EXHIBIT 10.10
REIMBURSEMENT AGREEMENT
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REIMBURSEMENT AGREEMENT (this "Agreement"), dated as of November ___, 2004,
between (i) The Bank of New York, not in its individual capacity, but solely as
trustee (the "Trustee") of the streetTRACKS(R) Gold Trust (thE "Trust"), a trust
established pursuant to that Trust Indenture dated as of the date hereof (the
"Indenture") between the Trustee and World Gold Trust Services, LLC (the
"Sponsor"), and (ii) State Streets Global Markets, LLC, a Delaware limited
liability company (the "Marketing Agent").
W I T N E S S E T H :
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WHEREAS, the Trustee is party to the Indenture pursuant to which the Trust
will issue streetTRACKS(R) 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 a registration statement on Form S-1 (Registration No. 333-105202)
and amendments thereto (the "Registration Statement"), including as part thereof
a Prospectus under the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Sponsor and the Marketing Agent have entered into a Marketing
Agent Agreement dated as of the date hereof (the "Marketing Agent Agreement"),
pursuant to which the Sponsor has retained 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;
WHEREAS, pursuant to the Marketing Agent Agreement, the Sponsor has agreed
to indemnify, defend and hold harmless the Marketing Agent, its partners,
stockholders, members, directors, officers and employees and any Affiliates of
the foregoing (collectively, "Indemnified Persons") from any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which the Marketing Agent or any such other Indemnified 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 the
circumstances set forth in Section 7.1 of the Marketing Agent Agreement, and to
contribute to the amount paid or payable by such Indemnified Person in the event
such indemnification is unavailable;
WHEREAS, the Indenture directs the Trustee to enter into this Agreement to
provide for the reimbursement of the Marketing Agent and the other Indemnified
Parties to the extent the Sponsor has not directly paid the indemnification or
contribution amounts required to be paid by the Sponsor pursuant to Section 7 of
the Marketing Agent Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Marketing Agent and the Trustee hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. In addition to the other terms which are defined in this
Agreement, the following term shall have the meaning assigned to it below. All
other capitalized terms used herein, but not otherwise defined herein, shall
have the meanings assigned to such terms in the Trust Indenture.
"1934 Act" means the Securities Exchange Act of 1934, 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.
"Prospectus" shall mean, as context may require, any preliminary
prospectus included as part of the Registration Statement, the prospectus
subsequently filed with the SEC pursuant to Rule 424(b) under the Act and 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, and any amendment or supplement thereto from time
to time.
SECTION 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties. The Trustee represents and warrants to the
Marketing Agent that:
(a) the Trustee has full power and authority to enter into the
Indenture and this Agreement and to perform its obligations hereunder and
thereunder;
(b) each of the Indenture and this Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes the 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 (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general application relating to or affecting creditors'
rights, (ii) general principles of equity and (iii) the effect of public
policy considerations or court decisions that may limit rights to obtain
indemnification or contribution;
(c) upon delivery by the Trustee of Shares against the deposit of Gold
in accordance with the provisions of the Indenture, those Shares will be
validly issued and will entitle the registered holders of those Shares to
the rights specified in the Indenture; and
SECTION 3
REIMBURSEMENT
3.1 Trustee Reimbursement. As authorized by the Indenture, the Trustee on
behalf of the the Trust hereby agrees to reimburse each Indemnified Person,
solely from and to the extent of the assets of the Trust, for any and all
amounts payable by the Sponsor pursuant to Section 7 of the Marketing Agent
Agreement
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(including any amount in contribution thereof that may be owed to any of the
Indemnified Persons pursuant to Section 7.4 thereof), to the extent the Sponsor
has not directly paid such amounts when due under Article 7 of the Marketing
Agent Agreement (the "Obligation") within thirty (30) days after such amounts
have become due and the Marketing Agent has made demand to the Sponsor for
payment of them, and to pay any and all expenses (including reasonable and
documented counsel fees and expenses) incurred by the Marketing Agent in
enforcing its rights under this Agreement.
3.2 Unconditional Obligations. The obligations of the Trust under this
Agreement are absolute and unconditional irrespective of the value, genuineness,
validity, regularity or enforceability of the Marketing Agent Agreement or any
other agreement or instrument referred to herein, or any substitution, release
or exchange of any guarantee of the Obligation, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this clause that the obligations of
the Trust hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Trust hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to Trust, the time
for any performance of or compliance with the Obligation shall be extended,
or such performance or compliance shall be waived;
(b) any act taken by any party to any other agreement or instrument
referred to herein pursuant to the provisions thereof;
(c) the Obligation shall be modified, supplemented or amended in any
respect, or any right under the Marketing Agent Agreement or any other
agreement or instrument referred to herein shall be waived or any guarantee
of the Obligation shall be released or exchanged in whole or in part or
otherwise dealt with; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Sponsor, the Trust or any other Person, including any discharge
of, or bar or stay against collecting, all or any part of the Obligation in
or as a result of any such proceeding.
Except as set forth above, the Trust hereby expressly waives promptness,
diligence, presentment, demand of payment, protest, notice of acceptance and any
other notices whatsoever, and any requirement that the Marketing Agent exhausts
any right, power or remedy or proceed or take any other action against (i) the
Sponsor under the Marketing Agent Agreement or in respect of any claim for
payment against the Sponsor or any of its assets or under any other agreement or
instrument referred to herein or (ii) any other Person under any other guarantee
of or claim for payment of the Obligation.
The obligations of the Trust under this Agreement shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Sponsor in respect of the
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Obligation is rescinded or must be otherwise restored by the Marketing Agent,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise.
Until final payment and satisfaction in full of the Obligation, the Trust hereby
waives all rights of subrogation or contribution, whether arising by contract as
set forth in Section 10.05 of the Indenture or operation of law (including,
without limitation, any such right arising under any bankruptcy, insolvency or
similar law) or otherwise by reason of any payment by it pursuant to the
provisions of this Agreement and further agrees with the Marketing Agent that
the Marketing Agent shall have no obligation whatsoever in respect of any such
payment by the Trust under this Agreement (including any obligation to repay to
the Trust any portion of such payment), and the Trust hereby irrevocably
releases the Marketing Agent from any such obligation.
The undertaking in this Agreement is a continuing undertaking, and shall apply
to the Obligation whenever arising.
3.3 Marketing Agent Indemnification. The Marketing Agent agrees to indemnify,
defend and hold harmless the Trust from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Trust 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 Trust
expressly for use in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Trust) 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. As of the date hereof, 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
for use in the Registration Statement or the Prospectus.
SECTION 4
MISCELLANEOUS
4.1 Amendment and Modification. This Agreement may be amended, modified or
supplemented only by a written instrument executed by each of the parties
hereto.
4.2 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.
4.3 Waiver of Compliance. Except as otherwise provided in this Agreement, any
failure of either 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 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.
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4.4 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.
4.5 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):
if to the Trustee, to:
The Bank of New York
0 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: ADR Administration
Telephone: [Please provide]
Facsimile: (000) 000-0000
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
e-mail, 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.
4.6 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 4.6 shall survive any termination of this
Agreement and the Related Agreements, in whole or in part.
4.7 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.
4.8 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.
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[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.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as trustee of the
streetTRACKS(R) GOLD TRUST
By:
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Name:
Title:
STATE STREET GLOBAL MARKETS, LLC
By:
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Name:
Title:
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