EXHIBIT 4.1
RYDEX SPECIALIZED PRODUCTS LLC, d/b/a "RYDEX INVESTMENTS",
as Sponsor,
THE BANK OF NEW YORK,
as Trustee,
ALL REGISTERED OWNERS AND BENEFICIAL OWNERS OF EURO CURRENCY
SHARES ISSUED HEREUNDER
and
ALL DEPOSITORS
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Depositary Trust Agreement
Euro Currency Trust
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Dated as of _________, 2005
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION................................................. 2
Section 1.1 Definitions...................................................................... 2
Section 1.2 Rules of Construction............................................................ 8
ARTICLE 2 CREATION AND DECLARATION OF TRUST; FORM OF CERTIFICATES; DEPOSIT OF EURO; DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF SHARES...................................... 9
Section 2.1 Creation and Declaration of Trust; Business of the Trust......................... 9
Section 2.2 Form of Certificates; Book-Entry System; Transferability of Shares............... 10
Section 2.3 Deposit of Euro.................................................................. 12
Section 2.4 Delivery of Shares............................................................... 13
Section 2.5 Registration and Registration of Transfer of Shares; Combination and Split-up of
Certificates.................................................................. 14
Section 2.6 Surrender of Shares and Withdrawal of Trust Property............................. 15
Section 2.7 Limitations on Delivery, Registration of Transfer and Surrender of Shares........ 16
Section 2.8 Lost Certificates, Etc........................................................... 16
Section 2.9 Cancellation and Destruction of Surrendered Certificates......................... 17
Section 2.10 Splits and Reverse Splits of Shares............................................. 17
ARTICLE 3 CERTAIN OBLIGATIONS OF REGISTERED OWNERS OF SHARES.................................... 18
Section 3.1 Liability of Registered Owner for Taxes and Other Governmental Charges........... 18
Section 3.2 Warranties on Deposit of Euro.................................................... 18
ARTICLE 4 ADMINISTRATION OF THE TRUST........................................................... 19
Section 4.1 Evaluation of Euro; Calculation of Net Asset Value............................... 19
Section 4.2 Responsibility of the Trustee for Evaluations.................................... 20
Section 4.3 Deposit Account Interest......................................................... 20
Section 4.4 Cash Distributions............................................................... 20
Section 4.5 Distributions of Surplus Property................................................ 21
Section 4.6 Fixing of Record Date............................................................ 21
Section 4.7 Payment of Trust Expenses........................................................ 22
Section 4.8 Statements and Reports........................................................... 23
Section 4.9 Further Provisions for Sales of Trust Property; Currency Conversion.............. 23
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Section 4.10 Counsel......................................................................... 25
Section 4.11 Grantor Trust................................................................... 25
ARTICLE 5 THE SPONSOR........................................................................... 26
Section 5.1 Duties of the Sponsor............................................................ 26
Section 5.2 Obligations of the Sponsor....................................................... 27
Section 5.3 Prevention or Delay in Performance by the Sponsor................................ 27
Section 5.4 Certain Matters Regarding Successor Sponsor...................................... 28
Section 5.5 Resignation of Sponsor; Successors............................................... 28
Section 5.6 Compensation of the Sponsor...................................................... 29
Section 5.7 Federal Securities Law Filings................................................... 30
Section 5.8 Discretionary Actions by Sponsor; Consultation................................... 31
ARTICLE 6 THE TRUSTEE........................................................................... 31
Section 6.1 Maintenance of Office and Transfer Books by the Trustee.......................... 31
Section 6.2 Obligations of the Trustee....................................................... 32
Section 6.3 Prevention or Delay in Performance by the Trustee................................ 33
Section 6.4 Resignation or Removal of the Trustee; Appointment of Successor Trustee.......... 33
Section 6.5 The Depository................................................................... 35
Section 6.6 Compensation of the Depository................................................... 36
Section 6.7 Retention of Trust Documents..................................................... 36
Section 6.8 Prospectus Delivery.............................................................. 36
Section 6.9 Discretionary Actions by Trustee; Consultation................................... 37
ARTICLE 7 INDEMNIFICATION....................................................................... 37
Section 7.1 Indemnification of the Sponsor and Trustee....................................... 37
ARTICLE 8 AMENDMENT AND TERMINATION............................................................. 42
Section 8.1 Amendment........................................................................ 42
Section 8.2 Termination...................................................................... 42
ARTICLE 9 MISCELLANEOUS......................................................................... 45
Section 9.1 Counterparts..................................................................... 45
Section 9.2 Third-Party Beneficiaries........................................................ 45
Section 9.3 Severability..................................................................... 45
Section 9.4 Registered Owners, Beneficial Owners and Depositors as Parties; Binding Effect... 46
Section 9.5 Notices.......................................................................... 46
Section 9.6 Agent for Service; Submission to Jurisdiction.................................... 47
Section 9.7 Governing Law.................................................................... 48
EXHIBIT A -DEPOSIT ACCOUNT AGREEMENT
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EXHIBIT B -FORM OF CERTIFICATES
iii
DEPOSITARY TRUST AGREEMENT
THIS DEPOSITARY TRUST AGREEMENT dated as of ___________, 2005, between
Rydex Specialized Products LLC, a Delaware limited liability company d/b/a
"RYDEX INVESTMENTS", as sponsor, THE BANK OF NEW YORK, a New York banking
corporation, as trustee, all Registered Owners and Beneficial Owners from time
to time of Euro Currency Shares issued hereunder and all Depositors.
WITNESSETH:
WHEREAS the Sponsor desires to establish a trust, to be known as the
"Euro Currency Trust", pursuant to the laws of the State of New York;
WHEREAS the Sponsor desires to establish the terms on which Euro (as
herein defined) may be deposited in the trust and provide for the creation of
Euro Currency Shares in Baskets (as herein defined) representing fractional
undivided interests in the net assets of the trust and the execution and
delivery of Certificates (as herein defined) evidencing the Euro Currency
Shares; and
WHEREAS the Sponsor desires to provide for other terms and conditions
upon which the trust shall be established and administered, as hereinafter
provided.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Sponsor and the Trustee hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions.
Except as otherwise specified in this Trust Agreement or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Trust Agreement.
"Agreement" means this Depositary Trust Agreement, as amended or
supplemented in accordance with its terms.
"Authorized Participant" means a Person that, at the time of
submitting a Purchase Order or a Redemption Order (i) is a registered
broker-dealer or other securities market participant, (ii) is a DTC Participant
or an Indirect Participant and (iii) has in effect a valid Authorized
Participant Agreement.
"Authorized Participant Agreement" means an agreement among the
Trustee, the Sponsor and an Authorized Participant that authorizes the
Authorized Participant to submit Purchase Orders and Redemption Orders under
this Agreement.
"Basket" means 50,000 Shares, except that the Trustee, in consultation
with the Sponsor, may from time to time increase or decrease the number of
Shares comprising a Basket.
"Basket Euro Amount" is the amount of Euro that must be deposited for
issuance of one Basket or that, subject to the exception stated in Section 2.6,
is deliverable upon Surrender of one Basket. The Basket Euro Amount will be
determined as provided in Section 2.3(b).
"Beneficial Owner" means any Person owning, through DTC, a DTC
Participant, or an Indirect Participant, a Share.
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"Certificate" means a certificate that may be executed and delivered
by the Trustee under this Agreement evidencing Shares.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"Corporate Trust Office" means the office of the Trustee at which its
depositary receipt business is administered which, at the date of this
Agreement, is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Deliver" means (a) when used with respect to Euro, either (i) a wire
transfer of immediately available Euro to the account specified by the Person
entitled to the Delivery or (ii) if requested by the Person entitled to the
Delivery, delivery of a certified or official bank check for Euro payable as
requested by the person entitled to the Delivery and (b) when used with respect
to Shares, either (i) one or more book-entry transfers of those Shares to an
account or accounts at DTC designated by the Person entitled to such delivery
for further credit as specified by that Person or (ii) in the circumstances
specified in Section 2.2(e), execution and delivery at the Corporate Trust
Office of the Trustee of one or more Certificates evidencing those Shares.
"Deposit Account" means the account maintained with the Depository
pursuant to the Deposit Account Agreement.
"Deposit Account Agreement" means the Deposit Account Agreement
entered into between the Trustee and the Depository, substantially in the form
annexed hereto as Exhibit A, as it may be amended or supplemented in accordance
with this Agreement.
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"Depositor" means any Authorized Participant that deposits Euro into
the Trust, either for its own account or on behalf of another Person that is the
owner or beneficial owner of those Euro.
"Depository" means JPMorgan Chase Bank, N.A., London Branch.
"Dollars" or "$" means lawful currency of the United States of
America.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"DTC Participant" means a Person that, pursuant to DTC's governing
documents, is entitled to deposit securities with DTC in its capacity as a
"participant."
"EONIA" means the Euro OverNight Index Average, as calculated by the
European Central Bank and published by the European Banking Federation on Page
247 of the TELERATE screen.
"Exchange" means the exchange on which the Shares are principally
traded, as specified by the Sponsor.
"Euro" means the lawful currency of the European Monetary Union.
"Indemnified Amounts" is defined in Section 7.1.
"Indemnitee" is defined in Section 7.1.
"Indemnitor" is defined in Section 7.1.
"Indirect Participant" means a Person that, by clearing securities
through, or maintaining a custodial relationship with, a DTC Participant, has
access to the DTC clearing system.
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"London Business Day" means any day other than (i) a Saturday or
Sunday or (ii) a day which has been designated a bank holiday in England.
"NAV" means the net asset value of the Trust determined under Section
4.1.
"NAV per Basket" means the value of a Basket determined under Section
2.3.
"NAV per Share" means the value of a Share determined under Section
4.1.
"New York Business Day" means any day other than (i) a Saturday or
Sunday or (ii) a day on which the Exchange is not open for regular trading at
noon New York time.
"Noon Buying Rate" means the Dollar/Euro exchange rate, as determined
and published by the Federal Reserve Bank of New York each New York Business Day
at approximately 12:00 PM (New York time).
"Order Cutoff Time" means (i) 4:00 PM (New York time) or (ii) another
time agreed to by the Sponsor and the Trustee and of which Registered Owners and
all existing Authorized Participants have been notified by the Trustee.
"Order Date" means, with respect to a Purchase Order, the date
specified in Section 2.3(a) and, with respect to a Redemption Order, the date
specified in Section 2.6(a).
"Person" means any natural person or any limited liability company,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Proceeding" is defined in Section 7.1.
"Purchase Order" is defined in Section 2.3.
"Qualified Bank" means a bank, trust company, corporation or national
banking association organized and doing business under the laws of the United
States or any State of the United States that is authorized under those laws to
exercise corporate
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trust powers and that (i) is a DTC Participant or a participant in such other
securities depository as is then acting with respect to the Shares, (ii) unless
counsel to the Sponsor determines that the following requirement is not
necessary for the exception under Section 408(m) of the Code to apply, is a
banking institution as defined in Section 408(n) of the Code and (iii) had, as
of the date of its most recent annual financial statements, an aggregate
capital, surplus and undivided profits of at least $500,000,000.
"Redemption Order" is defined in Section 2.6(a).
"Registered Owner" means the Person in whose name Shares are
registered on the books of the Trustee maintained for that purpose.
"Registrar" means any bank or trust company that is appointed to
register Shares and transfers of Shares as herein provided.
"Relevant Price" means the Noon Buying Rate, except as provided below.
If, on a particular evaluation day, the Federal Reserve Bank of New York does
not announce a Noon Buying Rate by 2:00 PM (New York time), then the most recent
Federal Reserve Bank of New York determination of the Noon Buying Rate will be
the "Relevant Price" and be used to determine the NAV of the Trust unless the
Trustee, in consultation with the Sponsor, determines that such price is
inappropriate to use as the basis for such valuation. In the event that the
Trustee and the Sponsor determine that the most recent Federal Reserve Bank of
New York determination of the Noon Buying Rate is not an appropriate basis for
valuation of the Trust's Euro, they shall determine an alternative basis for
such evaluation to be employed by the Trustee, which will be the "Relevant
Price."
"Settlement Date" means, with respect to a Purchase Order, the date
specified in Section 2.3(a) and, with respect to a Redemption Order, the date
specified in Section 2.6(a).
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"Shares" means Euro Currency Shares created under this Agreement, each
representing a fractional undivided ownership interest in the net assets of the
Trust, which interest shall equal a fraction, the numerator of which is 1 and
the denominator of which is the total number of Shares outstanding.
"Sponsor" means Rydex Specialized Products LLC, a Delaware limited
liability company, d/b/a "Rydex Investments".
"Sponsor's Fee" means the fee to be paid to the Sponsor, which for
each day shall be equal to (.004/365 or 366, depending on the number of days in
the year) multiplied by (the Euro in the Trust as of the close of business on
the preceding London Business Day, which shall include all unpaid interest but
exclude unpaid fees, each as accrued through the immediately preceding day).
"Sponsor Indemnified Persons" is defined in Section 7.1.
"Surplus Property" means any Trust Property other than (i) Euro
deposited by or on behalf of Authorized Participants pursuant to Section 2.3,
(ii) Euro received as interest on Euro in the Deposit Account, (iii) amounts
withdrawn from the Deposit Account in order to make a redemption described in
Section 2.6, or (iv) amounts being held for the payment of estimated Trust
expenses.
"Surrender" means, when used with respect to Shares, (a) one or more
book-entry transfers of Shares to the DTC account of the Trustee or (b)
surrender to the Trustee at its Corporate Trust Office of one or more
Certificates evidencing Shares.
"Trust" means the Euro Currency Trust, the trust entity created by
this Agreement.
"Trust Property" means the Euro that are deposited under this
Agreement and any other money or other property that is received by the Trustee
in respect of Trust
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Property and that is being held under this Agreement. Trust Property shall not
include any property subject to distribution for which the record date for
determining Registered Owners entitled to such distribution has passed.
"Trustee" means The Bank of New York, a New York banking corporation,
in its capacity as trustee under this Agreement, or any successor as trustee
under this Agreement.
"Trustee Indemnified Persons" is defined in Section 7.1.
Section 1.2 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect in the United States;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the
plural include the singular.
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ARTICLE 2
CREATION AND DECLARATION OF TRUST;
FORM OF CERTIFICATES; DEPOSIT OF EURO; DELIVERY,
REGISTRATION OF TRANSFER AND SURRENDER OF SHARES
Section 2.1 Creation and Declaration of Trust; Business of the Trust.
(a) The Trustee acknowledges that an initial deposit of 100 Euro under
and in accordance with this Agreement has been made in the Deposit Account by
the Sponsor on the date hereof in exchange for one Share. The Sponsor is
purchasing the initial Share solely for the purpose of forming the Trust. The
Sponsor will redeem the initial Share for 100 Euro as promptly as practicable
after the Form S-1 registration statement filed with the Commission is declared
effective by the Commission and the Initial Purchaser, as defined in the
registration statement, deposits euro in accordance with the registration
statement.
(b) The Trustee declares that it will hold that initial deposit and
all other Trust Property as trustee for the benefit of the Registered Owners for
the purposes of, and subject to and limited by the terms and conditions set
forth in, this Agreement. The trust created by this Agreement shall be known as
the "Euro Currency Trust".
(c) The Trust shall not engage in any business or activities other
than those authorized by this Agreement or incidental and necessary to carry out
the duties and responsibilities set forth in this Agreement. Other than issuance
of the Shares, the Trust shall not issue or sell any certificates or other
obligations or, except as provided in this Agreement, otherwise incur, assume or
guarantee any indebtedness for money borrowed.
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Section 2.2 Form of Certificates; Book-Entry System; Transferability
of Shares.
(a) The Certificates evidencing Shares shall be substantially in the
form set forth in Exhibit B annexed to this Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. No Shares
shall be entitled to any benefits under this Agreement or be valid or obligatory
for any purpose unless a Certificate evidencing those Shares has been executed
by the Trustee by the manual or facsimile signature of a duly authorized
signatory of the Trustee and, if a Registrar (other than the Trustee) for the
Shares shall have been appointed, countersigned by the manual signature of a
duly authorized officer of the Registrar. The Trustee shall maintain books on
which the registered ownership of each Share and transfers, if any, of such
registered ownership shall be recorded. Certificates evidencing Shares bearing
the manual or facsimile signature of a duly authorized signatory of the Trustee
and the manual signature of a duly authorized officer of the Registrar, if
applicable, who was, at the time such Certificates were executed, a proper
signatory of the Trustee or Registrar, if applicable, shall bind the Trustee,
notwithstanding that such signatory has ceased to hold such office prior to the
delivery of such Certificates.
(b) The Certificates may be endorsed with or have incorporated in the
text thereof such legends or recitals or modifications not inconsistent with the
provisions of this Agreement as may be required by the Trustee or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of the Exchange or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which the Shares
evidenced by a particular Certificate are subject.
(c) The Sponsor and the Trustee will apply to DTC for acceptance of
the Shares in its book-entry settlement system. Shares deposited with DTC shall
be evidenced by one or more global Certificates which shall be registered in the
name of Cede & Co., as nominee for DTC, and shall bear the following legend:
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE AGENT AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(d) So long as the Shares are eligible for book-entry settlement with
DTC and such settlement is available, unless otherwise required by law,
notwithstanding the provisions of Section 2.2(a) and Section 2.2(b), all Shares
shall be evidenced by one or more global Certificates the Registered Owner of
which is DTC or a nominee of DTC and (i) no Beneficial Owner of Shares will be
entitled to receive a separate Certificate evidencing those Shares, (ii) the
interest of a Beneficial Owner in Shares represented by a global Certificate
will be shown only on, and transfer of that interest will be effected only
through, records maintained by DTC or a DTC Participant or Indirect Participant
through which the Beneficial Owner holds that interest and (iii) the rights of a
Beneficial Owner with respect to Shares represented by a global Certificate will
be exercised only to the extent allowed by, and in compliance with, the
arrangements in effect between such Beneficial Owner and DTC or the DTC
Participant or Indirect Participant through which that Beneficial Owner holds an
interest in Shares.
(e) If, at any time when Shares are evidenced by a global Certificate,
DTC ceases to make its book-entry settlement system available for such Shares,
the Trustee shall execute and deliver separate Certificates evidencing Shares to
the DTC Participants entitled thereto, with such additions, deletions and
modifications to this Agreement and to the form of Certificate evidencing Shares
as the Sponsor and the Trustee may agree.
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(f) Title to a Certificate evidencing Shares (and to the Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
that the Trustee, notwithstanding any notice to the contrary, may treat the
Registered Owner of Shares as the absolute owner thereof for the purpose of
determining the person entitled to any distribution or to any notice provided
for in this Agreement and for all other purposes.
Section 2.3 Deposit of Euro.
(a) After the initial deposit of Euro in the Trust, the issuance and
Delivery of Shares will take place only in integral numbers of Baskets and in
compliance with the provisions of this Agreement, as supplemented by any
procedures attached to an applicable Authorized Participant Agreement, to the
extent those procedures are consistent with this Agreement. Authorized
Participants wishing to acquire from the Trustee one or more Baskets must place
an order with the Trustee (a "Purchase Order"). Purchase Orders received by the
Trustee prior to the Order Cutoff Time on a New York Business Day will have that
day as the Order Date. Purchase Orders received on a day that is not a New York
Business Day or received after the Order Cutoff Time on a New York Business Day
will have the next following New York Business Day as the Order Date. The
"Settlement Date" for a Purchase Order shall occur on the earliest date that is
no less than the third New York Business Day and the third London Business Day
following the Order Date. As consideration for each Basket acquired, Authorized
Participants must deposit with the Depository, for credit to the Deposit
Account, the Basket Euro Amount determined by the Trustee on the Business Day
prior to the Settlement Date for the corresponding Purchase Order. Euro must be
Delivered to the Depository.
(b) The Trustee shall determine the Basket Euro Amount for each New
York Business Day. The initial "Basket Euro Amount" is 5,000,000 Euro. After the
initial deposit, the "Basket Euro Amount" shall be an amount of Euro equal to
the quotient obtained by dividing the NAV per Basket on the date on which the
determination is being made by the Relevant Price on such date. For purposes of
this computation, "NAV per
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Basket" is the product obtained by multiplying (x) the NAV per Share determined
in compliance with Section 4.1, by (y) the number of Shares which constitute a
Basket on the date on which the determination is being made. Fractions of a Euro
smaller than .001 shall be disregarded. The Sponsor intends to publish, or may
designate other persons to publish, for each New York Business Day, the Basket
Euro Amount.
(c) If the Trust Property includes Surplus Property, no deposits of
Euro will be accepted until after a record date for distribution of that money
or property, or proceeds from that property, has passed.
(d) All deposited Euro shall be owned by the Trust and held for the
Trust by the Depository in the Deposit Account. Any assets of the Trust other
than Euro shall be held by the Trustee or the Depository at such place and in
such manner as the Trustee shall determine.
Section 2.4 Delivery of Shares.
Upon receipt by the Trustee of any deposit in accordance with Section
2.3, together with a Purchase Order and the other documents required under this
Agreement, if any, and a confirmation from the Depository that the Euro Deposit
Amount has been Delivered to the Depository for each Basket of Shares and the
Depository is holding that Euro for the account of the Trust, the Trustee,
subject to the terms and conditions of this Agreement, shall Deliver to the
Depositor the number of Baskets of Shares issuable in respect of such deposit as
requested in the corresponding Purchase Order, but only upon payment to the
Trustee of the fees and expenses of the Trustee as provided in Section 6.6 and
of all taxes and governmental charges and fees payable in connection with such
deposit, the transfer of the Euro and the issuance and Delivery of the Shares.
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Section 2.5 Registration and Registration of Transfer of Shares;
Combination and Split-up of Certificates.
(a) The Trustee shall keep or cause to be kept a register of
Registered Owners of Shares and shall provide for the registration of Shares and
the registration of transfers of Shares.
(b) The Trustee, subject to the terms and conditions of this
Agreement, shall register transfers of ownership of Shares on its transfer books
from time to time, upon any Surrender of a Certificate evidencing such Shares,
by the Registered Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, and duly stamped as
may be required by the laws of the State of New York and of the United States of
America. Thereupon the Trustee shall execute a new Certificate or Certificates
evidencing such Shares, and deliver the same to or upon the order of the Person
entitled thereto.
(c) The Trustee, subject to the terms and conditions of this
Agreement, shall, upon Surrender of a Certificate or Certificates evidencing
Shares for the purposes of effecting a split-up or combination of that
certificate or certificates, execute and deliver one or more new Certificates
evidencing those Shares.
(d) The Trustee may, with the written approval of the Sponsor (which
approval shall not be unreasonably withheld), appoint one or more co-transfer
agents for the purpose of effecting registration of transfers of Shares and
combinations and split-ups of Certificates at designated transfer offices on
behalf of the Trustee at the Trustee's expense. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Registered Owners or Persons entitled
to Shares and will be entitled to protection and indemnity to the same extent as
the Trustee.
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Section 2.6 Surrender of Shares and Withdrawal of Trust Property.
(a) Upon Surrender of any integral number of Baskets for the purpose
of withdrawal of the amount of Trust Property represented thereby, and upon
payment of the fee of the Trustee in connection with the Surrender of Shares as
provided in Section 6.6 and payment of all taxes and charges payable in
connection with such Surrender and withdrawal of Trust Property, and subject to
the terms and conditions of this Agreement, an Authorized Participant acting on
authority of the Registered Owner of those Shares will be entitled to Delivery,
in accordance with the provisions of this Agreement, as supplemented by any
procedures attached to an applicable Authorized Participant Agreement, to the
extent those procedures are consistent with this Agreement, of the amount of
Trust Property at the time represented by such Baskets, including the Basket
Euro Amounts corresponding to such Baskets for the New York Business Day prior
to the Settlement Date (as defined below), but excluding from those Basket Euro
Amounts any portion that represents the value of Trust Property that is not held
as Euro. Authorized Participants wishing to redeem one or more Baskets must
place an order with the Trustee (a "Redemption Order"). Redemption Orders
received by the Trustee prior to the Order Cutoff Time on a New York Business
Day will have that day as the Order Date. Redemption Orders received by the
Trustee after the Order Cutoff Time on a New York Business Day or on a day that
is not a New York Business Day will have the next New York Business Day as the
Order Date. The "Settlement Date" for a Redemption Order shall occur on the
earliest date that is no less than the third New York Business Day and the third
London Business Day following the Order Date. Euro will be Delivered from the
Deposit Account by the Depository. Any Trust Property other than Euro will be
delivered by the Trustee.
(b) The Trustee may require that a Certificate evidencing Shares
Surrendered for the purpose of withdrawal is properly endorsed in blank or
accompanied by proper instruments of transfer in blank. Upon a Surrender of an
integral number of Baskets of Shares and satisfaction of all the conditions for
withdrawal of Trust Property, the Trustee shall instruct the Depository to
Deliver, to or to the order of the Surrendering Authorized Participant, the
amount of Euro represented by the Surrendered Baskets of
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Shares and the Depository or the Trustee shall pay or deliver to or to the order
of the Surrendering Authorized Participant the amount of any other Trust
Property represented by the Surrendered Baskets of Shares. Any Delivery of Euro
other than by wire transfer or at the office of the Depository will be at the
expense and risk of the Authorized Participant.
Section 2.7 Limitations on Delivery, Registration of Transfer and
Surrender of Shares.
(a) As a condition precedent to the Delivery, registration of
transfer, split-up, combination or Surrender of any Shares or withdrawal of any
Trust Property, the Trustee or Registrar may require payment from the Depositor
or the Authorized Participant Surrendering the Shares of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to any securities being withdrawn) and payment of any applicable
fees as herein provided, may require the production of proof satisfactory to it
as to the identity and genuineness of any signature and may also require
compliance with any regulations the Trustee may establish consistent with the
provisions of this Agreement, including this Section 2.7.
(b) The Delivery of Shares against deposits of Euro or the
registration of transfer of Shares may be suspended generally, or refused with
respect to particular requested Deliveries or transfers, during any period when
the transfer books of the Trustee are closed or if any such action is deemed
necessary or advisable by the Trustee or the Sponsor for any reason at any time
or from time to time. Except as otherwise provided in this Agreement, the
Surrender of Shares for purposes of withdrawing Trust Property may not be
suspended.
Section 2.8 Lost Certificates, Etc.
The Trustee shall execute and deliver a new Certificate of like tenor
in exchange and substitution for a mutilated Certificate upon cancellation
thereof, or in lieu
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of and in substitution for a destroyed, lost or stolen Certificate if the
Registered Owner thereof has (a) filed with the Trustee (i) a request for such
execution and delivery before the Trustee has notice that the Shares evidenced
by the Certificate have been acquired by a protected purchaser and (ii) a
sufficient indemnity bond, and (b) satisfied any other reasonable requirements
imposed by the Trustee.
Section 2.9 Cancellation and Destruction of Surrendered Certificates.
All Certificates Surrendered to the Trustee shall be canceled by the
Trustee. The Trustee is authorized to destroy Certificates so canceled.
Section 2.10 Splits and Reverse Splits of Shares.
If requested in writing by the Sponsor, the Trustee shall effect a
split or reverse split of the Shares as of a record date set by the Trustee in
accordance with procedures determined by the Trustee.
The Trustee is not required to distribute any fraction of a Share in
connection with a split or reverse split of the Shares. The Trustee may sell the
aggregated fractions of Shares that would otherwise be distributed in a split or
reverse split of the Shares or the amount of Trust Property that would be
represented by those Shares and distribute the net proceeds of those Shares or
that Trust Property to the Registered Owners entitled to them.
The amount of Trust Property represented by each Share and the Basket
Euro Amount shall be adjusted as appropriate as of the open of business on the
New York Business Day following the record date for a split or reverse split of
the Shares.
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ARTICLE 3
CERTAIN OBLIGATIONS OF REGISTERED OWNERS OF SHARES
Section 3.1 Liability of Registered Owner for Taxes and Other
Governmental Charges.
If any tax or other governmental charge shall become payable by the
Trustee with respect to any transfer or redemption of Shares, such tax or other
governmental charge shall be payable by the Registered Owner of such Shares to
the Trustee. The Trustee shall refuse to effect any registration of transfer of
such Shares or any withdrawal of Trust Property represented by such Shares until
such payment is made, and may withhold any distributions, or may sell for the
account of the Registered Owner thereof Trust Property or Shares, and may apply
such distributions or the proceeds of any such sale in payment of such tax or
other governmental charge, and the Registered Owner of such Shares shall remain
liable for any deficiency. The Trustee shall distribute any net proceeds of a
sale made under the preceding sentence that remain, after payment of the tax or
other governmental charge, to the Registered Owners entitled thereto as in the
case of a distribution in cash.
Section 3.2 Warranties on Deposit of Euro.
Every Person depositing Euro under this Agreement shall be deemed
thereby to represent and warrant that the Person making such deposit is duly
authorized to do so and that at the time of delivery, the Euro are free and
clear of any lien, pledge, encumbrance, right, charge or claim (other than the
rights created by this Agreement). All representations and warranties deemed
made under this Section 3.2 shall survive the deposit of Euro, Delivery or
Surrender of Shares or termination of this Agreement.
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ARTICLE 4
ADMINISTRATION OF THE TRUST
Section 4.1 Evaluation of Euro; Calculation of Net Asset Value.
As promptly as practicable after the determination of the Relevant
Price on each New York Business Day, ordinarily no later than 2:00 PM (New York
time), the Trustee will calculate, and the Sponsor or a person designated by the
Sponsor will publish, the Trust's net asset value ("NAV"). To calculate the NAV,
the Trustee will:
(a) take the amount of Euro in the Deposit Account as of the close of
business on the preceding London Business Day, as reported by the Depository;
(b) add interest accrued but unpaid on the Deposit Account through the
preceding day;
(c) subtract the accrued but unpaid Sponsor's Fee through the
preceding day;
(d) add Euro receivable by the Trust under Purchase Orders having
Order Dates on or before the preceding New York Business Day;
(e) subtract Euro payable by the Trust under Redemption Orders having
Order Dates on or before the preceding New York Business Day;
(f) convert the result after step (e) into Dollars using the Relevant
Price;
(g) add the dollar value of any other assets included in the Trust
Property as of the close of business on the preceding New York Business Day; and
(h) subtract the dollar value of any other expenses and liabilities of
the Trust as of the close of business on the preceding New York Business Day.
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The result is the NAV of the Trust for that New York Business Day. The
Trustee shall also divide the NAV of the Trust by the number of Shares
outstanding for the date of the evaluation then being made, which figure is the
"NAV per Share." For purposes of the preceding sentence, the number of Shares
deemed outstanding shall include Shares to be Delivered under Purchase Orders
having Order Dates on or before the preceding New York Business Day and shall
exclude Shares to be Surrendered under Redemption Orders having Order Dates on
or before the preceding New York Business Day.
Section 4.2 Responsibility of the Trustee for Evaluations.
The Sponsor, Depositors, Registered Owners and Beneficial Owners may
rely on any evaluation or determination of any amount made by the Trustee, and
the Sponsor shall have no responsibility for the accuracy thereof. The
determinations made by the Trustee under this Agreement shall be made in good
faith upon the basis of, and the Trustee shall not be liable for any errors
contained in, information reasonably available to it. The Trustee shall be under
no liability to the Sponsor, or to Depositors, Registered Owners or Beneficial
Owners, for errors in judgment; provided, however, that this provision shall not
protect the Trustee against any liability to which it would otherwise be subject
by reason of negligence or bad faith in the performance of its duties.
Section 4.3 Deposit Account Interest.
The Trustee will deposit all Euro into the Deposit Account, which will
accrue interest in accordance with the terms of the Deposit Account Agreement.
Section 4.4 Cash Distributions.
On the first London Business Day of each month that is also a New York
Business Day, the Depository will deposit into the Deposit Account the accrued
but unpaid interest for the previous month and the Trustee will make
withdrawals from the Deposit Account to pay the accrued Sponsor's Fee for the
20
previous month plus any other Trust expenses. In the event that the interest
deposited exceeds the sum of the Sponsor's Fee for the previous month plus other
Trust expenses, if any, then the Trustee shall convert the excess into Dollars
in accordance with Section 4.9 and, as promptly as practicable, declare a record
date and distribute the net proceeds to Shareholders of record on a pro rata
basis (in accordance with the number of Shares that they own); provided,
however, that in the event that the Trustee shall be required to withhold and
does withhold from such cash an amount on account of taxes, the amount
distributed to the Registered Owners shall be reduced accordingly; and provided,
further, that the Trustee shall round the amount paid to each Registered Owner
to the nearest whole cent.
Section 4.5 Distributions of Surplus Property.
At any time that the Trust Property includes Surplus Property, the
Trustee shall, as promptly as practicable, (a) distribute all Surplus Property
consisting of Dollars to the Registered Owners in proportion to the number of
Shares held by them, (b) convert into Dollars or sell for Dollars all other
Surplus Property and distribute the Dollar proceeds, net of the fees and
expenses of the Trustee, to the Registered Owners in proportion to the number of
Shares held by them. If the Trust Property includes any Surplus Property that is
not Euro, the Trustee shall suspend deposits of Euro for the purpose of issuance
of Shares until after a record date for distribution of that Surplus Property,
or proceeds of that Surplus Property, has passed.
Section 4.6 Fixing of Record Date.
Whenever any distribution will be made, or whenever the Trustee
receives notice of any solicitation of proxies or consents from Registered
Owners, or whenever for any reason there is split, reverse split or other change
in the outstanding Shares, or whenever the Trustee shall find it necessary or
convenient in respect of any matter, the Trustee, in consultation with the
Sponsor, shall fix a record date for the determination of the Registered Owners
who shall be (i) entitled to receive such distribution or the net proceeds of
the sale thereof, (ii) entitled to give such proxies or consents in respect of
any such solicitation or (iii) entitled to act in respect of any other matter
for which the record
21
date was set.
Section 4.7 Payment of Trust Expenses.
(a) The following expenses are or may be accrued and paid by the Trust:
(1) the Sponsor's Fee and other fees and expenses of the Sponsor set
forth in Section 5.6;
(2) expenses of the Trust not assumed by the Sponsor pursuant to
Section 5.1(b);
(3) taxes and other governmental charges;
(4) expenses and costs of any extraordinary services performed by the
Trustee or the Sponsor on behalf of the Trust or action taken by the Trustee or
the Sponsor to protect the Trust or the interests of Registered Owners; and
(5) indemnification of the Sponsor as provided in Section 7.1(d).
(b) On the first London Business Day of each month that is also a New York
Business Day, the Trustee shall withdraw from the Deposit Account amounts
necessary to pay the Trust expenses provided for in Section 4.7(a) and any
otherwise unpaid expenses hereunder. The Trustee will withdraw and sell
sufficient Euro to purchase an amount of currency other than Euro sufficient to
pay any Trust expenses payable other than in Euro and the costs of currency
conversion.
(c) Notwithstanding the foregoing, if requested by the Sponsor and agreed
to by the Trustee, the Trustee will advance amounts out of its own funds for the
payment of Trust expenses, provided that the amount advanced at any time shall
not exceed $20,000. The amount of such advances, plus the cost of meeting
reserve requirements imposed by the Board of Governors of the Federal Reserve
System, together with interest thereon at a
22
percentage rate equal to then-current overnight federal funds rate, shall be
expenses of the Trust. The Trustee shall have a lien on the balances on hand in
the Deposit Account to the extent of all amounts advanced by it pursuant to this
Section 4.7(c), which lien shall be superior to the interest of the Registered
Owners.
(d) The Trustee is conclusively authorized to sell Euro in the smallest
amounts required to permit payment of Trust expenses, it being the intention to
minimize the Trust's holdings of assets other than Euro. Neither the Trustee nor
the Sponsor shall have any liability for loss or depreciation resulting from
sales of Euro so made. The Trustee shall not be liable or responsible in any way
for depreciation or loss incurred by reason of any sale made pursuant the
Sponsor's direction or otherwise in accordance with this Section 4.7(d).
Section 4.8 Statements and Reports.
After the end of each fiscal year and within the time period required
by applicable laws, rules and regulations, at the Sponsor's expense, the Trustee
shall send to the Registered Owners at the end of such fiscal year, an annual
report of the Trust containing financial statements audited by independent
accountants designated by the Sponsor and such other information as may be
required by such laws, rules and regulations or otherwise, or which the Sponsor
determines shall be included. The Trustee may distribute the annual report by
any means acceptable to the Registered Owners and that complies with applicable
laws, rules and regulations.
Section 4.9 Further Provisions for Sales of Trust Property; Currency
Conversion.
In addition to selling Euro in accordance with Section 4.7, the
Trustee shall sell Euro whenever any one or more of the following conditions
exist:
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(i) the Sponsor has notified the Trustee that such sale is required by
applicable law or regulation; or
(ii) the Trust is to be terminated and its assets liquidated in
accordance with Section 8.2.
When the Trustee is required or permitted to sell Trust Property, it
may sell that Trust Property by public or private sale in any manner and on any
terms that are (i) commercially reasonable in the circumstances and (ii)
reasonably calculated to maximize the value of the Trust Property while taking
into account any duty of the Trustee under this Agreement to sell that Trust
Property as promptly as practicable.
However, whenever the Trustee is required or permitted to sell Trust
Property that is currency, if at the time of the receipt thereof the received
currency can, in the judgment of the Trustee, be converted on a reasonable basis
into the required currency that, if applicable, is transferable to the United
States, the Trustee shall place orders with dealers (which may include the
Depository or the Trustee or any of their affiliates) through which it may
reasonably expect to obtain a commercially reasonable rate of exchange (net of
commission) and good execution of orders.
If such conversion can be effected only with the approval or license
of any government or agency thereof, the Trustee shall file such application for
approval or license, if any, as it may deem desirable.
If at any time the Trustee shall determine that in its judgment the
received currency is not convertible on a reasonable basis into the required
currency or that, if applicable, is transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Trustee is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Trustee, the Trustee may distribute the received currency (or
an appropriate document evidencing the right to receive such received currency)
to, or in its discretion may hold such received currency for the
24
respective accounts of, the persons entitled to receive it. Any interest earned
or investment gains attributable to amounts withheld from distribution shall be
held by the Trustee for distribution to the Registered Owners entitled to the
amount to which the interest or gain is attributable.
If any such conversion of received currency, in whole or in part,
cannot be effected for distribution to some of the persons entitled to it, the
Trustee may in its discretion make such conversion and distribution in required
to the extent permissible to the persons entitled to it and may distribute the
balance of the received currency to, or in its discretion may hold such received
currency for the respective accounts of, the persons entitled to receive it. Any
interest earned or investment gains attributable to amounts withheld from
distribution shall be held by the Trustee for distribution to the Registered
Owners entitled to the amount to which the interest or gain is attributable.
The Trustee and the Sponsor shall not be liable or responsible in any
way for depreciation or loss incurred by reason of any sale made pursuant to
this Section 4.9.
Section 4.10 Counsel.
The Sponsor may from time to time employ counsel to act on behalf of
the Trust and perform any legal services in connection with the Euro and the
Trust, including any legal matters relating to the possible disposition or
acquisition of any Euro. The reasonable fees and expenses of such counsel shall
be paid by the Sponsor up to an aggregate maximum of $100,000 per year, with any
excess amount to be paid by the Trust.
Section 4.11 Grantor Trust.
Nothing in this Agreement, any agreement with a Depository, or
otherwise, shall be construed to give the Trustee or Sponsor the power to vary
the investment of the Beneficial Owners within the meaning of Section
301.7701-4(c) under the Code or any similar or successor provision of the
regulations under the Code, nor
25
shall the Sponsor give the Trustee any direction that would vary the investment
of the Beneficial Owners. However, the Trustee shall not be liable to any Person
for any failure of the Trust to qualify as a grantor trust under the Code or any
comparable provision of the laws of any State or other jurisdiction where that
treatment is sought, except that this sentence shall not limit the Trustee's
responsibility for the administration of the Trust in accordance with this
Agreement. Neither the Trustee nor the Sponsor will agree to any amendment of
the Deposit Account Agreement unless the Trustee and the Sponsor obtain a prior
written opinion of counsel to the effect that such amendment will have no
adverse effect on the classification of the Trust as a "grantor trust" under the
Code.
ARTICLE 5
THE SPONSOR
Section 5.1 Duties of the Sponsor.
(a) The Sponsor is responsible for establishing the Trust and for the
registration of the Shares. The Sponsor will generally oversee the performance
of the Trustee and the Trust's principal service providers, but will not
exercise day-to-day oversight over the Trustee or such service providers. The
Sponsor will regularly communicate with the Trustee to monitor the overall
performance of the Trust. The Sponsor will also designate the independent
certified public accountants of the Trust and may from time to time employ legal
counsel for the Trust.
(b) The Sponsor shall be responsible for all organizational expenses of the
Trust, and for the following administrative and marketing expenses of the Trust:
the Trustee's monthly fee, routine transaction and maintenance fees charged by
the Depository, listing fees of the Exchange, registration fees charged by the
Commission, printing and mailing costs, audit fees, legal fees and expenses not
in excess of $100,000 per year and any applicable license fee.
26
(c) The Sponsor will monitor the interest rate paid by the Depository
and has the right and duty to instruct the Trustee to terminate the Deposit
Account Agreement if the Sponsor considers the interest rate to be
noncompetitive.
Section 5.2 Obligations of the Sponsor.
(a) The Sponsor does not assume any obligation nor shall it be subject
to any liability under this Agreement to any Registered Owner or Beneficial
Owner or Depositor (including liability with respect to the worth of the Trust
Property), except that the Sponsor agrees to perform its obligations
specifically set forth in this Agreement without negligence or bad faith.
(b) The Sponsor shall not be under any obligation to prosecute any
action, suit or other proceeding in respect of any Trust Property or in respect
of the Shares on behalf of a Registered Owner, Beneficial Owner, Depositor or
other Person.
(c) The Sponsor shall not be liable for any action or non-action by it
in reliance upon the advice of or information from legal counsel, accountants,
any Depositor, any Registered Owner or any other person believed by it in good
faith to be competent to give such advice or information.
(d) The Sponsor shall not be liable for any acts or omissions made by
a successor sponsor whether in connection with a previous act or omission of the
Sponsor or in connection with any matter arising wholly after the resignation of
the Sponsor, provided that in connection with the issue out of which such
potential liability arises the Sponsor performed its obligations without
negligence or bad faith while it acted as sponsor.
(e) The Sponsor shall have no obligation to comply with any direction
or instruction from any Registered Owner or Beneficial Owner or Depositor
regarding Shares except to the extent specifically provided in this Agreement.
Section 5.3 Prevention or Delay in Performance by the Sponsor.
27
The Sponsor and its directors, employees, agents or affiliates shall
not incur any liability to any Registered Owner, Beneficial Owner or Depositor
if, by reason of any provision of any present or future law or regulation of the
United States or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any act of God or war or terrorism
or other circumstances beyond its control, the Sponsor is prevented or forbidden
from, or would be subject to any civil or criminal penalty on account of, or is
delayed in, doing or performing any act or thing which by the terms of this
Agreement it is provided shall be done or performed and accordingly the Sponsor
does not do that thing or does that thing at a later time than would otherwise
be required. The Sponsor will not incur any liability to any Registered Owner or
Beneficial Owner or Depositor by reason of any non-performance or delay in the
performance of any act or thing which by the terms of this Agreement it is
provided may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in this Agreement.
Section 5.4 Certain Matters Regarding Successor Sponsor.
The covenants, provisions and agreements herein contained shall in
every case be binding upon any successor to the business of the Sponsor. The
Sponsor may transfer all or substantially all of its assets to an entity which
carries on the business of the Sponsor, if at the time of such transfer such
successor duly assumes all the obligations of the Sponsor under this Agreement,
and in such event, the Sponsor shall be relieved of all further liability under
this Agreement.
Section 5.5 Resignation of Sponsor; Successors.
If at any time the Sponsor desires to resign its position as Sponsor
hereunder, it may resign by delivering to the Trustee an instrument of
resignation executed by the Sponsor. Such resignation shall become effective
upon the earliest of (i) the effective date of the appointment by the Trustee of
a successor sponsor and the acceptance by the successor sponsor of that
appointment, with such compensation from the Trust as the Trustee may deem
reasonable under the circumstances, by an instrument
28
of appointment and assumption executed by the Trustee and the successor sponsor;
or (ii) an agreement by the Trustee to act as sponsor hereunder succeeding to
all the rights and duties of the resigning Sponsor without appointing a
successor sponsor and without terminating this Agreement; or (iii) termination
of this Agreement in accordance with its terms and completion of distribution of
all remaining assets to Registered Owners. The Trustee shall have no obligation
to appoint a successor sponsor or to assume the duties of the Sponsor and shall
have no liability to any person because the Trust is terminated by reason of the
Sponsor's resignation.
If the Sponsor shall fail to undertake or perform or become incapable
of undertaking or performing its duties hereunder or shall become bankrupt or
its affairs shall be taken over by public authorities, the effect of that event
shall be the same as if the Sponsor had given a notice of resignation as
provided in the preceding paragraph.
Upon its resignation becoming effective, the resigning Sponsor shall
be discharged and shall no longer be liable in any manner hereunder except as to
acts or omissions occurring before its resignation became effective, and the
successor sponsor shall thereupon undertake and perform all duties and be
entitled to all rights and compensation as sponsor under this Agreement. The
successor sponsor shall not be under any liability hereunder for acts or
omissions occurring prior to the effective date stated in the instrument
appointing it successor sponsor. The Trustee shall notify Registered Owners of
the appointment of a successor sponsor.
Section 5.6 Compensation of the Sponsor.
(a) The Sponsor is entitled to receive from the Trust, as an expense
of the Trust, the Sponsor's Fee. The Sponsor's Fee shall be accrued daily but
paid monthly in arrears.
(b) In addition to the Sponsor's Fee, the Sponsor is entitled to
receive reimbursement from the Trust for all expenses and disbursements incurred
by it under the last sentence of Section 7.1(d) or in connection with action
taken by it pursuant to
29
Section 5.8., except that the Sponsor is not entitled to charge the Trust for
(i) expenses and disbursements incurred by it prior to the commencement of
trading of Shares on the Exchange, and (ii) fees of agents for performing
services the Sponsor is required to perform under this Agreement.
(c) Within 30 days following the end of each fiscal year, the Sponsor
shall certify to the Trustee the amount of its actual reimbursable expenses
during the preceding fiscal year attributable to its acting as Sponsor and shall
reimburse the Trust any amounts received by it from the Trust that exceed the
amount so certified. The Trustee shall have no liability or responsibility for
amounts paid to the Sponsor pursuant to this Section 5.6.
Section 5.7 Federal Securities Law Filings.
The Sponsor shall (i) prepare and file a registration statement with
the Commission and take such action as is necessary from time to time to qualify
the Shares for offering and sale under the federal securities laws of the United
States, including the preparation and filing of amendments and supplements to
such registration statement, (ii) promptly notify the Trustee of any amendment
or supplement to the registration statement or prospectus, of any order
preventing or suspending the use of any prospectus, of any request for the
amending or supplementing of the registration statement or prospectus or if any
event or circumstance occurs which is known to the Sponsor as a result of which
the registration statement or prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (iii) provide the Trustee from time
to time with copies, including copies in electronic form, of the prospectus, as
amended and supplemented, in such quantities as the Trustee may reasonably
request and (iv) prepare and file any periodic reports or updates that may be
required under the Securities Exchange Act of 1934, as amended. The Trustee
shall furnish to the Sponsor any information from the records of the Trust that
the Sponsor reasonably requests in writing
30
that is needed to prepare any filing or submission that the Sponsor or the Trust
is required to make under the federal securities laws of the United States.
Section 5.8 Discretionary Actions by Sponsor; Consultation.
(a) The Sponsor may, in its discretion, undertake any action that it
considers necessary or desirable to protect the Trust or the interests of the
Registered Owners. The expenses incurred by the Sponsor in connection with
taking any action under the preceding sentence (including the fees and
disbursements of legal counsel) shall be expenses of the Trust, and the Sponsor
shall be entitled to be reimbursed for those expenses by the Trust.
(b) The Sponsor shall notify and consult with the Trustee before
undertaking any action under Section 5.8(a) or if the Sponsor becomes aware of
any development or event that affects the administration of the Trust but is not
contemplated or provided for in this Agreement.
ARTICLE 6
THE TRUSTEE
Section 6.1 Maintenance of Office and Transfer Books by the Trustee.
(a) Until termination of this Agreement in accordance with its terms,
the Trustee shall maintain facilities for the execution and Delivery,
registration, registration of transfers and Surrender of Shares in accordance
with the provisions of this Agreement.
(b) The Trustee shall keep books for the registration of Shares and
registration of transfers of Shares which at all reasonable times shall be open
for inspection by the Registered Owners.
31
(c) Subject to the limitations set forth in Section 2.7(b), the
Trustee may, and at the reasonable written request of the Sponsor shall, close
the transfer books at any time or from time to time if such action is deemed
necessary or advisable in the reasonable judgment of the Trustee or the Sponsor.
(d) If any Shares are listed on one or more stock exchanges in the
United States, the Trustee shall act as Registrar or, with the written approval
of the Sponsor (which approval shall not be unreasonably withheld), appoint a
registrar or one or more co-registrars for registry of such Shares in accordance
with any requirements of such exchange or exchanges.
Section 6.2 Obligations of the Trustee.
(a) The Trustee assumes no obligation nor shall it be subject to any
liability under this Agreement to any Registered Owner or Beneficial Owner or
Depositor (including liability with respect to the worth of the Trust Property),
except that the Trustee agrees to perform its obligations specifically set forth
in this Agreement without negligence or bad faith.
(b) The Trustee shall not be under any obligation to prosecute any
action, suit or other proceeding in respect of any Trust Property or in respect
of the Shares on behalf of a Registered Owner, Beneficial Owner, Depositor or
other Person.
(c) The Trustee shall not be liable for any action or non-action by it
in reliance upon the advice of or information from legal counsel, accountants,
any Depositor, any Registered Owner or any other person believed by it in good
faith to be competent to give such advice or information.
(d) The Trustee shall not be liable for any acts or omissions made by
a successor trustee whether in connection with a previous act or omission of the
Trustee or in connection with any matter arising wholly after the resignation of
the Trustee, provided that in connection with the issue out of which such
potential liability arises the
32
Trustee performed its obligations without negligence or bad faith while it acted
as Trustee.
(e) The Trustee shall have no obligation to comply with any direction
or instruction from any Registered Owner or Beneficial Owner or Depositor
regarding Shares except to the extent specifically provided in this Agreement.
Section 6.3 Prevention or Delay in Performance by the Trustee.
The Trustee and its directors, employees, agents or affiliates shall
not incur any liability to any Registered Owner, Beneficial Owner or Depositor
if, by reason of any provision of any present or future law or regulation of the
United States or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any act of God or war or terrorism
or other circumstances beyond its control, the Trustee is prevented or forbidden
from, or would be subject to any civil or criminal penalty on account of, or is
delayed in, doing or performing any act or thing which by the terms of this
Agreement it is provided shall be done or performed and accordingly the Trustee
does not do that thing or does that thing at a later time than would otherwise
be required. The Trustee will not incur any liability to any Registered Owner or
Beneficial Owner or Depositor by reason of any non-performance or delay in the
performance of any act or thing which by the terms of this Agreement it is
provided may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in this Agreement.
Section 6.4 Resignation or Removal of the Trustee; Appointment of
Successor Trustee.
(a) Resignation. The Trustee may at any time resign as Trustee
hereunder by notice of its election so to do, delivered to the Sponsor, and such
resignation shall take effect upon the appointment of a successor trustee and
its acceptance of such appointment.
33
(b) Removal by the Sponsor. In case at any time the Trustee shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or a trustee or liquidator or any public officer shall take
charge or control of such Trustee or of its property or affairs for the purposes
of rehabilitation, conservation or liquidation, then in any such case, the
Sponsor shall, subject to the requirements of Section 6.4(e), remove the Trustee
by notice to the Trustee, and such removal shall take effect upon the
appointment of a successor trustee and its acceptance of such appointment.
(c) Removal by Registered Owners. Registered Owners of at least
two-thirds (66-2/3 %) of the Shares then outstanding may at any time remove the
Trustee by a notice delivered to the Trustee and Sponsor, and such removal shall
take effect upon the appointment of a successor trustee and its acceptance of
such appointment.
(d) Removal for Material Breach. If at any time the Trustee ceases to
be a Qualified Bank or is in material breach of its obligations under this
Agreement and the Trustee fails to cure such breach within 30 days after receipt
by the Trustee of notice from the Sponsor or Registered Owners acting on behalf
of at least 25% of the outstanding Shares specifying such default and requiring
the Trustee to cure such default, the Sponsor, acting on behalf of the
Registered Owners, may remove the Trustee by notice delivered to the Trustee,
and such removal shall take effect upon the appointment of a successor trustee
and its acceptance of such appointment as hereinafter provided.
(e) Appointing Successor Trustees. If the Trustee acting hereunder
resigns or is removed, the Sponsor, acting on behalf of the Registered Owners,
shall use its reasonable efforts to appoint a successor trustee, which shall be
a Qualified Bank. Every successor trustee shall execute and deliver to its
predecessor and to the Sponsor, acting on behalf of the Registered Owners, an
instrument in writing accepting its appointment hereunder, and thereupon such
successor trustee, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on
34
the written request of the Sponsor, acting on behalf of the Registered Owners,
shall execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Trust Property to such successor,
and shall deliver to such successor a list of the Registered Owners of all
outstanding Shares. The Sponsor or any such successor trustee shall promptly
notify the Registered Owners of the appointment of such successor trustee.
(f) Liability of Trustee. Upon effective resignation hereunder, the
resigning or removed Trustee shall be discharged and shall no longer be liable
in any manner hereunder except as to acts or omissions occurring prior to such
resignation or removal, and the new trustee shall thereupon undertake and
perform all duties and be entitled to all rights and compensation as trustee
under this Agreement. The successor trustee shall not be under any liability
hereunder for acts or omissions occurring prior to execution of an instrument
accepting its appointment as trustee.
(g) Effect of Merger of the Trustee. Any corporation into which the
Trustee may be merged, consolidated or converted in a transaction in which the
Trustee is not the surviving corporation shall be the successor of the Trustee
without the execution or filing of any document or any further act.
Section 6.5 The Depository.
The Depository will be subject at all times and in all respects to the
directions of the Trustee and will be responsible solely to it. The rights and
duties of the Depository with reference to the Trust will be determined by the
Deposit Account Agreement and applicable law. The Trustee shall not amend or
terminate the Deposit Account Agreement without the written consent of the
Sponsor. The Trustee shall terminate the Deposit Account Agreement if the
Sponsor directs it in writing to do so.
35
Section 6.6 Compensation of the Depository.
(a) Each Depositor, and each person surrendering Shares for the
purpose of withdrawing Trust Property, shall pay to the Trustee a fee of $500.00
per Purchase Order pursuant to Section 2.4 or Redemption Order pursuant to
Section 2.6 or surrender of Shares after termination of this Agreement pursuant
to Section 8.2(e).
(b) The Trustee is entitled to receive from the Sponsor fees for its
services and reimbursement for its out-of-pocket expenses in accordance with
written agreements between the Sponsor and the Trustee.
(c) The Trustee is entitled to charge the Trust for all expenses and
disbursements incurred by it in connection with action taken by it under Section
6.9(a) (including the reasonable fees and disbursements of its legal counsel),
except that the Trustee is not entitled to charge the Trust for (i) expenses and
disbursements incurred by it prior to the commencement of trading of Shares on
the Exchange and (ii) fees of agents for performing services the Trustee is
required to perform under this Agreement.
Section 6.7 Retention of Trust Documents.
The Trustee is authorized to destroy those documents, records, bills
and other data compiled during the term of this Agreement at the times permitted
by the laws or regulations governing the Trustee, unless the Sponsor reasonably
requests the Trustee in writing to retain those items for a longer period.
Section 6.8 Prospectus Delivery.
The Trustee shall, if required by the federal securities laws of the
United States, in any manner permitted by such laws, deliver at the time of
issuance of Shares, a copy of the relevant prospectus, as most recently
furnished to the Trustee by the Sponsor, to each Depositor.
36
Section 6.9 Discretionary Actions by Trustee; Consultation.
(a) The Trustee may, in its discretion, undertake any action that it
considers necessary or desirable to protect the Trust or the interests of the
Registered Owners. The expenses incurred by the Trustee in connection with
taking any action under the preceding sentence (including the fees and
disbursements of legal counsel) shall be expenses of the Trust, and the Trustee
shall be entitled to be reimbursed for those expenses by the Trust.
(b) The Trustee shall notify and consult with the Sponsor before
undertaking any action under subsection (a) above or if the Trustee becomes
aware of any development or event that affects the administration of the Trust
but is not contemplated or provided for in this Agreement.
ARTICLE 7
INDEMNIFICATION
Section 7.1 Indemnification of the Sponsor and Trustee.
(a) The Sponsor shall indemnify the Trustee, its directors, employees
and agents (the "Trustee Indemnified Persons") against, and hold each of them
harmless from, any loss, liability, cost, expense or judgment (including, but
not limited to, the reasonable fees and expenses of counsel) (collectively
"Indemnified Amounts") that is incurred by any of them and that arises out of or
is related to (i) any offer or sale by the Trust of Baskets of Shares under this
Agreement, (ii) acts performed or omitted pursuant to the provisions of this
Agreement, as the same may be amended, modified or supplemented from time to
time, by (A) a Trustee Indemnified Person or (B) the Sponsor or (iii) any
filings with or submissions to the Commission in connection with or with respect
to the Shares (which, by way of illustration and not by way of limitation,
include any registration statement and any amendments or supplements thereto
filed with the Commission or any periodic reports or updates that may be filed
under the Securities Exchange Act of 1934, as amended, or any failure to make
any filings with or
37
submissions to the Commission which are required to be made in connection with
or with respect to the Shares), except that the Sponsor shall not have any
obligations under this Section 7.1(a) to pay Indemnified Amounts incurred as a
result of and attributable to (x) the negligence or bad faith of, or material
breach of the terms of this Agreement by, the Trustee, (y) written information
furnished in writing by the Trustee to the Sponsor expressly for use in the
registration statement, or any amendment thereto, filed with the Commission
relating to the Shares that is not materially altered by the Sponsor or (z) any
misrepresentations or omissions made by a Depositor (other than Sponsor) in
connection with such Depositor's offer and sale of Shares.
(b) The Trustee shall indemnify the Sponsor, its members, officers,
employees and agents against, and hold each of them harmless from, any
Indemnified Amounts (i) caused by the negligence or bad faith of the Trustee or
(ii) arising out of any information furnished in writing to the Sponsor by the
Trustee expressly for use in the registration statement, or any amendment
thereto, filed with the Commission relating to the Shares that is not materially
altered by the Sponsor.
(c) If the indemnification provided for in Section 7.1(a) or Section
7.1(b) is unavailable or insufficient to hold harmless the indemnified party
under subsection (a) or (b) above, then the indemnifying party shall contribute
to the Indemnified Amounts referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Sponsor on the one hand and the Trustee on the other hand from the fees each
receive attributable to the Shares which are the subject of the action or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Sponsor on the one hand and the Trustee on the other hand in connection with the
action, statement or omission which resulted in such Indemnified Amount as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or the omission
38
or alleged omission to state a material fact from which the action arises
relates to information supplied by the Sponsor or the Trustee and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission or the act or omission from which the
action arises. The amount of Indemnified Amounts referred to in the first
sentence of this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (c).
(d) The Sponsor and its shareholders, directors, officers, employees,
affiliates (as such term is defined under the Securities Act of 1933, as
amended) and subsidiaries (each, a "Sponsor Indemnified Party") shall be
indemnified from the Trust and held harmless against any loss, liability or
expense incurred without (i) negligence, bad faith, willful misconduct or
willful malfeasance on the part of such Sponsor Indemnified Party arising out of
or in connection with the performance of its obligations under this Agreement or
any actions taken in accordance with the provisions of this Agreement or (ii)
reckless disregard on the part of such Sponsor Indemnified Party of its
obligations and duties under this Agreement. Such indemnity shall include
payment from the Trust of the costs and expenses incurred by such Sponsor
Indemnified party in defending itself against any claim or liability in its
capacity as Sponsor. Any amounts payable to a Sponsor Indemnified Party under
this Section 7.1(d) may be payable in advance or shall be secured by a lien on
the Trust. The Sponsor may, in its discretion, undertake any action which it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and the interests of the Registered Owners and, in
such event, the legal expenses and costs of any such actions shall be expenses
and costs of the Trust and the Sponsor shall be entitled to be reimbursed
therefor by the Trust.
(e) If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (each, a "Proceeding") in respect
of which
39
indemnity may be sought by either party is brought or asserted against the other
party, the party seeking indemnification (the "Indemnitee") shall promptly (and
in no event more than seven (7) days after receipt of notice of such Proceeding)
notify the party obligated to provide such indemnification (the "Indemnitor") of
such Proceeding. The failure of the Indemnitee to so notify the Indemnitor shall
not impair the Indemnitee's ability to seek indemnification from the Indemnitor
(but only for costs, expenses and liabilities incurred after such notice) unless
such failure adversely affects the Indemnitor's ability to adequately oppose or
defend such Proceeding. Upon receipt of such notice from the Indemnitee, the
Indemnitor shall be entitled to participate in such Proceeding and, to the
extent that it shall so desire and provided no conflict of interest exists as
specified in clause (i) below and there are no other defenses available to
Indemnitee as specified in clause (iii) below, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee (in which case all
attorney's fees and expenses shall be borne by the Indemnitor and the Indemnitor
shall in good faith defend the Indemnitee). The Indemnitee shall have the right
to employ separate counsel in any such Proceeding and to participate in the
defense thereof, but, in such case, no fees and expenses of such counsel shall
be borne by the Indemnitor unless such fees and expenses are otherwise required
to be indemnified under Section 7.1(a), Section 7.1(b) or Section 7.1(d), as
applicable, and (i) there is such a conflict of interest between the Indemnitor
and the Indemnitee as would preclude, in compliance with the ethical rules in
effect in the jurisdiction in which the Proceeding was brought, one lawyer from
representing both parties simultaneously, (ii) the Indemnitor fails, within the
earlier of (x) twenty (20) days following receipt of notice of the Proceeding
from the Indemnitee or (y) seven (7) days prior to the date the first response
or appearance is required to be made in such Proceeding, to assume the defense
of such Proceeding with counsel reasonably satisfactory to the Indemnitee or
(iii) there are legal defenses available to Indemnitee that are different from
or are in addition to those available to the Indemnitor. No compromise or
settlement of such Proceeding may be effected by either party without the other
party's consent unless (m) there is no finding or admission of any violation of
law and no effect on any other claims that may be made
40
against such other party and (n) the sole relief provided is monetary damages
that are paid in full by the party seeking the settlement. Neither party shall
have any liability with respect to any compromise or settlement effected without
its consent, which shall not be unreasonably withheld. The Indemnitor shall have
no obligation to indemnify and hold harmless the Indemnitee from any loss,
expense or liability incurred by the Indemnitee as a result of a default
judgment entered against the Indemnitee unless such judgment was entered after
the Indemnitor agreed, in writing, to assume the defense of such Proceeding.
41
ARTICLE 8
AMENDMENT AND TERMINATION
Section 8.1 Amendment.
The Trustee and the Sponsor may amend any provisions of this Agreement
(but only the procedural or logistical provisions contained in Sections 2.6,
2.7, 2.10, 4.2-4.7, this Section 8.1 and Section 8.2 and not the core economic
rights in such sections) without the consent of any Registered Owner. Any
amendment that imposes or increases any fees or charges (other than taxes and
other governmental charges, registration fees or other such expenses), or that
otherwise prejudices any substantial existing right of the Registered Owners
will not become effective as to outstanding Shares until 30 days after notice of
such amendment is given to the Registered Owners. Every Registered Owner and
Beneficial Owner, at the time any amendment so becomes effective, shall be
deemed, by continuing to hold any Shares or an interest therein, to consent and
agree to such amendment and to be bound by this Agreement as amended thereby. In
no event shall any amendment impair the right of the Registered Owner of Shares
to Surrender Baskets of Shares and receive therefor the amount of Trust Property
represented thereby, except in order to comply with mandatory provisions of
applicable law.
Section 8.2 Termination.
(a) The Trustee shall set a date on which this Agreement will
terminate and mail notice of that termination to the Registered Owners at least
30 days prior to the date set for termination if either of the following occurs:
(i) the Sponsor has given notice of resignation or is unable to
perform its duties or becomes bankrupt or insolvent and the Trustee will not
appoint a successor sponsor or agree to act as Sponsor; or
(ii) Registered Owners holding at least 75% of the outstanding
Shares notify the Trustee that they elect to terminate the Trust.
42
(b) The Trustee shall set a date on which this Agreement will
terminate and mail notice of that termination to the Registered Owners at least
30 days prior to the date set for termination if any of the following occurs and
the Sponsor has notified the Trustee that it elects to terminate the Trust:
(i) The Trustee is notified that the Shares are delisted from a
national securities exchange and are not approved for listing on another
national securities exchange within five New York Business Days of their
delisting;
(ii) the Commission determines that the Trust is an investment
company under the Investment Company Act of 1940, as amended;
(iii) the NAV of the Trust remains less than $100 million for 30
consecutive New York Business Days at any time after the first 90 days of the
Shares being traded on the Exchange;
(iv) the Depository resigns or is removed;
(v) all of the Trust's assets are sold;
(vi) the aggregate market capitalization of the Trust, based on
the closing price for the Shares remains less than $300 million for five
consecutive trading days;
(vii) DTC is unwilling or unable to perform its functions under
this Agreement; or
(viii) the Trust fails to qualify for treatment, or ceases to be
treated, for as a grantor trust under the Code.
(c) The Trustee may set a date on which this Agreement will terminate
and mail notice of that termination to the Registered Owners at least 30 days
prior to the date set for termination if 60 days have elapsed since the Trustee
gave the Sponsor notice
43
of its election to resign and no successor trustee appointed by the Sponsor has
accepted appointment as Trustee.
(d) If not terminated sooner, this Agreement shall terminate forty
years from the date of this Agreement, and the Trustee shall mail a notice of
that termination to the Registered Owners and the Sponsor at least 30 days
before the termination date.
(e) On and after the date of termination of this Agreement, the
Registered Owner of Shares will, upon (i) Surrender of those Shares, (ii)
payment of the fee of the Trustee for the Surrender of Shares provided in
Section 6.6, and (iii) payment of any applicable taxes or other governmental
charges, be entitled to Delivery, to the Registered Owner or upon the Registered
Owner's order, of the amount of Trust Property represented by those Shares. The
Trustee shall not accept any deposits of Euro after the date of termination of
this Agreement. If any Shares remain outstanding after the date of termination
of this Agreement, the Trustee thereafter shall discontinue the registration of
transfers of Shares, shall not make any distributions to Registered Owners, and
shall not give any further notices or perform any further acts under this
Agreement, except that the Trustee shall continue to collect distributions
pertaining to Trust Property and hold the same uninvested and without liability
for interest, pay the Trust's expenses and sell Euro as necessary to meet those
expenses and shall continue to deliver Trust Property, together with any
distributions received with respect thereto and the net proceeds of the sale of
any other property, in exchange for Shares Surrendered to the Trustee (after
deducting or upon payment of, in each case, the fee of the Trustee set forth in
5.7 for the Surrender of Shares, any expenses for the account of the Registered
Owner of such Shares in accordance with the terms and conditions of this
Agreement, and any applicable taxes or other governmental charges). At any time
after the expiration of 90 days following the date of termination of this
Agreement, the Trustee may sell the Trust Property then held under this
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it under this Agreement, unsegregated
and without liability for interest, for the pro rata benefit of the Registered
Owners of Shares
44
that have not theretofore been Surrendered, such Registered Owners thereupon
becoming general creditors of the Trustee with respect to such net proceeds.
After making such sale, the Trustee shall be discharged from all obligations
under this Agreement, except to account for such net proceeds and other cash
(after deducting, in each case, any fees, expenses, taxes or other governmental
charges payable by the Trust, the fee of the Trustee for the Surrender of Shares
and any expenses for the account of the Registered Owner of such Shares in
accordance with the terms and conditions of this Agreement, and any applicable
taxes or other governmental charges). Upon the termination of this Agreement,
the Sponsor shall be discharged from all obligations under this Agreement except
for its obligations to the Trustee under Section 6.6 and Section 7.1, each of
which shall survive termination of this Agreement. Section 5.6 and this Section
8.1(e) shall also survive termination of this Agreement.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of such counterparts shall constitute
one and the same instrument. Copies of this Agreement shall be filed with the
Trustee and shall be open to inspection by any Registered Owner during the
Trustee's business hours.
Section 9.2 Third-Party Beneficiaries.
This Agreement is for the exclusive benefit of the parties hereto, and
shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
Section 9.3 Severability.
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality
45
and enforceability of the remaining provisions of this Agreement shall in no way
be affected, prejudiced or disturbed thereby.
Section 9.4 Registered Owners, Beneficial Owners and Depositors as
Parties; Binding Effect.
The Registered Owners, Beneficial Owners and Depositors from time to
time shall be parties to this Agreement and shall be bound by all of the terms
and conditions hereof by their acceptance of Shares or any interest therein or
by their depositing Euro, as the case may be.
Section 9.5 Notices.
(a) All notices given under this Agreement must be in writing.
(b) Any and all notices to be given to the Trustee or the Sponsor
shall be deemed to have been duly given (i) when it is actually delivered by a
messenger or recognized courier service, (ii) five days after it is mailed by
registered or certified mail, postage paid or (iii) when receipt of a facsimile
transmission is acknowledged via a return receipt or receipt confirmation as
requested by the original transmission, in each case to or at the address set
forth below:
To the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx 00000
Attention: ADR Administration
Facsimile: 212-571-3050
or any other place to which the Trustee may have transferred its Corporate Trust
Office with notice to the Sponsor.
46
To the Sponsor:
Rydex Specialized Products LLC
c/o Rydex Investments
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, President
Facsimile: ____________________
or any other place to which the Sponsor may have transferred its principal
office with notice to the Trustee.
(c) Any and all notices to be given to a Registered Owner shall be
deemed to have been duly given (i) when actually delivered by messenger or a
recognized courier service, (ii) when mailed, postage prepaid or (iii) when sent
by facsimile transmission confirmed by letter, in each case at or to the address
of such Registered Owner as it appears on the transfer books of the Trustee, or,
if such Registered Owner shall have filed with the Trustee a written request
that any notice or communication intended for such Registered Owner be delivered
to some other address, at the address designated in such request.
Section 9.6 Agent for Service; Submission to Jurisdiction.
The Sponsor hereby (i) irrevocably designates and appoints CT Corp.,
in the State of New York, as the Sponsor's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the
Shares, the Trust Property or this Agreement, (ii) consents and submits to the
jurisdiction of any state or federal court in The City of New York, State of New
York, in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Sponsor in any such suit or
proceeding. The Sponsor agrees to deliver, upon the execution and delivery of
this Agreement, a written acceptance by such agent of its appointment as such
agent. The Sponsor further agrees to take any and all action, including the
filing of any and all such
47
documents and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any Shares remain
outstanding or this Agreement remains in force. In the event the Sponsor fails
to continue such designation and appointment in full force and effect, the
Sponsor hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Sponsor at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
Section 9.7 Governing Law.
This Agreement shall be interpreted under, and all rights and duties
under this Agreement shall be governed by, the laws of the State of New York.
48
IN WITNESS WHEREOF, RYDEX SPECIALIZED PRODUCTS LLC and THE BANK OF NEW
YORK have duly executed this Agreement as of the day and year first set forth
above.
RYDEX SPECIALIZED PRODUCTS LLC,
as Sponsor
By:
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer and
Treasurer
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Name:
Title:
49
EXHIBIT A
Form of Deposit Account Agreement
1
EXHIBIT B
Form of Certificate
THE SHARES EVIDENCED HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING TRUST
PROPERTY (AS DEFINED IN THE TRUST AGREEMENT REFERRED TO HEREIN) HELD BY THE
TRUST AND DO NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND ARE NOT
GUARANTEED BY THE SPONSOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THE SHARES NOR THE UNDERLYING TRUST PROPERTY ARE INSURED UNDER ANY
AGREEMENT THAT DIRECTLY BENEFITS THE TRUST OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
2
EURO CURRENCY SHARES
ISSUED BY
EURO CURRENCY TRUST
REPRESENTING
FRACTIONAL INTERESTS IN DEPOSITED EURO AND ANY OTHER TRUST PROPERTY
THE BANK OF NEW YORK, as Trustee
No.____ * Shares
CUSIP: ____________
THE BANK OF NEW YORK, as Trustee (hereinafter called the Trustee), hereby
certifies that CEDE & CO., as nominee of the Depository Trust Company, or
registered assigns, IS THE OWNER OF * Shares issued by Euro Currency Trust, each
representing a fractional undivided interest in the net assets of the Trust, as
provided in the Agreement referred to below. At the time of delivery of the
Agreement, each 50,000 Shares represented an interest in 5,000,000 Euro that are
deposited under the Agreement and held by the Depository referred to in the
Agreement. The amount of Euro in which each 50,000 Shares represents an interest
may change from time to time as provided in the Agreement. The Trustee's
Corporate Trust Office is located at a different address than its principal
executive office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and its principal executive office is located at Xxx
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Certificate is issued upon the terms and conditions set forth in the
Trust Agreement dated as of _________, 2005 (the "Agreement") among Rydex
Specialized Products LLC d/b/a "Rydex Investments" (herein called the Sponsor),
the Trustee, all Registered Owners and Beneficial Owners from time to time of
Shares issued thereunder and all Depositors. By becoming a Registered Owner or
Beneficial Owner, or by depositing Euro, a Person becomes a party to the
Agreement and is bound by all the terms and conditions of the Agreement. The
Agreement sets forth the rights of Depositors and Registered Owners and the
rights and duties of the Trustee and the Sponsor. Copies of the Agreement are on
file at the Trustee's Corporate Trust Office in New York City.
----------
* That number of Shares held at The Depository Trust Company at any given
point in time.
3
The Agreement is hereby incorporated by reference into and made a part of
this Certificate as if set forth in full in this place. Capitalized terms not
defined herein shall have the meanings set forth in the Agreement.
This Certificate shall not be entitled to any benefits under the Agreement
or be valid or obligatory for any purpose unless it is executed by the Trustee
by the manual or facsimile signature of a duly authorized signatory of the
Trustee and, if a Registrar (other than the Trustee) for the Shares shall have
been appointed, countersigned by the manual signature of a duly authorized
officer of the Registrar.
Dated: ______________ THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Its:
-----------------------------------
THE TRUSTEE'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
4
