EXHIBIT 4.1
BARCLAYS GLOBAL INVESTORS, N.A.,
as Sponsor
and
THE BANK OF NEW YORK,
as Trustee
----------
Depositary Trust Agreement
iShares COMEX Gold Trust
----------
Dated as of __________, 2004
TABLE OF CONTENTS
Page
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DEPOSITARY TRUST AGREEMENT............................................................................. 1
ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION........................................................ 2
Section 1.1. Definitions............................................................................ 2
Section 1.2. Rules of Construction.................................................................. 7
ARTICLE 2 CREATION AND DECLARATION OF TRUSTS; FORM OF CERTIFICATES; DEPOSIT OF GOLD; DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF SHARES............................................. 8
Section 2.1. Creation and Declaration of Trust; Business of the Trust............................... 8
Section 2.2. Form of Certificates; Book-Entry System; Transferability of Shares..................... 8
Section 2.3. Deposit of Gold........................................................................11
Section 2.4. Delivery of Shares.....................................................................12
Section 2.5. Registration and Registration of Transfer of Shares; Combination and Split-up of
Certificates...........................................................................13
Section 2.6. Surrender of Shares and Withdrawal of Trust Property...................................14
Section 2.7. Limitations on Delivery, Registration of Transfer and Surrender of Shares..............15
Section 2.8. Lost Certificates, Etc. ...............................................................16
Section 2.9. Cancellation and Destruction of Surrendered Certificates...............................16
Section 2.10. Splits and Reverse Splits of Shares....................................................16
ARTICLE 3 CERTAIN OBLIGATIONS OF REGISTERED OWNERS OF SHARES...........................................17
Section 3.1. Liability of Registered Owner for Taxes and Other Governmental Charges.................17
Section 3.2. Warranties on Deposit of Gold..........................................................18
ARTICLE 4 ADMINISTRATION OF THE TRUST..................................................................18
Section 4.1. Evaluation of Gold.....................................................................18
Section 4.2. Responsibility of the Trustee for Evaluations..........................................19
Section 4.3. Trust Evaluation.......................................................................19
Section 4.4. Cash Distributions.....................................................................20
Section 4.5. Other Distributions....................................................................20
Section 4.6. Fixing of Record Date..................................................................21
Section 4.7. Payment of Expenses; Gold Sales........................................................21
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Section 4.8. Statements and Reports.................................................................22
Section 4.9. Further Provisions for Gold Sales......................................................23
Section 4.10. Counsel................................................................................23
Section 4.11. Grantor Trust..........................................................................23
ARTICLE 5 THE TRUSTEE AND THE SPONSOR..................................................................24
Section 5.1. Maintenance of Office and Transfer Books by the Trustee................................24
Section 5.2. Prevention or Delay in Performance by the Sponsor or the Trustee.......................25
Section 5.3. Obligations of the Sponsor and the Trustee.............................................25
Section 5.4. Resignation or Removal of the Trustee; Appointment of Successor Trustee................26
Section 5.5. The Custodian..........................................................................28
Section 5.6. Indemnification........................................................................29
Section 5.7. Charges of Trustee.....................................................................33
Section 5.8. Charges of Sponsor.....................................................................33
Section 5.9. Retention of Trust Documents...........................................................34
Section 5.10. Federal Securities Law Filings.........................................................34
Section 5.11. Prospectus Delivery....................................................................35
Section 5.12. Discretionary Actions by Trustee; Consultation.........................................35
ARTICLE 6 AMENDMENT AND TERMINATION....................................................................36
Section 6.1. Amendment..............................................................................36
Section 6.2. Termination............................................................................36
ARTICLE 7 MISCELLANEOUS................................................................................39
Section 7.1. Counterparts...........................................................................39
Section 7.2. Third-Party Beneficiaries..............................................................39
Section 7.3. Severability...........................................................................39
Section 7.4. Registered Owners, Beneficial Owners and Depositors as Parties; Binding Effect.........39
Section 7.5. Notices................................................................................40
Section 7.6. Agent for Service; Submission to Jurisdiction..........................................41
Section 7.7. Governing Law..........................................................................42
EXHIBIT A
FORM OF CERTIFICATE EVIDENCING SHARES
ii
DEPOSITARY TRUST AGREEMENT
THIS DEPOSITARY TRUST AGREEMENT dated as of ________, 2004,
between BARCLAYS GLOBAL INVESTORS, N.A., a national banking association, as
sponsor, THE BANK OF NEW YORK, a New York banking corporation, as trustee, all
Registered Owners and Beneficial Owners from time to time of iShares COMEX Gold
Trust Shares issued hereunder and all Depositors.
W I T N E S S E T H :
WHEREAS the Sponsor desires to establish a trust, to be known as
the "iShares COMEX Gold Trust", pursuant to the laws of the State of New York;
and
WHEREAS the Sponsor desires to establish the terms on which Gold
(as herein defined) may be deposited in the trust and provide for the creation
of iShares COMEX Gold Trust Shares in Baskets (as herein defined) representing
fractional undivided interests in the net assets of the trust and the execution
and delivery of Certificates (as herein defined) evidencing the iShares COMEX
Gold Trust Shares; and
WHEREAS the Sponsor desires to provide for other terms and
conditions upon which the trust shall be established and administered, as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the Sponsor and the Trustee hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions.
Except as otherwise specified in this Depositary Trust Agreement
or as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Depositary Trust Agreement.
"Agreement" means this Depositary Trust Agreement, as amended or
supplemented in accordance with its terms.
"Authorized Participant" means a Person that, at the time of
submitting a Purchase Order or a Redemption Order (i) is a registered
broker-dealer, (ii) is a DTC Participant or an Indirect Participant and (iii)
has in effect a valid Authorized Participant Agreement.
"Authorized Participant Agreement" means an agreement among the
Trustee, the Sponsor and an Authorized Participant that authorizes the
Authorized Participant to submit Purchase Orders and Redemption Orders under
this Agreement.
"Basket" means 50,000 Shares, except that the Trustee, in
consultation with the Sponsor, may from time to time increase or decrease the
number of Shares comprising a Basket.
"Basket Gold Amount" is the amount of Gold that must be
deposited for issuance of one Basket or that is deliverable upon Surrender of
one Basket. The Basket Gold Amount will be determined as provided in Section
2.3(b).
"Beneficial Owner" means any Person owning a beneficial interest
in any Shares.
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"Business Day" means any day other than (i) a Saturday or Sunday
or (ii) a day on which the Exchange is not open for regular trading.
"Certificate" means a certificate that is executed and delivered
by the Trustee under this Agreement evidencing Shares.
"CFTC" means the Commodity Futures Trading Commission or any
successor governmental agency in the United States.
"COMEX" means Commodity Exchange, Inc., a subsidiary of New York
Mercantile Exchange, Inc.
"COMEX Relevant Price" means, as of any day, (i) such day's
COMEX settlement price for the spot month gold futures contract; or (ii) such
other price regularly announced by COMEX, with the approval of, or following
regulatory notification to, the CFTC, as the Sponsor, in consultation with the
Trustee, may determine fairly represents the commercial value of Gold held by
the Trust.
"COMEX Rules" means the rules of the COMEX applicable to
trading, delivery specifications, and settlement of gold futures contracts.
"Commission" means the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"Corporate Trust Office" means the office of the Trustee at
which its depositary receipt business is administered which, at the date of this
Agreement, is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Custodian" means The Bank of Nova Scotia, as agent of the Trust
for the purposes of this Depositary Trust Agreement, and any substitute or
additional Custodian appointed by the Trustee as provided in Section 5.5.
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"Deliver" means (a) when used with respect to Gold, (i)
physically delivering that Gold to, or making that Gold available for collection
by, the Person entitled to the delivery at the specified location, (ii)
obtaining evidence that ownership of that Gold has been transferred to, and the
Gold is being duly held by a custodian for the account of, the Person entitled
to that delivery or (iii) in respect of amounts of not more than 430 Ounces,
obtaining an acknowledgement from a custodian of a credit of Gold on an
Unallocated Basis to the account of the Person entitled to that delivery and (b)
when used with respect to Shares, either (i) one or more book-entry transfers of
those Shares to an account or accounts at DTC designated by the Person entitled
to such delivery for further credit as specified by that Person or (ii) in the
circumstances specified in Section 2.2(e), execution and delivery at the
Corporate Trust Office of the Trustee of one or more Certificates evidencing
those Shares.
"Depositor" means any Authorized Participant that deposits Gold
into the Trust, either for its own account or on behalf of another Person that
is the owner or beneficial owner of that Gold.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"DTC Participant" means a Person that, pursuant to DTC's
governing documents, is entitled to deposit securities with DTC in its capacity
as a "participant".
"Exchange" means the exchange on which the Shares are
principally traded, as specified by the Sponsor.
"Fine Ounce" means an Ounce of 100% pure gold. The number of
Fine Ounces in a gold bar may be calculated by multiplying the gross weight in
Ounces by the fineness, expressed as a fraction of the fine metal content in
parts per 1000, in accordance with the COMEX Rules or the "good delivery" rules
of the London Bullion Market Association.
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"Gold" means (a) gold that (i) would be eligible for delivery in
settlement of a COMEX gold futures contract in accordance with COMEX Rules or
(ii) meets the requirements of "good delivery" under the rules of the London
Bullion Market Association and (b) credit to an account on an Unallocated Basis.
"Indirect Participant" means a Person that, by clearing
securities through, or maintaining a custodial relationship with, a DTC
Participant, has access to the DTC clearing system.
"Net Asset Value per Share" means the value of a Share
determined under Section 4.3.
"Net Asset Value" means the net value of the Trust determined
under Section 4.3.
"Order Cutoff Time" means, with respect to any day, (i) the time
at which regular trading in gold futures contracts on the COMEX closes on that
day or (ii) another time agreed to by the Sponsor and the Trustee and of which
Registered Owners and all existing Authorized Participants have been notified by
the Trustee.
"Order Date" means, with respect to a Purchase Order, the date
specified in Section 2.3(a) and, with respect to a Redemption Order, the date
specified in Section 2.6(a).
"Ounce" means a ▇▇▇▇ ounce, equal to 1.0971428 ounces
avoirdupois.
"Person" means any natural person or any limited liability
company, corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Purchase Order" is defined in Section 2.3.
5
"Qualified Bank" means a bank, trust company, corporation or
national banking association organized and doing business under the laws of the
United States or any State of the United States that is authorized under those
laws to exercise corporate trust powers and that (i) is a DTC Participant or a
participant in such other securities depository as is then acting with respect
to the Shares, (ii) unless counsel to the Sponsor, the appointment of which is
acceptable to the Trustee, determines that the following requirement is not
necessary for the exception under Section 408(m) of the Internal Revenue Code of
1986, as amended (the "Code"), to apply, is a banking institution as defined in
Section 408(n) of the Code and (iii) had, as of the date of its most recent
annual financial statements, an aggregate capital, surplus and undivided profits
of at least $150,000,000.
"Redemption Order" is defined in Section 2.6.
"Registered Owner" means the Person in whose name Shares are
registered on the books of the Trustee maintained for that purpose.
"Registrar" means any bank or trust company that is appointed to
register Shares and transfers of Shares as herein provided.
"Shares" means iShares COMEX Gold Trust Shares created under
this Agreement, each representing a fractional undivided ownership interest in
the net assets of the Trust, which interest shall equal a fraction, the
numerator of which is 1 and the denominator of which is the total number of
Shares outstanding.
"Sponsor" means Barclays Global Investors, N.A., a national
banking association, or its successor.
"Surrender" means, when used with respect to Shares, (a) one or
more book-entry transfers of Shares to the DTC account of the Trustee or (b)
surrender to the Trustee at its Corporate Trust Office of one or more
Certificates evidencing Shares.
6
"Trust Property" means the Gold that is deposited under this
Agreement and any cash or other property that is received by the Trustee in
respect of Trust Property and that is being held under this Agreement.
"Trust" means the iShares COMEX Gold Trust, the trust entity
created by this Agreement.
"Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as trustee under this Agreement, or any successor
as trustee under this Agreement.
"Unallocated Basis" means that the Person in whose name Gold is
so held is entitled to receive delivery of Gold standing to the credit of that
Person's account, but that Person has no ownership interest in any particular
Gold that the custodian maintaining that account owns or holds.
Section 1.2. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect in the United States;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
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(vi) words in the singular include the plural and words in
the plural include the singular.
ARTICLE 2
CREATION AND DECLARATION OF TRUSTS;
FORM OF CERTIFICATES; DEPOSIT OF GOLD; DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF SHARES
Section 2.1. Creation and Declaration of Trust; Business of
the Trust.
(a) The Trustee acknowledges that it has received an initial
deposit of Gold under and in accordance with this Agreement from Barclays
Capital, Inc. The Trustee declares that it will hold that initial deposit and
all other Trust Property as trustee for the benefit of the Registered Owners for
the purposes of, and subject to and limited by the terms and conditions set
forth in, this Agreement. The trust created by this Agreement shall be known as
the "iShares COMEX Gold Trust".
(b) The Trust shall not engage in any business or activities
other than those authorized by this Agreement or incidental and necessary to
carry out the duties and responsibilities set forth in this Agreement. Other
than issuance of the Shares, the Trust shall not issue or sell any certificates
or other obligations or, except as provided in this Agreement, otherwise incur,
assume or guarantee any indebtedness for money borrowed.
Section 2.2. Form of Certificates; Book-Entry System;
Transferability of Shares.
(a) The Certificates evidencing Shares shall be substantially in
the form set forth in Exhibit A annexed to this Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. No Shares
shall be entitled to any benefits under this Agreement or be valid or obligatory
for any purpose unless a Certificate evidencing those Shares has been executed
by the Trustee by the manual or facsimile signature of a duly authorized
signatory of the Trustee and, if a Registrar (other
8
than the Trustee) for the Shares shall have been appointed, countersigned by the
manual signature of a duly authorized officer of the Registrar. The Trustee
shall maintain books on which the registered ownership of each Share and
transfers, if any, of such registered ownership shall be recorded. Certificates
evidencing Shares bearing the manual or facsimile signature of a duly authorized
signatory of the Trustee and the manual signature of a duly authorized officer
of the Registrar, if applicable, who was, at the time such Certificates were
executed, a proper signatory of the Trustee or Registrar, if applicable, shall
bind the Trustee, notwithstanding that such signatory has ceased to hold such
office prior to the delivery of such Certificates.
(b) The Certificates may be endorsed with or have incorporated
in the text thereof such legends or recitals or modifications not inconsistent
with the provisions of this Agreement as may be required by the Trustee or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which Shares may be listed
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which the Shares evidenced by a particular
Certificate are subject.
(c) The Sponsor and the Trustee will apply to DTC for acceptance
of the Shares in its book-entry settlement system. Shares deposited with DTC
shall be evidenced by one or more global Certificates which shall be registered
in the name of Cede & Co., as nominee for DTC, and shall bear the following
legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE AGENT AUTHORIZED BY THE ISSUER FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
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DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(d) So long as the Shares are eligible for book-entry settlement
with DTC and such settlement is available, unless otherwise required by law,
notwithstanding the provisions of Sections 2.2(a) and (b), all Shares shall be
evidenced by one or more global Certificates the Registered Owner of which is
DTC or a nominee of DTC and (i) no Beneficial Owner of Shares will be entitled
to receive a separate Certificate evidencing those Shares, (ii) the interest of
a Beneficial Owner in Shares represented by a global Certificate will be shown
only on, and transfer of that interest will be effected only through, records
maintained by DTC or a DTC Participant or Indirect Participant through which the
Beneficial Owner holds that interest and (iii) the rights of a Beneficial Owner
with respect to Shares represented by a global Certificate will be exercised
only to the extent allowed by, and in compliance with, the arrangements in
effect between such Beneficial Owner and DTC or the DTC Participant or Indirect
Participant through which that Beneficial Owner holds an interest in Shares.
(e) If, at any time when Shares are evidenced by a global
Certificate, DTC ceases to make its book-entry settlement system available for
such Shares, the Trustee shall execute and deliver separate Certificates
evidencing Shares to the DTC Participants entitled thereto, with such additions,
deletions and modifications to this Agreement and to the form of Certificate
evidencing Shares as the Sponsor and the Trustee may agree.
(f) Title to a Certificate evidencing Shares (and to the Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
that the Trustee, notwithstanding any notice to the contrary, may treat the
Registered Owner of Shares as the absolute owner thereof for the purpose of
determining the person entitled to any distribution or to any notice provided
for in this Agreement and for all other purposes.
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Section 2.3. Deposit of Gold.
(a) After the initial deposit of Gold in the Trust, the issuance
and Delivery of Shares will take place only in integral numbers of Baskets and
in compliance with the provisions of this Agreement, as supplemented by any
procedures attached to an applicable Authorized Participant Agreement, to the
extent those procedures are consistent with this Agreement. Authorized
Participants wishing to acquire from the Trustee one or more Baskets must place
an order with the Trustee (a "Purchase Order") no later than 4:00 p.m. (New York
time) on any Business Day. Purchase Orders received by the Trustee prior to the
Order Cutoff Time on a Business Day on which a COMEX Relevant Price is announced
will have that Business Day as the Order Date. Purchase Orders received by the
Trustee on or after the Order Cutoff Time on a Business Day, or on a Business
Day on which COMEX does not announce a COMEX Relevant Price, will have as their
Order Date the next Business Day on which COMEX announces a COMEX Relevant
Price. As consideration for each Basket acquired, Authorized Participants must
deposit with the Custodian the Basket Gold Amount determined by the Trustee on
the Order Date of the corresponding Purchase Order. Gold must be Delivered to
the Custodian in the form of Gold bars only, except that an amount of Gold not
exceeding 430 Ounces may be Delivered to the Custodian on an Unallocated Basis.
(b) The Trustee shall determine the Basket Gold Amount for each
Business Day. The initial "Basket Gold Amount" is 5,000 Fine Ounces. After the
initial deposit, the "Basket Gold Amount" shall be an amount of Gold equal to
the result obtained by dividing the Net Asset Value per Basket on the date on
which the determination is being made by the price used by the Trustee to
evaluate Gold held by the Trust on such date in compliance with Section 4.1. For
purposes of this computation, "Net Asset Value per Basket" is the result
obtaining by multiplying (x) the Net Asset Value per Share determined in
compliance with Section 4.3, by (y) the number of Shares which constitute a
Basket on the date on which the determination is being made. Fractions of a Fine
Ounce of Gold included in the Basket Gold Amount smaller than .001
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Fine Ounce shall be disregarded. The Sponsor intends to publish, or may
designate other persons to publish, for each Business Day, the Basket Gold
Amount.
(c) If the Trust Property includes money or any property other
than Gold, no deposits of Gold will be accepted until after a record date for
distribution of that money or property, or proceeds of that property, has
passed.
(d) All deposited Gold shall be owned by the Trust and held for
the Trust by the Custodian. The Trustee shall require the Custodian to agree
that the Custodian will use reasonable efforts to minimize the amount of Gold
held for the Trust on an Unallocated Basis at all times and the Custodian must
allocate ownership of gold bars to the Trust such that no more than 430 Fine
Ounces of Gold are held on an Unallocated Basis for the Trust at the end of each
business day of the Custodian. Cash and any other assets of the Trust shall be
held by the Trustee at such place and in such manner as the Trustee shall
determine.
Section 2.4. Delivery of Shares.
Upon receipt by the Trustee of any deposit in accordance with
Section 2.3, together with a Purchase Order and the other documents required as
above specified, if any, and a confirmation from the Custodian that the Gold
Deposit Amount has been Delivered to the Custodian for each Basket of Shares and
the Custodian is holding that Gold for the account of the Trust, the Trustee,
subject to the terms and conditions of this Agreement, shall Deliver to the
Depositor the number of Baskets of Shares issuable in respect of such deposit as
requested in the corresponding Purchase Order, but only upon payment to the
Trustee of the fees and expenses of the Trustee as provided in Section 5.7 and
of all taxes and governmental charges and fees payable in connection with such
deposit, the transfer of the Gold and the issuance and Delivery of the Shares.
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Section 2.5. Registration and Registration of Transfer of
Shares; Combination and Split-up of Certificates.
(a) The Trustee shall keep or cause to be kept a register of
Registered Owners of Shares and shall provide for the registration of Shares and
the registration of transfers of Shares.
(b) The Trustee, subject to the terms and conditions of this
Agreement, shall register transfers of ownership of Shares on its transfer books
from time to time, upon any Surrender of a Certificate evidencing such Shares,
by the Registered Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, and duly stamped as
may be required by the laws of the State of New York and of the United States of
America. Thereupon the Trustee shall execute a new Certificate or Certificates
evidencing such Shares, and deliver the same to or upon the order of the Person
entitled thereto.
(c) The Trustee, subject to the terms and conditions of this
Agreement, shall, upon Surrender of a Certificate or Certificates evidencing
Shares for the purposes of effecting a split-up or combination of that
certificate or certificates, execute and deliver one or more new Certificates
evidencing those Shares.
(d) The Trustee may, with the written approval of the Sponsor
(which approval shall not be unreasonably withheld), appoint one or more
co-transfer agents for the purpose of effecting registration of transfers of
Shares and combinations and split-ups of Certificates at designated transfer
offices on behalf of the Trustee. In carrying out its functions, a co-transfer
agent may require evidence of authority and compliance with applicable laws and
other requirements by Registered Owners or Persons entitled to Shares and will
be entitled to protection and indemnity to the same extent as the Trustee.
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Section 2.6. Surrender of Shares and Withdrawal of Trust
Property.
(a) Upon Surrender of any integral number of Baskets for the
purpose of withdrawal of the amount of Trust Property represented thereby, and
upon payment of the fee of the Trustee in connection with the Surrender of
Shares as provided in Section 5.7 and payment of all taxes and charges payable
in connection with such Surrender and withdrawal of Trust Property, and subject
to the terms and conditions of this Agreement, an Authorized Participant acting
on authority of the Registered Owner of those Shares will be entitled to
Delivery, in accordance with the provisions of this Agreement, as supplemented
by any procedures attached to an applicable Authorized Participant Agreement, to
the extent those procedures are consistent with this Agreement, of the amount of
Trust Property at the time represented by such Baskets, including the Basket
Gold Amounts corresponding to such Baskets on the applicable Order Date
(determined as provided below). Authorized Participants wishing to redeem one or
more Baskets must place an order with the Trustee (a "Redemption Order") no
later than 4:00 p.m. (New York time) on any Business Day. Redemption Orders
received by the Trustee prior to the Order Cutoff Time on a Business Day on
which a COMEX Relevant Price is announced will have that Business Day as the
Order Date. Redemption Orders received by the Trustee on or after the Order
Cutoff Time on any Business Day, or on a Business Day on which COMEX does not
announce a COMEX Relevant Price, will have as their Order Date the next Business
Day on which COMEX announces a COMEX Relevant Price. Gold will be Delivered by
the Custodian in the form of Gold bars only, except that an amount of Gold not
exceeding 430 Ounces may be Delivered by the Custodian on an Unallocated Basis.
While a redeeming Authorized Participant will be entitled to express a
preference as to the city where it would like to have the Basket Gold Amount
delivered, the Trustee, in consultation with the Custodian and taking into
account the best interests of the Trust and the Registered Owners, will have
final authority to decide where such Delivery will take place.
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(b) The Trustee may require that a Certificate evidencing Shares
Surrendered for the purpose of withdrawal is properly endorsed in blank or
accompanied by proper instruments of transfer in blank. Upon a Surrender of an
integral number of Baskets of Shares and satisfaction of all the conditions for
withdrawal of Trust Property, the Trustee shall instruct the Custodian to
Deliver, at the Custodian's office or at another location at which Trust
Property Gold is then being held, to or to the order of the Surrendering
Authorized Participant the amount of Gold represented by the Surrendered Baskets
of Shares and the Trustee shall pay or deliver to or to the order of the
Surrendering Authorized Participant the amount of any other Trust Property
represented by the Surrendered Baskets of Shares. Any Delivery of Gold other
than at the office of the Custodian or a sub-custodian designated by the
Custodian will be at the expense and risk of the Authorized Participant. The
Trustee will not be responsible to any Person if it is not practical for the
Custodian to make Delivery of Gold in the city requested or if the Trustee
determines to effect Delivery in a city other than the city requested by the
Surrendering Authorized Participant. The Trustee is not required to effect any
physical movement of Gold from one custody location to another to meet any
request by a Surrendering Authorized Participant as to where Gold will be
Delivered.
Section 2.7. Limitations on Delivery, Registration of Transfer
and Surrender of Shares.
(a) As a condition precedent to the Delivery, registration of
transfer, split-up, combination or Surrender of any Shares or withdrawal of any
Trust Property, the Trustee or Registrar may require payment from the Depositor
or the Authorized Participant Surrendering the Shares of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to any securities being withdrawn) and payment of any applicable
fees as herein provided, may require the production of proof satisfactory to it
as to the identity and genuineness of any signature and may also
15
require compliance with any regulations the Trustee may establish consistent
with the provisions of this Agreement, including, without limitation, this
Section 2.7.
(b) The Delivery of Shares against deposits of Gold, the
registration of transfer of Shares or the Surrender of Shares for the purpose of
withdrawal of Trust Property may be suspended generally, or refused with respect
to particular requested Deliveries or Surrenders, during any period when the
transfer books of the Trustee are closed or if any such action is deemed
necessary or advisable by the Trustee or the Sponsor for any reason at any time
or from time to time.
Section 2.8. Lost Certificates, Etc.
The Trustee shall execute and deliver a new Certificate of like
tenor in exchange and substitution for a mutilated Certificate upon cancellation
thereof, or in lieu of and in substitution for a destroyed, lost or stolen
Certificate if the Registered Owner thereof has (a) filed with the Trustee (i) a
request for such execution and delivery before the Trustee has notice that the
Shares evidenced by the Certificate have been acquired by a protected purchaser
and (ii) a sufficient indemnity bond, and (b) satisfied any other reasonable
requirements imposed by the Trustee.
Section 2.9. Cancellation and Destruction of Surrendered
Certificates.
All Certificates Surrendered to the Trustee shall be canceled by
the Trustee. The Trustee is authorized to destroy certificates so canceled.
Section 2.10. Splits and Reverse Splits of Shares.
If requested in writing by the Sponsor, the Trustee shall effect
a split or reverse split of the Shares as of a record date set by the Trustee in
accordance with procedures determined by the Trustee.
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The Trustee is not required to distribute any fraction of a
Share in connection with a split or reverse split of the Shares. The Trustee may
sell the aggregated fractions of Shares that would otherwise be distributed in a
split or reverse split of the Shares or the amount of Trust Property that would
be represented by those Shares and distribute the net proceeds of those Shares
or that Trust Property to the Record Owners entitled to them.
The amount of Trust Property represented by each Share and the
Basket Gold Amount shall be adjusted as appropriate as of the open of business
on the Business Day following the record date for a split or reverse split of
the Shares.
ARTICLE 3
CERTAIN OBLIGATIONS OF REGISTERED OWNERS OF SHARES
Section 3.1. Liability of Registered Owner for Taxes and Other
Governmental Charges.
If any tax or other governmental charge shall become payable by
the Trustee with respect to any transfer or redemption of Shares, such tax or
other governmental charge shall be payable by the Registered Owner of such
Shares to the Trustee. The Trustee shall refuse to effect any registration of
transfer of such Shares or any withdrawal of Trust Property represented by such
Shares until such payment is made, and may withhold any distributions, or may
sell for the account of the Registered Owner thereof Trust Property or Shares,
and may apply such distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, and the Registered Owner of such Shares
shall remain liable for any deficiency. The Trustee shall distribute any net
proceeds of a sale made under the preceding sentence that remain, after payment
of the tax or other governmental charge, to the Registered Owners entitled
thereto as in the case of a distribution in cash.
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Section 3.2. Warranties on Deposit of Gold.
Every Person depositing Gold under this Agreement shall be
deemed thereby to represent and warrant that the Gold meets the requirements to
be Gold and contains the required number of Fine Ounces, that the person making
such deposit is duly authorized to do so and that at the time of delivery, the
Gold is free and clear of any lien, pledge, encumbrance, right, charge or claim
(other than the rights created by this Agreement). All representations and
warranties deemed made under this Section 3.3 shall survive the deposit of Gold,
Delivery or Surrender of Shares or termination of this Agreement.
ARTICLE 4
ADMINISTRATION OF THE TRUST
Section 4.1. Evaluation of Gold.
As promptly as practicable after COMEX announces the COMEX
Relevant Price on each Business Day, the Trustee shall determine the value of
the Gold held or receivable by the Trust on the basis of the COMEX Relevant
Price for that day. If the COMEX does not announce a COMEX Relevant Price on a
Business Day, the Trustee shall determine the value of the Gold held or
receivable by the Trust for that day on the basis of the most recently announced
COMEX Relevant Price. However, if the Trustee and the Sponsor determine that the
price specified in the two preceding sentences is inappropriate as a basis for
evaluation, they shall identify an alternative basis for evaluation to be
employed by the Trustee. Gold deliverable under a Purchase Order shall be
included in the evaluation beginning on the Order Date. Gold deliverable under a
Redemption Order shall not be included in the evaluation on and after the Order
Date. Neither the Trustee nor the Sponsor shall be liable to any Person for the
determination that the most recently announced COMEX Relevant Price is not
appropriate as a basis for evaluation of the Gold held or receivable by the
Trust or for any determination as to the alternative basis for evaluation,
provided that such determination is made in good faith.
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If the Sponsor determines that COMEX Relevant Price will have the meaning set
forth in part (ii) of the definition of that term, the Trustee shall give notice
to the Registered Owners, and the Trustee shall not apply the new definition of
COMEX Relevant Price until 60 days after the date of that notice.
Section 4.2. Responsibility of the Trustee for Evaluations.
The Sponsor, Depositors, Registered Owners and Beneficial Owners
may rely on any evaluation or determination of any amount made by the Trustee,
and the Sponsor shall have no responsibility for the accuracy thereof. The
determinations made by the Trustee under this Agreement shall be made in good
faith upon the basis of, and the Trustee shall not be liable for any errors
contained in, information reasonably available to it. The Trustee shall be under
no liability to the Sponsor, or to Depositors, Registered Owners or Beneficial
Owners, for errors in judgment; provided, however, that this provision shall not
protect the Trustee against any liability to which it would otherwise be subject
by reason of negligence or bad faith in the performance of its duties.
Section 4.3. Trust Evaluation.
As promptly as practicable after completion of the evaluation
required under Section 4.1 on each Business Day, the Trustee shall subtract all
accrued fees (other than the fees computed by reference to the value of the
Trust or its assets), expenses and other liabilities of the Trust from the total
value of the deposited Gold determined by the Trustee pursuant to Section 4.1
and all other assets of the Trust. The resulting figure is the "Adjusted Net
Asset Value" of the Trust. All fees computed by reference to the value of the
Trust or its assets shall be calculated on the Adjusted Net Asset Value. The
Trustee shall subtract from the Adjusted Net Asset Value the amount of accrued
fees so computed and the resulting figure is the "Net Asset Value" of the Trust.
The Trustee shall also divide the Net Asset Value of the Trust by the number of
Shares outstanding as of the close of business on the date of the evaluation
then being made, which figure is the "Net Asset Value per Share." All fees,
expenses and other liabilities of the Trust that are or
19
will be incurred or accrued through the close of business on a Business Day
shall be included in the calculations required by this Section 4.3 for that
Business Day. Shares deliverable under a Purchase Order shall be considered to
be outstanding for purposes of this Section 4.3 beginning on the Order Date.
Shares deliverable under a Redemption Order shall not be considered to be
outstanding for purposes of this Section 4.3 on and after the Order Date.
Adjusted Net Asset Value, Net Asset Value and Net Asset Value
per Share shall be computed in accordance with generally accepted accounting
principles in the United States.
Section 4.4. Cash Distributions.
Whenever the Trustee distributes any cash, the Trustee shall
distribute the amount available for the distribution to the Registered Owners
entitled thereto, in proportion to the number of Shares held by them
respectively; provided, however, that in the event that the Trustee shall be
required to withhold and does withhold from such cash an amount on account of
taxes, the amount distributed to the Registered Owners shall be reduced
accordingly. The Trustee shall distribute only such amount, however, as can be
distributed without attributing to any Registered Owner a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Registered Owners entitled thereto.
Section 4.5. Other Distributions.
Whenever the Trustee receives any property in respect of Trust
Property other than cash proceeds of a sale of Trust Property (including any
claim that accrues in favor of the Trust on account of any loss of deposited
Gold or other Trust Property), the Trustee shall cause the securities or other
property received by it to be distributed to the Registered Owners entitled
thereto, in proportion to the number of Shares held by them respectively, after
deduction or upon payment of the expenses of the Trustee, in any manner that the
Trustee may deem lawful, equitable and feasible for accomplishing such
20
distribution; provided, however, that if in the opinion of the Trustee such
distribution cannot be made proportionately among the Registered Owners entitled
thereto, or if for any other reason (including, but not limited to, any
requirement that the Trustee withhold an amount on account of taxes or other
governmental charges or that securities must be registered under the Securities
Act of 1933 in order to be distributed to Registered Owners) the Trustee deems
such distribution not to be lawful and feasible, the Trustee shall adopt such
method as it deems lawful, equitable and feasible for the purpose of effecting
such distribution, after deduction or upon payment of the expenses of the
Trustee, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale shall be distributed by the Trustee to the Registered Owners
entitled thereto as in the case of a distribution received in cash.
Section 4.6. Fixing of Record Date.
Whenever any distribution will be made, or whenever the Trustee
receives notice of any solicitation of proxies or consents from Registered
Owners, or whenever for any reason there is split, reverse split or other change
in the outstanding Shares, or whenever the Trustee shall find it necessary or
convenient in respect of any matter, the Trustee, in consultation with the
Sponsor, shall fix a record date for the determination of the Registered Owners
who shall be (i) entitled to receive such distribution or the net proceeds of
the sale thereof, (ii) entitled to give such proxies or consents in respect of
any such solicitation or (iii) entitled to act in respect of any other matter
for which the record date was set.
Section 4.7. Payment of Expenses; Gold Sales.
(a) The following charges are or may be accrued and paid by
the Trust:
(1) the service fee payable to the Sponsor as set
forth in Section 5.8;
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(2) expenses of the Trust not assumed by the Sponsor
pursuant to Section 5.3(g);
(3) taxes and other governmental charges;
(4) expenses and costs of any extraordinary services
performed by the Trustee or the Sponsor on behalf of the Trust
or action taken by the Trustee or the Sponsor to protect the
Trust or the interests of Registered Owners; and
(5) indemnification of the Sponsor as provided in
Section 5.6(d).
The Trustee shall, when directed by the Sponsor, and, in the
absence of such direction, may, in its discretion, sell Gold in such quantity
and at such times, as may be necessary to permit payment of expenses under this
Agreement. The Trustee is authorized to sell Gold at such times and in the
smallest amounts required to permit payment of expenses as they come due, it
being the intention to avoid or minimize the Trust's holdings of assets other
than Gold. Neither the Trustee nor the Sponsor shall have any liability for loss
or depreciation resulting from sales of Gold so made. The Trustee shall not be
liable or responsible in any way for depreciation or loss incurred by reason of
any sale made pursuant to the Sponsor's direction or otherwise in accordance
with this Section.
(b) If at any time and from time to time, the Trustee and
Sponsor determine that the amount of cash included in the Trust Property exceeds
the anticipated expenses of the Trust during the following month, the Trustee
shall distribute the excess to the Registered Owners under Section 4.4.
Section 4.8. Statements and Reports.
After the end of each fiscal year and within the time period
required by applicable laws, rules and regulations, at the Sponsor's expense,
the Trustee shall send to the Registered Owners at the end of such fiscal year,
an annual report of the Trust containing financial statements audited by
independent accountants designated by the
22
Sponsor and such other information as may be required by such laws, rules and
regulations or otherwise, or which the Sponsor determines shall be included. The
Trustee may distribute the annual report by any means acceptable to the
Registered Owners.
Section 4.9. Further Provisions for Gold Sales.
In addition to selling Gold in accordance with Section 4.7, the
Trustee shall sell Gold whenever any one or more of the following conditions
exist:
(a) the Sponsor has notified the Trustee that such sale is
required by applicable law or regulation; or
(b) this Agreement has been terminated and the Trust
Property is to be liquidated in accordance with Section 6.2.
Unless otherwise directed by the Sponsor, when selling Gold the
Trustee shall endeavor to place orders with dealers (which may include the
Custodian) through which it may reasonably expect to obtain a favorable price
and good execution of orders.
The Trustee and the Sponsor shall not be liable or responsible
in any way for depreciation or loss incurred by reason of any sale made pursuant
to this Section 4.9.
Section 4.10. Counsel.
The Sponsor may from time to time employ counsel to act on
behalf of the Trust and perform any legal services in connection with the Gold
and the Trust, including any legal matters relating to the possible disposition
or acquisition of any Gold. The fees and expenses of such counsel shall be paid
by the Sponsor.
Section 4.11. Grantor Trust.
Nothing in this Agreement, any agreement with a Custodian, or
otherwise, shall be construed to give the Trustee the power to vary the
investment of the Beneficial Registered Owners within the meaning of Section
301.7701-4(c) under the Internal
23
Revenue Code of 1986, as amended (the "Code") or any similar or successor
provision of the regulations under the Code, nor shall the Sponsor give the
Trustee any direction that would vary the investment of the Beneficial Owners.
However, the Trustee shall not be liable to any Person for any failure of the
Trust to qualify as a grantor trust under the Code or any comparable provision
of the laws of any State or other jurisdiction where that treatment is sought,
except that this sentence shall not limit the Trustee's responsibility for the
administration of the Trust in accordance with this Agreement.
ARTICLE 5
THE TRUSTEE AND THE SPONSOR
Section 5.1. Maintenance of Office and Transfer Books by the
Trustee.
(a) Until termination of this Agreement in accordance with its
terms, the Trustee shall maintain facilities for the execution and Delivery,
registration, registration of transfers and Surrender of Shares in accordance
with the provisions of this Agreement.
(b) The Trustee shall keep books for the registration of Shares
and registration of transfers of Shares which at all reasonable times shall be
open for inspection by the Registered Owners.
(c) The Trustee may, and at the reasonable written request of
the Sponsor shall, close the transfer books at any time or from time to time if
such action is deemed necessary or advisable in the reasonable judgment of the
Trustee of the Sponsor.
(d) If any Shares are listed on one or more stock exchanges in
the United States, the Trustee shall act as Registrar or, with the written
approval of the Sponsor (which approval shall not be unreasonably withheld),
appoint a registrar or one or more co-registrars for registry of such Shares in
accordance with any requirements of such exchange or exchanges.
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Section 5.2. Prevention or Delay in Performance by the
Sponsor or the Trustee.
Neither the Sponsor nor the Trustee nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Registered Owner, Beneficial Owner or Depositor if, by reason of any provision
of any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the Sponsor or the Trustee is prevented or forbidden from, or would be
subject to any civil or criminal penalty on account of, or is delayed in, doing
or performing any act or thing which by the terms of this Agreement it is
provided shall be done or performed and accordingly the Sponsor or the Trustee
does not do that thing or does that thing at a later time than would otherwise
be required. The Sponsor and the Trustee will not incur any liability to any
Registered Owner or Beneficial Owner or Depositor by reason of any
non-performance or delay in the performance of any act or thing which by the
terms of this Agreement it is provided may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Agreement.
Section 5.3. Obligations of the Sponsor and the Trustee.
(a) Neither the Sponsor nor the Trustee assumes any obligation
nor shall either of them be subject to any liability under this Agreement to any
Registered Owner or Beneficial Owner or Depositor (including, without
limitation, liability with respect to the worth of the Trust Property), except
that each of them agrees to perform its obligations specifically set forth in
this Agreement without negligence or bad faith.
(b) Neither the Sponsor nor the Trustee shall be under any
obligation to prosecute any action, suit or other proceeding in respect of any
Trust Property or in respect of the Shares on behalf of a Registered Owner,
Beneficial Owner, Depositor or other Person.
25
(c) Neither the Sponsor nor the Trustee shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any Depositor, any Registered Owner or any other
person believed by it in good faith to be competent to give such advice or
information.
(d) The Trustee shall not be liable for any acts or omissions
made by a successor Trustee whether in connection with a previous act or
omission of the Trustee or in connection with any matter arising wholly after
the resignation of the Trustee, provided that in connection with the issue out
of which such potential liability arises the Trustee performed its obligations
without negligence or bad faith while it acted as Trustee.
(e) The Trustee and the Sponsor shall have no obligation to
comply with any direction or instruction from any Registered Owner or Beneficial
Owner or Depositor regarding Shares except to the extent specifically provided
in this Agreement.
(f) The Trustee shall be a fiduciary under this Agreement;
provided, however, that the fiduciary duties and responsibilities and
liabilities of the Trustee shall be limited by, and shall be only those
specifically set forth in, this Agreement.
(g) The Sponsor shall be responsible for all organizational
expenses of the Trust, and for the following administrative and marketing
expenses of the Trust: the Trustee's monthly fee, the Custodian's fee, listing
fees of the Exchange, registration fees charged by the Commission, printing and
mailing costs, audit fees and legal expenses not in excess of $100,000 per year.
Section 5.4. Resignation or Removal of the Trustee;
Appointment of Successor Trustee.
(a) The Trustee may at any time resign as Trustee hereunder by
written notice of its election so to do, delivered to the Sponsor, and such
resignation shall take
26
effect upon the appointment of a successor Trustee and its acceptance of such
appointment as hereinafter provided.
(b) The Sponsor may remove the Trustee in its discretion by
written notice delivered to the Trustee in the manner provided in Section 7.5 at
least 90 days prior to the fifth anniversary of the date of this Agreement or,
thereafter, by written notice delivered to the Trustee at least 90 days prior to
the last day of any subsequent three-year period. If at any time the Trustee
ceases to be a Qualified Bank or is in material breach of its obligations under
this Agreement and the Trustee fails to cure such breach within 30 days after
receipt by the Trustee of written notice from the Sponsor or Registered Owners
acting on behalf of at least 25% of the outstanding Shares specifying such
default and requiring the Trustee to cure such default, the Sponsor, acting on
behalf of the Registered Owners, may remove the Trustee by written notice
delivered to the Trustee in the manner provided in Section 7.5, and such removal
shall take effect upon the appointment of a successor Trustee and its acceptance
of such appointment as hereinafter provided.
(c) If the Trustee acting hereunder resigns or is removed, the
Sponsor, acting on behalf of the Registered Owners, shall use its reasonable
efforts to appoint a successor Trustee, which shall be a Qualified Bank. Every
successor Trustee shall execute and deliver to its predecessor and to the
Sponsor, acting on behalf of the Registered Owners, an instrument in writing
accepting its appointment hereunder, and thereupon such successor Trustee,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor; but such predecessor,
nevertheless, upon payment of all sums due it and on the written request of the
Sponsor, acting on behalf of the Registered Owners, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Trust Property to such successor, and shall deliver to such
successor a list of the Registered Owners of all outstanding Shares. The Sponsor
or any such successor Trustee shall
27
promptly mail notice of the appointment of such successor Trustee to the
Registered Owners.
(d) Any corporation into which the Trustee may be merged,
consolidated or converted in a transaction in which the Trustee is not the
surviving corporation shall be the successor of the Trustee without the
execution or filing of any document or any further act. During the 90-day period
following the effectiveness of a merger, consolidation or conversion described
in the preceding sentence, the Sponsor may, by written notice to the Trustee,
remove the Trustee and designate a successor Trustee in compliance with the
provisions of subsection (c) above.
Section 5.5. The Custodian.
The Custodian will be subject at all times and in all respects
to the directions of the Trustee and will be responsible solely to it. Any
Custodian may resign and be discharged from its duties by notice of such
resignation delivered to the Trustee at least 60 days prior to the date on which
such resignation is to become effective. If upon the effectiveness of such
resignation there would be no Custodian acting hereunder, the Trustee shall,
promptly after receiving such notice, with the written approval of the Sponsor
(which approval shall not be unreasonably withheld or delayed), appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Trustee in its discretion determines that it
is in the best interest of the Registered Owners to do so, it may with the
written approval of the Sponsor (which approval shall not be unreasonably
withheld or delayed), appoint a substitute or additional custodian or
custodians, which shall thereafter be one of the Custodians hereunder. After the
date of this Agreement, the Trustee shall not enter into or amend any custody
agreement with a Custodian without the written approval of the Sponsor (which
approval shall not be unreasonably withheld or delayed). Upon demand of the
Trustee any Custodian shall deliver such of the Gold held by it as are requested
of it to any other Custodian or such substitute or additional custodian or
custodians. Each such substitute or additional custodian shall deliver to the
Trustee, forthwith upon its
28
appointment, an acceptance of such appointment satisfactory in form and
substance to the Trustee.
Upon the appointment of any successor Trustee hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor Trustee and the appointment of
such successor Trustee shall in no way impair the authority of each Custodian
hereunder; but the successor Trustee so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor Trustee.
Section 5.6. Indemnification.
(a) The Sponsor shall indemnify the Trustee, its directors,
employees and agents (the "Trustee Indemnified Persons") against, and hold each
of them harmless from, any loss, liability, cost, expense or judgment
(including, but not limited to, the reasonable fees and expenses of counsel)
(collectively "Indemnified Amounts") that is incurred by any of them and that
arises out of or is related to (i) any offer or sale by the Trust of Baskets of
Shares under this Agreement, (ii) acts performed or omitted pursuant to the
provisions of this Agreement, as the same may be amended, modified or
supplemented from time to time, (A) by a Trustee Indemnified Person or (B) by
the Sponsor or (iii) any filings with or submissions to the Commission in
connection with or with respect to the Shares (which by way of illustration and
not by way of limitation, include any registration statement and any amendments
or supplements thereto filed with the Commission or any periodic reports or
updates that may be filed under the Securities Exchange Act of 1934, as amended,
or any failure to make any filings with or submissions to the Commission which
are required to be made in connection with or with respect to the Shares),
except that the Sponsor shall not have any obligations under this Section 5.6(a)
to pay Indemnified Amounts incurred as a result of and attributable to (x) the
negligence or bad faith of, or material breach of the terms of this Agreement
by, the
29
Trustee, (y) written information furnished in writing by the Trustee to the
Sponsor expressly for use in the registration statement, or any amendment
thereto, filed with the Commission relating to the Shares that is not materially
altered by the Sponsor or (z) any misrepresentations or omissions made by a
Depositor (other than Sponsor) in connection with such Depositor's offer and
sale of Shares.
(b) The Trustee shall indemnify the Sponsor, its directors,
employees and agents against, and hold each of them harmless from, any
Indemnified Amounts (i) caused by the negligence or bad faith of the Trustee or
(ii) arising out of any information furnished in writing to the Sponsor by the
Trustee expressly for use in the registration statement, or any amendment
thereto, filed with the Commission relating to the Shares that is not materially
altered by the Sponsor.
(c) If the indemnification provided for in Section 5.6(a) or (b)
is unavailable or insufficient to hold harmless the indemnified party under
subsection (a) or (b) above, then the indemnifying party shall contribute to the
Indemnified Amounts referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sponsor on the one hand and the Trustee on the other hand from the offering of
the Shares which are the subject of the action 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 on the one
hand and the Trustee on the other hand in connection with the action, statement
or omission which resulted in such Indemnified Amount as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
from which the action arises relates to information supplied by the Sponsor or
the Trustee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission or the
act or omission from which the action arises. The amount of Indemnified Amounts
referred to in the first
30
sentence of this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (c).
(d) The Sponsor and its shareholders, directors, officers,
employees, affiliates (as such term is defined under the Securities Act of 1933,
as amended) and subsidiaries (each a "Sponsor Indemnified Party") shall be
indemnified from the Trust and held harmless against any loss, liability or
expense incurred without (1) negligence, bad faith, willful misconduct or
willful malfeasance on the part of such Sponsor Indemnified Party arising out of
or in connection with the performance of its obligations under this Agreement or
any actions taken in accordance with the provisions of this Agreement or (2)
reckless disregard on the part of such Sponsor Indemnified Party of its
obligations and duties under this Agreement. Such indemnity shall include
payment from the Trust of the costs and expenses incurred by such Sponsor
Indemnified party in defending itself against any claim or liability in its
capacity as Sponsor. Any amounts payable to a Sponsor Indemnified Party under
this Section 5.6(d) may be payable in advance or shall be secured by a lien on
the Trust. The Sponsor may, in its discretion, undertake any action which it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and the interests of the Registered Owners and, in
such event, the legal expenses and costs of any such actions shall be expenses
and costs of the Trust and the Sponsor shall be entitled to be reimbursed
therefor by the Trust.
(e) If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than seven (7) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's
31
ability to seek indemnification from the Indemnitor (but only for costs,
expenses and liabilities incurred after such notice) unless such failure
adversely affects the Indemnitor's ability to adequately oppose or defend such
Proceeding. Upon receipt of such notice from the Indemnitee, the Indemnitor
shall be entitled to participate in such Proceeding and, to the extent that it
shall so desire and provided no conflict of interest exists as specified in
clause (i) below and there are no other defenses available to Indemnitee as
specified in clause (iii) below, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnitee (in which case all attorney's fees and
expenses shall be borne by the Indemnitor and the Indemnitor shall in good faith
defend the Indemnitee). The Indemnitee shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but,
in such case, no fees and expenses of such counsel shall be borne by the
Indemnitor unless such fees and expenses are otherwise required to be
indemnified under Section 5.06(a), (b) or (d), as applicable, and (i) there is
such a conflict of interest between the Indemnitor and the Indemnitee as would
preclude, in compliance with the ethical rules in effect in the jurisdiction in
which the Proceeding was brought, one lawyer from representing both parties
simultaneously, (ii) the Indemnitor fails, within the earlier of (x) twenty (20)
days following receipt of notice of the Proceeding from the Indemnitee or (y)
seven (7) days prior to the date the first response or appearance is required to
be made in such Proceeding, to assume the defense of such Proceeding with
counsel reasonably satisfactory to the Indemnitee or (iii) there are legal
defenses available to Indemnitee that are different from or are in addition to
those available to the Indemnitor. No compromise or settlement of such
Proceeding may be effected by either party without the other party's consent
unless (m) there is no finding or admission of any violation of law and no
effect on any other claims that may be made against such other party and (n) the
sole relief provided is monetary damages that are paid in full by the party
seeking the settlement. Neither party shall have any liability with respect to
any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and
hold harmless the Indemnitee from any loss, expense or liability incurred by the
Indemnitee as
32
a result of a default judgment entered against the Indemnitee unless such
judgment was entered after the Indemnitor agreed, in writing, to assume the
defense of such Proceeding.
Section 5.7. Charges of Trustee.
(a) Each Depositor, and each person surrendering Shares for
the purpose of withdrawing Trust Property, shall pay to the Trustee a fee of
$1,000 or less per transaction for the Delivery of Shares pursuant to Section
2.4 and the Surrender of Baskets of Shares pursuant to Section 2.6 or 6.2.
(b) The Trustee is entitled to receive from the Sponsor fees
for its services and reimbursement for its out-of-pocket expenses in accordance
with written agreements between the Sponsor and the Trustee.
(c) The Trustee is entitled to charge the Trust for all
expenses and disbursements incurred by it under Section 5.12(a) or that are of
the type described in Sections 4.7(a)(2) or (3) of this Agreement (including the
fees and disbursements of its legal counsel), except that the Trustee is not
entitled to charge the Trust for (i) expenses and disbursements incurred by it
prior to the commencement of trading of Shares on the Exchange and (ii) fees of
agents for performing services the Trustee is required to perform under this
Agreement.
Section 5.8. Charges of Sponsor.
(a) The Sponsor is entitled to receive from the Trust, as an
expense of the Trust, a fee for services that will accrue daily at an annualized
rate of 0.40% of Adjusted Net Asset Value and will be payable monthly in
arrears.
(b) The Sponsor is entitled to receive reimbursement from
the Trust for all expenses and disbursements incurred by it under the last
sentence of Section 5.6(d) or that are of the type described in Sections
4.7(a)(2), (3) or (4) of this Agreement, except that the Sponsor is not entitled
to charge the Trust for (i) expenses and
33
disbursements incurred by it prior to the commencement of trading of Shares on
the Exchange and (ii) fees of agents for performing services the Sponsor is
required to perform under this Agreement.
Section 5.9. Retention of Trust Documents.
The Trustee is authorized to destroy those documents, records,
bills and other data compiled during the term of this Agreement at the times
permitted by the laws or regulations governing the Trustee, unless the Sponsor
reasonably requests the Trustee in writing to retain those items for a longer
period.
Section 5.10. Federal Securities Law Filings.
The Sponsor shall (i) prepare and file a registration statement
with the Commission and take such action as is necessary from time to time to
qualify the Shares for offering and sale under the federal securities laws of
the United States, including the preparation and filing of amendments and
supplements to such registration statement, (ii) promptly notify the Trustee of
any amendment or supplement to the registration statement or prospectus, of any
order preventing or suspending the use of any prospectus, of any request for the
amending or supplementing of the registration statement or prospectus or if any
event or circumstance occurs which is known to the Sponsor as a result of which
the registration statement or prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (iii) provide the Trustee from time
to time with copies, including copies in electronic form, of the prospectus, as
amended and supplemented, in such quantities as the Trustee may reasonably
request and (iv) prepare and file any periodic reports or updates that may be
required under the Securities Exchange Act of 1934, as amended. The Trustee
shall furnish to the Sponsor any information from the records of the Trust that
the Sponsor reasonably requests in writing
34
that is needed to prepare any filing or submission that the Sponsor or the Trust
is required to make under the federal securities laws of the United States.
Section 5.11. Prospectus Delivery.
The Trustee shall, if required by the federal securities laws of
the United States, in any manner permitted by such laws, deliver at the time of
issuance of Shares, a copy of the relevant prospectus, as most recently
furnished to the Trustee by the Sponsor, to each Depositor.
Section 5.12. Discretionary Actions by Trustee; Consultation.
(a) The Trustee may, in its discretion, undertake any action
that it considers necessary or desirable to protect the Trust or the interests
of the Registered Owners. The expenses incurred by the Trustee in connection
with taking any action under the preceding sentence (including the fees and
disbursements of legal counsel) shall be expenses of the Trust, and the Trustee
shall be entitled to be reimbursed for those expenses by the Trust.
(b) The Trustee shall notify and consult with the Sponsor
before undertaking any action under subsection (a) above or if the Trustee
becomes aware of any development or event that affects the administration of the
Trust but is not contemplated or provided for in this Agreement.
(c) The Sponsor shall notify and consult with the Trustee
before undertaking any action under the last sentence of Section 5.6(d) or if
the Sponsor becomes aware of any development or event that affects the
administration of the Trust but is not contemplated or provided for in this
Agreement.
35
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.1. Amendment.
The Trustee and the Sponsor may amend any provisions of this
Agreement without the consent of any Registered Owner. Any amendment that
imposes or increases any fees or charges (other than taxes and other
governmental charges, registration fees or other such expenses), or that
otherwise prejudices any substantial existing right of the Registered Owners
will not become effective as to outstanding Shares until 30 days after notice of
such amendment is given to the Registered Owners. Every Registered Owner and
Beneficial Owner, at the time any amendment so becomes effective, shall be
deemed, by continuing to hold any Shares or an interest therein, to consent and
agree to such amendment and to be bound by this Agreement as amended thereby. In
no event shall any amendment impair the right of the Registered Owner of Shares
to Surrender Baskets of Shares and receive therefor the amount of Trust Property
represented thereby, except in order to comply with mandatory provisions of
applicable law.
Section 6.2. Termination.
(a) The Trustee shall set a date on which this Agreement will
terminate and mail notice of that termination to the Registered Owners at least
30 days prior to the date set for termination if any of the following occurs:
(i) The Trustee is notified that the Shares are delisted
from a national securities exchange and are not approved for listing on another
national securities exchange within five business days of their delisting;
(ii) Registered Owners acting in respect of at least 75% of
the outstanding Shares notify the Trustee that they elect to terminate the
Trust;
36
(iii) 60 days have elapsed since the Trustee notified the
Sponsor of the Trustee's election to resign and a successor trustee has not been
appointed and accepted its appointment as provided in Section 5.4;
(iv) the Commission determines that the Trust is an
investment company under the Investment Company Act of 1940, as amended, and the
Trustee has actual knowledge of such Commission determination;
(v) the aggregate market capitalization of the Trust, based
on the closing price for the Shares was less than $350 million for five
consecutive trading days and the Trustee receives, within six months after the
last of those trading days, notice from the Sponsor of its decision to terminate
the Trust;
(vi) the CFTC determines that the Trust is a commodity pool
under the Commodity Exchange Act of 1936, as amended, and the Trustee has actual
knowledge of that determination; or
(vii) the Trust fails to qualify for treatment, or ceases to
be treated, for United States federal income tax purposes, as a grantor trust,
and the Trustee receives notice from the Sponsor that the Sponsor determines
that, because of that tax treatment or change in tax treatment, termination of
the Trust is advisable.
(b) If no event specified in subsection (a) above occurs
first, the Trust shall terminate on __________, 2044, and the Trustee shall mail
a notice of that impending termination to the Registered Owners at least 30 days
before that anniversary.
(c) On and after the date of termination of this Agreement, the
Registered Owner of Shares will, upon (i) Surrender of those Shares, (ii)
payment of the fee of the Trustee for the Surrender of Shares provided in
Section 5.7, and (iii) payment of any applicable taxes or other governmental
charges, be entitled to Delivery, to him or upon his order, of the amount of
Trust Property represented by those Shares. The Trustee shall not accept any
deposits of Gold after the date of termination of this Agreement. If
37
any Shares remain outstanding after the date of termination of this Agreement,
the Trustee thereafter shall discontinue the registration of transfers of
Shares, shall not make any distributions to Registered Owners, and shall not
give any further notices or perform any further acts under this Agreement,
except that the Trustee shall continue to collect distributions pertaining to
Trust Property and hold the same uninvested and without liability for interest,
pay the Trust's expenses and sell Gold as necessary to meet those expenses and
shall continue to deliver Trust Property, together with any distributions
received with respect thereto and the net proceeds of the sale of any other
property, in exchange for Shares Surrendered to the Trustee (after deducting or
upon payment of, in each case, the fee of the Trustee set forth in 5.7 for the
Surrender of Shares, any expenses for the account of the Registered Owner of
such Shares in accordance with the terms and conditions of this Agreement, and
any applicable taxes or other governmental charges). At any time after the
expiration of 90 days following the date of termination of this Agreement, the
Trustee may sell the Trust Property then held under this Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it under this Agreement, unsegregated and without
liability for interest, for the pro rata benefit of the Registered Owners of
Shares that have not theretofore been Surrendered, such Registered Owners
thereupon becoming general creditors of the Trustee with respect to such net
proceeds. After making such sale, the Trustee shall be discharged from all
obligations under this Agreement, except to account for such net proceeds and
other cash (after deducting, in each case, any fees, expenses, taxes or other
governmental charges payable by the Trust, the fee of the Trustee for the
Surrender of Shares and any expenses for the account of the Registered Owner of
such Shares in accordance with the terms and conditions of this Agreement, and
any applicable taxes or other governmental charges). Upon the termination of
this Agreement, the Sponsor shall be discharged from all obligations under this
Agreement except for its obligations to the Trustee under Section 5.6. Sections
5.6, 5.7 and 5.8 shall survive termination of this Agreement.
38
ARTICLE 7
MISCELLANEOUS
Section 7.1. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Agreement shall be filed
with the Trustee and shall be open to inspection by any Registered Owner during
the Trustee's business hours.
Section 7.2. Third-Party Beneficiaries.
This Agreement is for the exclusive benefit of the parties
hereto, and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
Section 7.3. Severability.
In case any one or more of the provisions contained in this
Agreement should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4. Registered Owners, Beneficial Owners and
Depositors as Parties; Binding Effect.
The Registered Owners, Beneficial Owners and Depositors from
time to time shall be parties to this Agreement and shall be bound by all of the
terms and conditions hereof by their acceptance of Shares or any interest
therein or by their depositing Gold, as the case may be.
39
Section 7.5. Notices.
(a) All notices given under this Agreement must be in writing.
(b) Any and all notices to be given to the Trustee or the
Sponsor shall be deemed to have been duly given (i) when it is actually
delivered by a messenger or recognized courier service, (ii) five days after it
is mailed by registered or certified mail, postage paid or (iii) when receipt of
a facsimile transmission is acknowledged via a return receipt or receipt
confirmation as requested by the original transmission, in each case to or at
the address set forth below:
To the Trustee:
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ADR Administration
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or any other place to which the Trustee may have transferred its Corporate Trust
Office with notice to the Sponsor.
To the Sponsor:
BARCLAYS GLOBAL INVESTORS, N.A.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ______________________
Facsimile: ______________________
__________________________________
__________________________________
__________________________________
or any other place to which the Sponsor may have transferred its principal
office with notice to the Trustee.
(c) Any and all notices to be given to a Registered Owner shall
be deemed to have been duly given (i) when actually delivered by messenger or a
recognized courier service, (ii) when mailed, postage prepaid or (iii) when sent
by facsimile transmission confirmed by letter, in each case at or to the address
of such Registered Owner as it
40
appears on the transfer books of the Trustee, or, if such Registered Owner shall
have filed with the Trustee a written request that any notice or communication
intended for such Registered Owner be delivered to some other address, at the
address designated in such request.
Section 7.6. Agent for Service; Submission to Jurisdiction.
The Sponsor hereby (i) irrevocably designates and appoints
Barclays Bank PLC, New York Branch, General Counsel's Office, located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State of New York, as
the Sponsor's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares, the Trust Property or this
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in The City of New York, State of New York, in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Sponsor in any such suit or proceeding. The Sponsor agrees to deliver,
upon the execution and delivery of this Agreement, a written acceptance by such
agent of its appointment as such agent. The Sponsor further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any Shares remain outstanding or this
Agreement remains in force. In the event the Sponsor fails to continue such
designation and appointment in full force and effect, the Sponsor hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Sponsor at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
41
Section 7.7. Governing Law.
This Agreement shall be interpreted under, and all rights and
duties under this Agreement shall be governed by, the internal substantive laws
(but not the choice of law rules) of the State of New York.
42
IN WITNESS WHEREOF, BARCLAYS GLOBAL INVESTORS, N.A. and THE BANK
OF NEW YORK have duly executed this Agreement as of the day and year first set
forth above.
BARCLAYS GLOBAL INVESTORS, N.A.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Name:
Title: Vice President
43
EXHIBIT A
[Form of Certificate]
THE SHARES EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING TRUST
PROPERTY (AS DEFINED IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN) HELD
BY THE TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND ARE
NOT GUARANTEED BY THE SPONSOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THE SHARES NOR THE UNDERLYING TRUST PROPERTY ARE INSURED
UNDER ANY AGREEMENT THAT DIRECTLY BENEFITS THE TRUST OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
1
iSHARES COMEX GOLD TRUST SHARES
ISSUED BY
iSHARES COMEX GOLD TRUST
REPRESENTING
FRACTIONAL INTERESTS IN DEPOSITED GOLD AND ANY OTHER TRUST
PROPERTY
THE BANK OF NEW YORK, as Trustee
No.____ * Shares
CUSIP: ____________
THE BANK OF NEW YORK, as Trustee (hereinafter called the Trustee),
hereby certifies that CEDE & CO., as nominee of the Depository Trust Company, or
registered assigns, IS THE OWNER OF * Shares issued by iShares COMEX Gold Trust,
each representing a fractional undivided interest in the net assets of the
Trust, as provided in the Agreement referred to below. At the time of delivery
of the Agreement, each 50,000 Shares represented an interest in 5,000 Fine
Ounces of Gold that are deposited under the Agreement and held by the Custodian
referred to in the Agreement. The amount of Gold in which each 50,000 Shares
represents an interest will decline over time as provided in the Agreement. The
Trustee's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and its principal executive office is located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
This Certificate is issued upon the terms and conditions set forth in
the Depositary Trust Agreement dated as of _________, 2004 (the "Agreement")
among Barclays Global Investors, N.A. (herein called the Sponsor), the Trustee,
all Registered Owners and Beneficial Owners from time to time of Shares issued
thereunder and all Depositors. By becoming a Registered Owner or Beneficial
Owner, or by depositing Gold, a Person becomes a party to the Agreement and is
bound by all the terms and conditions of the Agreement. The Agreement sets forth
the rights of Depositors and Registered Owners and the rights and duties of the
Trustee and the Sponsor. Copies of the Agreement are on file at the Trustee's
Corporate Trust Office in New York City.
----------
* That number of Shares held at The Depository Trust Company at any given
point in time.
2
The Agreement is hereby incorporated by reference into and made a part
of this Certificate as if set forth in full in this place. Capitalized terms not
defined herein shall have the meanings set forth in the Agreement.
This Certificate shall not be entitled to any benefits under the
Agreement or be valid or obligatory for any purpose unless it is executed by the
Trustee by the manual or facsimile signature of a duly authorized signatory of
the Trustee and, if a Registrar (other than the Trustee) for the Shares shall
have been appointed, countersigned by the manual signature of a duly authorized
officer of the Registrar.
Dated: THE BANK OF NEW YORK,
--------------------- as Trustee
By:
---------------------------
THE TRUSTEE'S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
3