Exhibit 1.1
Draft: May 12, 2004
150,000 iShares
iSHARES COMEX GOLD TRUST
DISTRIBUTION AGREEMENT
[ ], 2004
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DISTRIBUTION AGREEMENT
[ ], 2004
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Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Barclays Global Investors, N.A., a national banking association (the
"Sponsor"), proposes to sponsor the formation of a trust, known as "iShares
COMEX Gold Trust" (the "Trust") pursuant to the laws of the State of New York.
The trustee will issue to Barclays Capital Inc. ("Barclays Capital"), an
aggregate of 150,000 units of fractional undivided beneficial interest in and
ownership of the Trust (the "iShares(R)") upon the deposit of gold bullion by
Barclays Capital with The Bank of Nova Scotia, a bank organized under the laws
of Canada, as custodian of the Trust in an aggregate amount of 15,000 Fine
Ounces of gold bullion, (equal to three baskets as described in the Prospectus,
the "Initial Deposit"). The iShares are described in the Prospectus which is
referred to below.
The Sponsor has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"), with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (Registration No. 333-112589) including a
prospectus, relating to the iShares. The Sponsor has furnished to you, for use
by Barclays Capital, the form of final prospectus (constituting a part of the
registration statement, each such prospectus being herein called a "Prospectus")
relating to the iShares and the other shares registered thereby. Except where
the context otherwise requires, the registration statement, as amended when it
became or becomes effective, including all documents filed as a part thereof,
and including any information contained in any prospectus subsequently filed
with the Commission pursuant to Rule 424(b) under the Act and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is herein
called the "Registration Statement". As used herein, "business day" shall mean a
day on which the American Stock Exchange is open for trading. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Depositary Trust Agreement (as defined below).
The Sponsor, on its own behalf and in its capacity as sponsor of the Trust,
and Barclays Capital agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Trust agrees to
issue and sell to Barclays Capital and Barclays Capital agrees to purchase from
the Trust the number of iShares set forth above at a purchase price equal to the
Initial Deposit. The Sponsor and the Trust are advised by Barclays Capital that
Barclays Capital intends to make a public offering of its iShares as soon after
the effective date of the Registration Statement, and on such terms, as in its
judgment is advisable.
2. Payment and Delivery. Pursuant to the Depositary Trust Agreement of the
iShares COMEX Gold Trust between the Sponsor and The Bank of New York, as
trustee (the "Depositary Trust Agreement"), dated the date hereof, delivery of
the Initial Deposit shall be made to the Custodian no later than 11.00 a.m. New
York City time on the first business day following the execution hereof, with
irrevocable instructions to transfer such Initial Deposit to the account of the
Trust, against delivery of the certificates for the iShares to Barclays Capital
through the facilities of The Depository Trust Company ("DTC") for the account
of Barclays Capital. The transfer of the Initial Deposit from the Custodian to
the
account of the Trust shall be made at [ ], New York City time, on [ ], 2004
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(unless another time shall be agreed by Barclays Capital and the Sponsor). The
time of such payment and delivery is hereinafter sometimes called "the time of
purchase." Electronic transfer of the iShares shall be made to Barclays Capital
at the time of purchase in such names and in such denominations as it shall
specify.
Deliveries of the documents described in section 6 hereof with respect to
the purchase of iShares shall be made at the offices of Xxxxxxxx Chance US LLP,
counsel to Barclays Capital, at 10.00 a.m., New York City time, on [ ], 2004.
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3. Representations and Warranties of the Sponsor. The Sponsor, on its own
behalf and in its capacity as sponsor of the Trust, represents and warrants to
and agrees with Barclays Capital that:
(a) at the time of purchase, the Registration Statement shall have
become effective and no stop order of the Commission with respect thereto shall
have been issued and no proceedings for such purpose shall have been instituted
or, to the Sponsor's knowledge after due inquiry, will then be contemplated by
the Commission; each Prospectus, at the time of filing thereof, complied in all
material respects with the requirements of the Act and the last Prospectus
distributed in connection with the offering of the shares did not, as of its
date, and does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; the Registration Statement complies and will comply when it
becomes effective and at the time of purchase, in all material respects with the
requirements of the Act and the Prospectus will comply, as of its date and at
the time of purchase, in all material respects with the requirements of the Act
and any statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement have been and will be so described or
filed; the conditions to the use of Form S-1 have been satisfied; the
Registration Statement does not and will not when it becomes effective and at
the time of purchase contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus will not, as of its date
and at the time of purchase, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Sponsor makes no warranty or
representation with respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity with information
concerning Barclays Capital and furnished in writing by or on behalf of Barclays
Capital to the Sponsor expressly for use in the Registration Statement or such
Prospectus; and the Sponsor and the Trust have not distributed and will not
distribute any offering material in connection with the offering or creation of
the shares other than the Registration Statement or the then most recent
Prospectus;
(b) on the date of the Initial Deposit, the statement of financial
position is as set forth in the section of the Registration Statement and the
Prospectus entitled "Statement of Financial Condition";
(c) as of the time of purchase, the Trust has been duly formed and is
validly existing as an investment trust under the laws of the State of New York,
as described in the Registration Statement and the Prospectus, and has all power
and authority to issue and deliver the iShares as contemplated herein and to
execute and deliver this agreement;
(d) the Sponsor is a national banking association chartered in the
United States, with full power and authority to conduct its business as
described in the Registration Statement and the Prospectus;
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(e) the Sponsor is duly qualified and is in good standing in each
jurisdiction where the conduct of its business requires such qualification; and
the Trust is not required to so qualify in any jurisdiction;
(f) complete and correct copies of the Depositary Trust Agreement, and
any and all amendments thereto, have been delivered to Barclays Capital, and no
changes thereto have been made subsequent to the date hereof and prior to the
time of purchase;
(g) at the time of purchase, the iShares will have been duly and
validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and non-assessable
and free of statutory and contractual preemptive rights, rights of first refusal
and similar rights;
(h) at the time of purchase, the iShares will conform in all material
respects to the description thereof contained in the Registration Statement and
the Prospectus and the holders of the iShares will not be subject to personal
liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and delivered by
the Sponsor;
(j) neither the Sponsor nor the Trust is in material breach or
material violation of or in material default under (nor has any event occurred
which with notice, lapse of time or both would result in any material breach or
material violation of, constitute a material default under or give the holder of
any indebtedness (or a person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) its respective constitutive documents, or any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which the Sponsor or the Trust is a party or by which either of them or any
of their properties may be bound or affected, and the execution, delivery and
performance of this Agreement, the issuance and sale of the iShares and the
consummation of the transactions contemplated hereby will not conflict with,
result in any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would result in
any breach or violation of or constitute a default under), respectively, the
constitutive documents of the Sponsor or the Depositary Trust Agreement, or any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Sponsor or the Trust is a party or by which either of
them or any of their respective properties may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Sponsor or the Trust;
(k) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the iShares or the consummation by the Sponsor and the Trust of the
transactions contemplated hereby other than registration of the iShares under
the Act, which has been or will be effected, and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the
shares are being offered by Barclays Capital or under the rules and regulations
of the National Association of Securities Dealers (the "NASD");
(l) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Trust to issue or sell to it any iShares or other equity interest of the Trust,
and (ii) no person has the right to act as an underwriter or as a financial
advisor to the Trust in connection with the offer and sale of the iShares, in
the case of each of the foregoing clauses (i) and (ii), whether as a result of
the filing or effectiveness of the Registration Statement or the sale of the
iShares as contemplated thereby or otherwise; no person has the right,
contractual or otherwise, to cause
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the Sponsor on behalf of the Trust to register under the Act any other equity
interests of the Trust, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the
shares as contemplated thereby or otherwise;
(m) each of the Sponsor and the Trust has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business; neither the Sponsor nor
the Trust is in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Sponsor or
the Trust;
(n) all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement have
been so described or filed as required;
(o) except as set forth in the Registration Statement and the
Prospectus, there are no material actions, suits, claims, investigations or
proceedings pending or threatened or, to the Sponsor's knowledge after due
inquiry, contemplated to which the Sponsor or the Trust, or (to the extent that
is or could be material in the context of the offering and sale of the iShares)
any of their respective directors or officers, is or would be a party or of
which any of their respective properties are or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency;
(p) PricewaterhouseCoopers, whose report on the audited statement of
financial condition of the Trust is filed with the Commission as part of the
Registration Statement and the Prospectus, are independent public accountants as
required by the Act;
(q) the audited statement of financial condition included in the
Prospectus, together with the related notes and schedules, presents fairly the
financial position of the Trust as of the date indicated and has been prepared
in compliance with the requirements of the Act and in conformity with generally
accepted accounting principles; there are no financial statements (historical or
pro forma) that are required to be included in the Registration Statement and
the Prospectus that are not included as required; and the Trust does not have
any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Registration Statement and
the Prospectus;
(r) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
(i) material adverse change, or any development involving a prospective material
adverse change affecting the Sponsor or the Trust, (ii) transaction which is
material to the Sponsor or the Trust taken as a whole, (iii) obligation, direct
or contingent (including any off-balance sheet obligations), incurred by the
Sponsor or the Trust, which is material to the Trust, (iv) change in the iShares
or outstanding indebtedness of the Trust, or (v) dividend or distribution of any
kind declared, paid or made on the iShares;
(s) the Trust is not and, after giving effect to the offering and sale
of the iShares, will not be an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the investment Company Act
of 1940, as amended (the "Investment Company Act");
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(t) except as set forth in the Registration Statement and the
Prospectus, the Sponsor and the Trust own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information
described in the Registration Statement and the Prospectus as being owned or
licensed by them or which are necessary for the conduct of their respective
businesses, (collectively, "Intellectual Property"); (i) there are no third
parties who have or, to the Sponsor's knowledge after due inquiry, will be able
to establish rights to any Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to the
Sponsor or the Trust; (ii) there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or threatened action, suit,
proceeding or claim by others challenging the Sponsor's or the Trust's rights in
or to any Intellectual Property, and the Sponsor and the Trust are unaware of
any facts which could form a reasonable basis for any such claim; (iv) there is
no pending or threatened action, suit, proceeding or claim by others challenging
the validity or scope of any Intellectual Property, and the Sponsor and the
Trust are unaware of any facts which could form a reasonable basis for any such
claim; and (v) there is no pending or threatened action, suit, proceeding or
claim by others that the Sponsor or the Trust infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Sponsor and the Trust are unaware of any facts which could form
a reasonable basis for any such claim.
(u) the Trust is not subject to any tax filing or any payment
obligation of any tax or other assessment of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due;
(v) neither the Sponsor nor the Trust has sent or received any
communication regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has been
threatened by the Sponsor or the Trust or, to the Sponsor's or the Trust's
knowledge, any other party to any such contract or agreement;
(w) on behalf of the Trust, the Sponsor has established and maintains
disclosure controls and procedures (as such term is defined in Rule 13a-14 and
15d-14 under the Exchange Act of 1934 (the "Exchange Act"), giving effect to the
rules and regulations, and SEC staff interpretations (whether or not public),
thereunder)); such disclosure controls and procedures are designed to ensure
that material information relating to the Trust, is made known to the Sponsor,
and such disclosure controls and procedures are effective to perform the
functions for which they were established; on behalf of the Trust, the Sponsor
has been advised of: (i) any significant deficiencies in the design or operation
of internal controls which could adversely affect the Trust's ability to record,
process, summarize, and report financial data; and (i) any fraud, whether or not
material, that involves management or other employees who have a role in the
Trust's internal controls; any material weaknesses in internal controls have
been identified for the Trust's auditors;
(x) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
that the Sponsor believes to be reliable and accurate, and the Sponsor has
obtained the written consent to the use of such data from such sources to the
extent required;
(y) neither the Sponsor, nor the Trust, nor any of the Sponsor's
directors, members, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security or
asset of the Trust to facilitate the sale or resale of the iShares; and
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(z) to the Sponsor's knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any of the
Sponsor's officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus.
In addition, any certificate signed by any officer of the Sponsor and
delivered to Barclays Capital or counsel for Barclays Capital in connection with
the offering of the iShares shall be deemed to be a representation and warranty
by the Sponsor, as the case may be, as to matters covered thereby, to Barclays
Capital.
4. Certain Covenants of the Sponsor. The Sponsor, on its own behalf and in
its capacity as sponsor of the Trust, agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the iShares for offering and sale under the securities
or blue sky laws of such states as Barclays Capital may reasonably designate and
to maintain such qualifications in effect so long as Barclays Capital may
request for the distribution of the iShares not to exceed a period of nine
months; provided that the Trust shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
jurisdiction (except service of process with respect to the offering and sale of
the iShares); and to promptly advise Barclays Capital of the receipt by the
Sponsor of any notification with respect to the suspension of the qualification
of the iShares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to Barclays Capital, as soon as practicable
after the Registration Statement becomes effective, and thereafter from time to
time to furnish to Barclays Capital, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Sponsor or the Trust shall have
made any amendments or supplements thereto after the effective date of the
Registration Statement) as Barclays Capital may request for the purposes
contemplated by the Act; in case Barclays Capital is required to deliver a
prospectus after the nine-month period referred to in Section 10(a)(3) of the
Act in connection with the sale of the iShares, the Sponsor will prepare, at its
expense, promptly upon request such amendment or amendments to the Registration
Statement and the Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) the Sponsor and the Trust will endeavor to cause the Registration
Statement to become effective (i) on the next business day following the date
hereof and (ii) on or before the time of purchase and the Sponsor will advise
Barclays Capital promptly and, if requested by Barclays Capital, will confirm
such advice in writing when the Registration Statement and any post-effective
amendment thereto has become effective, and (iii) upon receipt of request from
Barclays Capital therefor, to file a post-effective amendment removing any
reference to Barclays Capital thereunder;
(d) to advise Barclays Capital promptly, confirming such advice in
writing, of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the entry of
a stop order suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; to advise Barclays Capital promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
to provide Barclays Capital and Barclays Capital's counsel copies of any such
documents for review and comment a reasonable amount of time prior to any
proposed filing and to file no such amendment or supplement to which Barclays
Capital shall object in writing;
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(e) subject to section 4(d) hereof, to file promptly all reports and
any information statement required to be filed by the Trust with the Commission
in order to comply with the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the iShares; and to provide Barclays
Capital with a copy of such reports and statements and other documents to be
filed by the Trust pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period within a reasonable amount of time prior to any proposed
filing, and to promptly notify Barclays Capital of such filing;
(f) to advise Barclays Capital promptly of the happening of any event
within the time during which a prospectus relating to the iShares is required to
be delivered under the Act which could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading, and, during such time, subject to section 4(d) hereof, to
prepare and furnish, at the Sponsor's expense, to Barclays Capital promptly such
amendments or supplements to such Prospectus as may be necessary to reflect any
such change;
(g) [to make generally available to the shareholders of the Trust, and
to deliver to Barclays Capital, an [earnings statement] of the Trust (which will
satisfy the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable after
the termination of such twelve-month period but not later than ,
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2004;]
(h) [to furnish to the shareholders of the Trust as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flow of
each of the Trust and the Sponsor for such fiscal year, accompanied by a copy of
the certificate or report thereon of nationally recognized independent certified
public accountants);]
(i) to furnish to Barclays Capital two copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto);
(j) to furnish to Barclays Capital promptly for a period of one year
from the date of this Agreement such information as Barclays Capital may
reasonably request regarding the Trust;
(k) to pay all costs, expenses, fees and taxes in connection with (i)
the preparation and filing of the Registration Statement, the Prospectus, and
any amendments or supplements thereto, and the printing and furnishing of copies
of each thereof to Barclays Capital (including costs of mailing and shipment),
(ii) the registration, issue, sale and delivery of the iShares including any
stock or transfer taxes and stamp or similar duties payable upon the sale,
issuance or delivery of the shares to Barclays Capital, (iii) the producing,
word processing and/or printing of this Agreement, any Powers of Attorney and
any closing documents (including compilations thereof) and the reproduction
and/or printing and furnishing of copies of each thereof to Barclays Capital and
(except closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the iShares for offering and sale under state or
foreign laws and the determination of their eligibility for investment under
state law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for Barclays Capital) and the printing and furnishing
of copies of any blue sky surveys or legal investment surveys to Barclays
Capital, (v) any listing of the iShares on any securities exchange or
qualification of the iShares for quotation on the American Stock Exchange and
any registration thereof under the Exchange Act, (vi) any filing for review of
the public offering of the iShares by the NASD, including the legal fees and
filing fees and other disbursements of counsel to Barclays Capital, (vi) the
fees and disbursements of the Custodian (as defined in the Depositary Trust
Agreement), transfer agent or registrar for the iShares, (vii) the costs and
expenses
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of the Trust relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the iShares to prospective investors
and Barclays Capital's sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of
the Sponsor or the Trust and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) the performance of the
Sponsor's other obligations hereunder;
(l) to use its best efforts to cause the iShares to be listed on the
American Stock Exchange; and
(m) to maintain a Custodian (as defined in the Depositary Trust
Agreement) and an orderly procedure for the transfer and register of the
iShares.
5. Reimbursement of Underwriter's Expenses. The Sponsor shall, in addition
to paying the amounts described in section 4(l) hereof, reimburse Barclays
Capital for all of its out-of-pocket expenses, including the fees and
disbursements of its counsel, up to $[ ].
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6. Conditions of Barclays Capital's Obligations. The obligations of
Barclays Capital hereunder are subject to the accuracy of the representations
and warranties contained herein on the date hereof, at the time of purchase, and
the performance by the Sponsor of its obligations hereunder and to the following
additional conditions precedent:
(a) the Sponsor shall furnish to Barclays Capital at the time of
purchase an opinion of counsel for the Sponsor, addressed to Barclays Capital,
and dated the time of purchase and in form and substance satisfactory to
Xxxxxxxx Chance US LLP, counsel for Barclays Capital, stating that:
(i) the iShares issuable hereunder, when issued in accordance
with the terms hereof will have been duly authorized and validly issued and
fully paid and non-assessable;
(ii) the iShares conform to the description thereof contained in
the Registration Statement and the Prospectus;
(iii) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and statistical
information contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act;
(iv) the Registration Statement has become effective under the
Act and, to such counsel's knowledge, no stop order proceedings with respect
thereto are pending or threatened under the Act and any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424 under the Act has
been made in the manner and within the time period required by such Rule 424;
(v) no approval, authorization, consent or order of or filing
with any federal, or New York State governmental or regulatory commission,
board, body, authority or agency is required in connection with the issuance and
sale of the iShares and consummation by the Sponsor of the transactions
contemplated hereby other than registration of the iShares under the Act (except
such counsel need express no opinion as to any necessary qualification under the
state securities or blue sky laws of any state or the laws of any jurisdictions
outside the United States);
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(vi) the Trust is not and, after giving effect to the offering
and sale of the iShares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act; and
(vii) the information in the Registration Statement and the
Prospectus under the headings "Description of the iShares and the Trust
Agreement", "United States Federal Income Tax Consequences," and "Custody of the
Trust's Gold" insofar as such statements constitute a summary of documents or
matters of law are accurate in all material respects and present fairly the
information required to be shown.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Sponsor, representatives of the independent public accountants of the Trust and
representatives of Barclays Capital at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in subparagraphs (ii) and (vii)
above), on the basis of the foregoing nothing has come to the attention of such
counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at the time of purchase,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical
information included in the Registration Statement or the Prospectus).
(b) the Sponsor shall furnish to Barclays Capital at the time of
purchase an opinion of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Trustee,
addressed to Barclays Capital, and dated the time of purchase and in form and
substance satisfactory to Xxxxxxxx Chance US LLP, counsel for Barclays Capital,
stating that:
(i) the Trust has been duly organized and is validly existing as
a trust in good standing under the laws of the State of New York, with full
trust power and authority to conduct its business as described in the
Registration Statement and the Prospectus, to issue and deliver the iShares as
contemplated herein and to execute and deliver this Agreement and that the
Depositary Trust Agreement between the Trustee and the Sponsor, pursuant to
which the Trust was formed, constitutes legal, valid, binding and enforceable
obligations of the Trustee; and
(ii) to such counsel's knowledge, the Trust is not in material
breach or material violation of or in material default under (nor has any event
occurred which with notice, lapse of time, or both) would result in any material
breach or material violation of, or its respective constitutive documents, or
any federal or New York State law, regulation or rule applicable to the Sponsor
or the Trust.
(c) the Sponsor shall furnish to Barclays Capital at the time of
purchase an opinion of [ ], general counsel to the Sponsor, addressed to
--
Barclays Capital, and dated the time of purchase and in form and substance
satisfactory to Xxxxxxxx Chance US LLP, counsel for Barclays Capital, stating
that:
9
(i) the Sponsor is a national banking association chartered in
the United States, with full corporate power and authority to conduct its
business as described in the Registration Statement and the Prospectus and to
execute and deliver this Agreement;
(ii) the Sponsor is duly qualified and is in good standing in
each jurisdiction where the conduct of its business requires such qualification;
(iii) this Agreement has been duly authorized, executed and
delivered by the Sponsor;
(iv) the execution, delivery and performance of this Agreement by
the Sponsor, the issuance and delivery of the iShares by the Trust and the
consummation by the Sponsor and the Trust of the transactions contemplated
hereby do not and will not conflict with, result in any breach or violation of
or constitute a default under (nor constitute any event which with notice, lapse
of time or both would result in any breach or violation of or constitute a
default under) the constitutive documents of the Sponsor or the Depositary Trust
Agreement, or any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument known to such counsel after reasonable (based on a
certificate of an officer of the Sponsor) investigation to which the Sponsor or
the Trust is a party or by which either of them or any of their respective
properties may be bound or affected, or any federal, or New York State law,
regulation or rule or any decree, judgment or order applicable to the Sponsor or
the Trust and known to such counsel;
(v) to such counsel's knowledge, the Sponsor is not in material
breach or material violation of or in material default under (nor has any event
occurred which with notice, lapse of time, or both) would result in any material
breach or material violation of, or its respective constitutive documents, or
any federal or New York State law, regulation or rule applicable to the Sponsor
or the Trust; and
(vi) to such counsel's knowledge, there are no actions, suits,
claims, investigations or proceedings pending, or threatened to which the
Sponsor or the Trust is or would be a party or to which any of their respective
properties is or would be subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority or agency which are required to be described in the Registration
Statement or the Prospectus but are not so described.
(d) no Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which Barclays Capital
objects in writing.
(e) the Registration Statement shall become effective not later than
[ ] New York City time, on [the first business day following the date of this
--
Agreement].
(f) prior to the time of purchase, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued under the
Act or proceedings initiated under Section 8(d) or 8(e) of the Act, (ii) the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus and all amendments or supplements thereto shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
10
(g) between the time of execution of this Agreement and the time of
purchase, no material adverse change or any development involving a prospective
material adverse change in the management or financial condition of the Sponsor
shall occur or become known.
(h) the Sponsor will, at the time of purchase, deliver to Barclays
Capital an officer's certificate of [the Chief Executive Officer and its Chief
Financial Officer] in the form attached as Exhibit A hereto.
(i) the Sponsor and the Trust shall have furnished to Barclays Capital
such other documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the time of
purchase, as Barclays Capital may reasonably request.
(j) the iShares shall have been approved for listing on the American
Stock Exchange, subject only to notice of issuance at or prior to the time of
purchase.
7. Effective Date of Agreement; Termination. This Agreement shall become
effective when Barclays Capital shall have received notification of the
effectiveness of the Registration Statement.
The obligations of Barclays Capital hereunder shall be subject to
termination in the absolute discretion of Barclays Capital, if (x) since the
time of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been any material adverse change or any development involving a prospective
material adverse change affecting the Sponsor or the Trust which would, in
Barclays Capital's judgment, make it impracticable or inadvisable to proceed
with the public offering or the delivery of the iShares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus, or (y)
since the time of execution of this Agreement, there shall have occurred (i) a
suspension or material limitation in trading in securities generally on the
American Stock Exchange, the American Stock Exchange or the NASDAQ, (ii) a
suspension or material limitation in trading in the Trust's securities on the
American Stock Exchange, (iii) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States, (iv) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war, or (v) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (iv) or (v) in
Barclays Capital's judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the iShares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
If Barclays Capital elects to terminate this Agreement as provided in
this section 7, the Sponsor shall be notified promptly in writing.
If the sale to Barclays Capital of the iShares, as contemplated by
this Agreement, is not carried out by Barclays Capital for any reason permitted
under this agreement or if such sale is not carried out because the Sponsor
shall be unable to comply with any of the terms of this Agreement, the Sponsor
and the Trust shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4(j) and 7 hereof), and
Barclays Capital shall be under no obligation or liability to the Sponsor or the
Trust under this agreement (except to the extent provided in section 7 hereof)
or to one another hereunder.
8. Indemnity and Contribution.
11
(a) The Sponsor agrees to indemnify, defend and hold harmless Barclays
Capital, its partners, directors and officers, and any person who controls it
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which Barclays Capital or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof) or in a Prospectus (the term Prospectus for
the purpose of this section 8 being deemed to include the Prospectus and the
Prospectus as amended or supplemented by the Sponsor), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or such Prospectus or necessary
to make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information concerning Barclays Capital furnished in writing
by or on behalf of Barclays Capital to the Sponsor expressly for use in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading, (ii) any untrue
statement or alleged untrue statement made by the Sponsor in section 3 hereof or
the failure by the Sponsor to perform when and as required any agreement or
covenant contained herein, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual materials
provided by the Sponsor or based upon written information furnished by or on
behalf of the Sponsor or the Trust including, without limitation, slides,
videos, films or tape recordings used in connection with the marketing of the
iShares. The Sponsor shall not be liable under this section 8(a) for any loss,
damage, expense, liability or claim which may be incurred by Barclays Capital to
the extent that such loss, damage, expense, liability or claim is caused by the
failure by Barclays Capital to deliver any subsequent Prospectus as required.
If any action, suit or proceeding (each, a "Proceeding") is brought
against Barclays Capital or any such person in respect of which indemnity may be
sought against the Sponsor pursuant to the foregoing paragraph, Barclays Capital
or such person shall promptly notify the Sponsor in writing of the institution
of such Proceeding and the Sponsor shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Sponsor shall not relieve the Sponsor from any liability which
the Sponsor may have to Barclays Capital or any such person except to the extent
that the Sponsor has been materially prejudiced by such failure and has not
otherwise learned of such proceeding. Barclays Capital or such person shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of Barclays Capital or of such
person unless the employment of such counsel shall have been authorized in
writing by the Sponsor in connection with the defense of such Proceeding or the
Sponsor shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Sponsor (in which case the Sponsor
shall not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Sponsor and paid as incurred (it being understood,
however, that the Sponsor shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Sponsor shall not
be liable for any settlement of any Proceeding effected without its written
consent but if settled with the written consent of the Sponsor, the Sponsor
agrees to indemnify and hold harmless Barclays Capital and any such person from
and against any loss or liability
12
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Barclays Capital agrees to indemnify, defend and hold harmless
each of the Sponsor, its directors and officers, and any person who controls the
Sponsor or the Trust within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Sponsor, the Trust or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of Barclays Capital to the
Sponsor or the Trust expressly for use in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof) or in
the Prospectus or any amendment to the Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Sponsor or the Trust or any
such person in respect of which indemnity may be sought against Barclays Capital
pursuant to the foregoing paragraph, the Sponsor, the Trust or such person shall
promptly notify Barclays Capital in writing of the institution of such
Proceeding and Barclays Capital shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify Barclays Capital shall not relieve Barclays Capital from any
liability which Barclays Capital may have to the Sponsor, the Trust or any such
person or otherwise. The Sponsor, the Trust or such person shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Sponsor, the Trust or such person unless
the employment of such counsel shall have been authorized in writing by Barclays
Capital in connection with the defense of such Proceeding or Barclays Capital
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to or in conflict
with those available to Barclays Capital (in which case Barclays Capital shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but Barclays Capital may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of Barclays Capital), in any of which events such fees
and expenses shall be borne by Barclays Capital and paid as incurred (it being
understood, however, that Barclays Capital shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding).
Barclays Capital shall not be liable for any settlement of any such Proceeding
effected without the written
13
consent of Barclays Capital but if settled with the written consent of Barclays
Capital, Barclays Capital agrees to indemnify and hold harmless the Sponsor, the
Trust and any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (i) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (ii) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this section 8 is
unavailable to an indemnified party under subsections (a) and (b) of this
section 8 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Sponsor and the Trust on the one hand and
Barclays Capital on the other hand from the offering of the iShares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Sponsor and
the Trust on the one hand and of Barclays Capital on the other in connection
with the statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Sponsor and the Trust on
the one hand and Barclays Capital on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts, commissions and fees (if any) but before deducting
expenses) received by the Sponsor and the Trust and the total underwriting
discounts and commissions received by Barclays Capital, bear to the aggregate
public offering price of the iShares. The relative fault of the Sponsor and the
Trust on the one hand and of Barclays Capital on the other shall be determined
by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Sponsor and the Trust or by Barclays Capital and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Sponsor and Barclays Capital agree that it would not be just
and equitable if contribution pursuant to this section 8 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this section 8, Barclays Capital shall not be
required to contribute any amount [in excess of the amount by which the total
price at which the iShares created by Barclays Capital and distributed to the
public were offered to the public] exceeds the amount of any damage which
Barclays Capital has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
14
(e) The indemnity and contribution agreements contained in this
section 8 and the covenants, warranties and representations of the Sponsor
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of Barclays Capital, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls Barclays Capital within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, or by or on behalf of each of the
Sponsor, its directors or officers or any person who controls the Sponsor or the
Trust within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the issuance and
delivery of the iShares. The Sponsor and the Trust and Barclays Capital agree
promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the Sponsor and the Trust, against any of the Sponsor's or
the Trust's officers or directors in connection with the issuance and sale of
the iShares, or in connection with the Registration Statement or the Prospectus.
9. Information Furnished by Barclays Capital. The statements set forth in
the last paragraph on the cover page of the Prospectus and the statements set
forth in the bullet points and the second sentence in the fourth paragraph and
the penultimate paragraph under the caption "Plan of Distribution" in the
Prospectus constitute the only information furnished by or on behalf of Barclays
Capital as such information is referred to in Sections 3 and 8 hereof.
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to Barclays
Capital, shall be sufficient in all respects if delivered or sent to Barclays
Capital Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: [ ] and, if to
--
the Sponsor or the Trust, shall be sufficient in all respects if delivered or
sent to the Sponsor at the offices of the Sponsor at Barclays Global Investors,
N.A., 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: [ ].
--
11. Governing Law; Construction. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("Claim"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. Submission to Jurisdiction. The Sponsor irrevocably agrees that any
claim may be instituted in the courts of the State of New York located in the
city and County of New York or in the United States District Court for the
southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Sponsor consents to the jurisdiction of
such courts and personal service with respect thereto. Each of Barclays Capital
and the Sponsor waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Sponsor agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Sponsor and may be enforced in any other
courts to the jurisdiction of which the Sponsor is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of Barclays Capital and the Sponsor and to the
extent provided in section 8 hereof the controlling persons, partners, directors
and officers referred to in section 8, and their respective successors,
permitted assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from Barclays Capital) shall acquire
or have any right under or by virtue of this Agreement.
15
14. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement may be assigned only with the
written consent of the parties hereunder and shall be binding upon Barclays
Capital and the Sponsor and the Trust and their successors and permitted assigns
and any successor or assign of any substantial portion of the Sponsor's and the
Trust's and any of Barclays Capital's respective businesses and/or assets.
16
If the foregoing correctly sets forth the understanding between the Sponsor
and Barclays Capital, please so indicate in the space provided below for that
purpose, whereupon this agreement and your acceptance shall constitute a binding
agreement between the Sponsor and Barclays Capital.
Very truly yours,
BARCLAYS GLOBAL INVESTORS, N.A.
By:
---------------------------
Title:
By:
---------------------------
Title:
Accepted and agreed to as of the
date first above written, on behalf of itself
BARCLAYS CAPITAL INC.
By:
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Title:
By:
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Title:
Acknowledged and accepted
THE BANK OF NEW YORK
By:
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Title:
By:
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Title:
17
EXHIBIT A
Officer's Certificate
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Sponsor and the Trust as set
forth in this Agreement are true and correct as of the date hereof and as of the
time of purchase.
3. Each of the Sponsor and the Trust has performed all of its obligations
under this Agreement as are to be performed at or before the time of purchase.
4. The conditions set forth in paragraphs (f) and (g) of section 6 of this
Agreement have been met.
Exhibit A-1
