EXHIBIT 10.1
CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT dated as of ____________, 2004 (this "Agreement"),
by and between THE BANK OF NEW YORK, a banking corporation organized under the
laws of the State of New York and having an office at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in its capacity as trustee ("Trustee") of the iShares
COMEX Gold Trust (the "Trust"), and THE BANK OF NOVA SCOTIA, a bank organized
under the laws of Canada, and having an office at Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as agent for Trustee ("Custodian").
WHEREAS, Trustee wishes to establish an account with Custodian to hold
and maintain certain property which Trustee holds in its capacity as Trustee;
and
WHEREAS, Custodian agrees to establish such custody account and to hold
and maintain the property in such account on the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, Trustee and Custodian agree as follows:
1. Establishment of Account.
(a) Custodian shall establish and maintain one or more
custodial accounts entitled "The Bank of New York, as trustee of the iShares
COMEX Gold Trust" (collectively, the "Account") for the receipt and
maintenance of: (i) Gold bars delivered to Custodian as contemplated in the
Creation and Redemption Procedures attached hereto as Annex 1 (the
"Procedures"); (ii) Gold received by the Custodian on an Unallocated Basis,
as contemplated by the Procedures; and (iii) cash or other assets of the
Trustee which may come under the possession of the Custodian (all assets
held in the Account are collectively referred to as the "Property").
(b) For purposes of this Agreement:
"Gold" means (1) gold that (i) would be eligible for delivery in
settlement of a COMEX gold futures contract in accordance with COMEX Rules
("COMEX Gold") or (ii) meets the requirements of "good delivery" under the rules
of the London Bullion Market Association ("LBMA Gold") and (2) credit to an
account on an Unallocated Basis representing the right to receive gold that
meets the requirements of part (1) of this definition.
"Unallocated Basis" means that the person in whose name gold is
so held is entitled to receive delivery of gold in the amount 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.
(c) The ownership of Property in the Account, whether
any such Property is held by Custodian (including in its account at The Bank
of England) or by a Sub-Custodian (as defined in Section 5) shall be clearly
recorded on Custodian's books as belonging to Trustee. To the extent
Property is physically held in the Account, such Property shall also be
physically segregated from the general assets of Custodian, the assets of
Trustee in its individual capacity and the assets of Custodian's other
customers, except in the case of Gold held on an Unallocated Basis or held
through the Custodian's account at The Bank of England.
(d) Custodian will at all times take reasonable action
to minimize the amount of Gold in the Account that is on an Unallocated
Basis. Custodian shall allocate Gold bars to the Account so that no more
than 430 Ounces of Gold is held in the Account on an Unallocated Basis at
the close of each business day of the Custodian.
2. Representations and Warranties of Custodian. Custodian hereby
represents and warrants that, as of the date of this Agreement and as of any
date on which Gold is credited to, debited from, or substituted in, the Account:
(a) it is a bank, duly organized under the laws of its
country of organization as set forth above, and it is regulated as such by
that country's government or an agency thereof;
(b) it has and shall maintain during the term of this
Agreement at least the minimum amount of capital required to be an approved
depository in respect of gold futures traded on COMEX;
(c) this Agreement has been duly authorized, executed
and delivered on its behalf and constitutes the legal, valid and binding
obligation of Custodian;
(d) the execution, delivery and performance of this
Agreement by Custodian do not and will not violate any applicable law or
regulation and do not require the consent of any governmental or other
regulatory body except for such consents and approvals as have been
obtained, which are identified on Schedule A hereto and which are in full
force and effect; and
(e) Gold substituted by it for other Gold previously
held in the Account meets part (1) of the definition of "Gold" in this
Agreement and has a fine weight at least equal to the fine weight of the
Gold for which it was substituted.
3. Undertakings and Agreements of Custodian. Custodian hereby
undertakes and agrees that, so long as any Property is held in the Account:
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(a) Insurance. Custodian shall maintain adequate
insurance in support of the indemnification provided for in Section 11
hereof, and otherwise covering any loss of Property. Custodian shall provide
Trustee with evidence of such insurance coverage as of the date of this
Agreement and thereafter upon Trustee's request. Such insurance coverage
will not be reduced without 30 days' prior written notice to Trustee. Upon
reasonable prior written notice, in connection with the preparation of the
initial registration statement under the Securities Act of 1933 for shares
of the Trust or any amendment to that registration statement or any
subsequent registration statement for those shares, Custodian will allow its
insurance to be reviewed by Trustee, the Sponsor, any underwriter mentioned
in that registration statement or amendment and their respective counsel.
However, Custodian may require any party seeking to review its insurance
under the preceding sentence, as a condition of making that review, to
execute a reasonable confidentiality agreement in a form determined by
Custodian in its reasonable discretion covering that review.
(b) Charges; Liens. The Property shall not be subject to
any right, charge, security interest, lien or claim of any kind in favor of
Custodian, any Sub-Custodian or any creditor of any of them, except a claim
of payment for the safe custody and administration of the Property or, in
the case of cash deposits, liens or rights in favor of creditors of the
Custodian arising under bankruptcy, insolvency, or similar laws. Custodian
shall not loan, hypothecate, pledge or otherwise encumber any Property in
the Account absent Trustee's written instructions.
(c) Transferability. Beneficial ownership of the
Property shall be freely transferable without the payment of money or value
other than for safe custody or administration.
(d) Records. Adequate records will be maintained by
Custodian identifying the Property as belonging to Trustee. Such records
shall include, with respect to the Account, (i) journals or other records of
original entry containing an itemized daily record in detail of all receipts
and deliveries of Property (including adequate information to uniquely
identify each bar of Gold received in or delivered from the Account, except
for Gold held on an Unallocated Basis) and all receipts and disbursements of
cash; (ii) ledgers (or other records) reflecting (A) Property in physical
possession of Custodian or held by any Sub-Custodian, and (B) Gold held on
an Unallocated Basis, and allocations made daily in respect thereof, as
provided in Section 17; and (iii) such other books and records as Trustee
may reasonably request.
(e) Reports. For each business day, not later than 9:00
a.m., New York time on the following business day, Custodian shall transmit
to Trustee by facsimile message signed by an Authorized Person of the
Custodian set forth on Schedule B-2 and by e-mail information showing the
movement of Gold into and out of the Account, identifying separately each
transaction and any substitution or
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relocation of Gold made under Section 4(e). Custodian shall supply to
Trustee at least monthly, within ten business days following the end of each
calendar month, by facsimile message signed by an Authorized Person of the
Custodian a written statement which (i) lists all Property held in the
Account including a weight list for the Gold in the Account (other than Gold
held on an Unallocated Basis) containing information sufficient to uniquely
identify each bar of Gold; (ii) identifies the entity having physical
possession of such Property; and (iii) details all transactions involving
the Account, including daily balances held on an Unallocated Basis and all
transfers to or from the Account or any account with a Sub-Custodian
containing Property held for the benefit of Trustee and Account and any
substitutions or relocations of Gold held in the Account. Such reports shall
also include any other information that Trustee may reasonably request.
Custodian shall provide additional weight lists to the Trustee upon request
from the Trustee. For each business day, not later than 9:00 a.m., New York
time on the following business day, Custodian shall transmit to COMEX by
facsimile message signed by an Authorized Person of Custodian set forth on
Schedule B-2 a report showing the total number of fine ounces of Gold held
in the Account in each of (1) New York, (2) London and (3) any other
location, and showing in each case the amount of Gold that in the form of
(i) 400 ounce bars and (ii) 100 ounce or 1 kilogram bars. The parties
understand and agree that Custodian (x) will not know, and (y) will not have
any duty to determine, and (z) except as provided in Section 2, in making
any report required under this Agreement will not be considered to be making
any representation or warranty as to, whether in fact the Gold deposited
with it contains the amount of pure gold indicated on the bars. Except for
Gold deposited by it in substitution for other Gold held in the Account,
CUSTODIAN DISCLAIMS ALL LIABILITY FOR THE GENUINENESS AND FINENESS OF GOLD
DEPOSITED WITH IT UNDER THIS AGREEMENT.
(f) Notice of Changes. Custodian shall notify Trustee
immediately in writing if (i) Custodian receives notice of any claim against
the Property other than a claim for payment of safe custody or
administration permitted by this Agreement; (ii) Custodian shall otherwise
fail to comply with any of the provisions of this Agreement; or (iii) any of
the representations and warranties in Section 2 shall cease to be true and
correct.
(g) Location of Gold. Gold in the Account shall be held
by the Custodian (or a Sub-Custodian pursuant to Section 5) at (i)
facilities that are licensed or designated for the storage of gold by COMEX
or, (ii) in the case of LBMA Gold, premises located in the state of New
York, or in Toronto, Canada, Montreal, Canada or London, England (or within
a 100 mile radius from each of Toronto, Montreal or London) or in another
location agreed in writing between the parties with the Sponsor's approval.
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(h) Capacity. Custodian will have no obligation to
accept a deposit of Gold under this Agreement if it lacks Capacity.
Custodian lacks "Capacity" to accept a proposed deposit of Gold if and to
the extent that (i) there is not enough physical space in vaults available
to the Custodian in the relevant location to store Gold at that location or,
in the case of Gold held by the Custodian at The Bank of England after
giving effect to the proposed deposit, Gold at The Bank of England would
exceed the maximum amount of Gold belonging to the Trust that the Custodian
has agreed to store at that facility, (ii) vault facilities available to
Custodian in the relevant location cannot accept that Gold on the proposed
date of deposit or (iii) after giving effect to the proposed deposit, the
value of all Gold held in the Account would exceed $2 billion.
4. Powers and Duties of Custodian.
(a) Delivery, Receipt and Maintenance of Property.
Custodian shall receive, hold, release and deliver Property from the Account
only in accordance with this Agreement and the Procedures.
(b) Release of Property. No Property held in the Account
shall be released in any manner whatsoever except upon written instructions
of Trustee. Custodian will deliver Gold by making Gold bars available for
collection at its office or at the office of a Sub-Custodian at which the
Gold is held. However, Custodian will, upon the order of the Trustee,
deliver amounts of up to 430 xxxx ounces of gold on an Unallocated Basis.
(c) Payment of Taxes. Unless Trustee otherwise instructs
Custodian, Custodian shall pay or cause to be paid from the Account any and
all taxes and levies in the nature of taxes imposed on the Property by any
governmental authority and shall use its best efforts to secure relief from
taxation and other privileges and benefits with respect to the Property;
provided that Custodian shall provide to Trustee an advice or notification
as to any such payments, and provided further that Custodian shall not
liquidate any Gold in order to make such payments without the prior written
consent of Trustee. Custodian will furnish Trustee with written explanations
of its efforts to secure such relief. Trustee shall promptly reimburse
Custodian for the amount of any taxes or levies paid by the Custodian under
this Section 4(c).
(d) Other Information. Custodian shall provide to
Trustee (i) its most recent audited financial statements promptly after such
statements are prepared; (ii) a copy of any reports obtained by Custodian on
the accounting system and internal accounting controls and procedures used
by any Sub-Custodian at which any Property is held; (iii) information
regarding Custodian's policies and procedures, the local law applicable to
its activities, and the overall regulatory and economic environment in which
it operates; and (iv) the names and addresses of the governmental agencies
or regulatory authorities which supervise or regulate Custodian and any
Sub-Custodian with which Property has been deposited pursuant to this
Agreement.
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(e) Substitution and Relocation of Gold. With the prior
approval of Trustee (in consultation with the Sponsor), Custodian may (i)
substitute other Gold for Gold held in the Account, provided that there is
no change in the total number of fine xxxx ounces of Gold held in the
Account and (ii) at its own risk and expense, move Gold held in the Account
from one location to another location otherwise permitted under this
Agreement; provided that, if it becomes necessary to move Gold from The Bank
of England to another location permitted under this Agreement for purposes
of making warehousing space available at The Bank of England at the request
of an Authorized Participant wishing to make delivery of Gold at The Bank of
England, Custodian shall have no obligation to proceed with such relocation
until it has received adequate assurances (in the Custodian's sole
discretion) that the actual relocation expenses will be assumed by such
Authorized Participant or other third party.
(f) Purchases of Gold by Custodian. When requested by
Trustee on any day on which the COMEX is open for regular trading, Custodian
will purchase from Trustee for cash and for same day settlement, the amount
of Gold that the Trustee specifies as necessary to pay the expenses of the
Trust at a price per ounce equal to the settlement price for the expiring
COMEX gold futures contract for that day. Custodian will pay to the Trustee
the proceeds of each purchase of Gold made under this Section 4(f) when
requested by the Trustee or otherwise on the first day on which COMEX is
open for regular trading following the end of the month in which the
purchase was made.
5. Use of Subcustodians.
(a) Qualifications. Custodian may, with the prior
written consent of Trustee, entrust Gold held in the Account to a specified
subcustodian that is eligible to act as a custodian of Gold under applicable
laws and regulations (a "Sub-Custodian") selected by Custodian with due
care.
(b) Separate Account; Bookkeeping; Instructions. Gold
held by a Sub-Custodian shall be kept in an account of Custodian at such
Sub-Custodian, and Custodian shall separately identify on its books Gold
that is so held on behalf of Trustee. The account of Custodian with each
such Sub-Custodian shall be subject only to the instructions of Custodian.
(c) Monitoring. Custodian shall monitor the conduct of
each Sub-Custodian, and promptly advise Trustee of any difficulties or
problems (financial, operational or otherwise) existing with respect to such
Sub-Custodian of which Custodian is aware and shall take appropriate and
lawful action to protect and safekeep Trustee's Property deposited with such
Sub-Custodian, including to the extent feasible, the withdrawal of such
Property from such Sub-Custodian.
(d) Access and Inspection. Custodian shall not entrust
Gold held in the Account to any Sub-Custodian other than The Bank of England
unless that Sub-Custodian grants rights of access and inspection to records
and Gold that are similar to those granted by Custodian in Section 7.
6. Use of Agents. Custodian is authorized in its discretion to use
agents in connection with Custodian's handling of transactions hereunder,
provided that any such use shall not relieve Custodian of any of its
responsibilities or liabilities hereunder.
7. Access to Records; Inspection Rights. Custodian shall permit
officers and properly designated representatives of Trustee and independent
public accountants for the
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Trust identified by Trustee reasonable access to the records of the Account for
the purpose of confirming the content of those records. Upon at least ten days'
prior notice, during Custodian's regular banking hours, any officer or properly
designated representative of Trustee, any independent public accountants for the
Trust identified by Trustee and any person designated by any regulatory
authority having jurisdiction over Trustee or the Trust shall be entitled to
examine on Custodian's premises (i) the Property held by Custodian on its
premises pursuant to this Agreement and (ii) Custodian's records regarding the
Property held hereunder at a Sub-Custodian in accordance with Section 5 hereof,
but only upon receipt from Trustee of properly authorized instructions to that
effect. In addition, Custodian shall cooperate with Trustee in providing to
Trustee's external auditors and the Trust's external auditors such reports (or
portions thereof) of the external auditors of Custodian as relate directly to
Custodian's system of internal accounting controls and procedures applicable to
its duties under this Agreement. Unless it has received at least ten days' prior
notice and reasonable assurances (in the Custodian's sole discretion) that any
costs and expenses incurred in connection therewith will be indemnified to
Custodian, Custodian shall not be required to (a) move to Custodian's premises
any Property held at a Sub-Custodian for purposes of making it available for
inspection as provided herein, or (b) with respect to Property held through
Custodian's account at The Bank of England, move to a Sub-Custodian or other
location Property for purposes of making it available for inspection as provided
herein, it being understood that Property held through Custodian's account at
The Bank of England cannot be inspected on the premises of The Bank of England.
8. Instructions from Trustee; Other Notices; Addresses.
(a) Instructions from Trustee. Whenever in this
Agreement it is provided that Custodian is authorized to act or refrain from
acting on instructions, approval or consent of, or notice from, the Trustee,
Custodian is so authorized to act or refrain from acting only on
instructions, approval, consent or notice given in accordance with this
Section 8(a). As used in this Section 8(a), the term "instructions" shall be
deemed to include approvals, consents or notices. Custodian is authorized to
rely and act upon written instructions signed by an authorized person
designated in the schedule attached hereto as Schedule B-1 ("Authorized
Persons"), as such Schedule may be changed from time to time by written
notice to Custodian from Trustee. Instructions in writing shall include (i)
instructions in writing (including facsimile transmissions) signed by an
Authorized Person; (ii) telex or tested telex instructions of Trustee and
S.W.I.F.T. messages; and (iii) such other forms of communication as may be
agreed upon from time to time by Trustee and Custodian. Except where
otherwise provided in this Agreement, Custodian is further authorized to
rely upon instructions received orally or by any other means which are
identified as having been given by an Authorized Person and which conform to
any agreement which might be entered between Trustee and Custodian regarding
the method of identification or the means of transmission of such
instructions. Any oral instructions shall be promptly confirmed in writing.
(b) Other Notices; Addresses. Except as otherwise
specifically provided herein, all notices contemplated by this Agreement
shall be in writing signed by an Authorized Person listed on Schedule B-1 or
Schedule B-2, as applicable, and, except as otherwise agreed in writing from
time to time by the parties, shall be given by facsimile transmission, telex
or tested telex, courier, or first-class mail, postage prepaid. Such notices
shall be given, and shall be deemed given when received, at the addresses
set forth in Schedule C hereto, as such
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Schedule may be amended from time to time upon prior written notice from the
Trustee to the Custodian or from the Custodian to the Trustee, as the case
may be.
9. Subrogation. Trustee and the Trust shall be subrogated to the
rights of Custodian with respect to any claim against a Sub-Custodian or any
other person for any loss or damage suffered by Trustee or the Trust if and to
the extent that Trustee and the Trust have not been made whole for such loss or
damage, and Custodian hereby assigns all such rights to Trustee. The exercise by
Trustee of the rights granted in this Section 9 shall not affect Custodian's
liabilities under Section 11 of this Agreement.
10. Annual Certificate. Custodian shall deliver annually to Trustee
and more frequently if requested by Trustee, a certificate dated the date of
delivery, certifying that Custodian has, since the date of this Agreement or the
date of the preceding such certificate, complied with the terms and conditions
of this Agreement and that Custodian's representations and warranties in Section
2 of this Agreement continue to be true and correct.
11. Liability of Custodian; Indemnification.
(a) Custodian shall be liable for and shall indemnify
Trustee for, and hold Trustee harmless from, any loss, damage, cost,
judgment, expense or any other liability (including, but not limited to
legal fees and expenses) ("Losses") incurred by Trustee (individually or in
its capacity as Trustee) relating to or arising from, directly or
indirectly, any breach of the representations and warranties of Custodian
contained in this Agreement or any act or omission of Custodian under this
Agreement, including, without limiting the generality of the foregoing, (i)
any failure by Custodian to act or refrain from acting in accordance with
instructions under Section 8(a) from Trustee; and (ii) any physical loss,
destruction or damage to the Property, except, in each case, for Losses
arising from nuclear fission or fusion, radioactivity, war, terrorist event,
invasion, insurrection, civil commotion, riot, strike, act of government or
public authority, act of God or a similar cause that is beyond the control
of Custodian. Trustee shall notify Custodian promptly of any proceeding or
claim for which Trustee may seek indemnity, and the Custodian shall
cooperate fully with the Trustee with respect to any such proceeding or
claim. Custodian's deposit of Gold held in the Account with a Sub-Custodian
pursuant to Section 5 hereof shall not affect Custodian's responsibilities
or liabilities or in any way limit or relieve Custodian of its
responsibilities or liabilities under this Section 11, and Custodian shall
remain fully liable with respect to such Property as if it had itself
retained physical possession of it.
(b) Trustee shall indemnify Custodian for and hold
Custodian harmless against any loss or claim, including reasonable fees of
counsel, resulting from acts of omissions by Custodian in compliance with
instructions from Trustee in accordance with Section 8(a) that Custodian
reasonably believes were given by an
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Authorized Person of Trustee, including instructions to release Property
from the Account to a person designated by Trustee.
12. Fees and Expenses. Fees and expenses for the services rendered
by Custodian under this Agreement shall be payable in accordance with the fee
agreement which has been executed by the parties hereto and Barclays Global
Investors, N.A. (the "Sponsor"), as that agreement may be amended from time to
time by the parties to it in accordance with its terms.
13. Termination. This Agreement may be terminated (a) by Trustee
immediately without prior notice to Custodian upon the occurrence of any event
specified in clauses (i), (ii) and (iii) of Section 3(f); or (b) by either party
upon sixty (60) days' prior written notice to the other, sent by certified or
registered mail, express courier, facsimile, telex or telegram; provided, that
the provisions of Sections 9, 11 and 15 hereof shall survive the termination of
this Agreement. Upon the termination date, Custodian shall deliver all Property
held in the Account to Trustee (or to such successor custodian as Trustee may
specify before the termination date).
14. Confidentiality. Subject to the foregoing provisions of this
Agreement and subject to any applicable law, Custodian shall use its best
efforts to maintain the confidentiality of matters concerning the Property in
the Account.
15. Choice of Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the internal substantive laws of the State of New York,
without giving effect to conflict of laws principles. All actions and
proceedings relating to or arising from, directly or indirectly, this
Agreement may be brought by Trustee in courts located within the State of
New York, and shall be litigated only in courts located within the State of
New York if brought by Custodian against Trustee. The parties hereto hereby
waive the right to a trial by jury in any such action or proceeding brought
by Trustee or Custodian, and Custodian hereby submits to the personal
jurisdiction of such courts and to the personal jurisdiction of any court or
administrative agency in which any action or proceeding is brought by any
person (other than Custodian) against Trustee, relating to or arising from,
directly or indirectly, any act or omission of Custodian under this
Agreement.
If the Custodian does not maintain an office in The City of New York,
the Custodian shall appoint and maintain an agent located in The City of New
York upon whom process may be served in any action or proceeding which may be
instituted by the Trustee or by any other person in any court or administrative
agency relating to or arising from, directly or indirectly, any act or omission
of Custodian under this Agreement. If the Custodian is required to maintain an
agent for service of process under the preceding sentence, the Custodian shall
notify the Trustee of the appointment of that agent and provide Trustee with
evidence of acceptance by that agent of that appointment. Service
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of process upon such agent at the office of such agent for service of process
shall be deemed in every respect effective service of process upon the Custodian
in any such action or proceeding. The Custodian further agrees to take any and
all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue in force such designation and
appointment of such agent or its successor.
16. Legal Opinion. Custodian will furnish to Trustee an opinion of
counsel acceptable to Trustee addressed to Trustee and dated the date hereof to
the effect that:
(a) the execution, delivery and performance by Custodian
of this Agreement have been duly authorized by Custodian and do not and will
not violate any applicable law or regulation and do not require the consent
of any governmental or other regulatory body except for such consents and
approvals as have been obtained and set forth on Schedule A hereto; and
(b) this Agreement has been duly executed and delivered by
Custodian and constitutes the legal, valid and binding obligation of Custodian,
enforceable in accordance with its terms.
17. Procedures. Trustee and Custodian agree that the provisions of
the Procedures are hereby incorporated into and made a part of this Agreement
and Custodian agrees to comply with the Procedures. Trustee, with the prior
written consent of Sponsor, may modify the Procedures from time to time upon
reasonable advance notice and, if the modifications relate to the duties of
Custodian, after consultation with Custodian.
18. Miscellaneous. Except as otherwise specifically provided in this
Agreement, this Agreement may not be amended nor may any provision hereof be
waived except by writing signed by the party against whom enforcement is sought.
Any provisions of this Agreement that require the consent of, or consultation
with, the Sponsor are intended for the benefit of the Sponsor and may not be
amended or modified without the Sponsor's written consent. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors and
assigns; provided, that this Agreement shall not be assignable by either party
without the prior written consent of the other. This Agreement contains the
entire agreement between Custodian and Trustee relating to custody of Property
held by Custodian on behalf of Trustee and supersedes all prior agreements and
understandings relating to such subject matter. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision; and if any
provision is held to be unenforceable as a matter of law, the other provisions
shall not be affected thereby and shall remain in full force and effect. The
captions included in this Agreement are included only for the convenience of the
parties and in no way define or limit any of the
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provisions hereof or otherwise affect their construction or effect. Capitalized
terms used in this Agreement (including its attachments) that are defined in the
Depositary Trust Agreement dated as of the date of this Agreement between the
Sponsor and Trustee and not otherwise defined in this Agreement shall have the
meanings given them in that agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and sealed by their respective officers thereunto duly authorized.
THE BANK OF NOVA SCOTIA THE BANK OF NEW YORK, as Trustee of the
iShares COMEX Gold Trust
By: By:
------------------------ --------------------------
Name: Name:
Title: Title:
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SCHEDULE A
NECESSARY CONSENTS
Dated _______________, 2004
SCHEDULE B-1
AUTHORIZED PERSONS OF TRUSTEE
Dated __________________, 2004
The names, titles and specimen signatures of the "Authorized Persons" of Trustee
are as follows:
Name Title Signature
---- ----- ---------
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SCHEDULE B-2
AUTHORIZED PERSONS OF CUSTODIAN
Dated __________________, 2004
The names, titles and specimen signatures of the "Authorized Persons" of
Custodian are as follows:
Name Title Signature
---- ----- ---------
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SCHEDULE C
NOTICES
Dated ___________________, 2004
If to Trustee: Exchange Traded Funds Division
The Bank of New York
000 Xxxxxxx Xxxxxx - Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 10286
U.S.A.
Attention: Xxxxxx Xxxxxx or Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxx@xxxxxxxx.xxx
If to Custodian: ScotiaMocatta Division
The Bank of Novia Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________________
Telephone: _____________________
Facsimile: _____________________
e-mail: _____________________
If to COMEX: Commodity Exchange, Inc.
Xxx Xxxxx Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________________
Telephone: _____________________
Facsimile: _____________________
e-mail: _____________________
16
ANNEX 1
PROCEDURES
17
