Exhibit 4.1
EXECUTION
COPY


 




DEPOSITARY
TRUST AGREEMENT


ETF
SECURITIES USA LLC,


as
Sponsor


and


THE
BANK OF NEW YORK MELLON,


as
Trustee


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 


Depositary
Trust Agreement


ETFS
Precious Metals Basket Trust


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 


Dated
as of October 18, 2010





TABLE
OF CONTENTS


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
 Article I. DEFINITIONS AND RULES OF
 CONSTRUCTION

 	
  

 	
 1

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 1.1

 	
 Definitions

 	
  

 	
 1

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 1.2

 	
 Rules of Construction

 	
  

 	
 6

 
	
  

 	
  

 	
  

 
	
 Article
 II. CREATION AND DECLARATION OF TRUSTS; FORM OF CERTIFICATES; DEPOSIT OF
 PLATINUM; DELIVERY, REGISTRATION OF TRANSFER AND SURRENDER OF SHARES

 	
  

 	
 6

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.1

 	
 Creation and Declaration of Trust;
 Business of the Trust

 	
  

 	
 6

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.2

 	
 Form of Certificates; Book-Entry
 System; Transferability of Shares

 	
  

 	
 7

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.3

 	
 Deposit of Bullion

 	
  

 	
 8

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.4

 	
 Delivery of Shares

 	
  

 	
 9

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.5

 	
 Registration and Registration of
 Transfer of Shares; Combination and Split-up of Certificates

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.6

 	
 Surrender of Shares and Withdrawal
 of Trust Property

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.7

 	
 Limitations on Delivery,
 Registration of Transfer and Surrender of Shares

 	
  

 	
 11

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.8

 	
 Lost Certificates, Etc.

 	
  

 	
 12

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.9

 	
 Cancellation and Destruction of
 Surrendered Certificates

 	
  

 	
 12

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 2.10

 	
 Splits and Reverse Splits of Shares

 	
  

 	
 12

 
	
  

 	
  

 	
  

 
	
 Article III. CERTAIN OBLIGATIONS OF
 REGISTERED OWNERS OF SHARES

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 3.1

 	
 Liability of Registered Owner for
 Taxes and Other Governmental Charges

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 3.2

 	
 Warranties on Deposit of Bullion

 	
  

 	
 13

 
	
  

 	
  

 	
  

 
	
 Article IV. ADMINISTRATION OF THE
 TRUST

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.1

 	
 Evaluation of Bullion

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.2

 	
 Responsibility of the Trustee for
 Evaluations

 	
  

 	
 14

 


i









	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.3

 	
 Trust Evaluation

 	
  

 	
 14

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.4

 	
 Cash Distributions

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.5

 	
 Other Distributions

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.6

 	
 Fixing of Record Date

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.7

 	
 Payment of Expenses; Bullion Sales

 	
  

 	
 16

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.8

 	
 Statements and Reports

 	
  

 	
 17

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.9

 	
 Further Provisions for Bullion
 Sales

 	
  

 	
 17

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.10

 	
 Counsel

 	
  

 	
 18

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 4.11

 	
 Grantor Trust

 	
  

 	
 18

 
	
  

 	
  

 	
  

 
	
 Article V. THE TRUSTEE AND THE
 SPONSOR

 	
  

 	
 18

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.1

 	
 Maintenance of Office and Transfer
 Books by the Trustee

 	
  

 	
 18

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.2

 	
 Prevention or Delay in Performance
 by the Sponsor or the Trustee

 	
  

 	
 19

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.3

 	
 Obligations of the Sponsor and the
 Trustee

 	
  

 	
 19

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.4

 	
 Resignation or Removal of the
 Trustee; Appointment of Successor Trustee

 	
  

 	
 23

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.5

 	
 The Custodian

 	
  

 	
 24

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.6

 	
 Indemnification

 	
  

 	
 26

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.7

 	
 Charges of Trustee

 	
  

 	
 27

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.8

 	
 Charges of Sponsor

 	
  

 	
 27

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.9

 	
 Retention of Trust Documents

 	
  

 	
 28

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.10

 	
 Federal Securities Law Filings

 	
  

 	
 28

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.11

 	
 Prospectus Delivery

 	
  

 	
 29

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.12

 	
 Discretionary Actions by Trustee;
 Consultation

 	
  

 	
 29

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 5.13

 	
 Dissolution of the Sponsor Not to
 Terminate Trust

 	
  

 	
 29

 
	
  

 	
  

 	
  

 
	
 Article VI. AMENDMENT AND
 TERMINATION

 	
  

 	
 29

 


ii








	
  

 	
  

 	
  

 	
  

 
	
 Section
 6.1

 	
 Amendment

 	
  

 	
 29

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 6.2

 	
 Termination

 	
  

 	
 30

 
	
  

 	
  

 	
  

 
	
 Article VII. MISCELLANEOUS

 	
  

 	
 32

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.1

 	
 Counterparts

 	
  

 	
 32

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.2

 	
 Third-Party Beneficiaries

 	
  

 	
 32

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.3

 	
 Severability

 	
  

 	
 32

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.4

 	
 Certain Matters Relating to
 Beneficial Owners

 	
  

 	
 32

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.5

 	
 Notices

 	
  

 	
 33

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.6

 	
 Agent for Service; Submission to
 Jurisdiction

 	
  

 	
 34

 
	
  

 	
  

 	
  

 	
  

 
	
 Section
 7.7

 	
 Governing Law

 	
  

 	
 35

 


iii





DEPOSITARY TRUST
AGREEMENT 


          THIS
DEPOSITARY TRUST AGREEMENT dated as of October 18, 2010, between ETF SECURITIES
USA LLC, a Delaware limited liability company, as sponsor, and THE BANK OF NEW
YORK MELLON, a New York banking corporation, as trustee.


W
I T N E S S E T H:


          WHEREAS
the Sponsor desires to establish a trust, to be known as the “ETFS Precious
Metals Basket Trust”, pursuant to the laws of the State of New York; and


          WHEREAS
the Sponsor desires to establish the terms on which Bullion (as herein defined)
may be deposited in the trust and provide for the creation of ETFS Physical PM
Basket 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 ETFS Physical PM Basket 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
I.

DEFINITIONS AND RULES OF CONSTRUCTION


          Section
1.1 Definitions.


          Except
as otherwise specified in this Depositary Trust Agreement or as the context may
otherwise require, the following terms have the respective meanings set forth
below for all purposes of this Depositary Trust Agreement.


          “Adjusted
Net Asset Value” means the adjusted net asset value of the Trust as determined
under Section 4.3.


          “Agreement”
means this Depositary Trust Agreement, as amended or supplemented in accordance
with its terms.


          “Authorized
Participant” means a Person that, at the time of submitting a Purchase Order or
a Redemption Order (i) is a registered broker-dealer, (ii) is a DTC Participant
or an Indirect Participant and (iii) has in effect a valid Authorized Participant
Agreement.


          “Authorized
Participant Agreement” means an agreement among the Trustee, the Sponsor and an
Authorized Participant that authorizes the Authorized Participant to submit
Purchase Orders and Redemption Orders under this Agreement.


          “Basket”
means 50,000 Shares, except that the Trustee, in consultation with the Sponsor,
may from time to time increase or decrease the number of Shares comprising a
Basket.


1





          “Basket
Bullion Amount” is the amount of Gold, Silver, Platinum and Palladium that must
be deposited for issuance of one Basket or that is deliverable upon Surrender
of one Basket. The Basket Bullion Amount will be determined as provided in
Section 2.3(b) and shall always be in accordance with the Bullion Ratio.


          “Benchmark
Price” means, as of any day, as applicable (i) such day’s London PM Fix for
Gold, Platinum or Palladium or such day’s London Fix for Silver; or (ii) other
publicly available price as the Sponsor may determine fairly represents the commercial
value of Gold, Silver, Platinum or Palladium held by the Trust.


          “Beneficial
Owner” means any Person owning a beneficial interest in any Shares.


          “Bullion”
means Gold, Silver, Platinum or Palladium, or any combination thereof, as
applicable.


          “Bullion
Ratio” means that ratio of Gold, Silver, Platinum and Palladium held in the
initial Basket of Shares, such that for every 1,500 Ounces of Gold there are
55,000 Ounces of Silver, 200 Ounces of Platinum and 300 Ounces of Palladium.


          “Business
Day” means any day other than (i) a Saturday or Sunday or (ii) a day on which
the Exchange is not open for regular trading.


          “Certificate”
means a certificate that is executed and delivered by the Trustee under this
Agreement evidencing Shares.


          “CFTC”
means the Commodity Futures Trading Commission or any successor governmental
agency in the United States.


          “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
101 Barclay Street, New York, New York 10286.


          “Custodian”
means the Initial Custodian and any substitute or additional Custodian
appointed by the Trustee at the direction of or as approved by the Sponsor as
provided in Section 5.5 and, where the context permits, any sub-custodians
employed by the Initial Custodian, including any Zurich Sub-Custodian, or any
such substitute or additional Custodian.


          “Custody
Agreements” shall mean the Trust Unallocated Account Agreement and the Trust
Allocated Account Agreement and any custody agreement entered into pursuant to
Section 5.5 with a substitute or additional Custodian.


          “Delivery”
means (a) when used with respect to Bullion, obtaining an acknowledgement from
the Custodian of a credit of Bullion on an Unallocated Basis to the account of
the Person entitled to that delivery and (b) when used with respect to Shares,
one or more book-entry 


2





transfers of those Shares
to an account or accounts at the Depository designated by the Person entitled
to such delivery for further credit as specified by that Person


          “Depositor”
means any Authorized Participant that deposits Bullion into the Trust, either
for its own account or on behalf of another Person that is the owner or
beneficial owner of that Bullion.


          “Depository”
means DTC and such other successor depository of Shares as may be selected by
the Sponsor and the Trustee as provided herein.


          “DTC”
means The Depository Trust Company, its nominees and their respective
successors.


          “DTC
Participant” means a Person that, pursuant to DTC’s governing documents, is
entitled to deposit securities with DTC in its capacity as a “participant”.


          “Exchange”
means the exchange or other securities market on which the Shares are
principally traded, as specified from time to time by the Sponsor.


          “Exchange
Act” has the meaning ascribed to such term in Section 4.8(b) hereof.


          “Gold”
means (a) gold bullion that meets the requirements of “good delivery” under the
rules of the LBMA and (b) credit to an account on an Unallocated Basis
representing the right to receive gold bullion that meets the requirements of
part (a) of this definition.


          “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.


          “Initial
Custodian” means JPMorgan Chase Bank, N.A., as Custodian under the Custody
Agreements.


          “Initial
Zurich Sub-Custodian” means UBS AG, as the initial Zurich Sub-Custodian under
the Trust Allocated Account Agreement.


          “Internal
Control Over Financial Reporting” has the meaning ascribed to such term in
Rules 13a-15(f) and 15(d)-15(f) adopted by the Commission under the Exchange
Act.


          “LBMA”
means the London Bullion Market Association.


          “London
Fix” means the price of an ounce of Silver as set by the three market members
of the LBMA at approximately 12:00 noon, London time, on each working day. 


          “London
PM Fix” means, as applicable, the afternoon session of the twice daily fix of
the price of an ounce of (i) Gold which starts at 3:00 PM London, England time
and is performed in London by the five members of the London gold fix, (ii)
Platinum which starts at 2:00 PM London, England time and is performed in
London by the four members of the London platinum fix, or (iii) Palladium which
starts at 2:00 PM London, England time and is performed in London by the four
members of the London palladium fix.


3





          “LPPM”
means the London Platinum and Palladium Market.


          “Net
Asset Value” means the net value of the Trust determined under Section 4.3.


          “Net
Asset Value per Share” means the value of a Share determined under Section 4.3.


          “Order
Cutoff Time” means, with respect to any Business Day, (i) 4:00 p.m. (New York
time) on such Business Day or (ii) another time agreed to by the Sponsor and
the Trustee and of which Registered Owners and all existing Authorized
Participants have been notified by the Trustee.


          “Order
Date” means, with respect to a Purchase Order, the date specified in Section
2.3(a) and, with respect to a Redemption Order, the date specified in Section
2.6(a).


          “Ounce”
means one troy ounce, equal to 31.103 grams (1.0971428 ounces avoirdupois),
with a minimum fineness of 999.5 parts per 1,000 Platinum or Palladium, 999.0
parts per 1,000 Silver, or 995.0 parts per 1,000 Gold, as applicable.


          “Palladium”
means (a) palladium that meets the requirements of “good delivery” under the
rules of the LPPM and (b) credit to an account on an Unallocated Basis
representing the right to receive palladium that meets the requirements of part
(a) of this definition.


          “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.


          “Platinum”
means (a) platinum that meets the requirements of “good delivery” under the
rules of the LPPM and (b) credit to an account on an Unallocated Basis
representing the right to receive platinum that meets the requirements of part
(a) of this definition.


          “Procedures”
means the procedures for Purchase Orders and Redemption Orders attached to the
Authorized Participant Agreement, as modified by the Trustee from time to time.


          “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
trust powers and that (i) is a DTC Participant or a participant in such other
Depository as is then acting with respect to the Shares; (ii) unless counsel to
the Sponsor, the appointment of which is acceptable to the Trustee, determines
that the following requirement is not necessary for the exception under Section
408(m) of the Internal Revenue Code of 1986, as amended (the “Code”), to apply,
is a banking institution as defined in Section 408(n) of the Code and (iii)
had, as of the date of its most recent annual financial statements, an
aggregate capital, surplus and undivided profits of at least $150,000,000.


          “Redemption
Order” is defined in Section 2.6.


4





          “Registered
Owner” means the Person in whose name Shares are registered on the books of the
Trustee maintained for that purpose.


          “Registrar”
means any bank or trust company that is appointed to register Shares and
transfers of Shares as herein provided.


          “Shares”
means ETFS Physical PM Basket 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.


          “Silver”
means (a) silver that meets the requirements of “good delivery” under the rules
of the LBMA and (b) credit to an account on an Unallocated Basis representing
the right to receive silver that meets the requirements of part (a) of this
definition.


          “Sponsor”
means ETF Securities USA LLC, a Delaware limited liability company, or its
successor.


          “Surrender”
means, when used with respect to Shares, one or more book-entry transfers of
Shares to the Depository account of the Trustee.


          “Trust”
means the ETFS Precious Metals Basket Trust, the trust entity created by this
Agreement.


          “Trust
Allocated Account” shall mean the loco London account or the loco Zurich
account maintained for the Trust by the Initial Custodian pursuant to the Trust
Allocated Account Agreement, or another account maintained for the Trust by a
successor Custodian on an allocated basis, as the case may be.


          “Trust
Allocated Account Agreement” shall mean the Allocated Account Agreement of even
date herewith between the Custodian and the Trustee the form of which is
attached as Exhibit B.


          “Trust
Unallocated Account” shall mean the loco London account or the loco Zurich
account maintained for the Trust by the Initial Custodian pursuant to the Trust
Unallocated Account Agreement, or another account maintained for the Trust by a
successor Custodian on an Unallocated Basis, as the case may be.


          “Trust
Unallocated Account Agreement” shall mean the Unallocated Account Agreement of
even date herewith between the Custodian and the Trustee the form of which is
attached as Exhibit C.


          “Trustee”
means The Bank of New York Mellon, a New York banking corporation, in its
capacity as trustee under this Agreement, or any successor as trustee under
this Agreement.


          “Trust
Property” means the Bullion that the Custodian credits to the Trust Allocated
Account and the Trust Unallocated Account in accordance with the Custody
Agreements, all other property held by the Custodian for the account of the
Trust and any cash or other property 


5





that is received by the Trustee
in respect thereof or which is otherwise being held by or for it under this
Agreement.


          “Unallocated
Basis” means that the Person in whose name Bullion is so held is entitled to
receive delivery of Bullion standing to the credit of that Person’s account,
but that Person has no ownership interest in any particular Bullion that the
custodian maintaining that account owns or holds.


          “Zurich
Sub-Custodian” means any firm, including the Initial Zurich Sub-Custodian,
selected by the Custodian to hold Platinum and Palladium on behalf of the
Custodian in such firm’s Zurich vault premises on a segregated basis in the
manner provided for in the Trust Allocated Account Agreement.


          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;


                              (vi) words in the singular include the
plural and words in the plural include the singular; and


                              (vii) a term defined in any part
of speech shall have the corresponding meaning when capitalized and used herein
in another part of speech.


ARTICLE
II.



CREATION AND DECLARATION OF TRUSTS; 

FORM OF CERTIFICATES; DEPOSIT OF BULLION; 

DELIVERY, REGISTRATION OF TRANSFER AND SURRENDER OF SHARES


          Section
2.1 Creation and Declaration
of Trust; Business of the Trust.


                    (a) The Trustee acknowledges that it has
received confirmation from the Custodian that the Custodian has received an
initial deposit of Bullion from Goldman Sachs & Co., the initial purchaser
of the first Basket of Shares, and has credited such deposit to the Trust 


6





Allocated Account and
Trust Unallocated Account. The Trustee declares that the initial deposit and
all other Trust Property shall be owned by the Trust and the Trustee as trustee
thereof 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 “ETFS
Precious Metals Basket Trust”.


                    (b) The Trust shall not engage in any
business or activities other than those authorized by this Agreement or
incidental and necessary to carry out the duties and responsibilities set forth
in this Agreement. Other than issuance of the Shares, the Trust shall not issue
or sell any certificates or other obligations or, except as provided in this
Agreement, otherwise incur, assume or guarantee any indebtedness for money
borrowed.


          Section
2.2 Form of Certificates;
Book-Entry System; Transferability of Shares.


                    (a) The Certificates evidencing Shares
shall be substantially in the form set forth in Exhibit A annexed to this
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. No Shares shall be entitled to any benefits under this
Agreement or be valid or obligatory for any purpose unless a Certificate
evidencing those Shares has been executed by the Trustee by the manual or
facsimile signature of a duly authorized signatory of the Trustee and, if a
Registrar (other than the Trustee) for the Shares shall have been appointed,
countersigned by the manual signature of a duly authorized officer of the
Registrar. The Trustee shall maintain books on which the registered ownership
of each Share and transfers, if any, of such registered ownership shall be
recorded. Certificates evidencing Shares bearing the manual or facsimile
signature of a duly authorized signatory of the Trustee and the manual
signature of a duly authorized officer of the Registrar, if applicable, who
was, at the time such Certificates were executed, a proper signatory of the
Trustee or Registrar, if applicable, shall bind the Trustee, notwithstanding
that such signatory has ceased to hold such office prior to the delivery of
such Certificates.


                    (b) The Certificates may be endorsed with
or have incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of this Agreement as may be
required by the Trustee or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to
which the Shares evidenced by a particular Certificate are subject.


                    (c) The Sponsor and the Trustee will apply
to DTC for acceptance of the Shares in its book-entry settlement system. Shares
deposited with DTC shall be evidenced by one or more global Certificates which
shall be registered in the name of Cede & Co., as nominee for DTC, and
shall bear the following legend:


	
  

 	
  

 	
  

 
	
  

 	
 UNLESS
 THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
 DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE AGENT
 AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
 AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
 SUCH OTHER NAME AS IS

 	
  

 


7









	
  

 	
  

 	
  

 
	
  

 	
 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 Sections 2.2(a)
and (b), all Shares shall be evidenced by one or more global Certificates the
Registered Owner of which is DTC or a nominee of DTC and (i) no Beneficial
Owner of Shares will be entitled to receive a separate Certificate evidencing
those Shares, (ii) the interest of a Beneficial Owner in Shares represented by
a global Certificate will be shown only on, and transfer of that interest will
be effected only through, records maintained by DTC or a DTC Participant or
Indirect Participant through which the Beneficial Owner holds that interest and
(iii) the rights of a Beneficial Owner with respect to Shares represented by a
global Certificate will be exercised only to the extent allowed by, and in
compliance with, the arrangements in effect between such Beneficial Owner and
DTC or the DTC Participant or Indirect Participant through which that
Beneficial Owner holds an interest in Shares. So long as DTC or another
authorized Depository selected by the Sponsor or the Trustee is the Registered
Owner, the Trustee and the Sponsor may treat DTC or such other Depository as
the absolute owner of the Shares for all purposes whatsoever, including without
limitation, the payment of distributions, and the giving of notices of
redemption, tender and other matters with respect to the 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 a successor authorized Depository
identified by the Sponsor and available to act, or, if no successor Depository
is identified and able to act, the Trustee shall terminate the Trust in
accordance with Section 6.2.


                    (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 Bullion.


                    (a) After the initial deposit of Bullion
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 the Procedures, to the extent those Procedures
are consistent with this Agreement. Authorized Participants wishing to acquire
from the Trustee one or more Baskets must place an order with the Trustee (a
“Purchase Order”) no later than 3:59:59 p.m. (New York time) on any Business
Day. Purchase Orders received by the Trustee


8





prior to the Order Cutoff
Time on a Business Day on which the Benchmark Price is announced will have that
Business Day as the Order Date. Purchase Orders received by the Trustee on or
after the Order Cutoff Time on a Business Day, or on a Business Day on which
the Benchmark Price is not announced, will have as their Order Date the next
Business Day on which the Benchmark Price is announced. As consideration for
each Basket acquired, Authorized Participants must deposit with the Custodian,
from an account of the Authorized Participant maintained by the Custodian, or,
if otherwise expressly permitted by the Procedures, other LBMA- and LPPM-member
custodian identified by the Authorized Participant to the Custodian and the
Trustee, the Basket Bullion Amount determined by the Trustee on the Order Date
of the corresponding Purchase Order. Bullion must be Delivered to the Custodian
by credit to the Trust Unallocated Account only.


                    (b) The Trustee shall determine the Basket
Bullion Amount for each Business Day, and the Trustee’s determination of the
Basket Bullion Amount and resolution of questions concerning the composition of
such Basket Bullion Amount shall be final and binding on all persons interested
in the Trust. The initial “Basket Bullion Amount” is 1,500 Ounces of Gold,
55,000 Ounces of Silver, 200 Ounces of Platinum and 300 Ounces of Palladium.
After the initial deposit, the “Basket Bullion Amount” for each Business Day
shall be an amount of Gold, Silver, Platinum and Palladium equal to the result
obtained by subtracting the number of Ounces of Gold, Silver, Platinum and
Palladium, in such ratio as to ensure the Bullion of the Trust is held in the
Bullion Ratio, constituting the unpaid expense accrual from the total Ounces of
Gold, Silver, Platinum and Palladium in the Trust and then dividing by the
number of Baskets outstanding. Fractions of an Ounce of Gold, Silver, Platinum
or Palladium included in the Basket Bullion Amount smaller than 0.001 Ounce shall
be disregarded. The Sponsor intends to publish, or may designate other persons
to publish, for each Business Day, the Basket Bullion Amount.


                    (c) If the Trust Property includes money
or any property other than Bullion, no deposits of Bullion will be accepted
until after a record date for distribution of that money or property, or
proceeds of that property, has passed.


                    (d) All deposited Bullion shall be owned
by the Trust and held for the Trust by the Custodian. Pursuant to the
Unallocated Account Agreement, the Custodian agrees to use reasonable efforts
to minimize the amount of Bullion held for the Trust on an Unallocated Basis at
all times and the Custodian must allocate ownership of Gold or Silver bars or
ingots or Platinum or Palladium plates or ingots to the Trust such that no more
than 430 Ounces of Gold, 1,100 Ounces of Silver, 192 Ounces of Platinum and 192
Ounces of Palladium are held on an Unallocated Basis for the Trust at the end
of each business day of the Custodian. Cash and any assets of the Trust other
than Bullion shall be held by the Trustee at such place and in such manner as
the Trustee shall determine.


          Section
2.4 Delivery of Shares.


          Upon
receipt by the Trustee of a Purchase Order and the other documents required as
above specified, if any, and a confirmation from the Custodian that the Basket
Bullion Amount has been Delivered to the Custodian for each Basket of Shares
requested in such Purchase Order and the Custodian is holding that Bullion for
the account of the Trust, the Trustee, subject to the terms and conditions of
this Agreement and the Procedures, shall Deliver to the Depositor the 


9





number of Baskets of
Shares issuable in respect of such deposit as requested in the corresponding
Purchase Order, but only upon payment to the Trustee of the fees and expenses
of the Trustee as provided in Section 5.7 and of all taxes and governmental
charges and fees payable in connection with such deposit, the transfer of the
Bullion and the issuance and Delivery of the Shares.



           Section 2.5 Registration and Registration of Transfer of Shares;
 Combination and Split-up of Certificates.


                    (a) The Trustee shall keep or cause to be
kept a register of Registered Owners of Shares and shall provide for the
registration of Shares and the registration of transfers of Shares.


                    (b) The Trustee, subject to the terms and
conditions of this Agreement, shall register transfers of ownership of Shares
on its transfer books from time to time, upon any surrender of a Certificate
evidencing such Shares, by the Registered Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon, the Trustee shall execute
a new Certificate or Certificates evidencing such Shares, and deliver the same
to or upon the order of the Person entitled thereto.


                    (c) The Trustee, subject to the terms and
conditions of this Agreement, shall, upon surrender of a Certificate or
Certificates evidencing Shares for the purposes of effecting a split-up or
combination of that certificate or certificates, execute and deliver one or
more new Certificates evidencing those Shares.


                    (d) The Trustee may, with the written
approval of the Sponsor (which approval shall not be unreasonably withheld),
appoint one or more co-transfer agents for the purpose of effecting
registration of transfers of Shares and combinations and split-ups of
Certificates at designated transfer offices on behalf of the Trustee. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by
Registered Owners or Persons entitled to Shares and will be entitled to
protection and indemnity to the same extent as the Trustee.


                    (e) The previous paragraphs of this
Section notwithstanding, so long as the Shares are eligible for deposit with a
Depository, the sole Registered Owners shall be such Depository or its nominee
and transfer of Shares shall be effected solely by the Depository in accordance
with its customary practices in effect from time to time.


          Section
2.6 Surrender of Shares and
Withdrawal of Trust Property.


                    (a) Upon Surrender of any integral number
of Baskets for the purpose of withdrawal of the amount of Trust Property
represented thereby, and upon payment of the fee of the Trustee in connection
with the Surrender of Shares as provided in Section 5.7 and payment of all
taxes and charges payable in connection with such Surrender and withdrawal of
Trust Property, and subject to the terms and conditions of this Agreement, the
Procedures and the practices of the Depository, 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 


10





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 Bullion Amounts corresponding to such Baskets on the applicable Order
Date (determined as provided below). Authorized Participants wishing to redeem
one or more Baskets must place an order with the Trustee (a “Redemption Order”)
no later than 3:59:59 p.m. (New York time) on any Business Day. Redemption
Orders received by the Trustee prior to the Order Cutoff Time on a Business Day
on which the Benchmark Price is announced will have that Business Day as the
Order Date. Redemption Orders received by the Trustee on or after the Order
Cutoff Time on any Business Day, or on a Business Day on which the Benchmark
Price is not announced, will have as their Order Date the next Business Day on
which the Benchmark Price is announced. Bullion will be Delivered by the Custodian
only by credit to an account of the Authorized Participant maintained by the
Custodian or, if otherwise expressly permitted by the Procedures, other LBMA-
and LPPM-member custodian identified by the Authorized Participant to the
Custodian and the Trustee on an Unallocated Basis. The Authorized Participant
shall bear all risk of any loss from the time the Bullion is paid from the
Trust Unallocated Account to the Authorized Participant and neither the Trustee
nor the Trust shall have any liability for any such loss.


                    (b) The Trustee may require that a
Certificate evidencing Shares Surrendered for the purpose of withdrawal is
properly endorsed in blank or accompanied by proper instruments of transfer in
blank. Upon a Surrender of an integral number of Baskets of Shares and
satisfaction of all the conditions for withdrawal of Trust Property, the
Trustee shall instruct the Custodian to Deliver, as provided in the preceding
paragraph, to or to the order of the Surrendering Authorized Participant the
amount of Bullion represented by the Surrendered Baskets of Shares and the
Trustee shall pay or deliver to or to the order of the Surrendering Authorized
Participant the amount of any other Trust Property represented by the
Surrendered Baskets of Shares. Any Delivery of Bullion other than by credit to
an account of the Authorized Participant maintained by the Custodian on an
Unallocated Basis will be at the expense and risk of the Authorized
Participant. The Trustee is not required to effect any physical movement of
Bullion from one custody location to another to meet any request by a
Surrendering Authorized Participant as to where Bullion will be Delivered.


                    (c) The Sponsor and the Trustee may, but
shall have no obligation to, amend this Agreement to provide for redemption of
any quantity of Shares for quantities of Bullion that may be smaller or larger
than a Basket Bullion Amount by Beneficial Owners who are not Authorized
Participants.


                    (d) The Sponsor and the Trustee may, but
shall have no obligation to, amend this Agreement to provide for the sale of
Bullion to pay cash proceeds upon the redemption of Shares.


          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 charges and any 


11





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, without limitation, this Section 2.7.


                    (b) The Delivery of Shares against
deposits of Bullion and the registration of transfer of Shares may be suspended
generally, or refused with respect to particular requested Deliveries, 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 elsewhere
in this Agreement, the Surrender of Shares for purposes of withdrawing Trust
Property may be suspended only (i) during any period in which regular trading
on the Exchange is suspended or restricted or the Exchange is closed (other
than scheduled holiday or weekend closings), or (ii) during an emergency as a
result of which Delivery, disposal or evaluation of Bullion is not reasonably
practicable.


          Section
2.8 Lost Certificates, Etc.


          The
Trustee shall execute and deliver a new Certificate of like tenor in exchange
and substitution for a mutilated Certificate upon cancellation thereof, or in
lieu of and in substitution for a destroyed, lost or stolen Certificate if the
Registered Owner thereof has (a) filed with the Trustee (i) a request for such
execution and delivery before the Trustee has notice that the Shares evidenced
by the Certificate have been acquired by a protected purchaser and (ii) a
sufficient indemnity bond, and (b) satisfied any other reasonable requirements
imposed by the Trustee.


          Section
2.9 Cancellation and
Destruction of Surrendered Certificates.


          All
Certificates Surrendered to the Trustee shall be canceled by the Trustee. The
Trustee is authorized to destroy certificates so canceled.


          Section
2.10 Splits and Reverse Splits
of Shares.


          If
requested in writing by the Sponsor, the Trustee shall effect a split or
reverse split of the Shares as of a record date set by the Trustee in
accordance with procedures determined by the Trustee and the Depository.


          If
so directed by the Sponsor, the Trustee shall not distribute any fraction of a
Share in connection with a split or reverse split of the Shares. The Trustee
may sell the aggregated fractions of Shares that would otherwise be distributed
in a split or reverse split of the Shares or the amount of Trust Property that
would be represented by those Shares and distribute the net proceeds of those
Shares or that Trust Property to the Record Owners entitled to them.


          The
amount of Trust Property represented by each Share and the Basket Bullion
Amount shall be adjusted as appropriate as of the open of business on the
Business Day following the record date for a split or reverse split of the
Shares.


12





ARTICLE
III.

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 such 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
Bullion.


          Every
Person depositing Bullion under this Agreement shall be deemed thereby to
represent and warrant that the deposited Gold meets the requirements to be
Gold, deposited Silver meets the requirements to be Silver, deposited Platinum
meets the requirements to be Platinum and deposited Palladium meets the
requirements to be Palladium and contains the required number of Ounces of
Gold, Silver, Platinum and Palladium, that the person making such deposit is
duly authorized to do so and that at the time of delivery, the Bullion is free
and clear of any lien, pledge, encumbrance, right, charge or claim (other than
the rights created by this Agreement). All representations and warranties
deemed made under this Section 3.2 shall survive the deposit of Bullion,
Delivery or Surrender of Shares or termination of this Agreement.


ARTICLE
IV.

ADMINISTRATION OF THE TRUST


          Section
4.1 Evaluation of Bullion.


          As
promptly as practicable after 4:00 p.m. (New York time), on each Business Day,
the Trustee shall determine the value of the Bullion held or receivable by the Trust
on the basis of the Benchmark Price for each metal for that day. If no
Benchmark Price for Gold, Silver, Platinum or Palladium is announced on a
Business Day, the Trustee shall determine the value of such Gold, Silver,
Platinum or Palladium held or receivable by the Trust for that day on the basis
of the most recently announced Benchmark Price for such metal
prior to the evaluation time. However, if the Sponsor determines that the price
specified in the two preceding sentences is inappropriate as a basis for
evaluation, it shall identify an alternative basis for evaluation to be
employed by the Trustee. Bullion deliverable under a Purchase Order shall be
included in the evaluation beginning on the Order Date. Bullion deliverable
under a Redemption Order shall not be included in the evaluation on and after
the Order Date. Neither the Trustee nor the Sponsor shall be liable to any
Person for the determination that the most recently announced Benchmark 


13





Price is not appropriate as a basis for evaluation of the Bullion held or receivable
by the Trust or for any determination as to the alternative basis for
evaluation, provided that such determination is made in good faith.


          If
the Sponsor determines that Benchmark Price will have the meaning set forth in
part (ii) of the definition of that term, the Trustee shall give notice to the
Registered Owners, and the Trustee shall not apply the new definition of
Benchmark Price until 60 days after the date of that notice.


          Section
4.2 Responsibility of the
Trustee for Evaluations.


          The
Sponsor, Depositors, Registered Owners and Beneficial Owners may rely on any
evaluation or determination of any amount made by the Trustee, and the Sponsor
shall have no responsibility for the accuracy thereof. The determinations made
by the Trustee under this Agreement shall be made in good faith upon the basis
of, and the Trustee shall not be liable for any errors contained in,
information reasonably available to it. The Trustee shall be under no liability
to the Sponsor, or to Depositors, Registered Owners or Beneficial Owners, for
errors in judgment; provided, however, that this provision shall not protect
the Trustee against any liability to which it would otherwise be subject by
reason of gross negligence or bad faith in the performance of its duties.


          Section
4.3 Trust Evaluation.


          As
promptly as practicable after completion of the evaluation required under
Section 4.1 on each Business Day, the Trustee shall subtract all accrued fees (other
than the fees accruing for such Business Day computed by reference to the value
of the Trust or its assets), expenses and other liabilities of the Trust from
the total value of the deposited Bullion determined by the Trustee pursuant to
Section 4.1 and all other assets of the Trust. The resulting figure is the
“Adjusted Net Asset Value” of the Trust. All fees accruing for any Business Day
computed by reference to the value of the Trust or its assets shall be
calculated on the Adjusted Net Asset Value calculated for such Business Day.
The Trustee shall subtract from the Adjusted Net Asset Value the amount of
accrued fees so computed and the resulting figure is the “Net Asset Value” of
the Trust. The Trustee shall also divide the Net Asset Value of the Trust by
the number of Shares outstanding as of the close of business on the date of the
evaluation then being made, which figure is the “Net Asset Value per Share.”
All fees, expenses and other liabilities of the Trust that are or will be
incurred or accrued through the close of business on a Business Day shall be
included in the calculations required by this Section 4.3 for that Business
Day. Shares deliverable under a Purchase Order shall be considered to be
outstanding for purposes of this Section 4.3 beginning on the Order Date.
Shares deliverable under a Redemption Order shall not be considered to be
outstanding for purposes of this Section 4.3 on and after the Order Date.


          Adjusted
Net Asset Value, Net Asset Value and Net Asset Value per Share shall be
computed in accordance with generally accepted accounting principles in the
United States. Any estimate of the expenses and liabilities of the Trust for
purposes of the computations required by this Section made by the Trustee in
good faith shall be conclusive upon all Persons interested in the Trust, and no
revision or correction in any computation made under this Agreement will be
required by reason of any difference in amounts estimated from those actually
paid.


14





          Section
4.4 Cash Distributions.


          Whenever
the Trustee distributes any cash, the Trustee shall distribute the amount
available for the distribution to the Registered Owners entitled thereto, in
proportion to the number of Shares held by them respectively; provided,
however, that in the event that the Trustee shall be required to withhold and
does withhold from such cash an amount on account of taxes, the amount
distributed to the Registered Owners shall be reduced accordingly. The Trustee
shall distribute only such amount, however, as can be distributed without
attributing to any Registered Owner a fraction of one cent. Any such fractional
amounts shall be rounded down to the nearest whole cent and so distributed to
Registered Owners entitled thereto.


          Section
4.5 Other Distributions.


          Whenever
the Trustee receives any property in respect of Trust Property other than cash
proceeds of a sale of Trust Property (including any claim that accrues in favor
of the Trust on account of any loss of deposited Bullion or other Trust
Property), the Trustee shall cause the securities or other property received by
it to be distributed to the Registered Owners entitled thereto, in proportion
to the number of Shares held by them respectively, after deduction or upon payment
of the expenses of the Trustee, in any manner that the Trustee may deem lawful,
equitable and feasible for accomplishing such distribution; provided, however,
that if in the opinion of the Trustee such distribution cannot be made
proportionately among the Registered Owners entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Trustee
withhold an amount on account of taxes or other governmental charges or that
securities must be registered under the Securities Act of 1933 in order to be
distributed to Registered Owners) the Trustee deems such distribution not to be
lawful and feasible, the Trustee shall adopt such method as it deems lawful,
equitable and feasible for the purpose of effecting such distribution, after
deduction or upon payment of the expenses of the Trustee, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale shall be
distributed by the Trustee to the Registered Owners entitled thereto as in the
case of a distribution received in cash. The Trustee shall not be liable for
any loss or depreciation resulting from any sale or other disposition of
property made by the Trustee pursuant to the Sponsor’s instruction or otherwise
made by the Trustee in good faith.


          Section
4.6 Fixing of Record Date.


          Whenever
any distribution will be made, or whenever the Trustee receives notice of any
solicitation of proxies or consents from Registered Owners, or whenever for any
reason there is split, reverse split or other change in the outstanding Shares,
or whenever the Trustee shall find it necessary or convenient in respect of any
matter, the Trustee, in consultation with the Sponsor, shall fix a record date
for the determination of the Registered Owners who shall be (i) entitled to
receive such distribution or the net proceeds of the sale thereof, (ii)
entitled to give such proxies or consents in respect of any such solicitation
or (iii) entitled to act in respect of any other matter for which the record
date was set.


15





          Section
4.7 Payment of Expenses;
Bullion Sales.


                    (a) The following charges are or may be
accrued and paid by the Trust:


                              (i) the service fee payable to the Sponsor
as set forth in Section 5.8;


                              (ii) expenses of the Trust not assumed by
the Sponsor pursuant to Section 5.3(g);


                              (iii) taxes and other governmental charges;


                              (iv) 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;


                              (v) indemnification of the Trustee as
provided in Section 5.6(a); and


                              (vi) indemnification of the Sponsor as
provided in Section 5.6(b).


                    (b) Subject to paragraph (d) of this
Section, the Trustee will endeavor to sell the smallest amounts of Bullion
needed to pay expenses in order to minimize the Trust’s holdings of assets
other than Bullion.


          The
Trustee shall, when directed by the Sponsor, and, in the absence of such
direction, may, in its discretion, sell Bullion in such quantity and at such
times, as may be necessary to permit payment of expenses under this Agreement.
The Trustee shall endeavor to sell Bullion at such times and in the smallest
amounts required to permit payment of expenses as they come due without
producing sale proceeds in excess of the amount required for payment of
expenses, it being the intention to avoid or minimize the Trust’s holdings of
assets other than Bullion. If the Trustee cannot sell Bullion in the precise
amount required for the payment of expenses as they come due, and the Sponsor
shall have agreed to advance funds for such expenses as authorized hereby, the
Trustee shall sell the maximum amount of Bullion which it can sell without
producing excess proceeds. The Sponsor is authorized and may, but is not
required to, pay on behalf of the Trust the amount of such expenses remaining
unpaid immediately after such Bullion sale; provided, however, that the Trust
shall accrue a liability, without interest, to the Sponsor for reimbursement of
such expense amounts so paid by the Sponsor until such amounts can be wholly
repaid in Ounces of Bullion delivered to the Sponsor in the same manner as,
together with, and in addition to, the next payment of the fees of the Sponsor
pursuant to paragraph (d) of this Section. In the event such reimbursement of
the Sponsor cannot be wholly repaid in Ounces of Bullion at the next payment of
the Sponsor’s fee, the Trust shall continue to accrue, without interest, the
amount of its reimbursement obligation to the Sponsor (together with any other
reimbursement obligations to the Sponsor) until such reimbursement amounts can
be wholly repaid in Ounces of Bullion on a payment date for the Sponsor’s fee.
Neither the Trustee nor the Sponsor shall have any liability for loss or
depreciation resulting from sales of Bullion so made. Any sale of Bullion
hereunder shall be made in Gold, Silver, Platinum and Palladium in such ratio
as to ensure that the Bullion of the Trust is held in the Bullion Ratio. The
Trustee shall not be liable or responsible in any way for depreciation or loss
incurred by reason 


16





of any sale made pursuant
to the Sponsor’s direction or otherwise in accordance with this Section.


                    (c) If at any time and from time to time,
the Trustee and Sponsor determine that the amount of cash included in the Trust
Property exceeds the anticipated expenses of the Trust during the following
month, the Trustee shall distribute the excess to the Registered Owners under
Section 4.4.


                    (d) Payment of the fees of the Sponsor
provided in Section 5.8(a) hereof and the reimbursement of expenses paid by the
Sponsor pursuant to paragraph (b) of this Section shall be made by delivery to
an account maintained by the Custodian for the Sponsor on an Unallocated Basis,
monthly on the first Business Day of the month in respect of fees payable in
respect of the prior month, of that number of Ounces of Bullion which shall
equal (i) the daily accrual of the Sponsor’s fee for such prior month
calculated at the Benchmark Price for the day of accrual and (ii) the amount of
any outstanding expense reimbursement obligation calculated at the Benchmark
Price available on the date of the Trust’s payment of such reimbursement
obligation. Any payment of the fees of the Sponsor in Bullion hereunder shall
be made in Gold, Silver, Platinum and Palladium, in such ratio as to ensure
that the Bullion of the Trust is held in the Bullion Ratio.


          Section
4.8 Statements and Reports.


                    (a) 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 that will be prepared by the Trustee and 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.


                    (b) The Trustee shall provide the Sponsor
with such certifications, supporting documents and other evidence regarding the
Internal Control Over Financial Reporting established and maintained by the
Trust, and used by the Trustee in connection with its preparation of the
financial statements of the Trust, as may be reasonably necessary in order to
enable the Sponsor to prepare and file or furnish to the Commission any
certifications regarding such matters which may be required to be included with
the Trust’s periodic reports under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).


                    (c) The fiscal year of the Trust shall
initially be the period ending December 31 of each year. The Sponsor shall have
the continuing right to select an alternate fiscal year.


          Section
4.9 Further Provisions for
Bullion Sales.


          In
addition to selling Bullion in accordance with Section 4.7, the Trustee shall
sell Gold, Silver, Platinum and Palladium, in such ratio as to ensure that the
Bullion of the Trust, if any, is held in the Bullion Ratio after the completion
of such sale, whenever any one or more of the following conditions exists:


17





                    (a) the Sponsor has notified the Trustee
that such sale is required by applicable law or regulation; or


                    (b) this Agreement has been terminated and
the Trust Property is to be liquidated in accordance with Section 6.2.


          When
selling Bullion, the Trustee shall endeavor to place orders with dealers (which
may include the Custodian) as directed by the Sponsor, or in the absence of
such direction, with dealers through which the Trustee may reasonably expect to
obtain a favorable price and good execution of orders. The Custodian may be the
purchaser at the Benchmark Price.


          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 Bullion and the Trust,
including any legal matters relating to the possible disposition or acquisition
of any Bullion. The fees and expenses of such counsel shall be paid by the
Sponsor.


          Section
4.11 Grantor Trust.


          Nothing
in this Agreement, any agreement with a Custodian, or otherwise, shall be
construed to give the Trustee the power to vary the investment of the
Beneficial 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 shall
the Sponsor give the Trustee any direction that would vary the investment of
the Beneficial Owners. However, the Trustee shall not be liable to any Person
for any failure of the Trust to qualify as a grantor trust under the Code or
any comparable provision of the laws of any State or other jurisdiction where
that treatment is sought, except that this sentence shall not limit the
Trustee’s responsibility for the administration of the Trust in accordance with
this Agreement.


ARTICLE
V.

THE TRUSTEE AND THE SPONSOR


          Section
5.1 Maintenance of Office and
Transfer Books by the Trustee.


                    (a) Until termination of this Agreement in
accordance with its terms, the Trustee shall maintain facilities for the
execution and Delivery, registration, registration of transfers and Surrender
of Shares in accordance with the provisions of this Agreement.


                    (b) The Trustee shall keep a copy of this
Agreement and 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.


18





                    (c) The Trustee may, and at the reasonable
written request of the Sponsor shall, close the transfer books at any time or
from time to time if such action is deemed necessary or advisable in the
reasonable judgment of the Trustee 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
5.2 Prevention or Delay in
Performance by the Sponsor or the Trustee.


          Neither
the Sponsor nor the Trustee nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Registered Owner,
Beneficial Owner or Depositor if, by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any act
of God or war or terrorism or other circumstances beyond its control, the
Sponsor or the Trustee is prevented or forbidden from, or would be subject to
any civil or criminal penalty on account of, or is delayed in, doing or performing
any act or thing which by the terms of this Agreement it is provided shall be
done or performed and accordingly the Sponsor or the Trustee does not do that
thing or does that thing at a later time than would otherwise be required. The
Sponsor and the Trustee will not incur any liability to any Registered Owner or
Beneficial Owner or Depositor by reason of any non-performance or delay in the
performance of any act or thing which by the terms of this Agreement it is
provided may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in this Agreement.


          Section
5.3 Obligations of the Sponsor
and the Trustee.


                    (a) Neither the Sponsor nor the Trustee
assumes any obligation nor shall either of them be subject to any liability
under this Agreement to any Registered Owner or Beneficial Owner or Depositor
(including, without limitation, liability with respect to the worth of the
Trust Property), except that each of them agrees to perform its obligations
specifically set forth in this Agreement without gross negligence, willful
misconduct or bad faith.


                    (b) Neither the Sponsor nor the Trustee
shall be under any obligation to prosecute any action, suit or other proceeding
in respect of any Trust Property or in respect of the Shares on behalf of a
Registered Owner, Beneficial Owner, Depositor or other Person.


                    (c) Neither the Sponsor nor the Trustee
shall be liable for any action or non-action by it in reliance upon the advice
of or information from legal counsel, accountants, any Depositor, any
Registered Owner or any other person believed by it in good faith to be
competent to give such advice or information.


                    (d) (i) The Trustee shall not be liable for
any acts or omissions made by a successor Trustee whether in connection with a
previous act or omission of the Trustee or in connection with any matter
arising wholly after the resignation of the Trustee, provided that in connection
with the issue out of which such potential liability arises the Trustee
performed its obligations without gross negligence, willful misconduct or bad
faith while it acted as Trustee.


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                              (ii) The Sponsor is authorized to negotiate
the terms of the Authorized Participant Agreement to be entered into with each
Authorized Participant and shall have no liability for any loss or damage
incurred by the Trust resulting from any such agreement negotiated in good
faith. The Trustee shall have no liability with respect to the negotiation of
the terms of any Authorized Participant Agreement or the form of any Authorized
Participant Agreement (other than the Trustee’s due execution, delivery and
performance thereof). The terms of an Authorized Participant Agreement shall
not adversely affect the duties, rights and responsibilities of the Trustee
unless the Trustee expressly consents thereto, which consent shall be evidenced
by the Trustee’s execution and delivery of such Authorized Participant
Agreement.


                    (e) The Trustee and the Sponsor shall have
no obligation to comply with any direction or instruction from any Registered
Owner or Beneficial Owner or Depositor regarding Shares except to the extent
specifically provided in this Agreement.


                    (f) The Trustee shall be a fiduciary under
this Agreement; provided, however, that the fiduciary duties and
responsibilities and liabilities of the Trustee shall be limited by, and shall
be only those specifically set forth in, this Agreement. Without limiting the
foregoing, all duties, rights, privileges and liabilities of the Trustee set
forth in this Agreement are subject to the following:


                              (i) The Trustee shall not be under any
obligation to appear in, prosecute or defend any action that in its opinion may
involve it in expense or liability, unless it shall be furnished with
reasonable security and indemnity against such expense or liability. Subject to
the foregoing, the Trustee shall, in its discretion, undertake such action as
it may deem necessary at any and all times to protect the Trust and the rights
and interest of all Beneficial Owners pursuant to the terms of this Agreement.


                              (ii) Trust Assets of the Trust, exclusive
of Bullion or cash, shall be held by the Trustee either directly or through the
Federal Reserve/ Treasury Book Entry System for United States and federal
agency securities (the “Book Entry System”), DTC, or through any other clearing
agency or similar system (a “Clearing Agency”), if available. The Trustee shall
have no responsibility and shall not be liable for ascertaining or acting upon
any calls, conversions, exchange offers, tenders, interest rates changes, or
similar matters relating to securities held at the Depository or with any
Clearing Agency unless the Trustee shall have received actual and timely
written notice of the same, nor shall the Trustee have any responsibility or
liability for the actions or omissions to act of the Book Entry System, the
Depository or any Clearing Agency. All moneys held by the Trustee hereunder
shall be held by it, without interest thereon or investment thereof, as a
deposit for the account of the Trust. Such monies held hereunder shall be
deemed segregated by maintaining such monies in an account or accounts for the
exclusive benefit of the Trust. The Trustee may also employ custodians for
Trust assets other than Bullion, agents, attorneys, accountants, auditors and
other professionals and shall not be answerable for the default or misconduct
of any such custodians, agents, attorneys, accountants, auditors and other
professionals if such custodians, agents, attorneys, accountants, auditors or
other professionals shall have been selected with reasonable care.


                              (iii) If at any time the Trustee is served
with any judicial or administrative order, judgment, decree, writ or other form
of judicial or administrative process 


20





that in any way affects
the Trust or its property (including but not limited to orders of attachment or
garnishment or other forms of levies or injunctions or stays relating to the
transfer of any assets of the Trust), the Trustee is authorized to comply
therewith in any manner that it or legal counsel of its own choosing deems
appropriate; however, the Trustee to the extent practicable will inform the
Sponsor of such order, judgment, decree, writ or other form of judicial or
administrative process that in any way affects the Trust and consult in good faith
with the Sponsor as to the course of action by the Trustee. If the Trustee
complies with any such judicial or administrative order, judgment, decree, writ
or other form of judicial or administrative process, the Trustee shall not be
liable to any of the parties hereto or to any other person or entity even
though such order, judgment, decree, writ or process may be subsequently
modified or vacated or otherwise determined to have been without legal force or
effect.


                              (iv) In no event shall the Trustee be
liable for acting in accordance with or conclusively relying upon any
instruction, notice, demand, certificate or document (a) from the Sponsor or a
Custodian, or any entity acting on behalf of either, which the Trustee believes
is given pursuant to or is authorized by this Agreement or a Custody Agreement,
respectively; or (b) from or on behalf of any Authorized Participant which the
Trustee believes is given pursuant to or is authorized by an Authorized
Participant Agreement (provided that the Trustee has complied with the
verification procedures specified in the Authorized Participant Agreement); for
any indirect, consequential, punitive or special damages, regardless of the
form of action and whether or not any such damages were foreseeable or
contemplated; or for an amount in excess of the value of the assets of the
Trust. The Trustee may consult with legal counsel of its own choosing as to any
matter relating to this Agreement and the Trustee shall not incur any liability
in acting in good faith in accordance with any advice from such counsel. The
expense of such counsel shall be paid as provided in Section 5.7(b) and (c), as
applicable.


                              (v) The Trustee shall be entitled to rely
conclusively upon any order, judgment, certification, demand, notice,
instrument or other writing delivered to it under this Agreement without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity or the service thereof. The Trustee may
act in conclusive reliance upon any instrument or signature reasonably believed
by it to be genuine and may assume that any person purporting to give receipt
or advice or to make any statement or execute any document in connection with
the provisions of this Agreement or any Authorized Participant Agreement has
been duly authorized to do so, provided, however, that where a list of
authorized officials of a person and their signatures are on file with the
Trustee, the Trustee shall compare such manual signatures to the signature on
any such documents. Such requirement shall not apply to “personal
identification numbers” or “PINS” or other forms of electronic security devices
which function as a proxy for a manual signature.


                              (vi) The Trustee shall not be responsible
for or in respect of the recitals herein, the validity or sufficiency of this
Agreement, the Custody Agreements, any Authorized Participant Agreement or any
other custody or other agreement entered into by the Trustee at the direction
or with the approval of the Sponsor or otherwise in connection with the
Trustee’s administration of the Trust, or for the due execution hereof by the
Sponsor or of the Custody Agreements by the Initial Custodian, or for the due
execution of any other agreement entered into by the Trustee in connection with
the administration of the Trust by any party thereto other than the Trustee.


21





                              (vii) The Trustee shall not be responsible
in any respect for the form, execution, validity, value, collectability or
genuineness of documents, instruments or securities deposited with or delivered
to or held by it under this Agreement, or for any description therein, or for
the identity, authority or rights of persons executing or delivering or
purporting to execute or deliver any such document, instrument or security.


                              
(viii) At any time the Trustee
may request an instruction in writing in English from the Sponsor or an Authorized
Participant with respect to any action which the Sponsor or an Authorized
Participant is authorized to direct the Trustee hereunder, or under the Custody
Agreements, any Authorized Participant Agreement or any other agreement entered
into by the Trustee in connection with the Trustee’s administration of the
Trust, and may, at its own option, include in such request the course of action
it proposes to take and the date on which it proposes to act, regarding any
matter arising in connection with its duties and obligations under any such
agreement. The Trustee shall not be liable for acting in accordance with such a
proposal on or after the date specified therein, provided that the specified
date shall be at least three (3) Business Days after the Sponsor or Authorized
Participant receives the Trustee’s request for instructions and its proposed
course of action, and provided further that, prior to so acting, the Trustee
has not received the written instructions requested.


                              
(ix) When the Trustee acts on any
information, instructions, communications (including communications with
respect to the delivery of securities or the wire transfer of funds) sent by
telex, facsimile, email or other form of electronic or data transmission, the
Trustee, absent gross negligence, shall not be responsible or liable in the
event such communication is not an authorized or authentic communication of the
party sending it or is not in the form the party sent or intended to send
(whether due to fraud, distortion or otherwise), provided that this paragraph
shall not limit the Trustee’s obligation to obtain such confirmations as may be
specified in this Agreement or any Authorized Participant Agreement. The
Trustee shall be indemnified as provided in Section 5.6 hereof against any
loss, liability, claim or expense (including legal fees and expenses) it may
incur in acting in accordance with any such communication.


                              
(x) The Trustee may construe any
provision of this Agreement that it believes to be ambiguous or inconsistent
with any other provisions hereof, and any reasonable construction of any such
provision hereof by the Trustee in good faith shall be binding upon the parties
hereto, each Authorized Participant and all Beneficial Owners. In the event of
any ambiguity or inconsistency or any other uncertainty in any notice,
instruction or other communication received by the Trustee under this
Agreement, the Trustee shall notify the Sponsor and the giver thereof, and may,
in its sole discretion, refrain from taking any action other than to retain
possession of the property of the Trust, unless the Trustee receives such
further written instructions, from the Sponsor or otherwise, that eliminate
such ambiguity, inconsistency or uncertainty.


                              
(xi) The Trustee shall have no
responsibility for the contents of any writing of the arbitrators or any third
party that may be used as a means to resolve disputes among third parties with
respect to their interest in the Trust, Trust Property or Shares and may
conclusively rely without any liability upon the contents thereof.


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                              (xii) In no event shall the Trustee be
personally liable for any taxes or other governmental charges imposed upon or
in respect of the Bullion or its custody, moneys or other assets from time to
time held hereunder, or on the income therefrom or the sale or proceeds of sale
thereof, or upon it as Trustee hereunder or upon or in respect of the Trust or
the Shares, which it may be required to pay under any present or future law of
the United States of America or of any other taxing authority having
jurisdiction in the premises. For all such taxes and charges and for any
expenses, including counsel’s fees, which the Trustee may sustain or incur with
respect to such taxes or charges, the Trustee shall be reimbursed and
indemnified out of the assets of the Trust and the payment of such amounts
shall be secured by a lien on the Trust. This paragraph shall survive notwithstanding
any termination of this Agreement and the Trust or the resignation or removal
of the Trustee.


                              (xiii) The Trustee shall not be answerable
for the default of the Initial Custodian or any Custodian employed at the direction
of the Sponsor or selected by the Trustee with reasonable care. The Trustee may
also employ custodians for Trust assets other than Bullion, agents, attorneys,
accountants, auditors and other professionals and shall not be answerable for
the default or misconduct of any such custodians, agents, attorneys,
accountants, auditors and other professionals if such custodians, agents,
attorneys, accountants, auditors or other professionals shall have been
selected with reasonable care. The fees and expenses charged by such agents,
attorneys, accountants, auditors or other professionals, exclusive of fees for
services to be performed by the Trustee, shall be paid as provided in Section
5.7(b) and 5.7(c), as applicable. Fees paid for custody of assets other than
Bullion shall be an expense of the Trustee.


                              
(xiv) The Trustee in its
individual or any other capacity may own or hold Shares, or be an underwriter
or dealer in respect of Shares, and may deal in any manner with the same with
the same rights and powers as if it were not the Trustee hereunder.


                    (g) The Sponsor shall be responsible for
all organizational expenses of the Trust, and for the following administrative
and marketing expenses of the Trust: fees for the Trustee’s ordinary services
and reimbursement of its out-of-pocket expenses as provided in Section 5.7(b),
the Custodian’s fee and expenses reimbursable to a Custodian pursuant to a
Custody Agreement (including, for avoidance of doubt, any fees paid to the
Initial Custodian under the Trust Allocated Account Agreement and Trust
Unallocated Account Agreement but excluding taxes, other governmental charges
and Custodian indemnification obligations assumed by the Trustee in the Custody
Agreements), listing fees of the Exchange, registration fees charged by the
Commission, printing and mailing costs, audit fees and expenses and legal fees
and expenses not in excess of $100,000 per year.


          Section
5.4 Resignation or Removal of
the Trustee; Appointment of Successor Trustee.


                    (a) The Trustee may at any time resign as
Trustee hereunder by written notice of its election so to do, delivered to the
Sponsor, and such resignation shall take effect upon the appointment of a
successor Trustee and its acceptance of such appointment as hereinafter
provided.


                    (b) The Sponsor may remove the Trustee in
its discretion by written notice delivered to the Trustee in the manner
provided in Section 7.5 at least 90 days prior to the fifth 


23





anniversary of the date
of this Agreement or, thereafter, by written notice delivered to the Trustee at
least 90 days prior to the last day of any subsequent three-year period.


                    (c) If at any time the Trustee


                              (i) ceases to be a Qualified Bank,


                              (ii) is in material breach of its
obligations under this Agreement and fails to cure such breach within 30 days
after receipt of written notice from the Sponsor or Registered Owners acting on
behalf of at least 25% of the outstanding Shares specifying such default and
requiring the Trustee to cure such default, or


                              (iii) fails to consent to the implementation
of an amendment to the Trust’s initial Internal Control Over Financial
Reporting deemed necessary by the Sponsor and, after consultations with the
Sponsor, the Sponsor and the Trustee fail to resolve their differences
regarding such proposed amendment, the Sponsor, acting on behalf of the
Registered Owners, may remove the Trustee by written notice delivered to the
Trustee in the manner provided in Section 7.5, and such removal shall take
effect upon the appointment of a successor Trustee and its acceptance of such
appointment as hereinafter provided.


                    (d) If the Trustee acting hereunder
resigns or is removed, the Sponsor, acting on behalf of the Registered Owners,
shall use its reasonable efforts to appoint a successor Trustee, which shall be
a Qualified Bank. Every successor Trustee shall execute and deliver to its
predecessor and to the Sponsor, acting on behalf of the Registered Owners, an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Trustee, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor; but
such predecessor, nevertheless, upon payment of all sums due it and on the
written request of the Sponsor, acting on behalf of the Registered Owners,
shall execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Trust Property to such
successor, and shall deliver to such successor a list of the Registered Owners
of all outstanding Shares. The Sponsor or any such successor Trustee shall
promptly mail notice of the appointment of such successor Trustee to the
Registered Owners.


                    (e) Any corporation into which the Trustee
may be merged, consolidated or converted in a transaction in which the Trustee
is not the surviving corporation shall be the successor of the Trustee without
the execution or filing of any document or any further act. During the 90-day
period following the effectiveness of a merger, consolidation or conversion
described in the preceding sentence, the Sponsor may, by written notice to the
Trustee, remove the Trustee and designate a successor Trustee in compliance
with the provisions of subsection (c) above.


          Section
5.5 The Custodian.


                    (a) The Trustee is hereby directed to
enter into the Trust Allocated Account Agreement and the Trust Unallocated
Account Agreement with the Initial Custodian. The Initial Custodian will be
subject to the directions of the Trustee as provided in such Custody
Agreements, and will be responsible solely to it and to Beneficial Owners to
the extent UK law 


24





requires. If upon the
resignation of any Custodian there would be no Custodian acting hereunder, the
Trustee shall, promptly after receiving such notice of such resignation,
appoint a substitute custodian or custodians selected by the Sponsor pursuant
to custody agreements approved by the Sponsor (provided, however, that the
rights and duties of the Trustee hereunder and under the Custody Agreements
shall not be materially altered without its consent), each of which shall
thereafter be a Custodian hereunder. When directed by the Sponsor or if the
Trustee in its discretion determines that it is in the best interest of the
Registered Owners to do so and with the written approval of the Sponsor (which
approval shall not be unreasonably withheld or delayed), the Trustee shall
appoint a substitute or additional custodian or custodians, which shall thereafter
be one of the Custodians hereunder. After the date of this Agreement, the
Trustee shall not enter into or amend any Custody Agreement with a Custodian
without the written approval of the Sponsor (which approval shall not be
unreasonably withheld or delayed). When instructed by the Sponsor, the Trustee
shall demand that a Custodian deliver such of the Bullion held by it as is
requested of it to any other Custodian or such substitute or additional
custodian or custodians directed by the Sponsor. In connection with such
delivery the Trustee will, solely if and in the manner directed by the Sponsor,
cause the Bullion to be weighed or assayed and any such weighing and assay
shall be an expense of the Trust pursuant to Section 4.7(a)(ii) hereof. The
Trustee shall have no liability for any delivery of Bullion or weighing or
assaying of delivered Bullion directed by the Sponsor pursuant to the preceding
provisions of this paragraph and in the absence of such direction shall have no
obligation to effect such a delivery or to cause the delivered Bullion to be
weighed, assayed or otherwise validated. Each such substitute or additional
custodian shall, forthwith upon its appointment, enter into a Custody Agreement
in form and substance approved by the Sponsor.


                    (b) The Trustee shall have no obligation
to monitor the activities of any Custodian other than to receive and review
such reports of the Bullion held for the Trust by such Custodian and of
transactions in Bullion held for the account of the Trust made by such
Custodian pursuant to the Custody Agreements. The accounts and operations of
each Custodian shall be audited or examined by accountants or other inspectors
selected by the Sponsor at such times as directed by the Sponsor as permitted
by the Custody Agreements. In no event shall the Trustee be liable for (i) any
loss or damage resulting from the actions or omissions of any Custodian or loss
or damage to the Bullion while in the possession of, or in transit to or from,
any Custodian, (ii) the amount, validity or adequacy of insurance maintained by
any Custodian, (iii) any defect in Bullion held by a Custodian, (iv) any
failure of Bullion to conform to the requirements of “good delivery” under the
rules of the LBMA or the LPPM, as applicable, or (v) any failure of
Bullion to conform to a description thereof provided by the Custodian to the
Trustee.


                    (c) Upon the appointment of any successor
Trustee hereunder, each Custodian then acting hereunder shall forthwith become,
without any further act or writing, the agent hereunder of such successor
Trustee and the appointment of such successor Trustee shall in no way impair
the authority of each Custodian hereunder; but the successor Trustee so
appointed shall, nevertheless, on the written request of any Custodian, execute
and deliver to such Custodian all such instruments as may be proper to give to
such Custodian full and complete power and authority as agent hereunder of such
successor Trustee.


25





          Section
5.6 Indemnification.


                    (a) The Trustee, its directors, employees
and agents (each, a “Trustee Indemnified Party”) shall be indemnified from the
Trust and held harmless against any loss, liability or expense (including, but
not limited to, the reasonable fees and expenses of counsel) arising out of or
in connection with the performance of its obligations under this Agreement and
under each other agreement entered into by the Trustee in furtherance of the
administration of the Trust (including, without limiting the scope of the
foregoing, the Custody Agreements and any Authorized Participant Agreement,
including the Trustee’s indemnification obligations thereunder) or by reason of
the Trustee’s acceptance of the Trust incurred without (1) gross negligence, bad
faith, willful misconduct or willful malfeasance on the part of such Trustee
Indemnified Party in connection with the performance of its obligations under
this Agreement or any such other agreement or any actions taken in accordance
with the provisions of this Agreement or any such other agreement or (2)
reckless disregard on the part of such Trustee Indemnified Party of its
obligations and duties under this Agreement or any such other agreement. Such
indemnity shall include payment from the Trust of the costs and expenses
incurred by such Trustee Indemnified Party in defending itself against any
claim or liability in its capacity as Trustee. Any amounts payable to a Trustee
Indemnified Party under this Section 5.6(a) may be payable in advance or shall
be secured by a lien on the Trust.


                    (b) The Sponsor and its members, managers,
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 (including, but not limited to, the
reasonable fees and expenses of counsel) arising out of or in connection with
the performance of its obligations under this Agreement and under each other
agreement entered into by the Sponsor, in furtherance of the administration of
the Trust (including, without limiting the scope of the foregoing, Authorized
Participant Agreements to which the Sponsor is a party, including the Sponsor’s
indemnification obligations thereunder) or any actions taken in accordance with
the provisions of this Agreement incurred without (1) gross negligence, bad
faith, willful misconduct or willful malfeasance on the part of such Sponsor Indemnified
Party in connection with the performance of its obligations under this
Agreement or any such other agreement or any actions taken in accordance with
the provisions of this Agreement or any such other agreement or (2) reckless
disregard on the part of such Sponsor Indemnified Party of its obligations and
duties under this Agreement. Such indemnity shall include payment from the
Trust of the costs and expenses incurred by such Sponsor Indemnified Party in
defending itself against any claim or liability in its capacity as Sponsor. Any
amounts payable to a Sponsor Indemnified Party under this Section 5.6(b) 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.


                    (c) The indemnities provided by this
section shall survive notwithstanding any termination of this Agreement and the
Trust or the resignation or removal of the Trustee or the Sponsor,
respectively.


26





          Section
5.7 Charges of Trustee.


                    (a) Each Depositor, and each person
surrendering Shares for the purpose of withdrawing Trust Property, shall pay to
the Trustee a fee of $500 per transaction for the Delivery of Shares pursuant
to Section 2.4 and the Surrender of Baskets of Shares pursuant to Section 2.6
or 6.2 (or such other fee as the Trustee, with the prior written consent of the
Sponsor, may from time to time announce).


                    (b) The Trustee is entitled to receive
from the Sponsor fees for its ordinary services and reimbursement for its
out-of-pocket expenses in accordance with written agreements between the
Sponsor and the Trustee. Should the Sponsor fail to pay the same, the Trustee
shall be authorized to charge the same to the Trust to the extent of amounts
which could be charged to the Trust under Section 5.8(a) hereof in respect of
the Sponsor’s fee (and the Trustee may charge the same to the Trust to such
extent without regard to whether, because of the Sponsor’s default, fee waiver
or other reason, the Sponsor may not then be entitled to payment pursuant to
Section 5.8(a)), and any amount paid to the Sponsor pursuant to Section 5.8(a)
shall be net of amounts so withheld. The Trustee’s right of reimbursement shall
be secured by a lien on amounts chargeable to the Trust under Section 5.8(a),
without giving effect to any fee waiver then in effect, prior to the interest
of the Sponsor, the Beneficial Owners and any other Person.


                    (c) The Trustee is entitled to charge the
Trust for all expenses and disbursements incurred by it hereunder exclusive of
amounts specified in the preceding Section 5.7(b), including the fees and
disbursements of its legal counsel and those expenses identified in any Custody
Agreement as payable by the Trustee, 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.
The Trustee’s right of reimbursement for expenses and disbursements under this
paragraph shall be deductible from, and constitute a lien against, the assets of
the Trust.


                    (d) Any pecuniary cost of the Trustee
resulting from actions taken to protect the Trust and the rights and interest
of the Registered Owners pursuant to the terms of this Agreement, including,
without limitation, the Trustee’s appearance in, prosecution of or defense of
any action that it considers necessary or desirable to protect the Trust or the
interests of the Beneficial Owners, shall be deductible from, and constitute a
lien against, the assets of the Trust.


          Section
5.8 Charges of Sponsor.


                    
(a) The Sponsor is entitled to
receive from the Trust, chargeable as an expense of the Trust, a fee for
services that will accrue daily and be paid monthly in arrears in the manner
provided in Section 4.7(d) at an annualized rate of 0.60% of Adjusted Net Asset
Value. The Sponsor may, at its sole discretion and from time to time, waive all
or a portion of its fee payable under this Section 5.8(a) for such periods of
time as shall be specified in the Sponsor’s written notice of such fee waiver
to the Trustee. The Sponsor is under no obligation to waiver its fees
hereunder, and any such waiver shall create no obligation to waive fees during
any period not covered by the applicable waiver. Any fee waiver by the Sponsor
shall not operate to reduce 


27





Sponsor’s obligations
hereunder, including, but not limited to, the Sponsor’s obligations under
Section 5.3(g).


                    (b) The Sponsor is entitled to receive
reimbursement from the Trust for all expenses and disbursements incurred by it
under the last sentence of Section 5.6(b) or that are of the type described in
Sections 4.7(a)(ii), (iii), (iv), and (vi) of this Agreement, 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.


          Section
5.9 Retention of Trust
Documents.


          The
Trustee is authorized to destroy those documents, records, bills and other data
compiled during the term of this Agreement at the times permitted by the laws
or regulations governing the Trustee, unless the Sponsor reasonably requests
the Trustee in writing to retain those items for a longer period.


          Section
5.10 Federal Securities Law
Filings.


                    (a) 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
Exchange Act. The Trustee shall furnish to the Sponsor any information from the
records of the Trust that the Sponsor reasonably requests in writing 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, and
the Sponsor is entitled to rely on such information so furnished by the Trustee.


                    (b) The Sponsor shall have all necessary
and exclusive power and authority to (i) from time to time adopt, implement or
amend such disclosure controls and procedures as are necessary or desirable, in
the Sponsor’s reasonable judgment, to ensure compliance with the disclosure and
ongoing reporting obligations under any applicable securities laws; (ii)
appoint and remove the auditors of the Trust; and (iii) seek from the relevant
securities or other regulatory authorities such relief, clarification or other
action as the Sponsor shall deem necessary or desirable regarding the
disclosure or financial reporting obligations of the Trust.


28





                    (c) The policies and procedures comprising
the Trust’s initial Internal Control Over Financial Reporting have been adopted
as of the date of this Agreement and copies thereof have been delivered to the
appropriate officers of the Sponsor and the Trustee. Amendments to such initial
Internal Control Over Financial Reporting may be proposed from time to time by
the Sponsor, but such amendments may not be adopted in connection with the
preparation of the Trust’s financial statements without the Trustee’s consent
(which consent will not be unreasonably withheld or delayed).


          Section
5.11 Prospectus Delivery.


          The
Trustee shall, if required by the federal securities laws of the United States,
in any manner permitted by such laws, deliver at the time of issuance of
Shares, a copy of the relevant prospectus, as most recently furnished to the
Trustee by the Sponsor, to each Depositor.


          Section
5.12 Discretionary Actions by
Trustee; Consultation.


                    (a) The Trustee may, in its discretion,
undertake any action that it considers necessary or desirable to protect the
Trust or the interests of the Registered Owners. The expenses incurred by the
Trustee in connection with taking any action under the preceding sentence
(including the fees and disbursements of legal counsel) shall be expenses of
the Trust, and the Trustee shall be entitled to be reimbursed for those
expenses by the Trust.


                    (b) The Trustee shall notify and consult
with the Sponsor before undertaking any action under subsection (a) above or if the Trustee becomes aware of
any development or event that affects the administration of the Trust but is
not contemplated or provided for in this Agreement.


                    (c) The Sponsor shall notify and consult
with the Trustee before undertaking any action under the last sentence of Section
5.6(b) 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.


          Section
5.13 Dissolution of the
Sponsor Not to Terminate Trust.


          The
dissolution of the Sponsor, or its ceasing to exist as a legal entity from, or
for, any cause, shall not operate to terminate this Agreement insofar as the
duties and obligations of the Trustee are concerned unless the Trust is
terminated pursuant to Section 6.2.


ARTICLE
VI.

AMENDMENT AND TERMINATION


          Section
6.1 Amendment.


          Subject
to Section 4.11 hereof, the Trustee and the Sponsor may amend any provisions of
this Agreement without the consent of any Registered Owner. Any amendment that
imposes or increases any fees or charges (other than taxes and other
governmental charges, registration fees or other such expenses), or that
otherwise prejudices any substantial existing right of the Registered Owners
will not become effective as to outstanding Shares until 30 days after notice 


29





of such amendment is
given to the Registered Owners. Amendments pursuant to Sections 2.6(c) or (d)
shall not require notice pursuant to the preceding sentence. Every Registered
Owner and Beneficial Owner, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold any Shares or an interest therein, to
consent and agree to such amendment and to be bound by this Agreement as
amended thereby. In no event shall any amendment impair the right of the
Registered Owner of Shares to Surrender Baskets of Shares and receive therefor
the amount of Trust Property represented thereby, except in order to comply
with mandatory provisions of applicable law.


          Section
6.2 Termination.


                    (a) The Trustee shall set a date on which
this Agreement will terminate and mail notice of that termination to the
Registered Owners at least 30 days prior to the date set for termination if any
of the following occurs:


                              (i) The Trustee is notified that the
Shares are delisted from a national securities exchange and are not approved
for listing on another national securities exchange within five business days
of their delisting;


                              
(ii) Registered Owners acting in
respect of at least 75% of the outstanding Shares notify the Trustee that they
elect to terminate the Trust;


                              
(iii) 60 days have elapsed since
the Trustee notified the Sponsor of the Trustee’s election to resign and a
successor trustee has not been appointed and accepted its appointment as
provided in Section 5.4;


                              
(iv) the Commission determines
that the Trust is an investment company under the Investment Company Act of
1940, as amended, and the Trustee has actual knowledge of such Commission
determination;


                              
(v) the aggregate market
capitalization of the Trust, based on the closing price for the Shares, was
less than $350 million (as adjusted for inflation by reference to the Consumer
Price Index as published by the Bureau of Labor Statistics) at any time after
the first anniversary after the Trust’s formation and the Trustee receives,
within six months after the last of those trading days, notice from the Sponsor
of its decision to terminate the Trust;


                              
(vi) the CFTC determines that the
Trust is a commodity pool under the Commodity Exchange Act of 1936, as amended,
and the Trustee has actual knowledge of that determination;


                              
(vii) the Trust fails to qualify
for treatment, or ceases to be treated, for United States federal income tax
purposes, as a grantor trust, and the Trustee receives notice from the Sponsor
that the Sponsor determines that, because of that tax treatment or change in
tax treatment, termination of the Trust is advisable;


                              
(viii) 60 days have elapsed since
DTC ceases to act as depository with respect to the Shares and the Sponsor has not
identified another Depository which is willing to act in such capacity; or


30





                              
(ix) as provided in paragraph (c)
of this Section 6.2.


                    (b) On and after the date of termination
of this Agreement, the Registered Owner of Shares will, upon (i) Surrender of
those Shares, (ii) payment of the fee of the Trustee for the Surrender of
Shares provided in Section 5.7, and (iii) payment of any applicable taxes or
other governmental charges, be entitled to Delivery, to him or upon his order,
of the amount of Trust Property represented by those Shares. The Trustee shall
not accept any deposits of Bullion 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 Bullion 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 the net proceeds of any such sale, together
with any other cash then held by it under this Agreement, without liability for
interest, for the pro rata benefit of the Registered Owners of Shares that have
not theretofore been Surrendered. 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 Sections 5.6, 5.7 and 5.8 shall survive termination of this Agreement.


                    (c) If the Sponsor shall be adjudged
bankrupt or insolvent, or a receiver of the Sponsor or of its property shall be
appointed, or a trustee or liquidator or any public officer shall take charge
or control of the Sponsor or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then in any such case the Sponsor
shall be deemed conclusively to have resigned with such resignation being
effective immediately upon the occurrence of any of the specified events, and
the Trustee may terminate and liquidate the Trust and distribute its remaining
assets pursuant to this Section 6.2. 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 or is not terminated
pursuant to this paragraph.


31





ARTICLE
VII.

MISCELLANEOUS


          Section
7.1 Counterparts.


          This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts shall constitute one and the
same instrument. Copies of this Agreement shall be filed with the Trustee and
shall be open to inspection by any Registered Owner during the Trustee’s
business hours.


          Section
7.2 Third-Party Beneficiaries.


          This
Agreement is for the exclusive benefit of the parties hereto, any Sponsor
Indemnified Party or any Trustee Indemnified Party and the Beneficial Owners,
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.


          Section
7.3 Severability.


          In
case any one or more of the provisions contained in this Agreement should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall in no
way be affected, prejudiced or disturbed thereby.


          Section
7.4 Certain Matters Relating
to Beneficial Owners.


                    (a) By the purchase and acceptance or
other lawful delivery and acceptance of Shares, each Beneficial Owner thereof
shall be deemed to be a beneficiary of the Trust created by this Agreement and
vested with beneficial undivided interest in the Trust to the extent of the
Shares owned beneficially by such Beneficial Owner, subject to the terms and
conditions of this Agreement. Upon issuance as provided herein, Shares shall be
fully paid and non-assessable.


                    (b) Subject to and in accordance with
Section 2.6, Shares may at any time prior to the date specified by the Trustee
in connection with the termination of the Trust be tendered to the Trustee for
redemption.


                    (c) The death or incapacity of any
Beneficial Owner shall not operate to terminate this Agreement or the Trust,
nor entitle such Beneficial Owner’s legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them. Each Beneficial Owner
expressly waives any right such Beneficial Owner may have under any rule of
law, or the provisions of any statute, or otherwise, to require the Trustee at
any time to account, in any manner other than as expressly provided in the
Agreement, in respect of the Trust Property from time to time received, held
and applied by the Trustee hereunder.


                    (d) No Beneficial Owner shall have any
right to vote or in any manner otherwise to control the operation and
management of the Trust, or the obligations of the parties hereto. Nothing set
forth in this Agreement shall be construed so as to constitute the Beneficial 


32





Owners from time to time
as partners or members of an association; nor shall any Beneficial Owner ever
be liable to any third person by reason of any action taken by the parties to
this Agreement, or for any other cause whatsoever.


                    (e) The rights of Beneficial Owners must
be exercised by DTC Participants or Participants of any successor Depository
acting on their behalf in accordance with its rules and procedures


          Section
7.5 Notices.


                    (a) All notices given under this Agreement
must be in writing.


                    (b) Any and all notices to be given to the
Trustee or the Sponsor shall be deemed to have been duly given (i) when it is
actually delivered by a messenger or recognized courier service, (ii) five days
after it is mailed by registered or certified mail, postage paid or (iii) when
receipt of a facsimile transmission is acknowledged via a return receipt or
receipt confirmation as requested by the original transmission, in each case to
or at the address set forth below:


To the Trustee:


	
  

 	
  

 
	
  

 	
 THE BANK OF NEW YORK MELLON

 
	
  

 	
 2 Hanson Place

 
	
  

 	
 Brooklyn, New York 11217

 
	
  

 	
 Attention: Donald Guire

 
	
  

 	
 Telephone: 718-315-4927

 
	
  

 	
 Facsimile: 718-315-4850

 


or any other place to
which the Trustee may have transferred its Corporate Trust Office with notice
to the Sponsor.


To the Sponsor:


	
  

 	
  

 
	
  

 	
 ETF SECURITIES USA LLC

 
	
  

 	
 Ordnance House

 
	
  

 	
 31 Pier Road

 
	
  

 	
 St. Helier, Jersey JE48PW

 
	
  

 	
 Channel Islands

 
	
  

 	
 Telephone: 011 44 207 448-4330

 
	
  

 	
 Attention: President

 


          with
a copy to:


	
  

 	
  

 
	
  

 	
 Katten Muchin Rosenman LLP

 
	
  

 	
 575 Madison Avenue

 
	
  

 	
 New York, New York 10022

 
	
  

 	
 Attention: Peter J. Shea, Esq.

 


33





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. Notices to Beneficial Owners shall be delivered to Authorized
Participants and DTC Participants designated by DTC or any successor
Depository.


          Section
7.6 Agent for Service;
Submission to Jurisdiction.


          The
Sponsor hereby (i) irrevocably designates and appoints Katten Muchin Rosenman
LLP, located at 575 Madison Avenue, New York, New York 10022, in the State of
New York, as the Sponsor’s authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to the Shares, the Trust
Property or this Agreement, (ii) consents and submits to the jurisdiction of
any state or federal court in The City of New York, State of New York, in which
any such suit or proceeding may be instituted, and (iii) agrees that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Sponsor in any such suit or proceeding. The Sponsor
agrees to deliver, upon the execution and delivery of this Agreement, a written
acceptance by such agent of its appointment as such agent. The Sponsor further
agrees to take any and all action, including the filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any Shares remain
outstanding or this Agreement remains in force. In the event the Sponsor fails
to continue such designation and appointment in full force and effect, the
Sponsor hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Sponsor at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.


          Each
party hereto, each Authorized Participant by its delivery of an Authorized
Participant Agreement and each Beneficial Owner by the acceptance of a Share,
irrevocably consents to the jurisdiction of the courts of the State of New York
and of any Federal Court located in the Borough of Manhattan in such State in
connection with any action, suit or other proceeding arising out of or relating
to this Agreement or any action taken or omitted hereunder, and waives any
claim of forum non conveniens and any objections as to laying of venue. Each
party further waives personal service of any summons, complaint or other
process and agrees that service thereof may be made by certified or registered
mail directed to such person at such person’s address for purposes of notices
hereunder.


34





          Section
7.7 Governing Law.


          This
Agreement shall be interpreted under, and all rights and duties under this
Agreement shall be governed by, the internal substantive laws (but not the
choice of law rules) of the State of New York.


35





          IN
WITNESS WHEREOF, ETF SECURITIES USA LLC and THE BANK OF NEW YORK MELLON have
duly executed this Depositary Trust Agreement as of the day and year first set
forth above.


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 ETF SECURITIES USA LLC

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:     /s/ Graham Tuckwell

 
	
  

 	
  

 	

 




 
	
  

 	
  

 	
 Name: Graham
 Tuckwell

 
	
  

 	
  

 	
 Title: President
 & Chief Executive Officer

 
	
  

 	
  

 	
  

 
	
 WITNESSED:

 	
  

 	
 WITNESSED:

 
	
  

 	
  

 	
  

 
	
 By:     /s/ Christopher
 Foulds

 	
  

 	
 By:     /s/ Robert Dawson

 
	

  





 	
  

 	

  






 
	
 Name: Christopher
 Foulds

 	
  

 	
 Name: Robert Dawson

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 THE BANK OF NEW YORK MELLON,

 
	
  

 	
  

 	
 as Trustee

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:     /s/ Andrew Pfeifer

 
	
  

 	
  

 	

  





 
	
  

 	
  

 	
 Name: Andrew Pfeifer

 
	
  

 	
  

 	
 Title: Vice President

 


 [Signature Page to ETFS Precious Metals Basket Trust
Depositary Trust Agreement]





 [Depositary
Trust Agreement acknowledgment, Trustee]


	
  

 	
  

 
	
 STATE OF NEW YORK

 	
 )

 
	
  

 	
 ) ss.:

 
	
 COUNTY OF  NEW
 YORK

 	
 )

 


On
the 13th day of October in the year 2010 before me, the undersigned, personally
appeared Andrew Pfeifer, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


	
  

 	
  

 	
  

 
	
  

 	
      /s/
 Steven F. Lappert

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Notary Public

 


(Notarial
Seal)





EXHIBIT
A


[Form of
Certificate]


THE SHARES EVIDENCED
HEREBY REPRESENT RIGHTS WITH RESPECT TO UNDERLYING TRUST PROPERTY (AS DEFINED
IN THE DEPOSITARY TRUST AGREEMENT REFERRED TO HEREIN) HELD BY THE TRUST AND DO
NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND ARE NOT GUARANTEED BY THE
SPONSOR OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE
SHARES NOR THE UNDERLYING TRUST PROPERTY ARE INSURED UNDER ANY AGREEMENT THAT
DIRECTLY BENEFITS THE TRUST OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY
OTHER PERSON.


UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE AGENT AUTHORIZED BY THE ISSUER FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.


A-1





ETFS
PHYSICAL PM BASKET SHARES
ISSUED
BY
ETFS
PRECIOUS METALS BASKET TRUST
REPRESENTING
FRACTIONAL
INTERESTS IN DEPOSITED GOLD, SILVER, PLATINUM,
PALLADIUM AND ANY OTHER TRUST
PROPERTY


THE
BANK OF NEW YORK MELLON, as Trustee


	
  

 	
  

 	
  

 
	
  

 	
 No.

 	
 * Shares

 
	
  

 	
  

 	
  

 
	
  

 	
 CUSIP: 26922W 10 9

 	
  

 


          THE
BANK OF NEW YORK MELLON, 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 ETFS Precious Metals
Basket 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 1,500 Ounces of Gold, 55,000 Ounces of Silver, 200 Ounces of Platinum and
300 Ounces of Palladium that are deposited under the Agreement and held by the
Custodian referred to in the Agreement. The amount of Gold, Silver, Platinum
and Palladium in which each 50,000 Shares represents an interest will decline
over time as provided in the Agreement. The Trustee’s Corporate Trust Office is
located at a different address than its principal executive office. Its
Corporate Trust Office is located at 2 Hanson Place, Brooklyn, New York 11217,
and its principal executive office is located at One Wall Street, New York, New
York 10286.


          This
Certificate is issued upon the terms and conditions set forth in the Depositary
Trust Agreement dated as of October 18, 2010 (the “Agreement”) between ETF
Securities USA LLC (herein called the Sponsor), and the Trustee. By becoming a
Registered Owner or Beneficial Owner, or by depositing Bullion, a Person 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.

 


A-2





          The
Agreement is hereby incorporated by reference into and made a part of this
Certificate as if set forth in full in this place. Capitalized terms not
defined herein shall have the meanings set forth in the Agreement.


          This
Certificate shall not be entitled to any benefits under the Agreement or be
valid or obligatory for any purpose unless it is executed by the Trustee by the
manual or facsimile signature of a duly authorized signatory of the Trustee
and, if a Registrar (other than the Trustee) for the Shares shall have been
appointed, countersigned by the manual signature of a duly authorized officer
of the Registrar.


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Dated: 

 	
  

 	
  

 	
 THE BANK OF NEW YORK MELLON,

 
	
  

 	

 


 	
  

 	
 as Trustee

 
	
  

 	
  

 	

  


 
	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	

 


 


THE
TRUSTEE’S CORPORATE TRUST OFFICE ADDRESS IS

2 HANSON PLACE, BROOKLYN, NEW YORK 11217


A-3