EX-99.1 7 ex99-1.htm OPINION OF REED SMITH LLP
 


ABERDEEN STANDARD PRECIOUS METALS BASKET ETF TRUST S-3
 

 Exhibit 99.1

Reed Smith LLP

The Broadgate Tower
20 Primrose Street
London EC2A 2RS

Phone +44 (0)20 3116 3000

Fax +44 (0)20 3116 3999

DX1066 City / DX18 London

reedsmith.com

Claude Brown

Direct Phone: +44 (0)20 3116 3662
Email: cbrown@reedsmith.com

November 15, 2019

Attention: Christopher Demetriou
Aberdeen Standard Investments ETFs Sponsor LLC
as sponsor to Aberdeen Standard Precious Metals Basket ETF Trust
712 Fifth Avenue, 49th Floor

New York, New York 10019

Dear Sirs

ABERDEEN STANDARD PRECIOUS METALS BASKET ETF TRUST - Form S-3 Registration Statement under the Securities Act of 1933

1.We act as English legal advisers to Aberdeen Standard Investments ETFs Sponsor LLC, a Delaware limited liability company acting as sponsor to Aberdeen Standard Precious Metals Basket ETF Trust (the Trust), in connection with the preparation and filing of a Registration Statement on Form S-3 (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 November 15, 2019. The Registration Statement related to the proposed registration under the 1933 Act of 8,100,000 shares of fractional undivided beneficial interest in and ownership of the Trust. This opinion is provided for the sole purpose of the Registration Statement and is limited to the matters opined on herein and does not extend, nor may be implied to extend, to any other matter.
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.
4.For the purpose of the opinion contained in this letter, we have examined the following only:
4.1the Aberdeen Standard Precious Metals Basket ETF Trust Allocated Account Agreement dated October 18, 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;

 

Reed Smith LLP is a limited liability partnership registered in England and Wales with registered number OC303620 and its registered office at The Broadgate Tower, 20 Primrose Street, London EC2A 2RS.
Reed Smith LLP is authorised and regulated by the Solicitors Regulation Authority. A list of the members of Reed Smith LLP, and their professional qualifications, is available at the registered office.
The term partner is used to refer to a member of Reed Smith LLP, or a partner of an associated entity, or an employee of equivalent standing.

Reed Smith LLP is associated with Reed Smith LLP of Delaware, USA and the offices referred to below are offices of either Reed Smith LLP or Reed Smith LLP of Delaware, USA.

ABU DHABI ATHENS BEIJING CENTURY CITY CHICAGO DUBAI FRANKFURT HONG KONG HOUSTON KAZAKHSTAN LONDON LOS ANGELES MUNICH NEW YORK
 PARIS PHILADELPHIA PITTSBURGH PRINCETON RICHMOND SAN FRANCISCO SHANGHAI SILICON VALLEY SINGAPORE TYSONS WASHINGTON, D.C. WILMINGTON

 

 

Attention: Christopher Demetriou

 

 

November 15, 2019

Page 2 

 

4.2the Aberdeen Standard Precious Metals Basket ETF Trust Unallocated Account Agreement dated October 18, 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, (together with the Aberdeen Standard Precious Metals Basket ETF Trust Allocated Account Agreement, the Custody Agreements); and
5.The opinion set out in this letter is based upon the following assumptions, which we have made without investigation:
5.1that 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;
5.2that all signatures, stamps or seals, if any, on all documents supplied to us as originals or as copies of originals are genuine;
5.3that no amendment, alteration, termination, 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, termination, variation or modification of any of the Custody Agreements;
5.4that the parties to the Custody Agreements had as of October 18, 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;
5.5that 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;
5.6that 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;
5.7that 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);

 

 

Attention: Christopher Demetriou

 

 

November 15, 2019

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5.8that 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);
5.9that 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;
5.10all statements of fact made in the Custody Agreements are true and correct in all respects;
5.11that no act, omission or thing has occurred or failed to occur (including all consents, licenses, approvals, notices, filings, and registrations required to made or obtained) in the period commencing on the Execution Date until the date of this letter 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;
5.12that all the parties to the Custody Agreements have during the period commencing on the Execution Date until the date of this letter complied (and will continue to comply) with all applicable anti-terrorism, anti-corruption, anti-money laundering and sanctions and human rights laws and regulations; and
5.13that all property transferred or purported to be transferred under the Custody Agreements will be validly transferred to the transferee in the manner contemplated by 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:
7.1we 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;
7.2we 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;

 

 

Attention: Christopher Demetriou

 

 

November 15, 2019

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7.3in 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;
7.4we have reviewed the Custody Agreements in isolation from the rules, regulations, practices and customs of the London Bullion Market and 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 gold, silver, platinum and palladium or banking or custody arrangements and as to which we consequently express no opinion;
7.5we 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;
7.6we 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;
7.7the 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;
7.8as 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;
7.9we 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;
7.10the 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;
7.11claims 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;

 

 

Attention: Christopher Demetriou

 

 

November 15, 2019

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7.12the 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;
7.13the 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;
7.14the 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;
7.15any 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;
7.16any 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;
7.17provisions 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;
7.18provisions considered by the English courts to lack certainty may not be enforceable;
7.19an 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;
7.20in 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;
7.21in 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;
7.22we 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;

 

 

Attention: Christopher Demetriou

 

 

November 15, 2019

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7.23any provisions in the Custody Agreements purporting to enable the assignment of an obligation may only be effective upon the novation of such obligation;
7.24any 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;
7.25we 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;
7.26we 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; and
7.27In certain circumstances English courts may be prevented from or decline to exercise their jurisdiction, for example where another court is already seized with jurisdiction in the matter.

Yours faithfully

 

/s/ Reed Smith LLP

REED SMITH LLP