UBS AFS CONTROLLED SUBSIDIARY 3 LTD. (as the Retiring Trustee) SUPERFUND JAPAN TRADING (CAYMAN) LIMITED (as the Manager)

Transcription

1 UBS AFS CONTROLLED SUBSIDIARY 3 LTD. (as the Retiring Trustee) SUPERFUND JAPAN TRADING (CAYMAN) LIMITED (as the Manager) SUPERFUND SECURITIES JAPAN, CO., LTD. (as the Distributor) and HARNEYS TRUSTEES (CAYMAN) LIMITED (as the New Trustee) DEED OF RETIREMENT AND APPOINTMENT OF TRUSTEE AND VARIATION OF TRUST DEED Superfund Blue Japan

2 THIS DEED OF RETIREMENT AND APPOINTMENT OF TRUSTEE AND VARIATION OF TRUST DEED is made on or around 24 th April 2015 but is effective on 1 May 2015 (the Effective Date ). PARTIES 1 UBS AFS Controlled Subsidiary 3 Ltd. of UBS House, 227 Elgin Avenue, PO Box 852, Grand Cayman KY1-1103, Cayman Islands (the Retiring Trustee ); 2 Superfund Japan Trading (Cayman) Limited of c/o Campbells Corporate Services Limited, P.O. Box 268, Willow House, Cricket Square, Grand Cayman KY1-1104, Cayman Islands (the Manager ); 3 Superfund Securities Japan, Co., Ltd. of Imperial Hotel Tower 10F, 1-1, Uchisaiwai-cho 1-chome, Chiyoda-ku, Tokyo, Japan (the Distributor ); and 4 Harneys Trustees (Cayman) Limited of 4 th Floor, Harbour Place, 103 South Church Street, PO Box 10240, Grand Cayman KY1-1002, Cayman Islands (the New Trustee ). WHEREAS A B C D E F Pursuant to a Trust Deed dated 7 July 2010 (the Original Trust Deed ), Royal Bank of Canada Trust Company (Cayman) Limited as trustee ( RBC ) and the Manager established Superfund Blue Japan (the Fund ), a Cayman Islands exempted umbrella unit trust. The Original Trust Deed was subsequently amended by RBC pursuant to Deeds of Amendment respectively dated 24 November 2010 and 16 June 2011 (together, the Deeds of Amendment ). Pursuant to a Deed of Retirement, Appointment and Variation dated 1 October 2012 (the Original Trust Deed, the Deeds of Amendment and such the Deed of Retirement and Appointment and Variation together referred to as the Trust Deed ), RBC retired as trustee of the Fund and the Retiring Trustee was appointed as trustee of the Fund. Pursuant to the procedure under Clause 33 of the Trust Deed, the Retiring Trustee wishes to retire as trustee of the Fund and the Manager and the Distributor wish to appoint the New Trustee as trustee of the Fund with effect from the Effective Date, and the New Trustee wishes to be so appointed as new trustee in respect of the Fund from the Effective Date. The Manager and the Distributor have agreed to the retirement of the Retiring Trustee and the appointment of the New Trustee with effect from the Effective Date. The Parties have agreed to waive the relevant notice period under the Trust Deed in order to effect the retirement of the Retiring Trustee and the appointment of the New Trustee with effect from the Effective Date. It is intended that the Trust Fund shall be transferred to or under the control of the New Trustee pursuant to the provisions of the Trust Deed and this Deed with effect from the Effective Date. It is intended that as part of the process of effecting the change of trustee, the standard of liability of the trustee as provided by the Trust Deed will be varied in the manner more particularly described in this Deed. OPERATIVE PROVISIONS 1

3 1 DEFINITIONS AND CONSTRUCTION 1.1 The Parties acknowledge and agree that: (a) (b) (c) (d) (e) terms used but not otherwise defined shall have the meanings ascribed to such terms in the Trust Deed; unless the context otherwise requires, references to the Retiring Trustee and the New Trustee include its duly authorised agents and/or delegates; references to any document or agreement or any law, statutory enactment, instrument, regulation or statutory instrument are to be construed as references to such law, statutory enactment, instrument, regulation or statutory instrument as in force for the time being and as amended, varied, supplemented, substituted or novated from time to time; references to actual fraud, wilful default or gross negligence mean a finding to that effect by a court of competent jurisdiction; and sections 8 and 19(3) of the Electronic Transactions Law (2003 Revision) of the Cayman Islands shall not apply. 1.2 In this Deed: (a) (b) Amendment Power has the meaning described in Clause 9 of this Deed; Deed means this Deed of Retirement and Appointment of Trustee and Variation of Trust Deed; (c) Effective Date means 1 May 2015; (d) (e) (f) (g) (h) (i) Fund has the same meaning ascribed to such term in the Recitals to this Deed; gross negligence means in relation to a person a standard of conduct beyond negligence whereby that person acts or fails to act with reckless disregard for the consequences of a breach of duty of care owed to another; Master Fund means Superfund Blue Segregated Portfolio I, a segregated portfolio of Superfund Blue SPC, being an exempted segregated portfolio company incorporated pursuant to the Companies Law (2013 Revision) of the Cayman Islands; Parties means the parties to this Deed; Records has the meaning provided in Clause 4(f) of this Deed; and Trust Deed has the same meaning ascribed to such term in the Recitals to this Deed, including all amendments and supplements to same. 2

4 2 RETIREMENT OF TRUSTEE AND APPOINTMENT OF NEW TRUSTEE 2.1 The Manager and the Distributor, in exercise of the power in that behalf conferred upon them by Clause 33(b) of the Trust Deed, hereby jointly appoint the New Trustee as a trustee of the Fund to act in the place of the Retiring Trustee who hereby retires and is discharged from the trusts of the Fund with effect from the Effective Date. 2.2 The New Trustee hereby acknowledges and accepts its appointment as the Trustee of the Fund and agrees to administer the Fund in accordance with the Trust Deed and to assume all the duties, liabilities, obligations and powers conferred upon the trustee by the Trust Deed with effect from the Effective Date. 2.3 The Manager and the Distributor hereby jointly and severally acknowledge and agree: (i) to the retirement of the Retiring Trustee and the appointment of the New Trustee with effect from the Effective Date; and (ii) that the Manager and the Distributor will continue to act as the Manager and Distributor respectively of the Fund and shall continue to have the rights and obligations of the Manager and Distributor as set out in the Trust Deed. 2.4 The Parties hereby waive the applicable notice provisions under Clause 33 of the Trust Deed in respect of the retirement of the Retiring Trustee and the appointment of the New Trustee. 3 TRUST FUND The Retiring Trustee hereby transfers, assigns and novates in favour of the New Trustee all of its rights, title and interest as trustee in the assets of the Fund and hereby agrees to promptly execute any and all documentation and to do all other things as may be necessary to procure such transfer, assignment and novation of such assets in favour of the New Trustee on or as soon as reasonably practicable after the Effective Date. 4 REPRESENTATIONS AND WARRANTIES The Retiring Trustee hereby agrees, represent s and warrants to the New Trustee: (a) (b) (c) (d) that the Fund is solvent and has not been terminated; that the assets of the Fund are as previously disclosed to the New Trustee, being the Retiring Trustee s existing shareholding as a participating shareholder of the Master Fund for the account of the Fund; that the Retiring Trustee has discharged its obligations on or before the Effective Date in respect of the Fund to the Unitholders whether owed pursuant to the Trust Deed or at law; that the Retiring Trustee has complied with the provisions of the Trust Deed and all applicable laws and regulations in force prior to the Effective Date and has acted in accordance with relevant offering documentation of the Fund in respect of the Retiring Trustee carrying out, fulfilling, observing and discharging all of its duties, obligations and liabilities as trustee of the Fund; 3

5 (e) (f) (g) (h) that the Retiring Trustee has procured that all necessary filings with all regulatory authorities in respect of the Fund are complete and up to date including but not limited to with the Cayman Islands Registrar of Trusts and the Cayman Islands Monetary Authority; that the New Trustee has been provided with all documents and records belonging to or relating to the Fund (the Records ) which accurately represent the state of the Fund at the Effective Date including but not limited to the following: (i) the Trust Deed and all amendments; (ii) the offering documents of the Fund and all amendments; (iii) the current Register of Unitholders of the Fund; (iv) all current financial statements of the Fund; (v) all service provider agreements and contractual arrangements entered into by the Retiring Trustee as trustee of the Fund; (vi) all Certificates of Registration issued by the Cayman Islands Registrar of Trusts and Cayman Islands Monetary Authority in respect of the Fund; (vii) all tax exemption undertakings; (viii) all annual return filings made to the Cayman Islands Registrar of Trusts in respect of the Fund; (ix) all documentation required to evidence the Fund s sole shareholding in the Master Fund including copies of the Memorandum and Articles of Association, Certificate of Incorporation, Register of Members, Register of Directors and Officers and Register of Mortgages and Charges of the Master Fund; and (x) all other documentation which should reasonably be disclosed to the New Trustee as new trustee of the Fund; that the Retiring Trustee is not aware of any material circumstances which should reasonably be disclosed to the New Trustee as new trustee of the Fund, including but not limited to, any actual or threatened litigious matters; and that the New Trustee will not be responsible for any act or omission of any person including the Retiring Trustee prior to the Effective Date or for any loss, expense or liability, incurred as a result of any such prior act or omission. The New Trustee is entitled to rely upon all Records prepared or maintained in respect of the Fund prior to the Effective Date and will be expressly relieved from any duty or obligation to verify the information contained in such Records. 5 INDEMNITY OF RETIRING TRUSTEE The New Trustee acknowledges and agrees that the Retiring Trustee shall continue to have the benefit of all indemnities, powers and privileges given pursuant to the Trust Deed or by law in respect of the Retiring Trustee s trusteeship of the Fund for the period prior to the Effective Date and, in particular, the Retiring Trustee shall be indemnified out of the Trust Fund against all actions, proceedings, costs, charges, losses, damages and expenses which it may incur or sustain by reason of any act done or omitted in or about the execution of its duty as trustee of the Fund prior to the Effective Date except to the extent that such actions, proceedings, costs, charges, losses, damages and expenses are incurred or sustained as a result of the Retiring Trustee s own fraud, gross negligence or wilful default prior to the Effective Date. 6 INDEMNITY OF NEW TRUSTEE Notwithstanding any other provision in the Trust Deed, including Clause 13, with effect from the Effective Date, the New Trustee shall be indemnified out of the Trust Fund against all or any actions, proceedings, liabilities, costs, claims, damages, expenses (including all reasonable legal, 4

6 professional and other similar expenses) or demands to which it may be put, incur or suffer as trustee of the Fund. Notwithstanding the foregoing, no indemnity shall be available to the New Trustee in respect of any action, proceeding, liability, cost, claim, damage, expense or demand suffered by the New Trustee found by the courts of the Cayman Islands to have resulted from the actual fraud, wilful default or gross negligence of the New Trustee or its affiliates, and its directors, officers or employees. 7 CHANGE OF ADMINISTRATOR The Parties acknowledge and agree that, for the avoidance of doubt, the definition of Administrator under Clause 1 of the Trust Deed (as amended) is hereby deleted and replaced with the following: Administrator means Apex Fund Services (Malta) Limited, Luxembourg Branch, having its registered office at 2, Boulevard de la Foire, L-1528 Luxembourg, Grand Duchy of Luxembourg registered with the Luxembourg register of commerce and companies under number B or such other Person as may from time to time be appointed as Administrator by the Trustee or the Manager from time to time; 8 ACKNOWLEDGMENT REGARDING SCHEDULE 2 OF TRUST DEED The Parties acknowledge and agree that, for the avoidance of doubt, Schedule 2 of the Trust Deed is hereby deleted in its entirety. 9 VARIATION OF TRUST DEED Pursuant to Clause 29 of the Trust Deed, the Retiring Trustee and the New Trustee acknowledge that upon ten days written notice to the Unitholders of the Fund, the Trustee shall be entitled to amend, modify, alter or add to the provisions of the Trust Deed in such manner and to such extent as it may consider to be in the best interests of the Unitholders provided that such amendment: (i) does not materially adversely prejudice the rights of the then existing Unitholders; (ii) does not operate to release the Trustee and its agents from any responsibility to Unitholders; and (iii) does not impose an obligation upon any Unitholder to make any further payment in respect of its Units or to accept any liability in respect thereof (the Amendment Power ). The Retiring Trustee has procured that the Unitholders of the Fund be provided with at least ten days written notice of this Deed and hereby certifies that the Trust Deed may be amended in the manner described in Clauses 6, 7 and 8 of this Deed pursuant to the exercise of the Amendment Power on the basis that such amendments: (i) do not materially adversely prejudice the rights of the then existing Unitholders; (ii) do not operate to release the Trustee and its agents from any responsibility to Unitholders; and (iii) do not impose an obligation upon any Unitholder to make any further payment in respect of its Units or to accept any liability in respect thereof. 10 TRUST DEED TO CONTINUE IN FULL FORCE AND EFFECT This Deed is supplemental to the Trust Deed. Save as amended and supplemented by the terms and provisions of this Deed, the Trust Deed shall remain and continue in full force and effect. 5

7 11 GOVERNING LAW This Deed and the terms hereof shall be governed by and construed in accordance with the laws of the Cayman Islands. 12 COUNTERPARTS This Deed may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument. 6

8 IN WITNESS WHEREOF the parties have executed this Deed on the day and year first above written. Retiring Trustee: Executed as a deed by ) UBS AFS Controlled Subsidiary 3 Ltd. as ) Retiring Trustee of the Fund ) in the presence of Witness The Manager: Executed as a deed by ) Superfund Japan Trading (Cayman) Ltd. as ) Manager of the Fund ) in the presence of Witness 7

9 Distributor: Executed as a deed by ) Superfund Securities Japan, Co., Ltd. as ) Distributor of the Fund ) in the presence of Witness New Trustee: Executed as a deed by ) Harneys Trustees (Cayman) Limited as ) New Trustee of the Fund ) in the presence of Witness 8