Exhibit 1.1
[ Shares]
EQUITY GOLD TRUST
DISTRIBUTION AGREEMENT
_________ __, 2003
DISTRIBUTION AGREEMENT
, 2003
UBS Warburg LLC
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Ladies and Gentlemen:
World Gold Trust Services, LLC, a Delaware limited liability company
(the "Sponsor"), proposes to sponsor the formation of a trust, known as "Equity
Gold Trust" (the "Trust") pursuant to the laws of the State of New York. The
Trustee will issue to UBS Warburg LLC, a Delaware limited liability company
("UBS Warburg"), an aggregate of ___________ units of fractional undivided
beneficial interest in and ownership of the Trust (the "Shares") upon the
deposit of gold bullion by UBS Warburg with HSBC Bank USA as custodian of the
Trust in an aggregate amount of [ ] ounces of gold bullion, (equal to [ ]
Baskets as described in the Prospectus, the "Initial Deposit"). The Shares are
described in the Prospectus which is referred to below.
The Sponsor has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (Registration No. ____)
including a prospectus, relating to the Shares. The Sponsor has furnished to
you, for use by UBS Warburg, copies of one or more preliminary prospectuses
(constituting a part of the Registration Statement, each such preliminary
prospectus being herein called a "Preliminary Prospectus") relating to the
Shares and the other shares registered thereby. Except where the context
otherwise requires, the registration statement, as amended when it became or
becomes effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is herein
called the "Registration Statement," 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, is
herein called the "Prospectus." As used herein, "business day" shall mean a day
on which the NYSE is open for trading.
The Sponsor, on its own behalf and in its capacity as sponsor of the
Trust, and UBS Warburg agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Trust agrees to
issue and sell to UBS Warburg and UBS Warburg agrees to purchase from the Trust
the number of Shares set forth above at a purchase price equal to the Initial
Deposit. The Sponsor and the Trust are advised by UBS Warburg that UBS Warburg
intends to make a public offering of its Shares as soon after the effective date
of the Registration Statement, and on such terms, as in its judgment is
advisable.
In connection with its purchase of the Shares as provided in this
Agreement, the Sponsor agrees to pay UBS Warburg a fee of $_________ at the time
of purchase (as defined below).
2. Payment and Delivery. Pursuant to the Trust Indenture of Equity Gold
Trust between the Sponsor and HSBC Bank USA, as trustee (the "Trust Indenture"),
dated the date hereof, delivery of the
Initial Deposit shall be made to the account of the Trust, against delivery of
the certificates for the Shares to UBS Warburg through the facilities of The
Depository Trust Company ("DTC") for the account of UBS Warburg. The Initial
Deposit shall be made at [ ], New York City time, on _______________, 2003
(unless another time shall be agreed to by UBS Warburg and the Sponsor). The
time of such payment and delivery is hereinafter sometimes called "the time of
purchase." Electronic transfer of the Shares shall be made to UBS Warburg at the
time of purchase in such names and in such denominations as it shall specify.
Deliveries of the documents described in Section 6 hereof with respect
to the purchase of Shares shall be made at the offices of Capital Printing
Systems, Two Grand Central Tower, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at [ ], New York City time, on the date of the closing.
3. Representations and Warranties of the Sponsor. The Sponsor, on its own
behalf and in its capacity as sponsor of the Trust, represents and warrants to
and agrees with UBS Warburg that:
(a) at the time of purchase, the Registration Statement shall have
become effective and no stop order of the Commission with respect thereto
shall have been issued and no proceedings for such purpose shall have been
instituted or, to the Sponsor's knowledge after due inquiry, will then be
contemplated by the Commission; each Prospectus, at the time of filing
thereof, complied in all material respects to the requirements of the Act
and the last Prospectus distributed in connection with the offering of the
Shares did not, as of its date, and does not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; the Registration
Statement complies and will comply when it becomes effective and at the
time of purchase, in all material respects with the requirements of the Act
and the Prospectus will comply, as of its date and at the time of purchase,
in all material respects with the requirements of the Act and any statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been and will be so described or filed;
the conditions to the use of Form S-1 have been satisfied; the Registration
Statement does not and will not when it becomes effective and at the time of
purchase contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus will not, as of its
date and at the time of purchase, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Sponsor makes no warranty or representation with respect to any statement
contained in any Preliminary Prospectus, the Registration Statement or any
Prospectus in reliance upon and in conformity with information concerning
UBS Warburg and furnished in writing by or on behalf of UBS Warburg to the
Sponsor expressly for use in the Registration Statement or such Prospectus;
and the Sponsor and the Trust have not distributed and will not distribute
any offering material in connection with the offering or creation of the
Shares other than the Registration Statement or the then most recent
Prospectus;
(b) [as of the time of purchase,] the statement of financial position is
as set forth in the section of the Registration Statement and the Prospectus
entitled ["Statement of Financial Condition"];
(c) as of the time of purchase, the Trust has been duly formed and is
validly existing as an investment trust under the laws of the State of New
York, as described in the Registration
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Statement and the Prospectus, and has all power and authority to issue and
deliver the Shares as contemplated herein and to execute and deliver this
Agreement;
(d) the Sponsor has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with full power and authority to conduct its business as
described in the Registration Statement and the Prospectus;
(e) the Sponsor is duly qualified and is in good standing in each
jurisdiction where the conduct of its business requires such qualification;
and the Trust is not required to so qualify in any jurisdiction;
(f) complete and correct copies of the Trust Indenture, and any and
all amendments thereto, have been delivered to UBS Warburg, and no changes
thereto have been made subsequent to the date hereof and prior to the time
of purchase;
(g) at the time of purchase, the Shares will have been duly and
validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights,
rights of first refusal and similar rights;
(h) at the time of purchase, the Shares will conform in all material
respects to the description thereof contained in the Registration Statement
and the Prospectus and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and delivered by
the Sponsor;
(j) neither the Sponsor nor the Trust is in breach or violation of or
in default under (nor has any event occurred which with notice, lapse of
time or both would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) its respective
constitutive documents, or any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Sponsor or
the Trust is a party or by which either of them or any of their properties
may be bound or affected, and the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares and the consummation of
the transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (nor constitute any
event which with notice, lapse of time or both would result in any breach
or violation of or constitute a default under), respectively, the amended
and restated limited liability company agreement of the Sponsor or the
Trust Indenture, or any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Sponsor or the Trust
is a party or by which either of them or any of their respective properties
may be bound or affected, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Sponsor or the Trust;
(k) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares or the consummation by the Sponsor and the
Trust of the transactions contemplated hereby other than registration of
the Shares under the Act, which has been or will be effected, and any
necessary qualification under
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the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by UBS Warburg or under the rules and regulations
of the National Association of Securities Dealers (the "NASD");
(l) except as set forth in the Registration Statement and the
Prospectus [, or as disclosed in writing to UBS Warburg prior to the date
hereof,] (i) no person has the right, contractual or otherwise, to cause
the Trust to issue or sell to it any Shares or other equity interests of
the Trust, and (ii) no person has the right to act as an underwriter or as
a financial advisor to the Trust in connection with the offer and sale of
the Shares, in the case of each of the foregoing clauses (i), and (ii),
whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or otherwise;
no person has the right, contractual or otherwise, to cause the Sponsor on
behalf of the Trust to register under the Act any other equity interests of
the Trust, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise;
(m) each of the Sponsor and the Trust has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and approvals
from other persons, in order to conduct its respective business; neither
the Sponsor nor the Trust is in violation of, or in default under, or has
received notice of any proceedings relating to revocation or modification
of, any such license, authorization, consent or approval or any federal,
state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Sponsor or the Trust;
(n) all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed as required;
(o) except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Sponsor's knowledge after due
inquiry, contemplated to which the Sponsor or the Trust, or (to the extent
that is or could be material in the context of the offering and sale of the
Shares) any of their respective directors or officers, is or would be a
party or of which any of their respective properties are or would be
subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency;
(p) [Deloitte & Touche LLP, whose report on the audited financial
statements of the Trust is filed with the Commission as part of the
Registration Statement and the Prospectus, are independent public
accountants as required by the Act;]
(q) the audited financial statement included in the Prospectus,
together with the related notes and schedules, presents fairly the
financial position of the Trust as of the date indicated and has been
prepared in compliance with the requirements of the Act and in conformity
with generally accepted accounting principles; there are no financial
statements (historical or pro forma) that are required to be included in
the Registration Statement and the Prospectus that are not included as
required; and the Trust does not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet
obligations), not disclosed in the Registration Statement and the
Prospectus;
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(r) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a prospective
material adverse change affecting the Sponsor or the Trust, (ii) any
transaction which is material to the Sponsor or the Trust taken as a whole,
(iii) any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Sponsor or the Trust, which is material to
the Trust, (iv) any change in the Shares or outstanding indebtedness of the
Sponsor or the Trust or (v) any dividend or distribution of any kind
declared, paid or made on the Shares;
(s) the Trust is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(t) except as set forth in the Registration Statement and the
Prospectus, the Sponsor and the Trust own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information
described in the Registration Statement and the Prospectus as being owned
or licensed by them or which are necessary for the conduct of their
respective businesses, (collectively, "Intellectual Property"); (i) there
are no third parties who have or, to the Sponsor's or the Trust's knowledge
after due inquiry, will be able to establish rights to any Intellectual
Property, except for the ownership rights of the owners of the Intellectual
Property which is licensed to the Sponsor or the Trust; (ii) there is no
infringement by third parties of any Intellectual Property; (iii) there is
no pending or threatened action, suit, proceeding or claim by others
challenging the Sponsor's or the Trust's rights in or to any Intellectual
Property, and the Sponsor and the Trust are unaware of any facts which
could form a reasonable basis for any such claim; (iv) there is no pending
or threatened action, suit, proceeding or claim by others challenging the
validity or scope of any Intellectual Property, and the Sponsor and the
Trust are unaware of any facts which could form a reasonable basis for any
such claim; (v) there is no pending or threatened action, suit, proceeding
or claim by others that the Sponsor or the Trust infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Sponsor and the Trust are unaware of
any facts which could form a reasonable basis for any such claim; (vi)
there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the Intellectual
Property; [and (vii) there is no prior art that may render any patent
application owned by the Sponsor or the Trust of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and Trademark
Office];
(u) all tax returns required to be filed by the Sponsor have been
filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions
to tax or penalties applicable thereto due or claimed to be due from such
entities have been paid; and the Trust is not subject to any such filing or
payment obligations;
(v) neither the Sponsor nor the Trust have sent or received any
communication regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in, or filed as an exhibit
to, the Registration Statement, and no such termination or non-renewal has
been threatened by the Sponsor or the Trust or, to the Sponsor's or the
Trust's knowledge, any other party to any such contract or agreement;
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[(w) the Sponsor maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; and (iii) access to
assets is permitted only in accordance with management's general or
specific authorization;]
(x) [on behalf of the Trust, the Sponsor has established and maintains
disclosure controls and procedures (as such term is defined in Rule 13a-14
and 15d-14 under the Exchange Act of 1934 (the "Exchange Act"), giving
effect to the rules and regulations, and SEC staff interpretations (whether
or not public), thereunder)); such disclosure controls and procedures are
designed to ensure that material information relating to the Trust, is made
known to the Sponsor, and such disclosure controls and procedures are
effective to perform the functions for which they were established; on
behalf of the Trust, the Sponsor has been advised of: (i) any significant
deficiencies in the design or operation of internal controls which could
adversely affect the Trust's ability to record, process, summarize, and
report financial data; and (ii) any fraud, whether or not material, that
involves management or other employees who have a role in the Trust's
internal controls; any material weaknesses in internal controls have been
identified for the Trust's auditors;] [SUBJECT TO DISCUSSION WITH SEC
STAFF]
(aa) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Sponsor believes to be reliable and accurate, and the
Sponsor has obtained the written consent to the use of such data from such
sources to the extent required;
(bb) neither the Sponsor, nor the Trust, nor any of the Sponsor's
directors, members, officers, affiliates or controlling persons (but
excluding the members of the World Gold Council and their controlling
persons) has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of
the price of any security or asset of the Trust to facilitate the sale or
resale of the Shares; and
(cc) to the Sponsor's knowledge after due inquiry, [except as
disclosed in writing to UBS prior to the date hereof,] there are no
affiliations or associations between any member of the NASD and any of the
Sponsor's officers, directors or 5% or greater securityholders, except as
set forth in the Registration Statement and the Prospectus. [CONFIRM
CONCEPT OF NASD]
In addition, any certificate signed by any officer of the Sponsor and
delivered to UBS Warburg or counsel for UBS Warburg in connection with the
offering of the Shares shall be deemed to be a representation and warranty by
the Sponsor, as the case may be, as to matters covered thereby, to UBS Warburg.
4. Certain Covenants of the Sponsor. The Sponsor, on its own behalf and in
its capacity as sponsor of the Trust, agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as UBS Warburg may reasonably
designate and to maintain such qualifications in effect so long as UBS
Warburg may request for the distribution of the Shares not to exceed 90
days; provided that the Trust shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any
such jurisdiction (except service of process with respect to the
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offering and sale of the Shares); and to promptly advise UBS Warburg of the
receipt by the Sponsor or the Trust of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to UBS Warburg, as soon as practicable after the
Registration Statement becomes effective, and thereafter from time to time
to furnish to UBS Warburg, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Sponsor or the Trust shall
have made any amendments or supplements thereto after the effective date of
the Registration Statement) as UBS Warburg may request for the purposes
contemplated by the Act; in case UBS Warburg is required to deliver a
prospectus after the nine-month period referred to in Section 10(a)(3) of
the Act in connection with the sale of the Shares, the Trust will prepare,
at its expense, promptly upon request such amendment or amendments to the
Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) the Sponsor and the Trust will endeavor to cause the
Registration Statement to become effective (i) on the next business day
following the date hereof and (ii) on or before the time of purchase and
the Sponsor will advise UBS Warburg promptly and, if requested by UBS
Warburg, will confirm such advice in writing when the Registration
Statement and any post-effective amendment thereto has become effective,
and (iii) upon receipt of request from UBS Warburg therefor, to file a
post-effective amendment removing any reference to UBS Warburg thereunder;
(d) to advise UBS Warburg promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
UBS Warburg promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and to provide UBS Warburg and UBS
Warburg's counsel copies of any such documents for review and comment a
reasonable amount of time prior to any proposed filing and to file no such
amendment or supplement to which UBS Warburg shall object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and
any information statement required to be filed by the Trust with the
Commission in order to comply with the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; and to
provide UBS Warburg with a copy of such reports and statements and other
documents to be filed by the Trust pursuant to Section 13, 14 or 15(d) of
the Exchange Act during such period within a reasonable amount of time prior
to any proposed filing, and to promptly notify UBS Warburg of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to advise UBS Warburg promptly of the happening of any event
within the time during which a prospectus relating to the Shares is
required to be delivered under the Act which could require the making of
any change in the Prospectus then being used so that the Prospectus would
not include an untrue statement of material fact or omit to state a
material fact necessary to
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make the statements therein, in the light of the circumstances under which
they are made, not misleading, and, during such time, subject to Section
4(d) hereof, to prepare and furnish, at the Sponsor's expense, to UBS
Warburg promptly such amendments or supplements to such Prospectus as may
be necessary to reflect any such change;
(h) [to make generally available to its shareholders, and to deliver
to UBS Warburg, an [earnings statement] of the Trust (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable
after the termination of such twelve-month period but not later than ,
2004;] [SUBJECT TO DISCUSSIONS WITH SEC STAFF]
(i) [to furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flow of each of the
Trust and the Sponsor for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants);] [SUBJECT TO DISCUSSIONS WITH SEC STAFF]
(j) to furnish to UBS Warburg two copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto);
(k) [to furnish to UBS Warburg promptly for a period of one year from
the date of this Agreement (i) copies of any reports, proxy statements, or
other communications which the Trust shall send to its shareholders or
shall from time to time publish or publicly disseminate, (ii) copies of all
annual, quarterly and current reports filed with the Commission on Forms
[10-K, 10-Q and 8-K], or such other similar forms as may be designated by
the Commission, (iii) copies of documents or reports filed with any
national securities exchange on which any class of securities of the Trust
is listed, and (iv) such other information as UBS Warburg may reasonably
request regarding the Trust;] [SUBJECT TO DISCUSSIONS WITH SEC STAFF]
(l) to pay all costs, expenses, fees and taxes in connection with (i)
the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to UBS Warburg
(including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares including any stock or transfer taxes and
stamp or similar duties payable upon the sale, issuance or delivery of the
Shares to UBS Warburg, (iii) the producing, word processing and/or printing
of this Agreement, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to UBS Warburg and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state or foreign
laws and the determination of their eligibility for investment under state
law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for UBS Warburg) and the printing and furnishing
of copies of any blue sky surveys or legal investment surveys to UBS
Warburg, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NYSE and any registration
thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the legal fees and filing
fees and other disbursements of counsel to UBS Warburg, (vii) the fees and
disbursements of the Custodian (as defined in the Trust Indenture),
transfer agent or registrar for the Shares, (viii) the costs and expenses
of the Trust relating to presentations or meetings undertaken in connection
with the marketing of the offering and sale of the Shares to prospective
investors and UBS Warburg's sales forces, including, without limitation,
expenses associated with the
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production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Sponsor or the
Trust and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (ix) the performance of the Sponsor's
other obligations hereunder;
(m) to use its best efforts to cause the Shares to be listed on the
NYSE; and
(n) to maintain a Custodian (as defined in the Trust Indenture) and an
orderly procedure for the transfer and register of the Shares.
5. Reimbursement of Underwriter's Expenses. The Sponsor shall, in addition
to paying the amounts described in Section 4(l) hereof, reimburse UBS Warburg
for all of its out-of-pocket expenses, including the fees and disbursements of
its counsel, up to $[ ].
6. Conditions of UBS Warburg's Obligations. The obligations of UBS Warburg
hereunder are subject to the accuracy of the representations and warranties
contained herein on the date hereof, at the time of purchase, and the
performance by the Sponsor of its obligations hereunder and to the following
additional conditions precedent:
(a) The Sponsor shall furnish to UBS Warburg at the time of purchase
an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Sponsor,
addressed to UBS Warburg, and dated the time of purchase and in form and
substance satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for UBS Warburg,
stating that:
(i) the Trust is validly existing as an investment trust under
the laws of the State of New York, as described in the Registration
Statement and the Prospectus, and has all power and authority to issue
and deliver the Shares as contemplated herein and to execute and
deliver this Agreement;
(ii) the Sponsor has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, with full corporate power and authority to conduct
its business as described in the Registration Statement and the
Prospectus and to execute and deliver this Agreement;
(iii) the Sponsor is duly qualified and is in good standing in
each jurisdiction where the conduct of its business requires such
qualification;
(iv) this Agreement has been duly authorized, executed and
delivered by the Sponsor;
(v) the Shares issuable hereunder, when issued in accordance with
the terms hereof will have been duly authorized and validly issued and
fully paid and non-assessable;
(vi) the Shares conform to the description thereof contained in
the Registration Statement and the Prospectus;
(vii) the Registration Statement and the Prospectus (except
as to the financial statements and schedules and other financial and
statistical information
-9-
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act;
(viii) the Registration Statement has become effective under the
Act and, to such counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the Act and any
required filing of the Prospectus and any supplement thereto pursuant
to Rule 424 under the Act has been made in the manner and within the
time period required by such Rule 424;
(ix) no approval, authorization, consent or order of or filing
with any federal, or New York State governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares and consummation by the
Sponsor of the transactions contemplated hereby other than
registration of the Shares under the Act (except such counsel need
express no opinion as to any necessary qualification under the state
securities or blue sky laws of any state or the laws of any
jurisdictions outside the United States);
(x) the execution, delivery and performance of this Agreement by
the Sponsor, the issuance and delivery of the Shares by the Trust and
the consummation by the Sponsor and the Trust of the transactions
contemplated hereby do not and will not conflict with, result in any
breach or violation of or constitute a default under (nor constitute
any event which with notice, lapse of time or both would result in any
breach or violation of or constitute a default under) the amended and
restated limited liability company agreement of the Sponsor or the
Trust Indenture, or any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument known to such counsel
after reasonable (based on a certificate of an officer of the Sponsor)
investigation to which the Sponsor or the Trust is a party or by which
either of them or any of their respective properties may be bound or
affected, or any federal, or New York State law, regulation or rule or
any decree, judgment or order applicable to the Sponsor or the Trust
and known to such counsel;
(xi) to such counsel's knowledge, neither the Sponsor nor the
Trust is in breach or violation of or in default under (nor has any
event occurred which with notice, lapse of time, or both would result
in any breach or violation of, or its respective constitutive
documents, or any federal or New York State law, regulation or rule
applicable to the Sponsor or the Trust;
(xii) to such counsel's knowledge, there are no affiliate
transactions, off-balance sheet transactions, contracts, licenses,
agreements, leases or documents of a character which are required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which have not been
so described or filed;
(xiii) to such counsel's knowledge, there are no actions, suits,
claims, investigations or proceedings pending, or threatened to which
the Sponsor or the Trust is or would be a party or to which any of
their respective properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency which are
required to be described in the Registration Statement or the
Prospectus but are not so described;
-10-
(xiv) [the Trust is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act;]
(xv) the information in the Registration Statement and the
Prospectus under the headings ["Description of the Shares," "United
States Federal Tax Consequences," "Description of the Trust Indenture"
and "Description of the Custody Agreements"] insofar as such
statements constitute a summary of documents or matters of law are
accurate in all material respects and present fairly the information
required to be shown].
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Sponsor, representatives of the independent public accountants of the Trust and
representatives of UBS Warburg at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in subparagraphs (vi) and (xv)
above), on the basis of the foregoing nothing has come to the attention of such
counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at the time of purchase,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical
information included in the Registration Statement or the Prospectus).
(b) UBS Warburg shall have received from Deloitte & Touche LLP letters
dated, respectively, the date of this Agreement and the time of purchase
and addressed to UBS Warburg in the forms heretofore approved by UBS
Warburg.
(c) UBS Warburg shall have received at the time of purchase, the
favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for UBS Warburg, dated
the time of purchase, as to the matters referred to in subparagraphs (iv),
(v), (vi), (viii)(A), (ix) and the last subparagraph of Section 6(a).
(d) UBS Warburg shall have received at the time of purchase, the
favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Trustee, addressed to
UBS Warburg, and dated the time of purchase and in form and substance
satisfactory to ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for UBS Warburg, stating
that [the Trust has been duly organized and is validly existing as a trust
in good standing under the laws of the State of New York, with full trust
power and authority to conduct its business as described in the
Registration Statement and the Prospectus, to issue and deliver the Shares
as contemplated herein and to execute and deliver this Agreement.]
(e) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which UBS Warburg
objects in writing.
(f) The Registration Statement shall become effective not later than
[ ] New York City time, on [the first business day following the date of
this Agreement]
-11-
(g) Prior to the time of purchase, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of the
Act; (ii) the Registration Statement and all amendments thereto shall not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus and all amendments or
supplements thereto shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the time of
purchase, no material adverse change or any development involving a
prospective material adverse change in the management or financial
condition of the Sponsor shall occur or become known.
(i) the Sponsor will, at the time of purchase, deliver to UBS Warburg
a certificate of [the Chief Executive Officer and its Chief Financial
Officer] in the form attached as Exhibit A hereto.
(j) The Sponsor and the Trust shall have furnished to UBS Warburg such
other documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the time
of purchase, as UBS Warburg may reasonably request.
(k) The Shares shall have been approved for listing on the NYSE,
subject only to notice of issuance at or prior to the time of purchase.
7. Effective Date of Agreement; Termination. This Agreement shall become
effective when UBS Warburg shall have received notification of the effectiveness
of the Registration Statement.
The obligations of UBS Warburg hereunder shall be subject to
termination in the absolute discretion of UBS Warburg, if (x) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been any material adverse change or any development involving a prospective
material adverse change affecting the Sponsor or the Trust which would, in UBS
Warburg's judgment, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (y) since the time
of execution of this Agreement, there shall have occurred: (i) a suspension or
material limitation in trading in securities generally on the NYSE, the American
Stock Exchange or the NASDAQ; (ii) a suspension or material limitation in
trading in the Trust's securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in UBS Warburg's judgment makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
on the terms and in the manner contemplated in the Registration Statement and
the Prospectus.
-12-
If UBS Warburg elects to terminate this Agreement as provided in this
Section 6, the Sponsor shall be notified promptly in writing.
If the sale to UBS Warburg of the Shares, as contemplated by this
Agreement, is not carried out by UBS Warburg for any reason permitted under this
Agreement or if such sale is not carried out because the Sponsor shall be unable
to comply with any of the terms of this Agreement, the Sponsor and the Trust
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(m) and 7 hereof), and UBS Warburg shall be
under no obligation or liability to the Sponsor or the Trust under this
Agreement (except to the extent provided in Section 7 hereof) or to one another
hereunder.
8. Indemnity and Contribution.
(a) The Sponsor agrees to indemnify, defend and hold harmless UBS
Warburg, its partners, directors and officers, and any person who controls
it within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which UBS Warburg or any
such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment
thereof by the Trust) or in a Prospectus (the term Prospectus for the
purpose of this Section 7 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by
the Sponsor), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in either such
Registration Statement or such Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in and in conformity with information concerning UBS Warburg furnished in
writing by or on behalf of UBS Warburg to the Sponsor expressly for use in
such Registration Statement or such 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, (ii) any untrue statement or alleged untrue statement made by
the Sponsor in Section 3 hereof or the failure by the Sponsor to perform
when and as required any agreement or covenant contained herein, [(iii) any
untrue statement or alleged untrue statement of any material fact contained
in any audio or visual materials provided by the Sponsor or based upon
written information furnished by or on behalf of the Sponsor or the Trust
including, without limitation, slides, videos, films or tape recordings
used in connection with the marketing of the Shares,] or (iv) circumstances
surrounding the third party allegations relating to patent and contract
disputes as described in the section of the Prospectus and the Registration
Statement entitled "Risk Factors;" provided, however, that the indemnity
agreement contained in this subsection (a) with respect to any Preliminary
Prospectus or amended Preliminary Prospectus shall not inure to the benefit
of UBS Warburg (or to the benefit of any person controlling UBS Warburg)
from whom the person asserting any such loss, damage, expense, liability or
claim purchased the Shares which is the subject thereof if the Prospectus
corrected any such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such person
at or prior to the written confirmation of the sale of such Shares to such
person, unles the failure is the result of noncompliance by the Sponsor
with paragraph (b) of Section 4 hereof.
If any action, suit or proceeding (each, a "Proceeding") is brought
against UBS Warburg or any such person in respect of which indemnity may be
sought against the Sponsor or the Trust pursuant to the foregoing
paragraph, UBS Warburg or such person shall promptly notify the Sponsor in
writing of the institution of such Proceeding and the Sponsor shall assume
the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses; provided,
-13-
however, that the omission to so notify the Sponsor shall not relieve the
Sponsor from any liability which the Sponsor may have to UBS Warburg or any
such person except to the extent that the Sponsor has been materially
prejudiced by such failure and has not otherwise learned of such
Proceeding. UBS Warburg or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of UBS Warburg or of such person unless the
employment of such counsel shall have been authorized in writing by the
Sponsor in connection with the defense of such Proceeding or the Sponsor
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to the
Sponsor or the Trust (in which case the Sponsor or the Trust shall not have
the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Sponsor or the Trust and paid as incurred
(it being understood, however, that the Sponsor and the Trust shall not be
liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings
in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). The Sponsor shall not be liable for any
settlement of any Proceeding effected without its written consent but if
settled with the written consent of the Sponsor or the Trust, the Sponsor
and the Trust agree to indemnify and hold harmless UBS Warburg and any
such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
(b) UBS Warburg agrees to indemnify, defend and hold harmless each of
the Sponsor, its directors and officers, and any person who controls the
Sponsor or the Trust within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Sponsor, the Trust or any such person may incur under the
Act, the Exchange 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 UBS Warburg to the Sponsor or the Trust expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Sponsor or 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.
-14-
If any Proceeding is brought against the Sponsor or the Trust or any
such person in respect of which indemnity may be sought against UBS Warburg
pursuant to the foregoing paragraph, the Sponsor, the Trust or such person shall
promptly notify UBS Warburg in writing of the institution of such Proceeding and
UBS Warburg shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify UBS Warburg shall not relieve UBS Warburg from any liability which UBS
Warburg may have to the Sponsor, the Trust or any such person or otherwise. The
Sponsor, the Trust or such person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Sponsor, the Trust or such person unless the employment of such
counsel shall have been authorized in writing by UBS Warburg in connection with
the defense of such Proceeding or UBS Warburg shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to UBS
Warburg (in which case UBS Warburg shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties, but
UBS Warburg may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of UBS Warburg), in
any of which events such fees and expenses shall be borne by UBS Warburg and
paid as incurred (it being understood, however, that UBS Warburg shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). UBS Warburg shall not be liable for any settlement of any such
Proceeding effected without the written consent of UBS Warburg but if settled
with the written consent of UBS Warburg, UBS Warburg agrees to indemnify and
hold harmless the Sponsor, the Trust and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 7 or insufficient to hold an indemnified party harmless in respect
of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Sponsor and
the Trust on the one hand and UBS Warburg on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Sponsor and the Trust on the
one hand and of UBS
-15-
Warburg on the other in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well
as any other relevant equitable considerations. [The relative benefits
received by the Sponsor and the Trust on the one hand and UBS Warburg on
the other shall be deemed to be in the same respective proportions as the
total [proceeds] from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Sponsor and the
Trust and the total underwriting discounts and commissions received by UBS
Warburg, bear to the aggregate public offering price of the Shares]. The
relative fault of the Sponsor and the Trust on the one hand and of UBS
Warburg on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information
supplied by the Sponsor and the Trust or by UBS Warburg and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any Proceeding.
(d) The Sponsor and UBS Warburg agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 7, UBS Warburg shall
not be required to contribute any amount [in excess of the amount by which
the total price at which the Shares created by UBS Warburg and distributed
to the public were offered to the public] exceeds the amount of any damage
which UBS Warburg has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 7 and the covenants, warranties and representations of the Sponsor
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of UBS Warburg, its
partners, directors or officers or any person (including each partner,
officer or director of such person) who controls UBS Warburg within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by
or on behalf of each of the Sponsor, its directors or officers or any
person who controls the Sponsor or the Trust within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares.
The Sponsor and the Trust and UBS Warburg agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of
the Sponsor and the Trust, against any of the Sponsor's or the Trust's
officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or the Prospectus.
9. Information Furnished by UBS Warburg. The statements set forth [in the
last paragraph on the cover page of the Prospectus and the statements set forth]
in the [_____ and _____] paragraphs under the caption ["Plan of Distribution"]
in the Prospectus constitute the only information furnished by or on behalf of
UBS Warburg as such information is referred to in Sections 3 and 8 hereof.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to UBS
Warburg, shall be sufficient in all respects if delivered or sent to UBS Warburg
LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention:
-16-
Syndicate Department and, if to the Sponsor or the Trust, shall be sufficient in
all respects if delivered or sent to the Sponsor at the offices of the Sponsor
at World Gold Trust Services, LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Director.
11. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. The Sponsor irrevocably agrees that any
Claim may be instituted in the courts of the State of New York located in the
City and County of New York or in the United States District Court for the
Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Sponsor consents to the jurisdiction of
such courts and personal service with respect thereto. Each of UBS Warburg and the
Sponsor waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Sponsor agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Sponsor and may be enforced in any other
courts to the jurisdiction of which the Sponsor is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of UBS Warburg and the Sponsor and to the extent
provided in Section 8 hereof the controlling persons, partners, directors and
officers referred to in such Section, and their respective successors, permitted
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from UBS Warburg) shall acquire or have any right under or by
virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement may be assigned only with the
written consent of the parties hereunder and shall be binding upon UBS Warburg
and the Sponsor and the Trust and their successors and permitted assigns and any
successor or assign of any substantial portion of the Sponsor's and the Trust's
and any of UBS Warburg's respective businesses and/or assets.
16. Miscellaneous. UBS Warburg, an indirect, wholly owned subsidiary of UBS
AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS Warburg is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS Warburg are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
-17-
If the foregoing correctly sets forth the understanding between the Sponsor
and UBS Warburg, please so indicate in the space provided below for that
purpose, whereupon this agreement and your acceptance shall constitute a binding
agreement between the Sponsor and UBS Warburg.
Very truly yours,
WORLD GOLD TRUST SERVICES, LLC
By:
-------------------------------------
Title:
-18-
Accepted and agreed to as of the
date first above written, on
behalf of itself
UBS WARBURG LLC
By: __________________________
Title:
By: __________________________
Title:
-19-
EXHIBIT A
Officers' Certificate
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Sponsor and the Trust as set
forth in this Agreement are true and correct as of the date hereof and as of the
time of purchase.
3. Each of the Sponsor and the Trust has performed all of its obligations
under this Agreement as are to be performed at or before the time of purchase.
4. The conditions set forth in paragraphs (g) and (h) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of the
Trust as of, and for, the periods presented in the Registration Statement.