Exhibit 10.1
DATED
SEPTEMBER 1, 2020
JPMORGAN CHASE BANK,
N.A.
AND
WILSHIRE wSHARES ENHANCED GOLD TRUST
ALLOCATED
PRECIOUS METALS
ACCOUNTS
AGREEMENT
This agreement is based upon the ALLOCATED
BULLION ACCOUNTS AGREEMENT as published by the London Precious Metals Clearing Limited with such modifications as are required
by XX Xxxxxx, including to allow the use of its eBTS Website.
CONTENTS
| 1. |
INTERPRETATION |
3 |
| 2. |
ALLOCATED ACCOUNTS |
5 |
| 3. |
DEPOSITS |
6 |
| 4. |
WITHDRAWALS |
8 |
| 5. |
INSTRUCTIONS |
10 |
| 6. |
CONFIDENTIALITY |
11 |
| 7. |
CUSTODY SERVICES |
12 |
| 8. |
SUB-CUSTODIANS |
13 |
| 9. |
REPRESENTATIONS |
13 |
| 10. |
SANCTIONS |
14 |
| 11. |
FEES AND EXPENSES |
15 |
| 12. |
SCOPE OF RESPONSIBILITY |
16 |
| 13. |
TERMINATION |
18 |
| 14. |
VALUE ADDED TAX |
19 |
| 15. |
NOTICES |
20 |
| 16. |
GENERAL |
20 |
| 17. |
GOVERNING LAW AND JURISDICTION |
22 |
This Agreement
is based upon the ALLOCATED PRECIOUS
METALS ACCOUNTS AGREEMENT as published
by London Precious
Metals Clearing Limited, with such modifications
as are appropriate to the services to be provided.
THIS AGREEMENT
is made on September 1, 2020
BETWEEN
| (1) | JPMorgan Chase Bank, N.A a company incorporated with limited liability
as a National Banking Association, whose principal London Office is at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, X00 0XX, Xxxxxx, Xxxxxx Xxxxxxx
("we" or "us"); and |
| (2) | Wilshire wShares Enhanced Gold Trust, a Delaware statutory trust organized
under the laws of the State of Delaware, whose principal office is at 0 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
10016, United States of America ("you"
or the "Trust"). |
Each a "Party" and together the "Parties".
INTRODUCTION
We, as a member
of London Precious Metal Clearing Limited
("LPMCL"), have agreed to open and maintain for you
Allocated Accounts (as defined below) and to provide
other services to you
in connection with such Allocated Accounts. This Agreement sets out the terms under which we will provide those services
to you and the arrangements which will apply
in connection with those services.
IT IS AGREED
AS FOLLOWS
| 1.1 | Definitions: In this Agreement: |
"Account Balance"
means, in relation to an Allocated Account,
the specific Precious Metals held for you by us as from time to time identified (whether by bar serial numbers or otherwise) in,
and recorded on, that Allocated Account.
"Allocated Account"
means, in relation to a Precious
Metal, the account(s) maintained by us in your
name pursuant to this Agreement recording the amount
of, and identifying, that Precious Metal received
and held by us for you on an allocated
basis.
"AURUM"
means the electronic matching and settlement
system operated by LPMCL.
"Availability Date"
means the Business Day on which you wish
to transfer or deliver Precious Metal to us for deposit into
an Allocated Account.
"Business Day"
means a day (excluding Saturdays,
Sundays and public holidays)
on which commercial banks generally are open
for business in London and on which the London Precious Metals Markets relevant to
the Precious Metals held pursuant
to this Agreement
are open for business.
"Dispute"
means for the purpose of Clause 17 any disagreement
between you and us which we have been unable
to resolve amicably
within a period of fourteen
Business Days
after we have received
from you, or as the case
may be you have received
from us, written notification of the disagreement.
"eBTS "
means the electronic Bullion Transfer System website developed by us.
"Gold"
means gold in physical form complying with the Rules held by us or any Sub-Custodian under this Agreement.
"Investor"
shall mean the individual or entity in whose name a Share is registered in your books and records.
"LBMA"
means The London Bullion Market Association
or its successors.
"London Precious
Metals Markets" means the London Bullion market, the LPPM, and such other
markets for Precious Metals operating in
London as may be agreed between us from time
to time.
"LPMCL"
means London Precious Metals Clearing Limited or its successors.
"LPPM"
means the London Platinum and Palladium Market or its successors.
"Precious Metal"
means any and all of gold, silver and any other metal(s) as may be agreed between us or otherwise specified in the Schedule.
"Reasonable and
Prudent Custodian" means a person acting in good faith and performing its contractual obligations exercising a degree
of skill, diligence, prudence and foresight that would reasonably and ordinarily be expected from a skilled and experienced custodian
of Precious Metals complying with the Rules, engaged in the same type of undertaking, under the same or similar circumstances and
conditions.
"Registration Statement"
means the registration statement (including a prospectus and statement of additional information) for the Trust under the Securities
Act of 1933, as amended, filed with the U.S. Securities and Exchange Commission.
"Rules"
means the rules, regulations, practices
and customs of the LBMA, LPMCL, LPPM, the
Financial Conduct Authority, the Prudential
Regulation Authority, the
Bank of England and such other regulatory
authority
or other body, applicable to the Parties to this Agreement and/or to the activities
contemplated by this Agreement
or the activities of a Sub-Custodian.
"Sanctioning Body"
means any of the following:
| (i) | the United Nations Security Council; |
| (iii) | Her Majesty's Treasury and the Office of Financial Sanctions Implementation of the United Kingdom;
and |
| (iv) | The Office of Foreign Assets Control of the Department of Treasury of the United States of America. |
"Sanctions"
means economic or financial sanctions, boycotts, trade embargoes and restrictions relating to terrorism imposed, administered or
enforced by a Sanctioning Body from time to time.
"Sanctions List"
means any list of specifically designated nationals or blocked or sanctioned persons or entities (or similar) imposed, administered
or enforced by a Sanctioning Body in connection with Sanctions from time to time.
"Shares" shall
mean the common units of fractional undivided beneficial interest in the Trust.
"Sponsor"
means Wilshire Phoenix Funds LLC, a limited liability company organized under the laws of the State of Delaware whose principal
office is at 0 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10016, United States of
America and the sponsor for the Wilshire wShares Enhanced Gold Trust.
"Spot Rate"
in respect of a Precious Metal and the particular currency in which the relevant Tax is denominated has the meaning set out in
the Schedule.
"Sub-Custodian"
means a sub-custodian, agent or depository (including an entity within our corporate group) appointed by us to perform any of our
obligations and/or duties under this Agreement, including the custody and safekeeping of Precious Metals.
"Trust Agreement"
shall mean the Trust's Amended and Restated Declaration of Trust and Trust Agreement between the Sponsor and Delaware Trust Company,
as trustee, as the same may be amended, modified or supplemented from time to time.
"VAT" means
value added tax as provided for in the Value Added Tax Act 1994 (as amended
or re-enacted from time to time)
and legislation supplemental thereto and any
other tax (whether imposed in the United
Kingdom in substitution thereof or in addition thereto or elsewhere) of a similar
fiscal nature.
"Website"
has the meaning set out in the Schedule.
"Withdrawal Date"
means the Business Day on which
you wish to withdraw Precious Metal from
an Allocated Account.
| 1.2 | Headings: The headings in
this Agreement do not affect its interpretation. |
| 1.3 | Singular and plural: References
to the singular include the plural and vice versa. |
| 2.1 | Opening Allocated Accounts:
We shall open and maintain one or more
Allocated Accounts in respect of each Precious Metal which you
ask us, and we agree, to hold for you on an allocated
basis on the terms of this Agreement. |
| 2.2 | Denomination of Allocated Accounts: The Precious Metals recorded in Allocated Accounts shall
be denominated: in the case of Gold, in fine xxxx ounces of Gold (to three decimal places); in the case of silver, in xxxx ounces
of silver (to at least one decimal place); and, in the case of any other metal, in such denomination as is provided for in the
Rules or if there is no such provision, such denomination as may be agreed between us. |
| 2.3 | Reports: We will provide reports to you relating to deposits into and withdrawals from the
Allocated Accounts and the Account Balance on each Allocated Account in such form and with such frequency as required (but not
less than annually), and containing such information, as may be agreed between us, or as otherwise specified in the Schedule. Such
reports will also be available to you daily by means of eBTS, however, the paper record will prevail. |
| 2.4 | Discrepancies:
If a material error or discrepancy is noted by you on any
report provided pursuant to Clause 2.3 above in relation to any activity
or balances, you will
promptly notify us in writing so that
we may investigate and resolve any such
material error or discrepancy as soon as practicable. For the purposes of this Clause 2.4 only,
in the absence of evidence to the contrary,
a report shall be deemed
received by you
on the day which is 2 Business Days
after the date on which such report was sent by us to you
in accordance with the terms of this Agreement. |
| 2.5 | Reversal of entries: We at all times reserve the right,
without prior notice to you, to reverse
any provisional or erroneous entries to an Allocated Account with effect
back- valued to the date upon which the final or correct entry (or
no entry) should
have been made (including, without limitation,
where we have credited a deposit made pursuant to Clause 3.1(b)
and on receipt by us of the Precious Metal we
determine
that it does not comply
with the Rules or that it is not the
weight required by the Rules for the amount
of the relevant Precious Metal which you
notified
to us for deposit), but shall notify
you in writing as soon as reasonably practicable
of any such reversals. |
| 3.1 | Procedure: You may at any
time notify us of your
intention to deposit Precious Metal in an
Allocated Account. A deposit may be made
(in the manner and accompanied
by such documentation as we may require) by: |
| (a) | procuring a book-entry transfer: (i) to us by arranging that our account with a Sub-Custodian (as
notified by us to you) with
which we hold Precious Metal of the type
which we have agreed to hold for you
(and which has the same denomination
as the Precious Metal to which your
Allocated Account relates) is credited with the specific Precious Metal (identified, whether by bar serial numbers or otherwise)
to be recorded in your Allocated Account; (ii) to your
Allocated Account by you arranging that
a third party for whom we maintain an allocated
account holding Precious Metal of the type which we have agreed
to hold for you (and which has the same denomination as the Precious
Metal to which your Unallocated Account
relates) instructs us to debit from its allocated account with us and to credit to your Allocated Account the specific Precious
Metal (identified, whether by bar serial numbers or otherwise) to be recorded in your Allocated Account; or (iii) to your Allocated
Account by agreeing with us that, in relation to the specific Precious Metal (identified, whether by bar serial numbers or otherwise)
which we hold on an allocated basis for our own account and which is of the type which we have agreed to hold for you (and which
has the same denomination as the Precious Metal to which your Allocated Account relates), we debit from our account record of our
own Precious Metal and credit to your Allocated |
Account
such Precious Metal (identified, whether by bar serial numbers or otherwise); or
| (b) | the delivery of Precious Metal to us at our nominated
vault premises detailed in the Schedule attached hereto, at your
expense and risk. Any Precious Metal delivered to
us (or to a third party
holding
to our order) must
be in the form of bars which comply
with the Rules (including the
Rules relating to good delivery and fineness)
or in such other form as may be agreed between us. |
| 3.2 | In relation to deposits pursuant to Clause 3.1(a) above, until we have credited the relevant Precious
Metal to your Allocated Account: (i) you accept liability for all costs (including transportation and insurance, if any) in relation
to the delivery of such Precious Metal; and (ii) you shall bear all risk of loss of such Precious Metal, whether due to theft,
destruction or otherwise. |
In relation to deposits
pursuant to Clause 3.1(b) above, until we have taken physical delivery of the relevant Precious Metal: (i) you accept liability
for all costs of transportation and insurance (if any) in relation to the delivery of such Precious Metal; and (ii) you shall bear
all risk of loss of such Precious Metal, whether due to theft, destruction or otherwise. For this purpose, we shall be deemed to
have taken physical delivery of Precious Metal once such Precious Metal is in our possession or in the possession of our Sub-Custodian
or agent.
| 3.3 | Notice requirements: Any
notice relating to a deposit of Precious Metal must: |
| (a) | be in writing and be received by us no later than the time specified in the Schedule attached hereto
(and if not received on a Business Day or received later will be deemed to be received on the next Business Day) unless otherwise
agreed; |
| (b) | in the case of a deposit pursuant to Clause 3.1(a), specify the details of the account from which
the Precious Metal will be transferred; |
| (c) | in the case of a deposit pursuant to Clause 3.1(b), specify the name of the person or carrier that
will deliver the Precious Metal to us at the vault premises specified in the Schedule attached
hereto and the manner in which the Precious Metal will be packed; and |
| (d) | in any case specify the amount (in the appropriate denomination) of the Precious Metal to be credited
to the Allocated Account, the Availability Date and any other information which we may from time to time require. |
| 3.4 | Timing: A deposit of Precious Metal will not
be credited to an Allocated Account until: |
| (a) | in the case of a deposit pursuant to Clause 3.1(a)(i), an account of ours with a Sub-Custodian
has been credited with the specific Precious Metal (identified, whether by bar serial numbers or otherwise) to be recorded in your
Allocated Account; |
| (b) | in the case of a deposit pursuant to Clause 3.1(a)(ii) or (iii), the corresponding account recording
the allocated Precious Metal to be transferred had been |
debited
with the specific Precious Metal (identified, whether by bar serial numbers or otherwise) to be recorded in your Allocated Account;
and
| (c) | in the case of a deposit pursuant to Clause 3.1(b), we have received the Precious Metal in accordance
with Clauses 3.1 and 3.2, verified its compliance with the Rules and weighed it in accordance with LBMA practice to confirm that
it is the weight required by the Rules for the amount of the relevant Precious Metal which you notified to us for deposit. |
| 3.5 | Right to refuse Precious Metal or amend procedure:
We may refuse to accept Precious Metal, and amend the procedure in relation to the deposit
of Precious Metal or impose such additional procedures
in relation to the deposit of Precious Metal as we may from time to time
consider appropriate to comply with the Rules. Any such amendment or additional procedures
will be notified to you, in accordance with Clause 15
of this Agreement, within a commercially reasonable amount of time before we amend our procedures, and
in so doing we shall consider your needs to communicate any such change to Investors and others. Any such refusal will be
promptly notified to you, in accordance with Clause 15 of this Agreement, and will (unless otherwise specified) take effect immediately
upon your receipt of such notification. |
| 4.1 | Release of Precious Metal. Precious Metal will be made available for collection at a vault
premises detailed in the Schedule attached hereto or at the office of a Sub-Custodian at which the Precious Metal is held. |
| 4.2 | Procedure: You may
at any time notify us in writing of your
intention to withdraw Precious Metal from
your Allocated Balance. A withdrawal may be made (in the manner and accompanied
by such documentation as we may require)
by a debit by us of specific Precious Metal (identified, whether by bar serial numbers or otherwise)
from your Allocated Account and: |
| (a) | book-entry transfer
by a debit by: (i) us instructing credit
of such Precious Metal to the account specified by you and maintained by our Sub-Custodian, (ii) credit by us of such Precious
Metal to an allocated account maintained by us for another of our clients (as specified by you), or (iii) where pursuant to a separate
agreement with us, credit by us of such Precious Metal to our account record of Precious Metal which we hold on an allocated basis
for our own account; or |
| (b) | the collection of such Precious Metal from the vaults specified in
the Schedule attached hereto at your expense and risk. |
Any Precious Metal made
available to you will be in the form of bars which comply with the Rules (including the Rules relating to good delivery and fineness)
or in such other form as may be agreed between us.
| 4.3 | Notice requirements: Any notice relating
to a withdrawal of Precious Metal must: |
| (a) | if it relates to a withdrawal pursuant to clause 4.2(a), be received by us no later than the time
specified in the Schedule attached hereto (and if received |
later
will be processed on the next Business Day) and specify the details of the account to which the Precious Metal is to be transferred;
| (b) | if it relates to a withdrawal pursuant to clause 4.2(b), be received by us no later than the time
specified in the Schedule attached hereto (and if received later will be processed on the next Business Day) and specify the name
of the person or carrier that will collect the Precious Metal from us; and |
| (c) | in all cases, specify the serial numbers (or otherwise identify) of the Precious Metal to be withdrawn,
the total amount (in the appropriate denomination) of Precious Metal to be delivered to you or to your order, the Withdrawal Date
and any other information which we may from time to time require. |
| 4.4 | Right to amend procedure: We may amend the procedure for the withdrawal of Precious Metal
from your Account Balance or impose such additional procedures as we may from time to time consider appropriate to comply with
the Rules. Any such amendments or additional procedures will be promptly notified to you, in accordance with Clause 15 of this
Agreement, within a commercially reasonable amount of time before we amend our procedures, and
in so doing we shall consider your needs to communicate any such change to Investors and others. |
| 4.5 | Collection or Delivery of Precious Metals: Any
additional terms and conditions (if any) relating to the collection and delivery of Precious Metals are set out below: |
| (a) | In relation to withdrawals pursuant to Clause 4.2(a), from the time at which your Allocated Account
has been debited with the relevant Precious Metal: (i) you accept liability for all costs (including transportation and insurance,
if any) in relation to the delivery of such Precious Metal upon withdrawal; and (ii) you shall bear all risk of loss of such Precious
Metal, whether due to theft, destruction or otherwise |
| (b) | In relation to withdrawals pursuant to Clause 4.2(b), from the time at which your designated carrier
takes physical delivery of the relevant Precious Metal: (i) you accept liability for all costs of transportation and insurance
(if any) in relation to the delivery of such Precious Metal upon withdrawal; and (ii) you shall bear all risk of loss of such Precious
Metal, whether due to theft, destruction or otherwise. For this purpose, your designated carrier shall be deemed to have taken
physical delivery of Precious Metal once such Precious Metal is no longer in our possession or in the possession of our Sub-Custodian
or agent. |
| (c) | Unless specifically agreed that sub-clause (d) below applies to a withdrawal, you must collect,
or arrange for the collection of, Precious Metals being withdrawn from us or our Sub-Custodian at your expense and risk. We will
advise you of the location from which the Precious Metals may be collected no later than 2 Business Days prior to the Withdrawal
Date. |
| (d) | Where we have agreed with you that this sub-clause (d) applies, we shall arrange delivery of the
Precious Metal to you, and shall arrange such delivery, including transportation, in accordance with our usual practices. Where
specific requests are made by you regarding the method of delivery, we may |
(but
shall have no obligation to) make reasonable efforts to comply with such requests. We shall in no circumstances have any obligation
to effect any requested delivery, if in our reasonable opinion (i) such delivery would cause us or any of our agents to be in breach
of the Rules or any applicable law, court order or regulation, or (ii) the costs incurred by us or our agents in making such delivery
would be excessive, and we have not had satisfactory confirmation that you will reimburse us for such costs, or (iii) delivery
is not reasonably practicable for any reason.
| (e) | If you do not notify us of the serial numbers of the bars (or otherwise identify) the specific
Precious Metals to be withdrawn from your Account Balance, we are entitled to select which bars from those comprising your Account
Balance are to be made available to you. |
| 4.6 | Substitution: If in the future you agree (in writing) that Precious Metals comprising your
Account Balance may be substituted by us for other Precious Metals, our right to do so and the terms upon which this right may
be exercised is set out as follows: |
You authorise us, as your
agent, at any time and for any reason to procure the transfer to us of all of your right and title to some or all of the bars of
Precious Metal comprising your Account Balance (the "Transferred Portion") in exchange for the transfer by us
to you of the same number of substitute bars of like quality and weight of the Precious Metal (the "Substituted Portion"),
by removing from the Allocated Account the records identifying the Transferred Portion and simultaneously recording in the Allocated
Account the specific Precious Metals identified by the serial numbers of the relevant bars (or by other appropriate means) comprising
the Substituted Portion.
| 5.1 | Your representatives: We may
assume that instructions have been properly authorised by you
if they are given or purport to be
given by a person who is, or purports to be, and is reasonably believed by us
to be, a director, employee
or other authorised person acting for
you. |
| 5.2 | Instructions: All transfers into and out of the Allocated Account(s) shall be made
upon receipt of, and in accordance with, instructions given (or appearing to be given)
by you to us. Such instructions
may be given either:
(i) through eBTS, accessible through the Website by you pursuant to the terms of the Website agreement, or (ii) by
SWIFT transmission, by any method of transmission
set forth in Clause 15.2, or by such other
means (if any)
as are specified in the Schedule or as we
may agree from time to time. Unless otherwise
agreed, any such instruction or communication shall be effective if given by written
means. We may assume
that any electronic instructions have been validly given
on your behalf. We reserve the right to obtain further validation of any
instructions. |
| 5.3 | AURUM: You acknowledge
that instructions relating
to a counterparty for
whom we do not already provide settlement services will be forwarded by us to AURUM
on your behalf. You acknowledge that AURUM is operated by a third party and
that we cannot be responsible for any errors, omissions
or malfunctions in the systems operated by AURUM. To the extent that AURUM
is not available or suffering a malfunction, |
you
agree that our obligations
under this Agreement shall be postponed
during such unavailability or such malfunction
and until a reasonable period thereafter.
| 5.4 | Amendments:
Once given, instructions continue in full force and effect until they are cancelled or amended.
Any such instructions shall be valid and
binding only after actual receipt by us in accordance with Clause 15
of this Agreement. |
| 5.5 | Unclear or ambiguous
instructions: If, in our opinion,
any instructions
are unclear or ambiguous, we will use reasonable endeavours (taking into
account any relevant time constraints) to obtain clarification of those instructions
from you but, failing that, we may in our absolute discretion and without any liability
on our part, act upon what we believe in good faith such instructions
to be or refuse to take any action or execute such instructions until any ambiguity
or conflict has been resolved to our satisfaction. |
| 5.6 | Refusal to execute: We reserve the right to refuse to execute instructions if in our opinion
they are or may be, or require action which
is or may be, contrary to the Rules or any
applicable law. We shall in no circumstances have any obligation to act upon any instruction which in our opinion would result
in a negative balance in any Allocated Account. |
| 6.1 | Disclosure to others: Subject to Clauses 6.2,
6.3 and 6.4, each Party shall respect
the confidentiality of information acquired
under this Agreement and neither will, without the consent of the other, disclose
to any other person any information
acquired under this Agreement. |
| 6.2 | Permitted disclosures: Each Party accepts that
from time to time the other Party may be
required by law, or a court order or
similar process, or requested by a government department or agency, fiscal body or
regulatory authority, to disclose information acquired under this Agreement. In addition, the disclosure of such information may
be required by a Party's auditors, by its legal or other advisors or by a company which is in the same group of companies as a
Party (e.g. a subsidiary, or holding company of a Party). In any such case, and to the extent permitted by applicable law, the
disclosing Party will notify the person to whom the disclosure is made that the information disclosed is confidential and should
not be disclosed to any third party. Each Party irrevocably authorises the other to make such disclosures without further reference
to such Party. |
| 6.3 | You acknowledge that, as a member of the London Precious Metal Clearing Limited, and that from
time to time in carrying out our duties and obligations under this Agreement, it may be necessary for us to disclose to LPMCL and/or
other clearing members, your account details and certain other information in order to act in accordance with your notices hereunder
for the purposes of facilitating settlement. You acknowledge and accept that such disclosures may be made by us for the purposes
set out in this Clause 6.3. |
| 6.4 | Notwithstanding Sections 6.1 and 6.2, we acknowledge and agree that (i) you may reference us and
summarize the material terms of this Agreement in the Registration Statement and any other offering memorandum, prospectus or marketing
documents related to an offering of the Shares by you to potential investors and (ii) you may |
disseminate information
to Investors that is required to be provided to Investors pursuant to the terms of the Trust Agreement or the Registration Statement.
| 7.1 | Appointment: You hereby appoint us to act as custodian of the Precious Metals comprising
the Account Balance in accordance with this Agreement and in accordance with any Rules and laws which apply to us or to any Sub-Custodian. |
| 7.2 | Segregation of Precious Metals: We will segregate the Precious Metals comprising the Account
Balance from any Precious Metal which we own or which we hold for our other clients, and we will request each Sub-Custodian to
segregate the Precious Metals comprising the Account Balance from any Precious Metals which it owns or which it holds for its other
clients. For the avoidance of doubt, in any circumstance where we have agreed to hold for you a quantity of Precious Metal which
cannot be allocated in a whole number of physical bars, your Allocated Account will record the nearest whole number of physical
bars not exceeding such quantity of Precious Metal, and the difference between the quantity of Precious Metal comprised by such
physical bars and the quantity of such Precious Metal which we have agreed to hold for you will be held by us for you as an unallocated
amount of Precious Metal pursuant to the Unallocated Precious Metals Accounts Agreement between you and us documenting the holding
of unallocated Precious Metal dated September 1, 2020. |
| 7.3 | Ownership of Precious Metals: We will identify in our books that the Precious Metals comprising
the Account Balance belong to you. |
| 7.4 | Location of Precious Metals: The Precious Metals comprising the Account Balance must be
held by us at the nominated vault premises detailed in the Schedule attached hereto
or at the vaults of a Sub-Custodian, as specified in the Schedule attached hereto, unless otherwise agreed between you and us. |
| 7.5 | Records: We will maintain adequate records identifying the Precious Metals as belonging
to you. Such records shall include, with respect to the Allocated Account(s), journals or other records of original entry containing
an itemised daily record in detail of all receipts and deliveries of Precious Metal (including adequate information to uniquely
identify each bar of Precious Metal received in or delivered from the Allocated Account and the person from whom each bar was delivered). |
| 8.1 | Sub-Custodians: We may appoint Sub-Custodians to perform any of our duties under this Agreement
including the custody and safekeeping of Precious Metals comprising the Account Balance. We will use reasonable care in the appointment
of any Sub-Custodian. Precious Metal held by a Sub-Custodian shall be kept in our account at such Sub-Custodian, and we will separately
identify on our books Precious Metal that is so held on your behalf. Our account with each such Sub-Custodian will be subject only
to our instructions. Any Sub-Custodian will be a member of the LBMA. |
| 8.2 | Notice: We will provide you with the name and address of any Sub-Custodian of Precious Metals
comprising the Account Balance along with any other information which you may reasonably require concerning the appointment of
the Sub-Custodian. As of the date of this Agreement, the Sub-Custodians that we use are [ ____ ]. |
| 9.1 | Each Party represents and warrants to the other, on
a continuing basis that: |
| (a) | it is duly constituted and validly
existing under the laws of its jurisdiction of constitution; |
| (b) | it has all necessary authority, powers, consents,
licences and authorisations and has taken all necessary action to enable it lawfully
to enter into and perform its duties and obligations under this Agreement; |
| (c) | the persons entering into this
Agreement on its behalf have been duly
authorised to do so; and |
| (d) | this Agreement and the obligations created
under it constitute its legal and valid obligations which are binding upon it and
enforceable against it in accordance with the terms of this Agreement
(subject to applicable principles of equity)
and do not and will not violate the terms of the
Rules, any applicable laws, or any order, charge or agreement by
which it is bound. |
| 9.2 | In addition to (and without limitation of) the representations and warranties given by you in Clause
9.1, you represent and warrant to us, on a continuing basis, that: |
| (a) | you are the beneficial owner of the Precious Metal held by us hereunder, free and clear from any
and all contingent or existing charges, pledges, mortgages, security interests, encumbrances, liens or other right or claim whatsoever
permitted or created by you or any third party; |
| (b) | if you are holding any Precious Metal on behalf of a third party, you have full power and authority
from your client to enter into and implement this Agreement in respect of such Precious Metal, and we are entitled to deal only
with you as if you were the ultimate beneficial owner; and |
| (c) | neither the signing, delivery or performance of this Agreement, nor any instruction given hereunder,
will contravene, constitute a default under, or cause to be exceeded, any of the following, namely: |
| (i) | any Rules, or any other law or agreement by which you, us or any relevant client for whom you hold
Precious Metal are bound or affected; or |
| (ii) | rights of any third parties in relation to you or the Precious Metal held hereunder. |
| 10.1 | In addition to (and without limitation of) the representations and warranties given by you in Clause
9.1 and Clause 9.2 above, you represent, warrant and
undertake, on a continuing basis, that: |
| (a) | you are not a person or entity that is named on any Sanctions List or directly or indirectly targeted
under any Sanctions; |
| (b) | you are not acting in violation of any applicable Sanctions; |
| (c) | you shall comply with all applicable laws, regulations, codes and sanctions relating to your operations,
wherever conducted, and in particular relating to human rights, bribery, corruption, money-laundering, accounting and |
financial
controls and anti-terrorism, including but not limited to the UK Xxxxxxx Xxx 0000;
| (d) | you have adequate risk management and compliance procedures in place and have taken necessary measures
(including screening clients for sanctions, money laundering and anti-bribery and corruption) to ensure continued compliance with
the Rules and with the ongoing requirements of any Sanctioning Body; |
| (e) | you have conducted adequate due diligence on any person that you direct we transfer Precious Metals
to or from under the terms of this Agreement; and |
| (f) | you will not cause us to hold any Precious Metals that originate from financial crime or are being
or have been used to facilitate the violation of any Sanctions. |
| 10.2 | You agree that neither any Precious Metals nor the proceeds of any Precious Metals will be used
by you in any way to fund the activities or business of any person or entity in any country or territory subject to Sanctions or
included in any Sanctions List. You further agree that we shall be under no obligation to comply with a notice of withdrawal delivered
pursuant to Clause 4.1 where we have reasonable grounds to suspect that any such withdrawal may in any way be used to fund the
activities or business of any person or entity in any country or territory subject to Sanctions or included in any Sanctions List. |
| 10.3 | If at any time you become aware of any breach by you of Clauses 10.1 or 10.2 above after the date
of this Agreement and before the later of (i) termination of this Agreement and (ii) the date that all obligations under this Agreement
are fully and finally discharged, you shall promptly notify us in writing with full details of such breach together with, promptly
following any request from us to do so, any other information we may reasonably request in connection with such breach. |
| 10.4 | In the event that you breach any of Clauses 10.1 to 10.3 above, or if we have reasonable grounds
to believe that you have breached any of Clauses 10.1 to 10.3 above, we shall have the right to terminate this Agreement forthwith
upon written notice. In the event of termination of this Agreement pursuant to this Clause 10.4, you agree to indemnify us and
hold us harmless against any and all losses, costs and liabilities incurred as a direct consequence of such termination. |
| | | |
| | 10.5 | Nothing
in this Agreement shall require a Party to take any action or to refrain from taking any action which may cause that Party any
liability to or imposed by a Sanctioning Body. |
| 11.1 | Fees: You will pay us such fees as we from time
to time agree with you as set out in the Schedule attached hereto. We reserve the
right to amend the fee structure from time
to time with your prior written consent. Details
of changes to the charges (including transfer,
clearing and storage charges) will be advised
to you by us in writing no less than 30 days before becoming
effective. |
| 11.2 | Expenses: You must pay us on demand all reasonable
costs, charges and expenses (including any relevant taxes, duties and legal
fees) incurred by us in connection with
the performance of our duties and obligations
under this Agreement or otherwise in connection with any Allocated Account (including without limitation any delivery, collection
or storage costs). You shall be liable for all taxes, assessments, duties and other governmental charges, including any interest
or penalty with respect thereto ("Taxes"), with respect to any Allocated Account maintained by us pursuant to
this Agreement or any deposits or withdrawals related thereto. You shall indemnify us for the amount of any Tax that we are required
under applicable laws (whether by assessment or otherwise) to pay in respect of each Allocated Account or any deposits or withdrawals
related thereto (including any payment of Tax required by reason of an earlier failure to withhold); [REDACTED]. In the event that we are required under applicable law to pay any Tax on your behalf, we are hereby
authorised, without prior notice to you, to debit from the credit balance of any or all of the Allocated Accounts an amount equal
to the quotient of (x) the principal amount of the relevant Tax payable by us, divided by (y) the Spot Rate. If the aggregate credit
balance of the Allocated Accounts is not sufficient to pay such Tax, we will notify you of an additional amount of cash required
and you shall directly deposit such additional amount of cash (in the appropriate currency) to an account specified by us promptly
following
the date on which our notice to you that such amount is required becomes effective
in accordance with this Agreement. |
| 11.3 | Credit balances: No interest or other amount
will be paid by us on any credit balance on an Allocated Account unless otherwise agreed
between us. |
| 11.4 | Debit balances: You are not entitled to overdraw an Allocated Account, and we shall not
carry out
any instruction
from you where to do so would in our opinion
cause any Allocated Account to have a
negative balance. |
| 11.5 | Default interest: If you fail
to pay us any amount
when it is due, we reserve the right to charge [REDACTED] on any such unpaid
amount. Interest will accrue on a
daily basis, on a compound basis with monthly resets, and will be due and payable
by you as a separate debt. |
| 12. | SCOPE OF RESPONSIBILITY |
| 12.1 | Exclusion of liability: We will adhere to the standards of a Reasonable and Prudent Custodian
at all times in the performance of our duties under this Agreement, and we will only be responsible for any loss or damage suffered
by you as a direct result of any negligence, fraud or wilful default on our part in the performance of our duties (including as
set out in Clause 8.3), and in which case our liability will not exceed the aggregate market value of the Account Balance at the
time of such negligence, fraud or wilful default (calculating the value using the next available prices for Precious Metals of
the same type and amount on the relevant London Precious Metals Markets following the occurrence of such negligence, fraud or wilful
default). We shall not in any event be |
liable for any consequential
loss, or loss of profit or goodwill whether or not resulting from any negligence, fraud or wilful default on our part.
| 12.2 | No duty or obligation: We are under no duty
or obligation
to make or take, or require any Sub-Custodian
to make or take, any special arrangements
or precautions beyond those
required by the Rules. |
| 12.4 | Force majeure:
We shall not be liable to you for
any delay in performance,
or for the non-performance of, any of our obligations under
this Agreement by reason of any
cause beyond our reasonable control. This
includes any breakdown, malfunction
or failure of, or in connection
with, any communication, computer,
transmission, clearing or settlement facilities, industrial action, acts and
regulations of any governmental or supra national bodies or authorities, or the rules
of any relevant regulatory or self-regulatory
organisation. |
| 12.5 | Indemnity: You
shall indemnify and keep us indemnified (on an after tax basis) on demand against all costs and expenses, damages, liabilities
and losses which we may suffer or incur, directly or indirectly in connection with this Agreement except to the extent that such
sums are due directly to our negligence, wilful default or fraud. |
| 12.6 | Lien and power of sale: We shall exercise such lien and power of sale rights (if any) in
respect of the Precious Metals held for you below. Without prejudice to any lien or power of sale rights which we may have pursuant
to this clause, or which any Sub-Custodian may have pursuant to the terms on which it holds Precious Metals for us, we shall not
pledge, or create any security interest over, any Precious Metal held for you unless otherwise agreed with you in writing. |
In addition to any general
lien or other rights to which we may be entitled under any applicable law, we shall have a general lien over all Precious Metals
held for you pursuant to this Agreement until the satisfaction of all liabilities, payments and obligations (whether actual or
contingent) of you owed to us under this Agreement or otherwise (each a "Liability"). Nothing herein shall be
construed or take effect as a charge or security interest requiring registration against you under English law.
Failing payment or discharge
by you on the due date therefore of any Liability, we shall be entitled without consent from you but with prior notice to you,
and without prejudice to any other right or remedy which we may have, to sell all or any of the Precious Metals held for you in
such manner and at such price as we may deem appropriate. Where we sell Precious Metals pursuant to this term, we shall apply the
net proceeds of the sale in or towards payment or discharge of the relevant sum or liability as we may think fit, but shall not
be liable for any loss suffered by you as result of such sale.
| 12.7 | Our interests and affiliates' interests: We have the right, without notifying you, to act
upon your instructions even where: |
| (a) | we, directly or indirectly, have an interest in the consequences of such instruction or action; |
| (b) | we process your instructions on an aggregated basis together with similar instructions from other
clients; or |
| (c) | we have a relationship with another party which does or may create a conflict with our duty to
you, including (without prejudice) circumstances where we or any of our associates may: (i) act as financial adviser, banker or
otherwise provide services to your contract counterparty; (ii) act in the same arrangement as agent for more than one client; or
(iii) earn profits from any of the activities listed herein. |
We or any of our divisions,
branches or affiliates may be in possession of information tending to show that the action required by your instructions may not
be in your best interests, but shall not have any duty to disclose any such information.
| (a) | You may terminate this Agreement (i) by giving not less than forty-five (45) Business Days written
notice to us, or (ii) immediately by written notice to us in the event of (1) the presentation of a winding up order, bankruptcy
or analogous event in relation to us, or (2) the occurrence of an event specified in Clause 7.9 of this Agreement. |
| (b) | We may terminate this Agreement (i) by giving not less than sixty (60) Business Days written notice
to you, or (ii) immediately by written notice in the event of the presentation of a winding up order, bankruptcy or analogous event
in relation to you. |
| 13.2 | Any notice given by you under Clause 13.1 must specify: |
| (a) | the date on which the termination
will take effect (the "Termination
Date"); |
| (b) | the person to whom each Account Balance is to be delivered;
and |
| (c) | all other necessary arrangements
for the delivery of the Account Balance to you or to your order. |
| 13.3 | Redelivery arrangements:
If you do not make arrangements acceptable to us for the delivery of the Account Balance to you or to your order, we may continue
to hold the Precious Metals constituting such Account Balance, in which case we will continue to charge the fees and expenses payable
under Clause 10. If you have not made arrangements acceptable to us for the delivery of the Account Balance within 6 months of
the Termination Date, we will be entitled to close each Allocated Account and sell the Precious Metals constituting each Account
Balance (at such time and on such markets as we consider appropriate) and account to you for the proceeds after deducting any amounts
due to us under this Agreement. |
| 13.4 | Existing rights: Termination shall not affect rights and obligations then outstanding under
this Agreement which shall continue to be governed by this Agreement until all obligations have been fully performed. [REDACTED] |
| 13.5 | eBTS: Effective the Termination Date the use of the Website will automatically be terminated
and no further access to the Website will be permitted. |
| 14.1 | VAT exclusive:
All sums payable under this Agreement by you to us shall be deemed to be exclusive of VAT. |
| 14.2 | Supplies: Where pursuant to or in connection
with this Agreement, we make a supply
to you for VAT purposes and VAT is or becomes
chargeable on such supply, you
shall on demand pay to us (in addition
to any other consideration for such supply)
a sum equal to the amount of such VAT
and we shall on receipt of such payment
provide you with an invoice or receipt
in such form and within such period as may be prescribed by applicable law. |
| 14.3 | Deemed
supplies: Where, pursuant to or in connection
with this Agreement,
we are deemed or treated
by applicable law or the
practice from time to
time of the relevant fiscal authority to make
a supply for
VAT purposes to any person by virtue of our or any custodian for us relinquishing physical
control of any Precious Metal, and VAT is or becomes
chargeable on such supply,
you shall on demand
pay to us a sum equal to the amount of such
VAT and we shall on receipt of such payment
provide an invoice or receipt in such form and within such period as may be prescribed
by applicable law to the person to which we are deemed
or treated to make such supply. |
| 14.4 | Reimbursement: References
to any fee, cost, expense, charge or other liability incurred by
us and in respect of which we are to be reimbursed or indemnified
by you under
the terms of this Agreement
shall include such part of such fee, cost, expense, charge or
other liability as represents any VAT. |
| 15.1 | Form: Any notice or other
communication under
or in connection with this Agreement
may be given in writing or as otherwise specified in the Schedule. References to writing
includes an electronic transmission in
a form permitted by Clause 15.2. |
| 15.2 | Method of transmission: Any
notice or other communication
shall be delivered personally or sent by first class post, pre-paid recorded
delivery (or air mail if overseas), authenticated electronic transmission
(including fax, email and SWIFT) or such other electronic transmission
as the Parties may from time to time agree, to the Party due to receive the notice
or communication,
at its address, number or destination
set out below, or to such other address, number
or destination specified by that Party by written notice to the other: |
If to us:
00 Xxxx Xxxxxx, Xxxxxx Xxxxx
X00 0XX, Xxxxxx
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx
Email:
xxxx.x.xxxxx@xxxxxxxx.xxx; xxxxxx.x.xxxxxxx@xxxxxxxx.xxx; xxxxxxx.x.xxxxxxx@xxxxxxxx.xxx;
xxxxxxx.xxx@xxxxxxxx.xxx; xxxxxxxx.xx.xxxxxxxxxx@xxxxxxxx.xxx
If to you:
Wilshire wShares Enhanced Gold Trust
c/o Wilshire Phoenix Funds LLC
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxx
Email: xxxxx@xxxxxxxx.xxx
| 15.3 | Deemed
receipt of
notice: A notice or other communication
under or in connection with this Agreement will be deemed received only if actually received or delivered. |
| 15.4 | Recording of calls: We may record telephone
conversations without use of a warning
tone. Such recordings will be our sole property and accepted by you as evidence of
the orders or instructions given.
In the event of inconsistency between the written notice and oral orders or instructions, the terms of the written notice shall
prevail. |
| 16.1 | No advice: Our duties and obligations
under this Agreement do not include providing
you with investment
advice. In asking us to open and maintain
the Allocated Accounts, you do so in
reliance upon your own judgement
and we shall not owe to you any duty
to exercise any judgement on your behalf
as to the merits or suitability of any deposits into, or withdrawals from, an Allocated
Account. |
| 16.2 | Rights and remedies: Our rights under this Agreement
are in addition to, and independent of, any
other rights which we may have
at any time in relation to the Account
Balance and any lien or other rights we may have to set-off, combine
or consolidate any of your accounts. |
| 16.3 | Business Day:
If an obligation of a Party would otherwise be due
to be performed on a day which is not a Business Day in respect of the relevant Allocated
Account, such obligation shall be due to be performed
on the next succeeding Business Day in
respect of that Allocated Account. |
| 16.4 | Assignment: This Agreement is for the benefit of and binding
upon us both
and our respective successors
and assigns. You may not assign, transfer or encumber,
or purport to assign, transfer or encumber,
your right, title or interest in relation
to any Allocated Account, Account Balance or Precious Metal delivered to us for deposit in
your Allocated Account, or any right
or obligation under this Agreement without our prior agreement in writing. |
| 16.5 | Amendments:
Unless otherwise specified in this Agreement,
any amendment
to this Agreement must
be agreed in writing and be signed by us both. Unless otherwise agreed, an amendment
will not affect any
legal rights or obligations
which may already have arisen. |
| 16.6 | Partial invalidity: If any of the clauses (or
part of a clause) of this Agreement becomes
invalid or unenforceable in any way under the Rules or any law, the validity of the
remaining clauses (or part of a clause) will not in any way be affected or impaired. |
| 16.7 | Liability: Nothing in this Agreement shall exclude
or limit any liability which cannot lawfully
be excluded or limited (e.g. liability
for personal injury or death caused by negligence). |
| 16.8 | Entire Agreement: This document
represents the entire agreement,
and supersedes any previous agreements
between us relating to the subject matter of this Agreement. |
| 16.9 | Counterparts: This Agreement
may be executed in any number of counterparts
each of which when executed and delivered is an original,
but all the counterparts together constitute the same agreement. |
| 16.10 | Liability of Sponsor. It is expressly understood and agreed by the Parties that: |
| (a) | this Agreement is executed and delivered on behalf of you by the Sponsor, not individually or personally,
but solely as your Sponsor in the exercise of the powers and authority conferred and vested in it; |
| (b) | the representations, covenants, undertakings and agreements herein made by you are made and intended
not as personal representations, undertakings and agreements by the Sponsor but are made and intended for the purpose of binding
only you; |
| (c) | nothing herein contained shall be construed as creating any liability on the Sponsor, individually
or personally, to perform any covenant of yours either expressed or implied contained herein, all such liability, if any, being |
expressly
waived by the parties hereto and by any person claiming by, through or under the parties hereto; and
| (d) | under no circumstances shall the Sponsor be personally liable for the payment of any your indebtedness
or expenses or be liable for the breach or failure of any obligation, duty, representation, warranty or covenant made or undertaken
by you under this Agreement or any other related document. |
| 17. | GOVERNING
LAW AND JURISDICTION |
| 17.1 | Governing law: This Agreement and
any non-contractual obligations arising out of or in connection with it shall be governed by
and construed in accordance with English law. |
| 17.2 | Jurisdiction: The English courts are to have non-exclusive
jurisdiction to settle any disputes or claims
(each a "Dispute") which may
arise out of or in connection with this Agreement, including any question regarding its existence,
validity or termination, and accordingly
any legal action or proceedings arising out of or in
connection with this Agreement ("Proceedings")
may be brought in such courts. Each
of the Parties hereto irrevocably submits to the
non-exclusive jurisdiction of such courts and waives any objection to Proceedings in
such courts whether on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient
forum. |
| 17.3 | Arbitration: Unless otherwise specified in the Schedule, Disputes may be referred to arbitration
in accordance with the terms set out in the Schedule attached hereto. |
| 17.4 | Waiver of immunity: To the extent that you
may in any jurisdiction
claim for yourself or your assets any immunity
from suit, judgement, enforcement
or otherwise howsoever, you agree not
to claim and irrevocably waive any such
immunity to which you would
otherwise be entitled (whether on grounds of sovereignty or otherwise)
to the full extent permitted by the laws of such jurisdiction. |
| 17.5 | Third Party Rights: A person who is not a party
to this Agreement has no right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Xxx 0000. |
| 17.6 | Service of process: If you are situated outside England and Wales, process by which any
proceedings in England are begun may be served on you by being delivered to the address specified below. This does not affect our
right to serve process in another manner permitted by law. |
Address
for service of process:
Worldwide Corporate Advisors
000 Xxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
[Signature page to follow]
EXECUTED by the
Parties
Signed on behalf
of
JPMorgan Chase Bank, N.A
by:
| Signature |
............................................................ |
| Name |
............................................................ |
| Title |
............................................................ |
Signed on behalf
of
Wilshire wShares Enhanced Gold Trust
by: Wilshire Phoenix Funds
LLC, not in its individual capacity
but solely
as Sponsor
| Signature |
............................................................ |
| Name |
............................................................ |
| Title |
............................................................ |
SCHEDULE
To Allocated Precious
Metals Accounts Agreement dated September 1, 2020
[REDACTED]
