonable endeavours (taking
into account any relevant time constraints) to obtain clarification of
those instructions but, failing that, we may in our absolute discretion
and without any liability on our part, act upon what we believe in good
faith such instructions to be or refuse to take any action or execute
such instructions until any ambiguity or conflict has been resolved to
our satisfaction.
5.4 REFUSAL TO EXECUTE: We reserve the right to refuse to execute
instructions if in our opinion they are or may be contrary to the
Rules or any applicable law.
6. CONFIDENTIALITY
6.1 DISCLOSURE TO OTHERS: Subject to clause 6.2, we shall treat as
confidential and will not, without your consent, disclose to any other
person any transaction or other information we acquire about you or
your business pursuant to this agreement. Subject to clause 6.2, you
shall treat as confidential and will not, without our consent, disclose
to any other person any information that we provide to you about us or
our business pursuant to this agreement and that we tell you, at or
before the time we provide it, we are providing to you on a
confidential basis.
6.2 PERMITTED DISCLOSURES: Each party accepts that from time to time the
other party may be required by law or the Rules, or requested by or
required in connection with filings made with a government department
or agency, fiscal body or regulatory or self-regulatory authority, to
disclose information acquired under this agreement. In addition, the
disclosure of such information may be required by a party's auditors,
by its legal or other advisors or by a company which is in the same
group of companies as a party (eg. a subsidiary or holding company of a
party). Subject to the agreement of the party to which information is
disclosed to maintain it in confidence in accordance with clause 6.1,
each party irrevocably authorizes the other to make such disclosures
without further reference to such party.
7. REPRESENTATIONS
7.1 YOUR REPRESENTATIONS: You represent and warrant to us that:
(a) you have all necessary authority, powers, consents, licences
and authorisations and have taken all necessary action to
enable you lawfully to enter into and perform your duties and
obligations under this agreement;
(b) the persons entering into this agreement on your behalf have
been duly authorised to do so; and
(c) this agreement and the obligations created under it are
binding upon you and enforceable against you in accordance
with its terms (subject to applicable principles of equity)
and do not and will not violate the terms of the Rules or any
law, order, charge or agreement by which you are bound.
7.2 OUR REPRESENTATIONS: We represent and warrant to you that:
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 9 -
(a) We have all necessary authority, powers, consents, licences
and authorisations and have taken all necessary action to
enable us lawfully to enter into and perform our duties and
obligations under this agreement;
(b) the persons entering into this agreement on our behalf have
been duly authorised to do so; and
(c) this agreement and the obligations created under it are
binding upon us and enforceable against us in accordance with
its terms (subject to applicable principles of equity) and do
not and will not violate the terms of the Rules or any law,
order, charge or agreement by which we are bound.
8. EXPENSES
8.1 EXPENSES: You must pay us on demand all costs, charges and expenses
(including any relevant taxes charged to us, duties and reasonable
legal fees) incurred by us in connection with the performance of our
duties and obligations under this agreement or otherwise in connection
with any Unallocated Account (including, without limitation, delivery,
collection and storage costs).
8.2 CREDIT BALANCES: No interest or other amount will be paid by us on
any credit balance on an Unallocated Account unless otherwise agreed
between us.
8.3 DEBIT BALANCES: You are not entitled to overdraw an Unallocated Account
except to the extent that we otherwise agree in writing. In the absence
of such agreement, we shall not be obliged to carry out any instruction
of yours which will cause any Unallocated Account to be overdrawn. If
for any reason an Unallocated Account is overdrawn, you will be
required to pay us interest in on the debit balance at the rate agreed
between us or, if no such agreement exists, at such rate as we
determine to be appropriate. The amount of the overdraft and any
accrued interest will be repayable by you on our demand. Your
obligation to pay interest to us will continue until the overdraft is
repaid by you in full.
8.4 DEFAULT INTEREST: If you fail to pay us any amount when it is due, we
reserve the right to charge you interest (both before and after any
judgement) on any such unpaid amount calculated at a rate equal to 1%
above the overnight London Interbank Offered Rate (LIBOR) for the
currency in which the amount is due. Both overdraft and default
interest will accrue on a daily basis and will be due and payable by
you as a separate debt. In the event of any inconsistency between this
agreement and an overdraft facility agreement between you and us, the
terms of the overdraft facility shall govern.
9. SCOPE OF RESPONSIBILITY
9.1 EXCLUSION OF LIABILITY: We will use reasonable care in the performance
of our duties under this agreement and will only be responsible for any
loss or damage suffered by you as a direct result of any negligence,
fraud or wilful default on our part in the performance of our duties,
and in which case our liability will not exceed the aggregate of the
Account Balance at the time such negligence, fraud or wilful default is
discovered by us, provided that we notify you promptly after we
discover such negligence, fraud or wilful default. If
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 10 -
we deliver from your Unallocated Account Bullion that is not of the
fine weight we have represented to you, recovery by you, to the extent
such recovery is otherwise allowed, shall not be barred by your delay
in asserting a claim because of the failure to discover such loss or
damage regardless of whether such loss or damage could or should have
been discovered.
9.2 NO DUTY OR OBLIGATION: We are under no duty or obligation to make or
take any special arrangements or precautions beyond those required by
the Rules or as specifically set forth in this agreement.
9.3 FORCE MAJEURE: We shall not be liable to you for any delay in
performance, or for the non-performance of any of our obligations under
this agreement by reason of any cause beyond our reasonable control.
This includes any act of God or war or terrorism, any breakdown,
malfunction or failure of transmission in connection with or other
unavailability of any wire, communication or computer facilities, any
transport, port, or airport disruption, industrial action, acts and
regulations and rules of any governmental or supra national bodies or
authorities or regulatory or self-regulatory organisations or failure
of any such body, authority, or organisation for any reason, to perform
its obligations.
9.4 INDEMNITY: You shall solely out of the assets of the streetTRACKS(R)
Gold Trust indemnify and keep us and each of our directors,
shareholders, officers, employees, agents, affiliates (as such term is
defined in Regulation S-X adopted by the United States Securities and
Exchange Commission under the United States federal Securities Act of
1933, as amended) and subsidiaries (us and each such person a
"Custodian Indemnified Person" for purposes of this clause 9.4)
indemnified (on an after tax basis) on demand against all costs and
expenses, damages, liabilities and losses which any such Custodian
Indemnified Person may suffer or incur, directly or indirectly in
connection with this agreement except to the extent that such sums are
due directly to our negligence, willful default or fraud or that of
such Custodian Indemnified Person.
9.5 THIRD PARTIES: You are our sole customer under this agreement and we do
not owe any duty or obligation or have any liability towards any person
who is not a party to this agreement. This agreement does not confer a
benefit on any person who is not a party to it. The parties to this
agreement do not intend that any term of this agreement shall be
enforceable by any person who is not a party to it, except Custodian
Indemnified Persons, and do intend that the Contracts (Rights of Third
Parties) 1999 Act shall not apply to this Agreement. Nothing in this
paragraph is intended to limit the obligations hereunder of any
successor Trustee of the streetTRACKS(R) Gold Trust or to limit the
right of any successor Trustee of the streetTRACKS(R) Gold Trust to
enforce our obligations hereunder.
9.6 OTHER ACTIVITIES: We and any of our affiliates may act as a Participant
or own or hold Precious Metal or shares issued by the streetTRACKS(R)
Gold Trust or both and may deal with them in any manner, including
acting as underwriter for the shares, with the same rights and powers
as if we were not a party to this agreement.
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 11 -
10. TERMINATION
10.1 NON-TERMINATION: This agreement may not be terminated for one year
following the "Initial Date of Deposit," as that term is defined in the
Trust Indenture, unless the streetTRACKS(R) Gold Trust is terminated
during that period.
10.2 METHOD Subject to the requirement of clause 10.1, either party may
terminate this agreement by giving not less than 90 Business Days'
written notice to the other party. Any such notice given by you must
specify:
(a) the date on which the termination will take effect;
(b) the person to whom each Account Balance which is a credit
balance is to be transferred; and
(c) all other necessary arrangements for the transfer or
repayment, as the case may be, of each Account Balance.
10.3 RESIGNATION OF TRUSTEE: In the event you resign or are discharged or
removed as Trustee, this agreement will terminate 90 Business Days
following your resignation, discharge or removal unless a successor
trustee to the streetTRACKS(R) Gold Trust is appointed before the end
of the 90 Business Day period or a full liquidation of the
streetTRACKS(R) Gold Trust is started during the 90 Business Day period
and you request us to continue the agreement in effect until the
liquidation is completed.
10.4 REDELIVERY ARRANGEMENTS: Following any termination of this agreement,
if you do not make arrangements acceptable to us for the transfer or
repayment, as the case may be, of any Account Balance we may continue
to maintain that Unallocated Account, in which case we will continue to
charge any expenses payable under clause 8. If you have not made
arrangements acceptable to us for the transfer or repayment of any
Account Balance within 6 months of the date specified in the
termination notice as the date on which the termination will take
effect, we will be entitled to close each Unallocated Account and
account to you for the proceeds after deducting any amounts due to us
under this agreement.
10.5 EXISTING RIGHTS: Termination shall not affect rights and obligations
then outstanding under this agreement which shall continue to be
governed by this agreement until all obligations have been fully
performed.
11. NOTICES
11.1 FORM: Subject to clause 11.5, any notice, notification, instruction or
other communication under or in connection with this agreement shall be
given in writing. References to writing include electronic
transmissions that are of the kind specified in clause 11.2.
11.2 METHOD OF TRANSMISSION: Any notice, notification, instruction or other
communication required to be in writing may be delivered personally or
sent by first class post, pre-paid
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 12 -
recorded delivery (or air mail if overseas), authenticated electronic
transmission (including tested telex and authenticated SWIFT) or such
other electronic transmission as the parties may from time to time
agree to the party due to receive the notice or communication, at its
address, number or destination set out in this agreement or another
address, number or destination specified by that party by written
notice to the other.
11.3 DEEMED RECEIPT ON NOTICE: A notice, notification, instruction or other
communication under or in connection with this agreement will be deemed
received only if actually received or delivered.
11.4 RECORDING OF CALLS: We may record telephone conversations without use
of a warning tone. Such recordings will be our sole property and
accepted by you as evidence of the orders or instructions given that
are permitted to be given orally under this agreement.
11.5 INSTRUCTIONS RELATING TO BULLION: All notices, notifications,
instructions and other communications relating to the movement of
Bullion in relation to your Unallocated Account shall be by way of
authenticated electronic transmission (including tested telex and
authenticated SWIFT), and shall be addressed to:
Precious Metals Operations
HSBC Bank USA, National Association
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Tested Telex: 889217 RNB
SWIFT: BLIC GB2L
12. GENERAL
12.1 NO ADVICE: Our duties and obligations under this agreement do not
include providing you with investment advice. In asking us to open and
maintain the Unallocated Account, you do so in reliance upon your own
judgement and we shall not owe to you any duty to exercise any
judgement on your behalf as to the merits or suitability of any
transfer into, or withdrawals from, your Unallocated Account.
12.2 RIGHTS AND REMEDIES: Our rights under this agreement are in addition
to, and independent of, any other rights which we may have at any time
in relation to the Unallocated Accounts, except that we will not have
any right to set off against any account we maintain or property that
we hold for you under this agreement any claim or amount that we may
have against you or that may be owing to us other than pursuant to this
agreement, no matter how that claim or amount arose.
12.3 ASSIGNMENT: This agreement is for the benefit of and binding upon us
both and our respective successors, including any successor trustees,
and assigns. This Agreement may not be assigned by either party without
the written consent of the other party, except that this clause shall
not restrict our power to merge or consolidate with any party, or to
dispose of all or part of our custody business.
12.4 AMENDMENTS: Any amendment to this agreement must be agreed in writing
and be signed
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 13 -
by us both. Unless otherwise agreed, an amendment will not affect any
legal rights or obligations which may already have arisen.
12.5 PARTIAL INVALIDITY: If any of the clauses (or part of a clause) of this
agreement becomes invalid or unenforceable in any way under the Rules
or any law, the validity of the remaining clauses (or part of a clause)
will not in any way be affected or impaired.
12.6 ENTIRE AGREEMENT: This document represents the entire agreement, and
supersedes any previous agreements between us relating to the subject
matter of this agreement.
12.7 JOINT AND SEVERAL LIABILITY: If there is more than one of you, your
responsibilities under this agreement apply to each of you individually
as well as jointly.
12.8 COUNTERPARTS: This agreement may be executed in any number of
counterparts each of which when executed and delivered is an original,
but all the counterparts together constitute the same agreement.
12.9 BUSINESS DAYS: If any obligation of either you or us falls due to be
performed on a day which is not a Business Day in respect of the
Unallocated Account in question, then the relevant obligations shall be
performed on the next succeeding Business Day applicable to such
account.
12.10 PROCESSING OF ACCOUNT ENTRIES: Except for physical withdrawals as to
which transfer of ownership is determined at the Point of Delivery,
records of (i) all deposits to and withdrawals from the Allocated
Account and all debits and credits to the Unallocated Account which,
pursuant to instructions given in accordance with this agreement and
the Allocated Bullion Account Agreement, occur on a Business Day and
(ii) all end of Business Day account balances in the Allocated Account
and the Unallocated Account are prepared overnight as at the close of
our business (usually 4:00 p.m. London time) on that Business Day. For
avoidance of doubt, the foregoing sentence is illustrated by the
following examples, which are not intended to create any separate
obligations on our part:
Reports of a transfer of Precious Metal from a Third Party
Unallocated Account for credit to your Unallocated Account on a
Business Day and a debit of Bullion from your Unallocated
Account for credit to your Allocated Account on that Business
Day pursuant to the standing instruction contained in the
Unallocated Bullion Account Agreement and of the balances in
your Allocated Account and your Unallocated Account for that
Business Day shall be prepared overnight as at the close of our
business on that Business Day.
Reports of a transfer of Bullion which we debit from your
Allocated Account for credit to your Unallocated Account on a
Business Day and a transfer of Bullion which we debit from your
Unallocated Account for credit to a Third Party Unallocated
Account on that Business Day and of the balances in your
Allocated Account and Unallocated Account for that Business Day
shall be prepared overnight as at the close of our business on
that Business Day.
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 14 -
When you instruct us to debit Bullion from your Allocated Account for
credit to your Unallocated Account and direct us to execute such
instruction on the same Business Day as and in connection with one or
more instructions that you give to us to debit Bullion from your
Unallocated Account, we will use commercially reasonable efforts to
execute the instructions in a manner that minimizes the time the
Bullion to be debited from your Allocated Account stands to your credit
in your Unallocated Account, save that we shall not be responsible for
any delay caused by late, incorrect or garbled instructions or
information from you or any third party.
12.11 MAINTENANCE OF THIS AGREEMENT. Concurrently with this agreement, we and
you are entering into the Allocated Bullion Account Agreement. That
agreement shall remain in effect as long as this agreement remains in
effect, and if that agreement is terminated, this agreement terminates
with immediate effect.
12.12 PRIOR AGREEMENTS:The Agreement supersedes and replaces any prior
existing agreement between you and us relating to the same subject
matter.
12.13 COOPERATION: During the term of this agreement, we and you will
cooperate with each other and make available to each other upon
reasonable request any information or documents necessary to insure
that each of our respective books and records are accurate and current.
13. GOVERNING LAW AND JURISDICTION
13.1 GOVERNING LAW: This agreement is governed by, and will be construed in
accordance with, English law.
13.2 JURISDICTION: We both agree the courts of the State of New York, in the
United States of America, and the United States federal court located
in the Borough of Manhattan in such state are to have jurisdiction to
settle any disputes or claims which may arise out of or in connection
with this agreement and, for these purposes we both irrevocably submit
to the non-exclusive jurisdiction of such courts, waive any claim of
forum non conveniens and any objections to the laying of venue, and
further waive any personal service.
13.3 WAIVER OF IMMUNITY: To the extent that you may in any jurisdiction
claim for yourself or your assets any immunity from suit, judgement,
enforcement or otherwise howsoever, you agree not to claim and
irrevocably waive any such immunity to which you would otherwise be
entitled (whether on grounds of sovereignty or otherwise) to the full
extent permitted by the laws of such jurisdiction.
13.4 SERVICE OF PROCESS: Process by which any proceedings are begun may be
served by being delivered to the addresses specified below. This does
not affect the right of either of us to serve process in another manner
permitted by law.
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 15 -
Our address for service of process: Your address for service of process
HSBC Bank USA, National Association, London Branch The Bank of New York
8 Canada Square 0 Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Precious Metals Department Attention: ADR Administration
Legal Department
EXECUTED by the parties as follows
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
streetTRACKS(R) Gold Trust
Unallocated Bullion Account Agreement - 16 -
Signed on behalf of
HSBC BANK USA, NATIONAL ASSOCIATION
by
Signature
................................................
Name
................................................
Title
................................................
Signature
................................................
Name
................................................
Title
................................................
Signed on behalf of
THE BANK OF NEW YORK,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE OF THE STREETTRACKS(R) GOLD TRUST,
by
Signature
................................................
Name
................................................
Title
................................................
Signature Page
streetTRACKS(R) Gold Trust
Unallocated Bullion Accounts Agreement
