EXHIBIT 10.1
GLOBAL ACCOUNT TERMS
DEPOSIT ACCOUNT AGREEMENT
The Bank of New York, in its capacity as trustee of the CurrencyShares
Australian Dollar Trust, a trust formed under New York law (the "Customer" or
"Trust") and the London Branch of JPMorgan Chase Bank, N.A. (the "Bank")
undertake to comply with and be bound by the following Global Account Terms of
this Deposit Account Agreement (the "Agreement").
ESTABLISHING ACCOUNTS
1.1 The Customer's Australian Dollar-denominated, (i) interest-bearing account
(the "Interest Account") and (ii) non interest-bearing account ( the
"Non-Interest Account") (each individually the "Account" and collectively
the "Accounts") maintained with the Bank shall be subject to these Global
Account Terms (the "Account Terms") and the Account Application and the
Signature List executed by the Customer regarding the Accounts attached
hereto (together, the "Account Applications"); and, by continuing to use
the Accounts, the Customer acknowledges its acceptance of these Account
Terms and the relevant Account Applications.
1.2 Unless otherwise specified, the Customer will establish the Accounts as
principal. The Customer shall not transfer any of its rights and interests
in the Accounts nor create any form of security interest over such rights
and interests without the prior written consent of the Bank.
1.3 The Customer represents and warrants that it has power and capacity to open
and operate the Accounts, that the Account Terms and the relevant Account
Applications constitute valid and binding obligations of the Customer and
that the Customer has taken all necessary actions to duly authorize the
execution and delivery of the same.
SIGNATORIES
2.1 "Signatory" means a person named in the relevant Account Application (or
other analogous document under which the Customer authorises persons to
communicate with the Bank in relation to the Accounts) who is authorised to
act on behalf of the Customer at the time of the relevant Instruction (as
defined in Section 4.1) and in respect of the matters set out in clause 3
below.
2.2 The Bank may treat any Signatory as duly authorised to issue Instructions
until the Bank receives written notice from the Customer, after which the
Bank shall act promptly, that the Signatory no longer has the authority to
issue Instructions.
2.3 The Customer will provide specimen signatures (including specimens of
facsimile signatures and/or personal seals) to the Bank (in the Account
Application or otherwise) in the number and form required and will verify
the identity of each Signatory in a manner required by the Bank.
AUTHORITY OF SIGNATORIES
3.1 Each Signatory, subject to any written limitation received by the Bank from
the Customer, is authorised on behalf of the Customer to:
(a) open, operate and close the Accounts;
(b) appoint and remove Signatories;
(c) execute the Account Application(s) and any form of agreement relating
to communications, whether by telephone, telex, electronic or other
means;
(d) execute any agreements relating to overdrafts, borrowings or cash
management;
(e) draw, accept, endorse or discount cheques, drafts, bills of exchange,
notes and other instruments;
(f) overdraw the Accounts as may be permitted by the Bank;
(g) make arrangements with the Bank concerning periodic payments into or
out of the Accounts;
(h) advise the Bank of credits destined for the Customer's Account;
(i) place money on interest-bearing or term deposit with the Bank and
withdraw that money and accrued interest either on or before any
applicable maturity date;
(j) authorize and request the Bank to effect foreign exchange transactions
and purchase and/or sell treasury products for the account of the
Customer;
(k) deposit any property of the Customer with the Bank for safe keeping,
have access to and reclaim any property so deposited or give the Bank
Instructions in relation to it;
(l) execute guarantees, indemnities or other undertakings to the Bank in
relation to:
(i) missing documents;
(ii) guarantees, letters of credit or other undertakings given or to
be given by the Bank to or at the request of the Customer; or
(iii) anything else done or to be done by the Bank at the request of
the Customer;
(m) give the Bank any form of security over, or make any other
arrangements with the Bank concerning, any property of the Customer
including without limitation bills of exchange, bills of lading,
warehouse certificates, insurance policies and share and debenture
certificates;
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(n) countermand, revoke or amend Instructions; and
(o) give the Bank Instructions relating to any of the above.
INSTRUCTIONS
4.1 "Instruction" means a communication, including without limitation a cheque
or demand for payment, which (i) contains the information required by the
Bank to enable the Bank to give effect to the communication; (ii) is
received by the Bank in writing, by facsimile, tested or untested telex,
SWIFT, telephone, or via the Bank's electronic instruction system or such
other means as are for the time being agreed by the Customer and the Bank;
and (iii) the Bank believes in good faith to have been given by the
Customer.
4.2 The Customer is responsible for keeping and completing cheques and other
forms and documents and for issuing Instructions in a manner so as to
prevent unauthorised completion, alterations or additions. The Customer
shall not issue cheques which are post- dated and shall immediately notify
the Bank if it becomes aware that any of its cheques (whether completed or
blank) are lost or stolen.
4.3 If the Bank and the Customer at any time agree on a security procedure to
be used in relation to any category of communications (including
encryption), the Customer shall safeguard any test keys, passwords,
identification codes or other security or authentication devices, make them
available only to properly authorised persons and be fully responsible for
any use of such security procedure (whether authorised or unauthorised)
4.4 Nothing in this Clause 4 obligates the Bank to confirm Instructions which
appear to the Bank acting in good faith to have been given by the Customer.
AUTHORITY AND OBLIGATIONS OF THE BANK
5.1. The Bank is authorised and agrees to accept, honour and execute without
inquiry each Instruction which the Bank believes in good faith to have been
given by a Signatory and any other Instruction communicated by other means
which the Bank receives in strict accordance with any agreed security
procedure. Provided the Bank believes in good faith that an Instruction has
been given by a Signatory, where such an Instruction has been effected by
means of a facsimile signature, personal seal or chop, the Bank is
authorised to act on such Instruction, regardless of by whom the facsimile
signature, personal seal or chop was actually affixed. The Bank need not
inquire into the circumstances of any transaction.
5.2 The Bank may at its option use any means to confirm or clarify
Instructions, even if any agreed security procedure appears to have been
followed. If the Bank is not satisfied with any confirmation or
clarification, it may decline to honour the Instruction.
5.3 The Bank has established cut-off times for some categories of
communications, details of which are attached hereto as Addendum A. If an
Instruction is received by the Bank after its cut-off times, the Bank may
process the Instruction on the next day on which it is open for such
business. The Bank may process any Instruction through any of the payments
systems identified in Addendum A.
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5.4 Execution of Instructions will be subject to applicable law and the rules
of the payment system used, including those laws or rules concerning a
misdescribed or missing beneficiary, beneficiary's bank or intermediary
bank. The Bank may rely on the identifying number of any account,
intermediary or beneficiary's bank which appears in an Instruction as the
proper identification of the beneficiary, intermediary or beneficiary's
bank notwithstanding that the Instruction identifies an entity different
from the entity identified by name in the Instruction. The Bank may
complete or correct incomplete or inaccurate intermediary or beneficiary
bank details.
5.5 Due to the operations of the Trust, mid-month redemptions of shares of the
Trust could result in an Instruction that would require a withdrawal from
the Non-Interest Account in excess of the balance in such account. The Bank
shall honour such an Instruction without assessing an overdraft fee. They
Bank may charge customary interest, fees and other expenses for all other
overdrafts of the Non-Interest Account or the Interest Account.
5.6 Where execution of an Instruction requires the Bank to purchase or sell a
currency other than the currency of the Account on which the Instruction is
given, the Bank is authorised to purchase or sell the currency at a
commercially reasonable rate at the relevant time for the purchase or sale
of such currency taking into account the size and tenor of the transaction.
5.7 If the Customer chooses to confirm any Instruction, any confirmation must
be clearly marked as such and, if there is any discrepancy between an
Instruction and any confirmation, the terms of the Instruction shall
prevail.
DEPOSITS, AVAILABILITY OF FUNDS
6.1 The Customer undertakes that it will have good title to all items presented
to the Bank for deposit or for any other purpose. Money deposited or paid
into an Account will not be regarded as available until collected and
irrevocably received in cleared funds. The Customer requests that the Bank
accept without inquiry all cheques and other instruments presented for
deposit into the Account without checking whether they are valid, properly
endorsed or owned by the Customer.
6.2 As collecting bank, the Bank as agent for the Customer will deal with and
present the cheques and instruments in accordance with the custom and
practice of the country in which the cheques are collected.
6.3 If the Bank credits the Account in contemplation of receiving funds for the
Customer's credit and those funds are not actually received by the Bank, or
on the faith of a transaction which is subsequently set aside or revoked,
or if the Bank does not receive funds for the Customer's credit for value
on the date advised by or on behalf of the Customer, the Bank shall be
entitled to debit the Account of the Customer with the amount previously
credited and/or with any other charges incurred. If the Account becomes
overdrawn or further overdrawn as a result of such debit, the Customer will
pay on demand the overdrawn amount and interest on the overdrawn amount.
6.4 Bank reserves the right not to accept, and to return without interest to
the remitter of funds, the amounts received for deposit to the Interest
Account on any Bank business day, if the
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aggregate deposit liability of the Bank to the Trust following the deposit
of such amounts would exceed the Australian Dollar equivalent of $1.5
billion U.S. dollars calculated at the Federal Reserve Bank of New York
Noon Buying Rate (the "Noon Buying Rate") for the Australian Dollar or
another recognized market rate for the Australian Dollar if the Noon Buying
Rate is not available on the banking day such deposits are received by the
Bank.
6.5 The Bank shall notify the Customer and the Customer's sponsor if there are
extraordinary circumstances causing the Bank to reasonably expect that it
will be unable to accept Instructions for the withdrawal of money held in
the Accounts. Upon such notification, the Customer may determine, in its
sole discretion, to suspend generally or refuse orders to redeem shares of
the Trust. In such case, the Customer and the Bank shall consult with each
other and use good faith efforts to resume withdrawals as soon as possible.
6.6 Each day that orders are placed with and accepted by the Trust for the
purchase or redemption of shares in the Trust, the Trust shall notify the
Bank of the anticipated amounts in Australian Dollars that will be
deposited to, or withdrawn from, the Interest Account on the settlement
date for those orders.
INTEREST
7.1 Interest will accrue daily, in Australian Dollars, on all Australian Dollar
balances in the Interest Account only and will be credited monthly, in
Australian Dollars, to the Non-Interest Account. No interest will be
earning on balances in the Non-Interest Account. The Bank agrees that it
will endeavour at all times to pay a competitive interest rate on all
Australian Dollar balances in the Interest Account. As of the date of this
Agreement, the Bank has agreed to pay interest at a rate equal to
___________. The Bank may change the rate based upon changes in the British
Bankers Association LIBOR Overnight rate ("BBA rate"), other market
conditions or the Bank's liquidity needs The Bank will notify the Customer
of the interest rate applied each Bank business day after the close of the
Bank business day. The Bank will endeavour to provide to the Customer and
Customer's sponsor advance notice whenever the Bank intends to change the
interest rate on the Interest Account, except where there are unforeseen
changes in conditions or significant changes in the Trust's balances in the
Interest Account. If the Bank at any time pays an unsatisfactory interest
rate on the Interest Account, the Customer's sole recourse will to be to
withdraw the Australian Dollar balance from the Interest Account, terminate
the Deposit Account Agreement and close the Accounts.
ACCOUNT INFORMATION
8.1 The Bank will issue, on a daily basis, balance and transactions reports for
the Accounts for the previous banking day. Bank will also send a periodic
statement of account for the Accounts as agreed with the Customer.
8.2 The Customer will ensure that the statements, confirmations and advices it
receives from the Bank are examined by a responsible person on behalf of
the Customer within a reasonable time of receipt and, thereupon, Customer
shall promptly notify the Bank of any mistake or discrepancy of which the
Customer becomes aware from such statements, confirmations and
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advices. The Bank shall not be responsible for the Customer's reliance on
balance, transaction or related information which is subsequently updated
or corrected or for the accuracy or timeliness of information supplied by
any third party to the Bank.
OTHER DOCUMENTATION
9.1. These Account Terms and the Account Applications replace any existing
agreements relating to the subject matter hereof or thereof, with effect
from the date the Bank receives the relevant Account Application or
analogous document in form and substance satisfactory to the Bank.
9.2 These Account Terms are in addition to any future agreement between the
Bank and the Customer (including without limitation any agreement relating
to the provision of electronic banking services, specific payment or cheque
services or custody services) and if there is an inconsistency between
these Account Terms and any such other agreement, any such other agreement
will prevail for the purposes of the particular account or service which is
the subject of such other agreement. If there is an inconsistency between
these Account Terms and any terms of the relevant Account Application(s),
the terms of the Account Application(s) shall prevail for the purposes of
the Account(s) which are subject to such Account Application(s).
REVERSALS
10.1 Unless otherwise expressly provided, all Instructions shall continue in
full force and effect until cancelled or superseded. Instructions may be
reversed, amended, cancelled or revoked by the Customer only with the
consent of the Bank. That consent shall not be withheld unless the Bank
reasonably determines that it would not be possible to give effect to any
reversal, amendment or revocation, or the Bank has entered into other
transactions or otherwise materially changed its position as a result of
receiving such Instructions.
10.2 The Customer may stop payment of a cheque at any time provided the Bank
branch on which the cheque is drawn receives an Instruction to that effect
from the Customer prior to the Bank honouring or arranging to honour the
cheque concerned.
10.3 If the Bank erroneously posts or fails to post an entry to the Account the
Bank may reverse or make a correcting entry and the provisions of clause
6.3 shall apply to any resulting overdraft.
FEES AND CHARGES
11.1 The Bank may, at its option, invoice the Customer or debit the Account for
services or for handling telecommunications or messages dispatched at the
Customer's request, and other out of pocket costs incurred by it for the
Customer's account in accordance with its fee arrangements in place from
time to time. Attached hereto and marked "Fee Schedule" is a copy of the
current fees. All payments to be made to the Bank shall be in full, without
set-off or counterclaim and free of any deductions or withholdings on
account of any tax or otherwise. The Bank will forward to the Customer a
statement in respect of each Account detailing all interest (if applicable)
and fees charged to that Account.
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11.2 The Customer agrees to pay or reimburse the Bank for any taxes, levies,
imposts, deductions, charges, stamp, transaction and other duties and
withholdings (together with any related interest, penalties, fines, and
expenses in connection with them) in connection with the Accounts
(including payments or receipts to the Accounts) except if imposed on the
overall net income of the Bank.
REPAYMENT OF OVERDRAFTS
12.1 In the event that there is an overdraft of the Non-Interest Account (as
provided for in Section 5.5 hereof), any monies paid into the Non-Interest
Account will first be used to credit such overdraft.
INDEMNITY AND LIABILITY
13.1 The Customer shall fully indemnify the Bank and its employees, officers and
directors and each of the affiliates and subsidiaries of JPMorgan Chase
Bank, N.A. on demand, at all times against any losses, costs, claims,
damages, liabilities and expenses (including without limitation legal fees)
which it or they suffer or incur directly or indirectly as a result of (i)
the Customer's breach of these Account Terms, (ii) the Bank acting on what
it believed in good faith to be the Customer's communication or Instruction
or because of anything done under or as contemplated by these Account
Terms. This indemnity is in addition to and not in substitution for any
other indemnity or right in favour of the Bank given by law or otherwise
and shall not be affected or discharged by any thing.
13.2 (i) Subject to clause 13.2 (ii) below, the Bank shall be liable only for
direct loss or damage which the Customer suffers or incurs arising from the
Bank's gross negligence or willful misconduct and shall not be liable for
any other loss or damage of any nature.
(ii) The Bank shall not in any event be liable for loss of business or
profits or goodwill or any indirect or consequential or punitive or special
loss or damage, in each case whether or not reasonably foreseeable, even if
the Bank has been advised of the likelihood of such loss or damage and
whether arising from negligence, breach of contract or otherwise.
(iii) The provisions of clause (i) and (ii) above shall not apply to the
extent that the loss or damage is caused by fraud on the part of the Bank.
13.3 The Bank of New York enters into this Agreement only in its capacity as
trustee and in no other capacity, and in no circumstances shall The Bank of
New York have any liability under or in connection with this Agreement
other than as trustee of the Trust. Any liability of the Trustee arising
under or in connection with this Agreement is limited to, and can be
enforced against the Trustee only to the extent to which such liability can
be satisfied out of, the assets of the Trust which are available under the
terms of the trust agreement governing the Trust to meet such liability at
the time the amount in respect of such liability is claimed against the
Trustee. This limitation on the Trustee's liability applies despite any
other provision of this Agreement and extends to all liabilities and
obligations of the Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related to this
Agreement, except that the Trustee will be held
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liable individually for its fraud or willful misconduct in connection with
these Account Terms.
GOVERNING LAW AND JURISDICTION
14.1 These Account Terms, the relevant Account Application and the rights and
obligations of the Customer and the Bank in respect of the Accounts shall
be governed by, performed and construed in accordance with the laws of
England.
14.2 If any of these Account Terms is unenforceable or illegal in any
jurisdiction, that will not affect the rest of the Account Terms in that
jurisdiction, or any of the Account Terms in any other jurisdiction.
14.3 In relation to the Accounts, the courts of England shall have non-exclusive
jurisdiction to settle any disputes which arise out of or are connected
with these Account Terms, the relevant Account Application and/or the
relevant Account. This clause does not prevent the Bank or Customer from
taking proceedings in the United States.
RECORDING
15.1 The Bank may record telephone conversations in connection with an
Instruction. At the Customer's request and cost the Bank will supply a copy
or transcript of any such recording to the Customer. The recording or
transcript may be used in resolving any dispute between the Bank and the
Customer. Recordings and any transcript shall be the property of the Bank.
15.2 The Bank may microfilm or electronically record any document and subject to
any law affecting the relevant Account may destroy the original of such
documents. Subject to the provisions of applicable law the Bank and the
Customer shall be entitled to rely on any such stored document in any legal
proceeding or for any other purpose.
DISCLOSURE
16.1 The Customer authorises the Bank to retain an affiliated company and/or any
other agents to perform data processing, collection and other services
which the Bank considers necessary or desirable for the Bank. The Bank
reserves the right to modify or terminate its arrangements with its agents
at any time.
16.2 The Customer agrees that Instructions and information concerning the
Accounts, the Customer and transactions to be disclosed in accordance with
this clause 16 may be transmitted across national boundaries and through
networks including those owned and operated by third parties.
16.3 The Customer authorises the Bank to disclose information concerning the
Accounts, transaction or the Customer where, (i) in the Bank's view, the
disclosure is necessary or desirable for the purpose of allowing the Bank
to perform its duties and exercise its powers and rights hereunder; (ii)
the disclosure is to a proposed assignee of the rights of the Bank in
respect of the Account; (iii) the disclosure is to a branch, affiliate,
subsidiary, employee or agent of JPMorgan Chase & Co. or to its auditors or
legal advisers; (iv) the disclosure is to
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the auditors of the Customer; or (v) as may be otherwise required by law,
irrespective of whether the disclosure is made in the jurisdiction in which
the Customer is resident, the Account is kept, the transaction conducted or
elsewhere.
FORCE MAJEURE
17.1 The Bank shall have no liability for any damage, loss, expense or liability
of any nature which the Customer may suffer or incur, to the extent caused
by an act of God, fire, flood, civil or labour disturbance, war or
terrorism, act of any governmental authority or other act or threat of any
authority (de jure or de facto), legal constraint (including attachments or
other legal process), fraud or forgery (other than on the part of the Bank
or any of its directors, officers or employees), malfunction of equipment
(including, without limitation, any computer or related software) except
where such malfunction is primarily attributable to the Bank's gross
negligence in maintaining the equipment or software, failure of or the
effect of rules or operations of any funds transfer system, inability to
obtain or interruption of communications facilities, or any cause beyond
the reasonable control of the Bank (including, without limitation, the
non-availability of appropriate foreign exchange);
17.2 Any amount standing to the credit of the Account with the Bank is payable
exclusively at the branch at which the Account is held: however, payment
may be suspended from time to time in order to comply with any law,
regulation, governmental decree or similar order for the time being
affecting the Bank, its officers, employees, affiliates, agents or
correspondents.
NOTICES
18.1 Any communication, other than an Instruction, shall be in writing unless
otherwise agreed and may be sent by personal delivery, facsimile, telex,
SWIFT or post, addressed, in the case of communications from the Customer
to the Bank, to the branch of the Bank where the Account is maintained,
and, in the case of communications from the Bank to the Customer, to the
address notified by the Customer to the Bank from time to time. Any
communication will only be effective when actually received.
CLOSURE/TERMINATION
19.1 The Bank has the right to close an Account at any time by not less than
ninety days notice in writing addressed to the Customer at its most recent
address as advised by the Customer to the Bank. Before or on the expiry of
such notice the Bank, will transfer any balance in the Account in
accordance with the Customer's Instructions. On the expiry of such notice,
the Bank's obligations in respect of the Account shall cease. However, any
such closure or termination shall not affect the Customer's liabilities to
the Bank arising prior to or after such termination or closure, all of
which shall continue in full force and effect. In the absence of such
Instructions the Bank may transfer the balance to an unclaimed moneys
account.
MISCELLANEOUS
20.1 The expressions "Bank" and "Customer" when used herein shall include any
successor of the Bank or the Customer, as applicable, and "successor" means
an assignee or successor of
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JPMorgan Chase Bank, N.A., or of the CurrencyShares Australian Dollar
Trust, as applicable, or any person who, under the laws of its jurisdiction
of incorporation or domicile, has assumed the rights and obligations of
JPMorgan Chase Bank, N.A., or of the CurrencyShares Australian Dollar
Trust, as applicable, hereunder or to which under such laws the same have
been transferred.
20.2 If these terms are translated into, or appear in a language other than
English, the English language version shall govern and control.
20.3 Headings are for convenience only and shall not affect the interpretation
of this document.
20.4 The Customer acknowledges that deposits held in a branch of the Bank
located outside of the U.S. are not insured by the Federal Deposit
Insurance Corporation, are subject to cross-border risks and may enjoy a
lesser preference, as compared to deposits held in the U.S., in the event
the Bank should be liquidated, insolvent or placed into receivership or
other proceeding for the benefit of creditors.
20.5 These Account Terms may be enforced only by the Bank or the Customer or
such party's successors and permitted assigns. Notwithstanding the
foregoing, but subject to the prior written consent of the Bank, each
employee, officer and director of the Bank and each of the affiliates and
subsidiaries of JPMorgan Chase Bank, N.A. may enforce the terms of clause
13. The Bank and the Customer may at any time, by agreement, rescind these
Account Terms or vary them without the consent of such employees, officers,
directors or the affiliates and subsidiaries of JPMorgan Chase Bank, N.A.
20.6 (i) The Bank will collect information about the Customer and the Customer's
employees and agents which may constitute personal data for the purposes of
the Data Protection Act 1998 (the "Act") and other relevant data protection
legislation (such as, without limitation, authorised signatory details).
Such personal data may be collected by or on behalf of the Bank in a number
of ways (the "Collection Methods"), including via Account Applications or
other analogous documents, via applications or documentation relating to
the provision to or use by the Customer of electronic banking services, or
specific payment or cheque services, via the Customer's use of such
electronic banking services, or specific payment or cheque services, and
via other correspondence or communications between the Customer and the
Bank.
(ii) The Bank will use personal data collected by it or on its behalf via
the Collection Methods for the following purposes (the "Purposes"); namely,
for the purpose of providing the services to the Customer in accordance
with the Global Account Terms and Account Applications, for otherwise
administering the Account(s), for providing the Customer with services such
as electronic banking services, or specific payment or cheque services, for
the Bank's internal administrative purposes, for contacting the Customer
about products and services which the Bank or other members of the Bank's
group offer which the Bank believes may be of interest to the Customer, and
as may be otherwise required by law or applicable regulatory or
governmental authorities, and such purposes may include transfer of such
personal data outside of the United Kingdom to the Bank's subsidiaries or
other
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connected companies or to other organisations as may be required by law or
other applicable regulatory or governmental authorities.
(iii) The Customer shall ensure that any disclosure of personal data made
by it or by its employees or agents via the Collection Methods which relate
to the Customer's employees or agents is only made following notification
by the Customer to data subjects of the Purposes for which their personal
data may be processed by or on behalf of the Bank, and is otherwise fair
and lawful.
[Signatures on following page]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of
________, 2006.
CURRENCYSHARES AUSTRALIAN DOLLAR TRUST
BY THE BANK OF NEW YORK, IN ITS CAPACITY
AS TRUSTEE OF THE CURRENCYSHARES
AUSTRALIAN DOLLAR TRUST AND NOT IN ITS
INDIVIDUAL CAPACITY
By
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Name:
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Title:
---------------------------------
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
By:
------------------------------------
Name:
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Title:
---------------------------------
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