EX-10.1 3 d517223dex101.htm EX-10.1 Execution Version Dated as of 14 June 2018 ICBC STANDARD BANK PLC and WORLD GOLD TRUST on behalf of its series set forth on Schedule A hereto ALLOCATED GOLD ACCOUNT AGREEMENT This ALLOCATED GOLD ACCOUNT AGREEMENT...
Exhibit 10.1
Execution Version
Dated as of 14 June 2018
ICBC STANDARD BANK PLC
and
WORLD GOLD TRUST
on behalf of its series set forth on Schedule A hereto
ALLOCATED GOLD ACCOUNT AGREEMENT
1
This ALLOCATED GOLD ACCOUNT AGREEMENT (this “Agreement”) is made as of the date set out on the cover page of this Agreement
BETWEEN
| (1) | ICBC Standard Bank Plc, a public limited company incorporated under the laws of England and Wales with its registered office at 00 Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx (the “Custodian”); and |
| (2) | World Gold Trust, a Delaware statutory trust organized in series having its principal office and place of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the “Trust”). |
| (1) | The Custodian has agreed to open and maintain an Allocated Account for each series of the Trust listed on Schedule A hereto (each, a “Fund” and collectively, the “Funds”) and to provide other services to the Funds in connection with the Allocated Accounts. |
| (2) | Shares may be issued by a Fund against delivery of Gold made by way of payment for the issue of such Shares. The Trust has agreed that Gold delivered in connection with a subscription for Shares will be paid into the Metal Accounts. |
| (3) | The Custodian has agreed to transfer Gold deposited into a Fund Unallocated Account to the corresponding Fund Allocated Account in connection with a subscription for Shares and to transfer Gold from the Fund Allocated Account to the Fund Unallocated Account in connection with redemption of Shares. |
| (5) | The Trust has agreed that each Fund Allocated Account will be established for the account of the applicable Fund, and that the Trust will have the sole right to give instructions for the making of any payments into or out of a Fund Allocated Account. |
IT IS AGREED AS FOLLOWS
| 1. | INTERPRETATION |
| 1.1 | Definitions: In this Agreement, unless there is anything in the subject or context inconsistent therewith, the following expressions shall have the following meanings. |
“Affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Custodian.
“AURUM” means the electronic matching and settlement system operated by LPMCL.
2
“Authorized Participant” shall have the meaning assigned to such term in the Unallocated Gold Account Agreement.
“Authorised Representatives” has the meaning given to that expression in clause 5.1.
“Dispute” means for the purpose of clause 16 any disagreement between the Trust and the Custodian which has not been resolved amicably within a period of fourteen London Business Days after the Custodian has received from the Trust, or the Trust has received from the Custodian, written notification of the disagreement.
“Fund Allocated Account” means the loco London Gold account established in the name of a Fund and maintained for the benefit of the Fund by the Custodian on an allocated basis pursuant to this Agreement.
“Fund Unallocated Account” means the loco London Gold account established in the name of a Fund and maintained for the benefit of the Fund by the Custodian on an Unallocated Basis pursuant to the Unallocated Gold Account Agreement.
“Gold” means (i) Physical Gold held by the Custodian or any Sub-Custodian under this Agreement and/or (ii) any credit to an account, including a Fund Unallocated Account, on an Unallocated Basis, as the context requires.
“Indirect Sub-Custodian” has the meaning given to that expression in clause 8.1(i).
“LBMA” means The London Bullion Market Association or its successors.
“Loco London” means with respect to an account holding Gold, the custody, trading or clearing of such Gold in London, United Kingdom.
“London 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 gold bullion market is open for business.
“LBMA Gold Price PM” means the price of a xxxx ounce of gold as determined by ICE Benchmark Administration, the third party administrator of the London gold price selected by the LBMA, or any successor administrator of the London gold price, at or about 3:00 p.m. London, England time.
“London Good Delivery Standards” means the specifications for “good delivery” gold bars, including, without limitation, the specifications for weight, dimensions, fineness (or purity), identifying marks and appearance of gold bars, set forth in “The Good Delivery Rules for Gold and Silver Bars” published by the LBMA.
2
“LPMCL” means London Precious Metals Clearing Limited or its successors.
“Metal Accounts” means a Fund Allocated Account and the corresponding Fund Unallocated Account.
“New York Business Day” means a day other than a day on which a Fund’s listing exchange is closed for regular trading.
“Phoenix Portal” means the Custodian’s electronic system which allows input of clearing instructions and viewing of account balances, as it may be updated from time to time.
“Physical Gold” means gold bullion that meets the London Good Delivery Standards.
“Point of Delivery” means such date and time that the recipient (or its agent) acknowledges in written form its receipt of delivery of Physical Gold;
“Rules” means the rules, regulations, practices, procedures and customs of the LBMA, including the London Good Delivery Standards, the LPMCL, the Financial Conduct Authority, the Prudential Regulation Authority, the Bank of England and such other regulatory authority or other body, applicable to the activities contemplated by this Agreement, including the activities of any Sub-Custodian.
“Shareholder” means the beneficial owner of one or more Shares of a Fund.
“Shares” means the units of fractional undivided beneficial interest in a Fund which are issued by the Fund pursuant to its Prospectus.
“Sponsor” means WGC USA Asset Management Company, LLC, its successors and assigns and any successor Sponsor.
“Sub-Custodian” means a sub-custodian, agent or depository (including an entity within our corporate group) appointed by the Custodian pursuant to clause 8.
“Unallocated Basis” means, with respect to the holding of gold, that the holder is entitled to receive delivery of Physical Gold in the amount standing to the credit of the holder’s account, but the holder has no ownership interest in any particular gold that the custodian maintaining that account owns or holds.
“Unallocated Gold Account Agreement” means the Unallocated Account Agreement of even date herewith between the Trust and the Custodian pursuant to which each Fund Unallocated Account is established and operated.
3
“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.
| 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. |
| 1.4 | Construction: The word “including” means “including without limitation”. The word “or” is not exclusive. |
| 2. | ALLOCATED ACCOUNT |
| 2.1 | Opening Allocated Account: The Custodian shall open and maintain the Fund Allocated Account for each Fund. |
| 2.2 | Deposits and Withdrawals: A Fund Allocated Account shall evidence and record deposits and withdrawals of Physical Gold made pursuant to the terms of this Agreement. |
| 2.3 | Denomination of Allocated Accounts: A Fund Allocated Account will hold deposits of Physical Gold and will be denominated in fine xxxx ounces (to three decimal places). |
| 2.4 | Allocated Account Reports: The Custodian shall provide the Notices and Reports set forth on Schedule B hereto. Such reports also will be made available to the Trust by means of the Phoenix Portal, provided that, if the Phoenix Portal is unavailable for any reason, the Trust and the Custodian will agree upon a temporary notification system for making such reports available to the Trust. Allocated holdings are available real time on the Custodian’s Phoenix Portal and, for the avoidance of doubt, are not held on the Custodian’s balance sheet. |
| 2.5 | Reversal of Entries: The Custodian shall reverse any provisional or erroneous entries to a Fund Allocated Account which it discovers or of which it is notified with effect back-valued to the date upon which the final or correct entry (or no entry) should have been made and shall provide notice thereof in accordance with Schedule B. |
| 2.6 | Provision of Information: Subject to clause 7.3, the Custodian agrees that it will forthwith notify the Trust in writing of any encumbrance of which it is aware is or is purported to have been created over or in respect of a Fund Allocated Account or any of the amounts standing to the credit thereof. |
| 2.7 | Access: The Custodian will allow, and will procure that any Sub-Custodian that the Custodian appoints allows, the Sponsor and the Trust and their identified representatives, independent public accountants and bullion auditors access to its premises, upon reasonable notice during normal business hours but without limitation on the frequency of access to such premises, to examine the Physical Gold held in a Fund Allocated Account and such records as they may reasonably require to perform |
4
| their respective duties with regard to investors in a Fund’s Shares. The Trust agrees that any such access shall be subject to execution of a confidentiality agreement and agreement to the Custodian’s security procedures, and any such audit shall be at the applicable Fund’s expense. |
| 2.8 | Regulatory Reporting: To the extent that the Custodian’s activities under this Agreement are relevant to the preparation of the filings required of the Trust under the securities laws of the United States or any other jurisdiction, the Custodian will, to the extent permitted by applicable law, the Rules or applicable regulatory authority, cooperate with the Trust and the Sponsor and the Trust’s and the Sponsor’s representatives to provide such information concerning the Custodian’s activities as may be necessary for such filings to be completed. Additionally, to the extent that the Custodian’s activities or controls in its capacity as custodian of the Trust’s assets are relevant to the information presented in the financial statements of the Trust, the Custodian will cooperate with the Sponsor and the Trust to assist the Sponsor in providing the required written assurances regarding the reliability of the internal controls used in the preparation of such financial statements, including by providing the Sponsor’s and the Trust’s external auditors with any necessary information and reports regarding the Custodian’s internal controls over financial reporting as far as such reporting relates to the scope of the Custodian’s duties. |
| 3. | DEPOSITS |
| 3.1 | Procedure: The Custodian shall receive deposits of Physical Gold into a Fund Allocated Account relating to the same kind of Physical Gold and having the same denomination as that to which the corresponding Fund Unallocated Account relates only pursuant to transfers from the Fund Unallocated Account as provided in clause 4.1(b) of the Unallocated Gold Account Agreement or as otherwise agreed upon between Custodian and the Trust. The notice for any deposit of Gold to be made into a Fund Allocated Account in connection with clause 4.1(b) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(b) of the Unallocated Gold Account Agreement. |
| 3.2 | Right to Amend Procedure: The Custodian may amend the procedure in relation to the deposit of Gold to a Fund Allocated Account only where such amendment is caused by a change in the Rules, provided that the Custodian shall, whenever practicable, notify the Trust and the Sponsor within a commercially reasonable time prior to the date on which the Custodian amends its procedures or imposes additional ones in relation to the transfer of Gold into a Fund Allocated Account, and in doing so the Custodian will consider the Trust’s and the Sponsor’s needs to communicate any such change to Authorized Participants and others. |
| 3.3 | Allocation: Subject always to clause 5.3 of the Unallocated Gold Account Agreement, the Trust acknowledges that the process of allocation of Physical Gold to a Fund Allocated Account from the Fund Unallocated Account may involve minimal adjustments to the weights of Physical Gold to be allocated to adjust such weight to the number of whole bars available. |
5
| 4. | WITHDRAWALS |
| 4.1 | Procedure: The Trust may at any time give instructions to the Custodian for the withdrawal of Physical Gold from a Fund Allocated Account as provided for in this Agreement, provided that a withdrawal may be made only by: |
| (a) | transfer to the corresponding Fund Unallocated Account or another account maintained on an Unallocated Basis or as otherwise permitted in connection with the transfers described in clause 4.1(a) of the Unallocated Gold Account Agreement; or |
| (b) | transfer in the manner described in clauses 4.1(c) and (d) of the Unallocated Gold Account Agreement. |
The Trust anticipates exercising its rights under clauses 4.1(c) and (d) of the Unallocated Gold Account Agreement on an exceptional basis only. Any Gold made available to the relevant person (as instructed by the Trust) pursuant to clauses 4.1(c) and (d) will be in a form which complies with the Rules or in such other form as may be agreed between the Trust and the Custodian the combined fine weight of which will not exceed the number of fine ounces of Gold the Trust has instructed the Custodian to debit.
| 4.2 | Notice Requirements: The notice for any withdrawal of Gold to be made from a Fund Allocated Account (i) in connection with clause 4.1(a) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(a) of the Unallocated Gold Account Agreement and (ii) in connection with clauses 4.1(c), (d) or (e) (with respect to transfers other than for the sale of Gold) of the Unallocated Gold Account Agreement shall be made in accordance with clause 4.2(c) of the Unallocated Gold Account Agreement. |
| 4.3 | Right to Amend Procedure: The Custodian may amend the procedure for the withdrawal of Gold from a Fund Allocated Account only where such amendment is caused by a change in the Rules. Any such amendment will be subject to the notification conditions of clause 3.2. |
| 4.4 | Specification of Physical Gold: The Custodian may specify the serial numbers of the bars to be withdrawn once it receives instructions from the Trust to effect a withdrawal of Physical Gold pursuant to clause 4.1. The Custodian is entitled to select the Physical Gold to be made available for any such withdrawal, provided, however, that it will use commercially reasonable best efforts to select the smallest amount of Physical Gold necessary to satisfy the withdrawal instruction. To the extent the Trust provides specific serial numbers of bars to be so selected (which the Trust undertakes to the Custodian it shall use its best efforts to do no more than once per calendar quarter), the Custodian will select such Physical Gold as specified by the Trust. |
| 4.5 | Delivery Obligations: Unless otherwise instructed by the Trust on behalf of a Fund or the relevant person, the Custodian shall make any transportation and insurance arrangements in respect of delivery of Physical Gold in accordance with its usual practice. Where instructions are given, the Custodian shall use all reasonable efforts to |
6
comply with the same. The Custodian shall not be obliged to effect any requested delivery if, in its commercially reasonable opinion, this would cause the Custodian or its agents to be in breach of the Rules or other applicable law, court order or regulation, the costs incurred would be excessive or delivery is impracticable for any reason. All insurance and transportation costs shall be for the account of the applicable Fund.
| 4.6 | De-allocation: Following receipt by the Custodian of notice for the withdrawal of Physical Gold from a Fund Allocated Account pursuant to clause 4.1, the Custodian shall de-allocate sufficient Physical Gold from the Fund Allocated Account to credit the corresponding Fund Unallocated Account in the amount required. The Trust acknowledges that the process of de-allocation of Physical Gold for withdrawal and/or credit to the Fund Unallocated Account may involve minimal adjustments to the weight of Physical Gold to be withdrawn to adjust such weight to the whole bars available. |
| 4.7 | Risk: Where there is a shipment from the Custodian of Physical Gold, all right, title and risk in and to such Physical Gold shall pass at the Point of Delivery to the relevant person for whose account the Physical Gold is being delivered. |
| 5. | INSTRUCTIONS |
| 5.1 | Giving of Instructions: Only the Trust, on behalf of the applicable Fund, acting through its authorised representatives, shall have the right to give instructions in respect of a Fund Allocated Account. The Trust shall notify the Custodian in writing of the names of the people who are authorised to give instructions on a Fund’s behalf (the “Authorised Representatives”). Until the Custodian receives written notice to the contrary, the Custodian is entitled to assume that any of those people have full and unrestricted power to give instructions on a Fund’s behalf. The Custodian is also entitled to rely on any instructions which are from, or which purport to emanate from, any person who appears to have such authority. The Custodian reserves the right to obtain further validation of any instructions. |
| 5.2 | Transfer Instructions: All transfers into and out of a Fund Allocated Account shall be made upon receipt of, and in accordance with, instructions given by the Trust to the Custodian. Such instructions shall be given through the Phoenix Portal or by authenticated SWIFT message or, if for any reason the SWIFT messaging system is not operational, by such other temporary means as the Trust and the Custodian may agree from time to time. Other information (which shall not constitute an instruction) related to transfers into and out of a Fund Unallocated Account may be sent between the Trust and the Custodian by email or by such other means as the Trust and the Custodian may agree from time to time. Any such communication shall be deemed to have been given, made or served upon actual receipt by the recipient. |
| 5.3 | Account Not to be Overdrawn: Except as otherwise specifically provided herein, a Fund Allocated Account may not at any time have a debit balance thereon, and no instruction shall be valid to the extent that the effect thereof would be for the Fund Allocated Account to have a debit balance thereon. |
7
| 5.4 | Amendments: Once given, instructions continue in full force and effect until they are cancelled, amended or suspended. Any communication that cancels, amends or suspends as instruction shall be valid only after actual receipt by the Custodian in accordance with clause 5.2. |
| 5.5 | Unclear or Ambiguous Instructions: If, in the Custodian’s opinion, any instructions are unclear or ambiguous, the Custodian shall use reasonable endeavours (taking into account any relevant time constraints) to obtain clarification of those instructions from the Trust and, failing that, the Custodian may in its absolute discretion and without any liability on its part, act upon what the Custodian believes 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 the Custodian’s reasonable satisfaction. |
| 5.6 | Refusal to Execute: The Custodian may refuse to execute instructions if in its reasonable opinion they are or may be, or require action which is or may be, contrary to the Rules or any applicable law. |
| 6. | CONFIDENTIALITY AND DATA SECURITY |
| 6.1 | Disclosure to Others: Subject to clause 6.2, each party shall respect the confidentiality of information acquired under this Agreement and neither will, without the consent of the other party, disclose to any other person any transaction or other information acquired about the other party, its business or the Trust under this Agreement, provided that such other party has made clear, at or before the time such information is provided, that such information is being provided on a confidential basis (hereinafter referred to as “Confidential Information”). Notwithstanding anything to the contrary in this Agreement, to the extent required, a copy of this Agreement may be filed under the securities laws of the United States or any other jurisdiction in connection with the registration of the public offering of Shares by the Trust. |
| 6.2 | Permitted Disclosures: Each party accepts that from time to time the other party may be required by law or the Rules, or required or requested by a government department or agency, fiscal body or regulatory or listing authority, required by the LPMCL (e.g., in connection with AURUM), or required as otherwise may be necessary in conducting the Trust’s business, to disclose this Agreement or Confidential 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, by a company which is in the same group of companies as a party (i.e., a subsidiary or holding company of a party) or (in the case of the Trust) by the Sponsor, or any beneficiary of the Trust. Subject to the agreement of the party to which information is disclosed to maintain it in confidence in accordance with clause 6.1, each party irrevocably authorizes such persons to make such disclosures without further reference to such party. The obligations of each party under clause 6.1 will not apply to any Confidential Information that: (a) was known to the receiving party prior to the date of this Agreement other than as a result of disclosure under any other agreement between the parties, (b) is or becomes generally available to the public through means other than an unauthorized disclosure by the receiving party, (c) was or subsequently is disclosed to the receiving party by a third party having a bona fide right to disclose such Confidential Information without breaching any obligation to the disclosing party, or (d) is developed by the receiving party independently of information disclosed by the disclosing party. |
8
| 6.3 | Permitted Disclosures to LPMCL and/or Other Clearing Members: The Trust acknowledges that, the Custodian is a member of the LPMCL, and that from time to time in carrying out its duties and obligations under this Agreement, it may be necessary for the Custodian to disclose to LPMCL and/or other clearing members, details of deposits and/or withdrawals undertaken or to be undertaken on the Trust’s behalf pursuant to the terms of this Agreement, the Trust’s account details and certain other information in order to act in accordance with the Trust’s notices hereunder. Such disclosures may be made by the Custodian for the purposes set out in this clause 6.3. |
| 6.4 | Data Security: The Custodian shall implement administrative, physical and technical safeguards to protect Confidential Information under this Agreement consistent with applicable industry standards. The Custodian hereby confirms that the information technology resources used for administering the Allocated Account are located within the territory of the United Kingdom and that it shall seek the prior written consent of the Trust in the event that such resources are located outside of the United Kingdom or the European Union. |
| 7. | CUSTODY SERVICES |
| 7.1 | Appointment: The Trust hereby appoints the Custodian to act as custodian of the Physical Gold held in a Fund Allocated Account in accordance with this Agreement and any Rules which apply to the Custodian, and the Custodian hereby accepts such appointment. |
| 7.2 | Segregation of Physical Gold: The Custodian will be responsible for the safekeeping of the Physical Gold on the terms and conditions of this Agreement. The Custodian will segregate the Physical Gold from any Physical Gold which the Custodian owns or holds for others by making appropriate entries in its books and records and will require each Sub-Custodian to segregate the Physical Gold from any Physical Gold which they own or hold for others by making appropriate entries in their books and records. Entries on the Custodian’s books and records to identify Physical Gold will refer to each bar of Physical Gold by refiner, assay, serial number and gross and fine weight. Additionally, the Custodian will require each Sub-Custodian to identify on its books and records each bar of Physical Gold held by them by refiner, assay, serial number and gross and fine weight and to provide such information to the Trust in accordance with Schedule B. Under current LBMA market practices, the weight lists provided to the Custodian by Sub-Custodians identify each bar of Physical Gold held for the Custodian for the benefit of the Trust by refiner, assay, serial number and gross and fine weight and by any other marks required for the identification of a bar of Physical Gold under the Rules. |
| 7.3 | Ownership of Physical Gold: The Custodian will identify in its books and records that the Physical Gold is being held for the applicable Fund, and will require each Sub-Custodian to identify on its books and records that the Physical Gold is being |
9
held for the Custodian for the benefit of the applicable Fund. The Custodian shall ensure that the Physical Gold belonging to a Fund shall at all times be free and clear of all liens and encumbrances and shall not be subject to any right, charge, security interest, lien or claim of any kind, whether arising by operation of law or otherwise, in favor of the Custodian, any Sub-Custodian or any creditor of any of them or any other person. The Custodian shall not loan, hypothecate, pledge or otherwise encumber any Physical Gold held in a Fund Allocated Account absent the Trust’s written instructions to the contrary.
| 7.4 | Location of Physical Gold: Unless otherwise agreed between the parties, Physical Gold must be held by the Custodian at its London vault premises or, when Physical Gold has been allocated to a Sub-Custodian employed by the Custodian on a temporary basis pursuant to clause 8.1, in such Sub-Custodian’s London vault. The Custodian agrees that it shall use, or where applicable procure any Sub-Custodian to use, commercially reasonable efforts promptly to transport any Physical Gold held for the Trust to its London vault premises at the Custodian’s cost and risk. The Custodian agrees that all delivery and packing shall be in accordance with the Rules and LBMA good market practices. |
| 7.5 | Replacement of Gold: Upon a determination by the Custodian that any Physical Gold credited to a Fund Allocated Account does not comply with the Rules, the Custodian shall as soon as practical replace such Physical Gold with Physical Gold which complies with the Rules by (i) debiting the Fund Allocated Account and crediting the Fund Unallocated Account with the requisite amount of Physical Gold to be replaced, (ii) providing replacement Physical Gold which complies with the Rules and which is of an amount that approximates the amount of Physical Gold to be replaced as closely as practical and (iii) debiting the Fund Unallocated Account and crediting the Fund Allocated Account with the requisite amount of replacement Physical Gold. The Custodian shall not start the foregoing replacement process on a particular London Business Day unless it is reasonably sure that such replacement process can be started and completed in the same London Business Day. The Custodian shall notify the Trust in accordance with the requirements under Schedule B when (i) the Custodian has determined that Physical Gold credited to the Fund Allocated Account does not comply with the Rules and will be replaced and (ii) when replacement Physical Gold has been credited to the Fund Allocated Account in accordance with the above instructions. The cost and risk of any such replacement shall be borne by the Custodian. |
| 8. | SUB-CUSTODIANS |
| 8.1 | Sub-Custodians: |
(i) The Custodian may employ Sub-Custodians solely for the temporary custody and safekeeping of Physical Gold until transported to the Custodian’s London vault premises as provided in clause 7.4. The Sub-Custodians the Custodian selects may themselves select sub-custodians to provide such temporary custody and safekeeping of Physical Gold (each an “Indirect Sub-Custodian”), but such sub-custodians shall not by such selection or otherwise be, or be considered to be, a Sub-Custodian as such term is used herein.
10
(ii) The Custodian will use reasonable care in selecting any Sub-Custodian and will only use an LPMCL approved delivery location. In selecting any Sub-Custodian with reasonable care, the Custodian is to determine if such Sub-Custodian can reasonably be expected to operate in a reasonable and prudent manner and in compliance with the Rules and all other relevant laws, rules and regulations applicable to its services as a sub-custodian of Gold.
(iii) As of the date of this Agreement, the Sub-Custodians that the Custodian may use for the purposes of this Agreement are: Bank of England, Brink’s Limited, G4S Cash Solutions (UK) Limited, HSBC Bank plc, XX Xxxxxx Xxxxx, Xxxxx-Xxxx Commodities Ltd and Xxxxxx International (UK) Ltd.
(iv) The Custodian will notify each of the Trust and the Sponsor within two Business Days (i) of the name and address of any new Sub-Custodian (i.e. in addition to those referred to in (iii) above or previously notified pursuant to this clause 8.1(iv)) to be used by the Custodian for the purposes of this Agreement, or (ii) if it terminates its relationship with any Sub-Custodian that it uses for the purposes of this Agreement. The Custodian will otherwise provide the reports set forth on Schedule B with respect to Sub-Custodians and any Indirect Sub-Custodians.
(v) The receipt of notice by each of the Trust and the Sponsor that the Custodian has selected a Sub-Custodian shall not be deemed to limit the Custodian’s responsibility in selecting such Sub-Custodian.
| 8.2 | Liability: Except for the Custodian’s obligations under clauses 2.7, 7.2, 7.3 and 7.4, the Custodian shall not be liable in contract, tort or otherwise for any loss, damage or expense arising directly or indirectly from an act or omission, or insolvency, of any Sub-Custodian or any further delegate of such Sub-Custodian unless the appointment of that Sub-Custodian was made by the Custodian fraudulently, negligently or in bad faith. |
| 8.3 | Notice: The Custodian will provide the Trust upon request with the name and address of any Sub-Custodian the Custodian selects and Indirect Sub-Custodian selected or used by such Sub-Custodian, along with any other information which the Trust may reasonably request concerning the appointment of such Sub-Custodian or such Indirect Sub-Custodian. |
| 8.4 | Monitoring: The Custodian shall monitor the conduct of each Sub-Custodian and, where it is legally permissible for it to do so, promptly advise the Trust of any difficulties or problems (financial, operational, or otherwise) existing with respect to such Sub-Custodian of which it is aware and will take appropriate and lawful action to protect and safekeep the Trust’s Physical Gold deposited with such Sub-Custodian, including to the extent feasible, the withdrawal of such Physical Gold from such Sub-Custodian. |
11
| 9. | REPRESENTATIONS |
| 9.1 | Each party represents and warrants to the other party, on the basis that each of its following representations and warranties is deemed repeated each time that a notice is given for the deposit or withdrawal of Physical Gold under this Agreement, 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 authorizations and has taken all necessary action to enable it lawfully to enter into and perform its duties and obligations under this Agreement; |
| (c) | the person or persons entering into this Agreement on its behalf has or have been duly authorized to do so; and |
| (d) | this Agreement and the obligations created under it 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 | The Custodian represents and warrants to the Trust, on the basis that each of its following representations and warranties is deemed repeated each time that a notice is given for the deposit or withdrawal of Physical Gold under this Agreement, that: |
| (a) | it is a bank, duly organized under the laws of its country of organization as set forth above, and is regulated as such by that country’s government or any agency thereof; and |
| (b) | it is a member of the LBMA. |
| 10. | FEES AND EXPENSES |
| 10.1 | Fees: For the Custodian’s services under this Agreement, the Custodian and the Sponsor have entered into a separate agreement, to which the Custodian has agreed, under which the Sponsor shall pay the Custodian’s fee for services under this Agreement. |
| 10.2 | Expenses: Pursuant to a separate written agreement between the Sponsor and the Custodian, to which the Custodian has agreed, the Sponsor shall pay to the Custodian on demand all costs, charges and expenses (excluding (i) any relevant taxes and VAT (if chargeable), duties and other governmental charges, (ii) fees for storage of the Physical Gold and any fees and expenses of Sub-Custodians, which will be recovered under clause 10.1, and (iii) indemnification obligations of a Fund under clause 11.5, which will be paid pursuant to the following sentence) incurred by the Custodian in connection with the performance of its duties and obligations under this Agreement or otherwise in connection with the Physical Gold. A Fund will procure payment on demand, solely from and to the extent of the assets of the Fund, of any other costs, |
12
| charges and expenses not assumed by the Sponsor under its agreement with the Custodian referenced in this clause 10.2 (including any relevant taxes (other than VAT, which is addressed in clause 13.1), duties, other governmental charges and indemnification claims of the Custodian payable by the Fund pursuant to clause 11.5, but excluding fees for storage of the Physical Gold and any fees and expenses of Sub-Custodians, which will be recovered under clause 10.1) incurred by the Custodian in connection with the Physical Gold. |
| 10.3 | Credit Balances: No interest or other amount will be paid by the Custodian on any credit balance on a Fund Allocated Account. |
| 10.4 | No Recovery from a Fund: Amounts payable pursuant to this clause 10 (including clause 10.5) shall not be debited from a Fund Allocated Account, but shall be payable, as applicable, by the Sponsor or by the Trust on behalf of the Fund, and the Custodian hereby acknowledges that it will have no recourse against Physical Gold standing to the credit of the Fund Allocated Account or to the Trust in respect of any such amounts. |
| 10.5 | Default Interest: If the Trust or the Sponsor, as applicable, fails to procure payment to the Custodian of any amount when it is due, the Custodian reserves the right to charge the relevant party interest (both before and after any judgment) on any such unpaid amount calculated at a rate equal to 1% above the overnight London Interbank Offered Rate (LIBOR) (or, if LIBOR is discontinued, an industry accepted replacement rate for LIBOR) for the currency in which the amount is due. Interest will accrue on a daily basis and will be due and payable by the relevant party as a separate debt. |
| 11. | SCOPE OF RESPONSIBILITY |
| 11.1 | Exclusion of Liability: The Custodian will use reasonable care in the performance of its duties under this Agreement and will only be responsible for any loss or damage suffered by a Fund as a direct result of any negligence, fraud or willful default on its part in the performance of its duties, and in which case its liability will not exceed the market value of the Gold credited to the Fund Unallocated Account and the Fund Allocated Account at the time such negligence, fraud or willful default is either discovered by or notified to the Custodian (such market value calculated using the nearest available LBMA Gold Price PM following the occurrence of such negligence, fraud or willful default), provided that, in the case of such discovery by or notification to the Custodian, the Custodian notifies the Sponsor and the Trust promptly after any discovery of such negligence, fraud or willful default. If the Custodian delivers from a Fund Allocated Account Gold that is not of the fine weight the Custodian has represented to the Fund or that is not in accordance with the Rules, recovery by the Fund, to the extent such recovery is otherwise allowed, shall not be barred by any delay in asserting a claim because of the failure to discover the corresponding loss or damage regardless of whether such loss or damage could or should have been discovered. |
| 11.2 | No Duty or Obligation: The Custodian is 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 or as specifically set forth in this Agreement. |
13
| 11.3 | Insurance: The Custodian (or one of its Affiliates) shall make such insurance arrangements from time to time in connection with the storage of the Trust’s Gold under this Agreement as the Custodian considers appropriate and will be responsible for all costs, fees and expenses (including any relevant taxes) in relation to such insurance policy or policies. The Custodian shall provide the Trust with evidence of the Custodian’s insurance upon execution of this Agreement and, at the Trust’s request, within 10 Business Days following the end of the calendar year. Additionally, the Custodian will allow the Trust and the Sponsor, upon 10 Business Days’ prior written notice, to review such insurance in connection with the preparation of any registration statement under the United States Securities Act of 1933, as amended, covering any Shares, or any amendment thereto. Any permission to review the Custodian’s insurance is limited to the term of this Agreement and is conditioned on the reviewing party executing a form of confidentiality agreement provided by the Custodian, or if the confidentiality agreement is already in force, acknowledging that the review is subject thereto. In the event of a reduction, cancellation or non-renewal of the Custodian’s insurance, or a change in the provider of the Custodian’s insurance, the Custodian will give the Trust and the Sponsor written notice of any such event within no more than 10 Business Days after the date of any such event. |
| 11.4 | Force Majeure: The Custodian shall not be liable for any delay in performance, or for the non-performance, of any of its obligations under this Agreement by reason of any cause beyond the Custodian’s reasonable control. This includes any act of God or war or terrorism, any breakdown, malfunction or failure of, or connected with, any communication, computer, transmission, clearing or settlement facilities, industrial action, or acts, rules and regulations of any governmental or supra national bodies or authorities or any relevant regulatory or self-regulatory organization. |
| 11.5 | Indemnity: Each Fund, solely from and to the extent of the assets of that Fund, shall indemnify and keep indemnified the Custodian (on an after tax basis) on demand against all costs and expenses, damages, liabilities and losses (other than VAT, which is addressed in clause 13.1) and the expenses assumed by the Sponsor under its agreement with the Custodian referenced in clause 10.2) which the Custodian may suffer or incur, directly or indirectly in connection with services provided to the Fund under this Agreement, except to the extent that such sums are due directly to the negligence, willful default or fraud of the Custodian. The foregoing indemnity shall also not apply to the Custodians’ fees that are paid by the Sponsor pursuant to clause 10.1. |
| 11.6 | Trust Liability: This Agreement is executed by or on behalf of the Trust with respect to each of the Funds and the obligations hereunder are not binding upon any of the trustees, officers or shareholders of the Trust individually. Separate and distinct records are maintained for each Fund and the assets associated with any such Fund are held and accounted for separately from the other assets of the Trust, or any other Fund of the Trust. The Custodian acknowledges that the Custodian is not entitled to use the assets of a particular Fund to discharge the debts, liabilities, obligations and expenses incurred, contracted for, or otherwise existing with respect to the Trust generally or any other Fund, and none of the debts, liabilities, obligations and expenses incurred, contracted for, or otherwise existing with respect to the Trust generally or any such other Fund shall be enforceable against the assets of that particular Fund. The Trust’s Declaration of Trust is on file with the Trust. |
14
| 11.7 | Custodian’s Interests and Affiliates’ Interests: The Custodian has the right, without notifying the Trustee, to act upon the Trust’s instructions or to take any other action permitted by the terms of this Agreement where: |
| (a) | the Custodian, directly or indirectly, has a routine business interest in the consequences of such instruction or action; |
| (b) | except as otherwise provided in this Agreement, the Custodian processes the Trust’s instructions on an aggregated basis together with similar instructions from other clients; or |
| (c) | the Custodian, except as otherwise provided in this Agreement, has a relationship with another party which does or may create a conflict with its duty to a Fund or the Trust including (without prejudice) circumstances where the Custodian or any of its associates may (i) act as financial adviser, banker or otherwise provide services to a contract counterparty of a Fund or the Trust; (ii) act in the same arrangement as agent for more than one client; or (iii) earn profits from any of the activities listed herein. |
The Custodian or any of its divisions, branches or Affiliates may be in possession of information tending to show that the action required by a Fund’s instructions may not be in the Fund’s best interests, but shall not have any duty to disclose any such information.
| 12. | TERMINATION |
| 12.1 | Notice: Any termination notice given by the Trust, on behalf of a Fund under clause12.2 must specify: |
| (a) | the date on which the termination will take effect; |
| (b) | the person to whom the Physical Gold is to be transferred; and |
| (c) | all other necessary arrangements for the transfer of Physical Gold to the order of the Fund. |
| 12.2 | Term: This Agreement shall have a fixed term up to and including 4 (four) years and will automatically renew for further successive terms of 1 (one) year thereafter unless terminated by the parties in accordance with this clause 12; provided that during such periods (i) either the Trust, on behalf of one or more Funds, or the Custodian may terminate this Agreement for any reason or for no reason by giving not less than 90 days’ written notice to the other party and (ii) this Agreement may be terminated immediately upon written notice as follows: |
15
| (a) | by the Trust, if the Custodian ceases to offer the services contemplated by this Agreement to its clients or proposes to withdraw from the gold bullion business; |
| (b) | by the Trust or the Custodian, if it becomes unlawful for the Custodian to be a party to this Agreement or to offer its services to the Trust on the terms contemplated by this Agreement or if it becomes unlawful for a Fund or the Trust to receive such services or for the Trust to be a party to this Agreement; |
| (c) | by the Custodian, if there is any event which, in the Custodian’s reasonable view, indicates the Trust’s or the Sponsor’s insolvency or impending insolvency; |
| (d) | by the Trust, if there is any event which, in the Sponsor’s reasonable view, indicates the Custodian’s or the Sponsor’s insolvency or impending insolvency; |
| (e) | by the Trust, with respect to one or more Funds if a Fund or the Trust is to be terminated; or |
| (f) | by the Trust or by the Custodian, if the Unallocated Gold Account Agreement ceases to be in full force and effect at any time. |
| 12.3 | Change in the Sponsor: If there is any change in the identity of the Sponsor, then the Custodian, the Sponsor and the Trust shall, subject to the last sentence of this clause 12.3, execute such documents and shall take such actions as the new Sponsor and the outgoing Sponsor may reasonably require for the purpose of vesting in the new Sponsor the rights and obligations of the outgoing Sponsor, and releasing the outgoing Sponsor from its future obligations under this Agreement. The Custodian’s obligations under this clause 12.3 shall be conditioned on the Custodian having conducted due diligence in accordance with its internal procedures to the Custodian’s reasonable satisfaction on any such new Sponsor. |
| 12.4 | Redelivery Arrangements: If the Trust does not make arrangements acceptable to the Custodian for the delivery of the Physical Gold, the Custodian may continue to maintain the applicable Fund Allocated Account, in which case the Custodian will continue to charge the fees and expenses payable under clause 10. If the Trust has not made arrangements acceptable to the Custodian for the transfer of Physical Gold from a Fund Allocated Account within 6 months of the date specified in the termination notice as the date on which the termination will take effect, the Custodian will be entitled to close the Fund Allocated Account and sell the Physical Gold (at such time and on such markets as the Custodian considers appropriate) and account to the Fund for the proceeds. |
| 12.5 | Effect of Termination; Existing Rights: Termination of this Agreement with respect to the coverage of any one Fund shall in no way affect the rights and duties under this Agreement with respect to any other Fund. 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. |
16
| 13. | VALUE ADDED TAX |
VAT Inclusive: All sums payable or other consideration provided to the Custodian by the Trust or the Sponsor in connection with this Agreement and the Unallocated Gold Account Agreement (including pursuant to the separate agreement referred to in clause 10.1 of this Agreement) shall be deemed to be inclusive of VAT.
| 14. | NOTICES |
| 14.1 | Notices: Except as provided in clauses 2.4, 5.2 and 16.5, 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 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 in clause 14.3 or another address, number or destination specified by that party by written notice to the other. |
| 14.2 | Deemed Receipt of Notice: A notice or other communication under or in connection with clause 14.1 will be deemed received only if actually received or delivered. |
| 14.3 | Contact Information: The contact information of the parties for the purposes of clauses 5.2 and 14.1 is: |
The Custodian:
ICBC Standard Bank Plc
00 Xxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Precious Metals Operations
E-mail: Xxxxxx.XxxxxxxxXxxxxxXxxxxxxxxx@xxxxxxxxxxxx.xxx and Xxxxxxx.Xxxxxxxx@xxxxxxxxxxxx.xxx
The Trust:
World Gold Trust
c/o WGC USA Asset Management Company, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
Telephone: 000-000-0000
The contact information of the Sponsor for purposes of receiving notices under this Agreement is:
17
The Sponsor:
WGC USA AssetManagement Company, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Managing Director, Investment
Facsimile: 000-000-0000
Telephone: 000-000-0000
E-Mail: Xxxx.Xxxxxxx@xxxx.xxx
| 14.4 | Recording of Calls: The Custodian and the Trust may each record telephone conversations without use of a warning tone. Such recordings will be the recording party’s sole property and accepted by the other party hereto as evidence of the orders or instructions that are permitted to be given orally under this Agreement, provided that (i) in case of any dispute or disagreement regarding any conversation so recorded the recording party will promptly share the recordings with the other party and its representatives and (ii) the recording party will have no obligation to retain any such recordings prior to becoming aware of any such dispute or disagreement. |
| 15. | GENERAL |
| 15.1 | Amendment of Schedules: The name of any Fund listed on Schedule A may be changed by the Sponsor without amendment to this Agreement provided that the Trust shall notify the Custodian promptly upon, and provide the Custodian with documentary evidence of, any such name change. Additional series of the Trust (each a “New Fund”) may from time to time become parties to this Agreement by (a) delivery to the Custodian of (i) an instrument of adherence agreeing to become bound by and party to this Agreement executed by the Trust on behalf of such New Fund, and (ii) an amendment and restatement of Schedule A setting forth the New Fund, and (b) upon receipt of the foregoing documents, the Custodian may agree in writing to the addition of such New Fund, which agreement shall not be unreasonably withheld. |
| 15.2 | No Advice: The Custodian’s duties and obligations under this Agreement do not include providing the other party with investment advice. In asking the Custodian to open and maintain a Fund Allocated Account, the Trust acknowledges that the Custodian shall not owe to a Fund or the Trust any duty to exercise any judgement on its behalf as to the merits or suitability of any deposits into, or withdrawals from, the Fund Allocated Account. |
| 15.3 | Rights and Remedies: The Custodian hereby waives any right it has or may hereafter acquire to combine, consolidate or merge the Metal Accounts with any other account of the Trust or a Fund or to set off any liabilities of the Trust or a Fund to the Custodian and agrees that it may not set off, transfer or combine or withhold payment of any sum standing to the credit or to be credited to the Metal Accounts in or towards or conditionally upon satisfaction of any liabilities to it of the Trust or a Fund. Subject thereto, the Custodian’s rights under this Agreement are in addition to, and independent of, any other rights which the Custodian may have at any time in relation to the Metal Accounts. |
18
| 15.4 | Business Day: If an obligation of a party would otherwise be due to be performed on a day which is not a New York Business Day or a London Business Day, as the case may be, in respect of a Fund Allocated Account, such obligation shall be due to be performed on the next succeeding New York Business Day or London Business Day, as the case may be, in respect of the Fund Allocated Account. |
| 15.5 | Assignment: This Agreement is for the benefit of and binding upon both the Custodian and the Trust and their respective successors and assigns. Save as expressly provided in clause 12.3 and this clause 15.5, no party may assign, transfer or encumber, or purport to assign, transfer or encumber, any right or obligation under this Agreement unless the other party otherwise consents in writing. This clause shall not restrict the Custodian’s power to merge or consolidate with any party, or to dispose of all or part of its custody business, and further provided that this clause shall not restrict the Trust from assigning its rights hereunder to a Shareholder to the extent required for the Trust to fulfill its obligations. |
| 15.6 | Amendments: Any amendment to this Agreement must be agreed in writing and be signed by the Trust and the Custodian. Unless otherwise agreed, an amendment will not affect any legal rights or obligations which may already have arisen. |
| 15.7 | 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. |
| 15.8 | 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). |
| 15.9 | Entire Agreement: This Agreement and the Unallocated Gold Account Agreement represent the entire agreement between the parties in respect of their subject matter. This Agreement and the Unallocated Gold Account Agreement supersede and replace any prior existing agreement between the parties hereto relating to the same subject matter. |
| 15.10 | 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. |
| 15.11 | Compliance with Laws: Each party undertakes that in the performance of this Agreement and transactions connected with this Agreement it shall comply with all applicable anti-bribery and anti-corruption laws, sanctions, accounting and anti-money laundering legislation and shall maintain adequate and appropriate policies and procedures designed to ensure and which are reasonably expected to ensure continued compliance with such anti-bribery and anti-corruption laws, sanctions, accounting and anti-money laundering legislation. Furthermore and in connection with the foregoing, the Trust undertakes to the Custodian that it has conducted appropriate due diligence on any recipient of Gold and that the Trust will comply with any reasonable requests the Custodian may make from time to time for confirmation and evidence that the Trust has complied with its obligations pursuant to this clause 1.5.11 (including in respect of Authorized Participants, the Sponsor and Shareholders) and acknowledges that should it fail to do so the Custodian may terminate this Agreement immediately in accordance with the provisions of clause 12.2(ii) above. |
19
| 16. | GOVERNING LAW AND JURISDICTION |
| 16.1 | Governing Law: This Agreement is governed by, and will be construed in accordance with, English law. |
| 16.2 | Jurisdiction: The Trust and the Custodian agree that the courts of the State of New York, in the United States of America, and the United States federal court located in the Borough of Manhattan in such state, are to have jurisdiction to settle any Disputes which may arise out of or in connection with this Agreement and, for these purposes the Trust and the Custodian irrevocably submits to the non-exclusive jurisdiction of such courts, waive any claim of forum non conveniens and any objection to laying of venue, and further waive any personal service. |
| 16.3 | Waiver of Immunity: To the extent that a party may in any jurisdiction claim any immunity from suit, judgment, enforcement or otherwise howsoever, such party agrees not to claim, and irrevocably waives, any such immunity to which it would otherwise be entitled to (whether on grounds of sovereignty or otherwise) to the full extent permitted by the laws of such jurisdiction. |
| 16.4 | Third Party Rights: Except with respect to the Sponsor, which shall be considered a beneficiary (as applicable) of clauses 2.7, 2.8,3.2,4.3, 6.2, 8.1, 11.1, 11.3, 12.3, 14.3, and 16.4, the Custodian does not owe any duty or obligation or have any liability towards any person who is not a party to this Agreement. Except as set forth in this clause 16.4, this Agreement does not confer a benefit on any person who is not a party to it. The parties to this Agreement do not intend that any term of this Agreement shall be enforceable by any person who is not a party to it and do intend that the Contracts (Rights of Third Parties) 1999 Act shall not apply to this Agreement, provided that the Sponsor may enforce its rights under clauses 2.7, 2.8, 3.2, 4.3, 6.2, 8.1, 11.1, 11.3, 12.3, 14.3 and 16.4. |
| 16.5 | Service of Process: Process by which any proceedings are begun may be served on a party by being delivered to the party’s address specified below. This does not affect any right to serve process in another manner permitted by law. |
Custodian’s Address for service of process:
ICBC Standard Bank Plc
00 Xxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: The Head of Legal
Trust’s Address for service of process:
World Gold Trust
c/o WGC USA Asset Management Company, LLC
20
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
Telephone: 000-000-0000
[Signature Page Follows]
21
Signed on behalf of
ICBC STANDARD BANK PLC
By its authorized signatories
| Signature | /s/ Xxxxxxxxx Xxxxx | Signature | /s/ Xxxx XxXxxxxxx |
| ||||||
| Name | Xxxxxxxxx Xxxxx | Name | Xxxx XxXxxxxxx | |||||||
| Title | Legal Department ICBC Standard Bank Plc | Title | Authorised Signatory | |||||||
| Date | 19 / 06 / 2018 | Date | 19 / 06 / 2018 |
Signed on behalf of
WORLD GOLD TRUST
on behalf of its series set forth on Schedule A
By its authorized signatory
| Signature | /s/ Xxxxxxx X. Xxxxxxx | |
| Name | Xxxxxxx X. Xxxxxxx | |
| Title | Vice President | |
| Date | June 14, 2018 |
[Signature Page to Allocated Gold Account Agreement]
22
Schedule A
List of Funds
SPDR® Gold MiniShares Trust
1
Schedule B
Notices and Reports
The Custodian shall provide the following notices and reports via email to xxxxxxx@xxxx.xxx or other electronic delivery as agreed upon:
| (1) | For each London Business Day, by no later than 9:00 a.m. NY Time on the following London Business Day: |
| (a) | information (i) showing the increases and decreases to the Physical Gold standing to a Fund’s credit in the Fund’s Allocated Account and identifying separately each transaction and the New York or London Business Day on which it occurred and (ii) identifying each individual bar of Physical Gold held in a Fund Allocated Account; |
| (b) | a notification of (i) each separate transaction, if any, transferring Gold to a Fund Allocated Account from the corresponding Fund Unallocated Account, (ii) the amount of Gold, if any, transferred from the Fund Allocated Account to the corresponding Fund Unallocated Account, and (iii) the closing balance of Physical Gold held in a Fund Allocated Account for such London Business Day; |
| (c) | on the Phoenix Portal (or where the Phoenix Portal is not used or not available for any reason whatsoever, a pdf file sent by email), a list of all bars of Physical Gold held in a Fund’s Allocated Account, which list shall be updated at least daily and include the following information for each bar of Physical Gold: (i) relevant vault location, (ii) gross weight, (iii) fineness, (iv) serial identification number, (v) size, (vi) fine ounces, and (vii) applicable refinery name; and |
| (d) | such other information about the increases and decreases to the Gold standing to a Fund’s credit in the Fund Allocated Account on a same day basis at such other times and in such other form as the Trust and the Custodian shall agree. |
| (2) | Written and telephonic notification to the Trust by no later than 2 (two) London Business Days after the Custodian’s discovery (or receipt of notification, as the case may be) of the occurrence of each of the following events: |
| (a) | an error or reversal of an error in an entry to a Fund Allocated Account, including an error in an entry regarding the fineness or weight of Physical Gold in the Fund Allocated Account; |
| (b) | any failure of Physical Gold held for the benefit of the Trust to be in accordance with current LBMA market practices with regard to weight lists or refiner, assay, serial number and gross and fine weight and by any other marks required for the identification of a bar of Physical Gold under the Rules, including without limitation the removal of a refiner from LBMA’s Good Delivery List for gold; |
| (c) | in the event any refiner of gold bars is removed from the LBMA’s Good Delivery List of accredited refiners, information regarding Physical Gold produced by such refiner and held for the benefit of the Fund or Trust: |
1
| (i) | the name of such refiner; and |
| (ii) | information regarding the vault location, gross weight, fineness, serial ID number, size, and fine ounces regarding any such gold bars; |
| (d) | any difficulties or problems existing with respect to a Sub-Custodian (where legally permissible for the Custodian to provide such information); and |
| (e) | any failure or delay in the provision by the Custodian of any reports required to be provided by it under this Agreement, the cause for any such failure or delay (where it is legally permissible for it to provide this), and the date (or, if unknown, the reasonably estimated date) by which any such report will be provided. |
| (3) | Notification to the Trust of the following by no later than 2 (two) London Business Days after the occurrence of any of the following: |
| (a) | the name and address of any newly selected Sub-Custodian or any Sub-Custodian no longer used by the Custodian, in both cases for the purposes of this Agreement; |
| (b) | the name of any Indirect Sub-Custodian newly selected or used, or no longer used, by any Sub-Custodian, in both cases for the purposes of this Agreement; and |
| (c) | the amount of the Trust’s Physical Gold and length of time held at any Sub-Custodian required to be reported pursuant to item (a) above. |
| (4) | Within a reasonable time after the end of each calendar month a statement of account for each Fund Allocated Account which shall include the opening and closing monthly balance and all transfers to and from each Fund Allocated Account, accompanied by one or more weight lists containing information sufficient to identify each bar of Physical Gold held in a Fund Allocated Account as of the last London Business Day of the calendar month and the party having physical possession thereof, including any Sub-Custodian or any Indirect Sub-Custodian. |
| (5) | Notification to the Trust, by no later than 10 (ten) London Business Days after the end of each calendar quarter and calendar year, stating the following: |
| (a) | the amount of assets held for the Trust by the Custodian and each Sub-Custodian or Indirect Sub-Custodian as of the end of the respective calendar quarter; or |
| (b) | that the Trust has no such holdings as of the end of the respective calendar quarter. |
2