Tag Archives: Xetra-Gold

The 2008 Collapse Will Continue Without More QE

Craig “Turd Ferguson” Hemke invited me onto this Thursday A2A podcast show last Thursday.  As usual, Turd does a great job of blending irreverent humor and truthseeking in order to flush out cutting-edge insight on the issues affecting our markets.  In this episode we discuss:

  • The history of DeutscheBank and how this is all still relevant today
  • Jim Rickards and his role as a “spokesperson” for gold
  • The relative safety of working with different custodians and online clearing firms
  • The benefits of owning shares in streaming/royalty companies
  • And, as usual, a whole lot more

You can hear our conversation and the excellent questions asked by the members of Turdville here:   A2A with Dave Kranzler of Investment Research Dynamics

Paper Gold Is Legalized Fraud

A lot of questions were raised when it was reported that Deutsche Borse failed to deliver physical gold in exchange for its Xetra-Gold Notes.  But the only real answer to those questions is simple:  the only way you ever own physical gold is if you buy actual physical gold and take possession.

The allegations that Xetra-Gold or Deutsche Bank or Deutsche Borse committed fraud or failed to deliver gold are strictly false.  One thorough reading of the Xetra-Gold prospectus dispels those allegations.  The prospectus little more than a blanket legal disclaimer.   The language is clear.  It says right in the prospectus that the an investment in the Notes “does not constitute a purchase or other acquisition of Gold.”  There is not case for fraud because none of the participants in Deutsche Borse, and Deutsche Borse itself, did not commit any breach of contract per the terms of the prospectus.

The term “economic” in the prospectus is defined (pg 12) to mean that the “bears the market risk associated therewith. If the gold price decreases, provided that all other conditions remain unchanged, such decrease may result in a partial or complete depreciation of the invested capital. If the gold price increases, provided that all other conditions remain unchanged, such increase may result in an increase in the invested capital.

In this latest episode of the Shadow of Truth we discuss why buying paper forms of gold like GLD or Xetra-Gold is nothing more than an investment in a paper claim to the rate of return on gold during the period in which you own the security.  If you don’t hold your gold in your own possession, you don’t own it:

There Is No Default Or Fraud Committed On The Xetra-Gold Securities

Anyone who purchases paper gold with the belief that it is an investment in gold is an imbecile.

Last week Zerohedge broke a story about an investor who tried to redeem shares in Xetra-Gold “notes” in exchange for the designated amount of gold represented by those notes. The story gained legs on the internet as a “refused delivery” and a “delivery default.”  I received several inquiries about this and my only response was that someone needs to go through the prospectus in order to determine what type of event has occurred.

I went through the prospectus and so far, everything published on the internet, including any claims made by Zerohedge, are reckless, useless and incorrect.   Here’s a link to the prospectus:  Xetra-Gold Notes.   Ultimately, there has not been a legal default. Furthermore, here has not been any fraud committed because there has not been any breach of contract.

Let’s start with some facts directly from the prospectus.   1)  The Issuer is Deutsche Borse Commodities GmbH;  2) The Custodian is Clearstream Banking AG;  3)  The Debtor of the Gold Delivery Claims is Umicore AG.   That latter aspect is interesting.  Unicore is a Swiss metals refiner and trader.   Any claims of failure to deliver  should be directed at Unicore. The securities in question are unsecured Notes of the Issuer and the only “asset” of the Issuer is a “claim for delivery of one gram of Gold in accordance with the Terms and Conditions.”  That’s it, there are not any other assets in Deutsche Borse Commodities GmbH.

Deutsche  Bank is one of the redemption agents.  But Zerohedge labelled Deutsche Bank as a “Designated Sponsor” as if it meant that DB had obligations beyond what was defined by the prospectus.  In fact, DB is a “designated sponsor in the electronic trading system” of the notes.  In other words, DB is the primary market maker in the trading of the securities.   Nowhere in the prospectus does it specify that DB is obligated to fulfill delivery of gold in exchange for redeemed Xetra-Gold Notes.  Note:  This is not a defense of DB – I regard DB as one of the most vile and corrupt banks on earth;  but legal facts are facts that need to understood and regarded.

Here’s the other relevant facts:   1)   The purchasers of the Notes will only acquire the rights securitised by the Notes. The purchasers of the Notes will not acquire any title to, or security interests or beneficial ownership in, the physical Gold held in custody on behalf of the Issuer. An investment in the Notes does not constitute a purchase or other acquisition of Gold.   This means that the notes are unsecured and the only right is to submit a claim against Unicore, the Debtor of the Gold Delivery Claims.  Good luck with that.

2) The gold price is determined based on demand for and supply of gold. The value of the Notes is a function of the demand for and supply of the Notes as such. This distinguishes an investment in the Notes from a direct investment in gold. The purchasers of the Notes will only acquire the rights  securitised by the Notes. The purchasers of the Notes will not acquire any title to, or security interests or beneficial ownership in, the physical Gold held in custody on behalf of the Issuer. An investment in the Notes does not constitute a purchase or other acquisition of Gold. This means that you are investing in paper plus the right to make a delivery claim.

3)  Deutsche Bank AG is not, in any way, obliged to protect the interests of the investors.  That’s self-explanatory and it is legal refutation of all of the accusations made against DB by reckless blog posts.

4) Umicore AG & Co. KG as the responsible agent for all physical delivery processes in connection with the Notes and in its capacity as the Debtor of the Gold Delivery Claims will be actively trading in gold. This activity may also lead to various potential and actual conflicts of interests. Umicore AG & Co. KG is not obliged to decide any such conflict of interests in favour of the investors, but will in connection with the trading in gold take such decisions and measures at its sole discretion as it may deem
necessary or expedient to protect its own interests and will act in this context as if the Notes did not exist.   That basically says that if you expect to be guaranteed delivery of gold when you send your notes to Deutsche Bank, who is a redemption agent, then pay your lawyer to file a claim in German and Swiss courts.

The prospectus makes it very clear that the purpose of the notes is to make profits for the entities who are the shareholders in Deutsche  Borse.   In that regard, the prospectus states that:  The only business activity of Deutsche Börse Commodities GmbH is the ongoing issuance of the Notes which are the subject matter of this Prospectus and transactions associated with such issuance. All activities resulting from the issue of the Notes, e.g., the safekeeping of Gold and the fulfilment of claims for delivery of holders, have been outsourced by the Issuer to third parties.  Those third  parties are generally the shareholders of Deutsche Borse.

The bottom line on the failed delivery incident reported by Zerohedge and strangulated by several other blogs is that Deutsche Bank has no obligation with respect to delivering gold to any note-holder who submits the paperwork required to redeem notes for gold other than to pass on the request to Umicore, which is specified as “the responsible agent for all physical delivery processes in connection with the Notes.”  In fact, the prospectus reiterates that “Deutsche Bank AG is not, in any way, obligated to protect the interests of investors.”

It goes on to state that Unicore, in its capacity as Debtor of the Gold Delivery Claims, will be actively trading in gold and that “this activity may also lead to various potential and actual conflicts of interests. Unicore AG & Co. KG is not obliged to decide any such conflict of interests in favour of the investors, but will in connection with the trading in gold take such decisions and measures at its sole discretion as it may deem necessary or expedient to protect its own interests and will act in this context as if the Notes did not exist.”

With the above as legal context, I’m not surprised that Deutsche Bank did not offer any remedy when it was asked to respond to the allegations of a failed delivery of gold.  In fact, the prospectus does not contain any specific remedies in this case.   The only possible conclusion is that there has been a “breach of morals and ethics.”   Boo hoo.

Ironically, the Xetra-Gold notes have more loopholes and lack of investor protections than GLD.  Anyone who buys GLD thinking they are investing in gold is an idiot.  What does that make anyone investing in Xetra-Gold with the belief that it’s an investment in gold?

The easy conclusion in this situation is that the entities that are involved in Xetra-Gold do not have the gold that is supposed to be delivered.  That’s probably the most likely explanation but unfortunately the prospectus does not specify any legal remedies.  I guess a gold-delivery-note-holder could file a lawsuit against the Issuer and Unicore.  Until someone with deep pockets who is interested in truth discovery takes that initiative, we are left with no definitive explanations.