Attached files

file filename
S-1 - S-1 - ETFS White Metals Basket Trustwite-20140423xs1.htm
EX-23.1 - EX-23.1 - ETFS White Metals Basket Trustwite-20140423ex2317dc9a7.htm
EX-5.1 - EX-5.1 - ETFS White Metals Basket Trustwite-20140423ex513f1f4a4.htm
EX-8.1 - EX-8.1 - ETFS White Metals Basket Trustwite-20140423ex81b0fdcd0.htm

 

 

Katten logo_1_375

 

125 Old Broad Street

London, EC2N 1AR

+44 (0) 20 7776 7620 tel

+44 (0) 20 7776 7621 fax

www.kattenlaw.com..

 

RANJEEV KUMAR

ranjeev.kumar@kattenlaw.co.uk

+44 (0) 20 7776 7634 direct

 

 

ETF Securities USA LLC

as Sponsor to ETFS White Metals Basket Trust

c/o ETF Securities Limited

Ordnance House

31 Pier Road

St. Helier, Jersey

JE4 8PW, Channel Islands

 

Attention: Graham Tuckwell

April 23, 2014

Dear Sirs

ETFS WHITE METALS BASKET TRUST – Form S-1 Registration Statement under the Securities Act of 1933

1

We act as English legal advisers to ETF Securities USA LLC, a Delaware limited liability company acting as sponsor to ETFS White Metals Basket Trust  (the Trust), in connection with the preparation and filing of a Registration Statement on Form S-1  (the Registration Statement), including the prospectus included in Part 1 of the Registration Statement under the Securities Act of 1933, as amended (the 1933 Act), filed on April 23, 2014. The Registration Statement related to the proposed registration under the 1933 Act of 4,300,000 shares of fractional undivided beneficial interest in and ownership of the Trust.

2

Unless otherwise defined herein, the words and expressions used in this letter shall have the same meaning as those words and expressions defined in the Registration Statement.

3

We are solicitors qualified in England and express no opinion as to any law other than English law at the date hereof. It is assumed that no law of any jurisdiction other than England and Wales affects this opinion. This opinion is governed by and construed in accordance with English law. The English courts shall have exclusive jurisdiction in connection with any claim or matter arising out of, or in connection with, this opinion which speaks only as of its date.

AUSTIN        CENTURY CITY        CHARLOTTE        CHICAGO        HOUSTON        IRVING        LOS ANGELES      
NEW YORK        ORANGE COUNTY        SAN FRANCISCO BAY AREA        SHANGHAI        WASHINGTON, DC

LONDON: KATTEN MUCHIN ROSENMAN UK LLP

A limited liability partnership including professional corporations


 

 

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April 23, 2014 

Page 2

 

4

For the purpose of the opinion contained in this letter, we have examined the following only:

4.1

the ETFS White Metals Basket Trust Allocated Account Agreement dated November 30, 2010 and made between JPMorgan Chase Bank, N.A., as custodian (1) and The Bank of New York Mellon, as trustee (2), as filed as an exhibit to the Registration Statement;

4.2

the ETFS White Metals Basket Trust Unallocated Account Agreement dated November 30, 2010 and made between JPMorgan Chase Bank, N.A., as custodian (1) and The Bank of New York Mellon, as trustee (2), as filed as an exhibit to the Registration Statement; and

4.3

the ETFS White Metals Basket Trust Depositary Trust Agreement dated November 30, 2010 and made between ETF Securities USA LLC, as sponsor (1) and The Bank of New York Mellon, as trustee (2), as filed as an exhibit to the Registration Statement, (together with the ETFS White Metals Basket Trust Allocated Account Agreement and the ETFS White Metals Basket Trust Unallocated Account Agreement,  the Custody Agreements).

5

The opinion set out in this letter is based upon the following assumptions, which we have made without investigation:

5.1

that the forms of the Custody Agreements, which we have examined and on which we have based the opinion set out in this letter, and all other documents submitted to us are authentic and complete;

5.2

that all signatures, stamps or seals, if any, on all documents supplied to us as originals or as copies of originals are genuine;

5.3

that no amendment, alteration, variation or modification has been made to any of the Custody Agreements in the forms examined by us, including (without limitation) the entry into of any side agreement or the giving of any undertaking, whether written or oral, which might have the effect of an amendment, alteration, variation or modification of any of the Custody Agreements;

5.4

that the parties to the Custody Agreements had as of November 30, 2010  (the Execution Date) and have as of the date of this letter the legal right and full power and authority to enter into and perform the Custody Agreements and any other documents executed (or to be executed) by them pursuant to or in connection with the Custody Agreements and that the Custody Agreements constitute valid and binding obligations on the parties in accordance with their terms;

5.5

that all corporate or constitutional action required by the parties to the Custody Agreements to validly and duly authorise the execution and delivery of, and to exercise the rights and perform the obligations of such parties under, the Custody Agreements had been duly taken as of the Execution Date;

 


 

 

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April 23, 2014 

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5.6

that all documents submitted to us as copies conform to the original documents and such originals are authentic and complete and there has been no variation, amendment, modification, waiver or alteration of any kind of any such document or the entry into of any side agreement or undertaking, whether written or oral, which might constitute or have the effect of a variation, amendment, modification, waiver or alteration of any kind of any such document;

5.7

that the Custody Agreements and the arrangements to which they give rise are not illegal, non-binding or unenforceable under or by virtue of any applicable laws outside England (as to which we express no opinion);

5.8

that to the extent that any obligation under the Custody Agreements has been or is to be performed in any jurisdiction other than England and Wales, its performance will not be illegal, non-binding or unenforceable under the laws of such jurisdiction (as to which we express no opinion);

5.9

that the Custodian, the Trustee and any other person referred to in the Custody Agreements had been duly incorporated as of the Execution Date, were as of the Execution Date (and are at the date of this letter) validly existing and had due power and authority as of the Execution Date to enter into and be bound by the arrangements contemplated by the Custody Agreements;

5.10

all statements of fact made in the Custody Agreements are true and correct in all respects; and

5.11

that no act, omission or thing has occurred or failed to occur in the period commencing on the Execution Date which would have the effect of vitiating, invalidating, voiding, waiving, setting aside, repudiating, rendering unenforceable or in any way impairing any of a party’s rights and/or obligations under the Custody Agreements.

6

On the basis of the foregoing and in reliance thereon and subject to the qualifications set out below and to matters not disclosed to us, we are of the opinion, as of the date hereof that the Custody Agreements constitute legally binding obligations of the parties thereto and would be enforceable if brought before a court in England and Wales.

7

The opinion set out in paragraph 6 above (the Opinion) is subject to the following qualifications:

7.1

we do not express any opinion in relation to the compliance of the Registration Statement or the offering of Shares thereunder with the laws, rules, requirements, customs or practices of the Securities and Exchange Commission or any other regulatory authority;

 


 

 

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April 23, 2014 

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7.2

we do not give any opinion that any clause in the Custody Agreements, would be upheld in any English court if found to be contrary to the privacy and human rights legislation prevailing under English law;

7.3

if proceedings relating to the Custody Agreements are brought before an English court, permission would have to be sought to serve process against any party who is resident outside England and Wales and who has not otherwise provided an address for service of proceedings in England and Wales;

7.4

in the event that the Trustee resigns or is removed as trustee of the Trust in circumstances whereby no successor is immediately appointed, an English court could construe the Custody Agreements as invalid by virtue of having only one party;

7.5

we have reviewed the Custody Agreements in isolation from the rules, regulations, practices and customs of the London Bullion Market Association, the London Platinum and Palladium Market and/or the Bank of England as well as from the rules, regulations, practices, customs and laws of any other applicable government, regulatory body or government authority applicable to platinum or banking or custody arrangements and as to which we consequently express no opinion;

7.6

we do not give any opinion as regards the likely outcome of the bringing of proceedings in relation to the Custody Agreements in New York or any other jurisdiction outside England and Wales;

7.7

we give no opinion as to the likelihood or otherwise of the English courts agreeing to enforce a judgment of the New York courts or a judgment of the courts of any other jurisdiction in relation to the Custody Agreements;

7.8

the Opinion is subject to all limitations arising from bankruptcy, insolvency, liquidation, administrative procedures, moratoria, voluntary arrangements, re-organisations, fraudulent transfers or similar laws, rules and regulations affecting the rights of creditors generally and affecting the enforcement of rights generally;

7.9

as used in this opinion, the word “enforceable” means that the Custody Agreements are of a type and form enforceable by the English courts; it is not, however, certain that each or any obligation within the Custody Agreements will necessarily be enforced in all circumstances in accordance with its terms since such enforcement is subject to principles of law, equity, courts discretion, issues of public policy and procedure of general application; the term does not address the extent to which a judgment obtained in a court outside England will be enforceable in England;

 


 

 

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7.10

we give no opinion that the choice of English law as the governing law of the Custody Agreements and/or the agreement that the Custody Agreements will be construed in accordance with English law will be held to be valid and enforceable by the courts of the State of New York and/or the United States federal court in the Borough of Manhattan and/or any other court of competent jurisdiction (outside England and Wales) who may be called upon to settle any dispute or claim which may arise out of or in connection with the Custody Agreements;

7.11

the power of the English courts to grant equitable remedies, such as specific performance and injunctions, is discretionary and, accordingly, where an equitable remedy is sought an English court might, instead, make an award of damages if it considered this an adequate remedy;

7.12

claims may become time-barred under the Limitation Act 1980 or become subject to defences of set-off or counterclaim and failure or delay by any party in exercising any right may constitute a waiver of that right in spite of provisions to the contrary in the Custody Agreements;

7.13

the English courts will not normally give full effect to the provisions requiring an indemnity for the costs of litigation or enforcement, even to the successful litigant, where the court has itself made an order for costs, or which would involve the enforcement of foreign revenue or penal laws or which would be inconsistent with English public policy; 

7.14

the effectiveness and enforceability of the terms exculpating a party from a liability or duty (including, without limitation, any purported exculpation or limitation of liability for fraud or wilful default) are limited by law;

7.15

the question of whether or not any provisions which may be illegal, invalid or unenforceable may be severed from other provisions would be determined by an English court, at its total discretion;

7.16

any discretion to be exercised under the Custody Agreements may be required by English law to be exercised reasonably and any determination may be required by English law to be based on reasonable grounds, in order to be enforceable;

7.17

any obligation to pay additional amounts in circumstances of breach or default might be held to be unenforceable under English law on the ground that it is a penalty;

7.18

provisions in the Custody Agreements may be amended by oral agreement between the parties or by a course of conduct of the parties, notwithstanding any provision in the Custody Agreements to the contrary;

7.19

provisions considered by the English courts to lack certainty may not be enforceable;

 


 

 

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April 23, 2014 

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7.20

an English court may choose not to enforce a contract to the extent that performance or observance thereof would be manifestly incompatible with English public policy, contrary to any applicable mandatory rules or unlawful in the place where it is to be performed;

7.21

in the event of any proceeding being brought or any judgment being enforced in an English court in respect of a monetary obligation expressed in a currency other than pounds sterling, such court would have power to give judgement expressed as an order to pay in such currency but could decline to do so, at its discretion;

7.22

in so far as the Opinion may express or be deemed to express any opinion as to future events or matters, the Opinion is based solely upon existing English law in force as at today’s date and upon existing documents of which we have knowledge;

7.23

we do not express or imply any opinion as to the correctness of any representations or warranties given by on or behalf of any party (expressly or impliedly) under or pursuant to the Custody Agreements;

7.24

any provisions in the Custody Agreements purporting to enable the assignment of an obligation may only be effective upon the novation of such obligation;

7.25

any action brought in the English courts would be subject to the rules and procedures of the English courts including the power of an English court, at its discretion, to order a party in an action, who is ordinarily resident out of the jurisdiction (but not including persons against whom a claim can be enforced under the European Judgments Conventions or the European Judgments Regulation) to provide security for costs;

7.26

we do not express any opinion as to any tax consequences, or likely tax consequences arising out of or in connection with the Custody Agreements or any transaction contemplated therein; and

7.27

we do not express any opinion on any competition law or anti-trust implications of the transactions contemplated by the Custody Agreements and in particular under the Fair Trading Act 1973, the Competition Act 1998, the Enterprise Act 2002 and the Treaty of Rome.

 


 

 

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April 23, 2014 

Page 7

 

8

This opinion is furnished by Katten Muchin Rosenman UK LLP solely for the benefit of ETF Securities USA LLC for use in connection with the Registration Statement.  It may not be distributed, circulated, quoted, referred to, relied upon by or otherwise disseminated to any other entity or person and may not be used by ETF Securities USA LLC other than in connection with the Registration Statement, in each case without our prior written consent. It is strictly limited to the matter stated and does not extend to, and is not to be extended by implication to, any other matter.

 

Yours faithfully

/s/ Katten Muchin Rosenman UK LLP

Katten Muchin Rosenman UK LLP