EX-10.10






Exhibit 10.10




EXECUTION COPY




REIMBURSEMENT AGREEMENT




     REIMBURSEMENT AGREEMENT (this “Agreement”), dated as of November 16, 2004, between (i) The
Bank of New York, not in its individual capacity, but solely as trustee (the “Trustee”) of the
streetTRACKS® 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”).



WITNESSETH:




     WHEREAS, the Trustee is party to the Indenture pursuant to which the Trust will issue
streetTRACKS® Gold Shares (the “Shares”), which represent units of fractional undivided beneficial
interest in and ownership of the Trust, upon the deposit of gold with HSBC Bank USA, N.A., as
custodian of the Trust;



     WHEREAS, the Sponsor has filed with the US. 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
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 (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 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.





 









 







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

2 Hanson Place

Brooklyn, New York 11217

Attention: ADR Administration

Telephone: (718) 315-4493

Facsimile: (718) 315-4881



if to the Marketing Agent, to:



State Street Global Markets, LLC

One Lincoln Street

Boston, Massachusetts 02111

Attention: Gus Fleites

Telephone: 617 664 4489

Facsimile: 617 664 2669



and



State Street Global Markets, LLC

One Lincoln Street

Boston, Massachusetts 02111

Attention: Bob Guerin

Telephone: 617 664 5028

Facsimile: 617 664 2669





 









 







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 prejudgment 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.




[Signature Page Follows]




 









 





     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® GOLD TRUST	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Alfred Irving
 

Alfred Irving
	 	 
	 

	 	Title:
	 	Vice-President	 	 
	 
	 	 	 	 	 	 
	 	 	STATE STREET GLOBAL MARKETS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Catherine R. Norcott
 

Catherine R. Norcott
	 	 
	 

	 	Title:
	 	Managing Director