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Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201

Attorneys for Irving H. Picard, Trustee for the Substantively Consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the estate of Bernard L. Madoff

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK SECURITIES INVESTOR PROTECTION No. 08-01789 (SMB) CORPORATION, SIPA LIQUIDATION Plaintiff-Applicant, (Substantively Consolidated) v.

BERNARD L. MADOFF INVESTMENT SECURITIES LLC,

Defendant.

In re:

BERNARD L. MADOFF,

Debtor.

IRVING H. PICARD, Trustee for the Liquidation Adv. Pro. No. 09-1161 (SMB) of Bernard L. Madoff Investment Securities LLC,

Plaintiff,

v.

FEDERICO CERETTI, et al.

Defendants.

TRUSTEE’S MEMORANDUM OF LAW IN SUPPORT OF THE TRUSTEE’S APPLICATION BY ORDER TO SHOW CAUSE FOR ENTRY OF AN ORDER COMPELLING DEFENDANTS KINGATE GLOBAL FUND, LTD. AND KINGATE EURO FUND, LTD. TO PRODUCE DOCUMENTS 09-01161-smb Doc 245 Filed 03/04/16 Entered 03/04/16 10:21:05 Main Document Pg 2 of 27 TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ...... 1

BACKGROUND...... 3

ARGUMENT ...... 9

I. THE FUNDS POSSESS OR HAVE CUSTODY OF THE VOLUNTARY PRODUCTIONS AND THE BERMUDA PRODUCTIONS, AND THE FUNDS MUST PRODUCE THEM IN THEIR ENTIRETY...... 9

II. THE FUNDS ARE WITHHOLDING HUNDREDS OF THOUSANDS OF DOCUMENTS FROM PRODUCTION ON PURPORTED CONFIDENTIALITY GROUNDS BUT REFUSE TO REVIEW THOSE DOCUMENTS AND PRODUCE THEM IN ACCORDANCE WITH THE RULES AND THE LPO...... 10

III. THE FUNDS “CONTROL” ALL OF THE SERVICE PROVIDERS’ DOCUMENTS THAT RELATE TO THE FUNDS, AND THE FUNDS MUST THEREFORE COLLECT AND PRODUCE ALL SUCH DOCUMENTS IN THIS PROCEEDING...... 12

A. The Funds engaged third-party service providers to manage, administer, and perform all of the Funds’ day-to-day business activities...... 12

B. The Service Provider Agreements expressly convey to the Funds the right to possess and control all documents created, received, or maintained by the Service Providers that relate to the Funds...... 14

C. Under Rule 34, the Funds “control” all documents that were created, received, or maintained by the Service Providers during the course of their service engagements, and the Funds must collect and produce them in this proceeding...... 16

D. General Objection # 21 should be stricken as to Requests ## 1-37 and ## 39-43, and the Funds should be directed to collect from KML and FIM documents responsive to the Requests and produce them to the Trustee...... 18

CONCLUSION ...... 22

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Am. Rock Salt Co. v. Norfolk S. Corp., 228 F.R.D. 426 (W.D.N.Y. 2004) ...... 16

In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995)...... 9

Cooper Indus., Inc. v. British Aerospace, 102 F.R.D. 918 (S.D.N.Y. 1984)...... 16, 17

In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177 (S.D.N.Y. 2006)...... 16, 17

Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)...... 16, 17

M.L.C., Inc. v. N. Am. Philips Corp., 109 F.R.D. 134 (S.D.N.Y. 1986)...... 16

Mahon v. Rahn [1998] Q.B. 424...... 19, 20, 21

Marc Rich & Co., A.G. v. United States, 707 F.2d 663 (2d Cir. 1983) ...... 16

In re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y. 2007)...... 16, 17

Prudential Assurance Co. v. Fountain Page, Ltd. [1991] 1 W.L.R. 756 (QB) ...... 20

SEC v. Strauss, No. 09 Civ. 4150 (RMB)(HBP), 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)...... 16, 17

Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958) ...... 16, 21

Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987) ...... 10

Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177 (HL)...... 19, 20

United States v. Stein, 488 F. Supp. 2d 350 (S.D.N.Y. 2007) ...... 17

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Page(s)

Statutes

Securities Investor Protection Act, 15 U.S.C. §§ 78aaa-lll ...... 1

Rules

Fed. R. Bankr. P. 7037 ...... 1

Fed. R. Civ. P. 26 ...... 4, 9, 22

Fed. R. Civ. P. 34 ...... passim

Fed. R. Civ. P. 37 ...... passim

Local Bankruptcy Rule 7007-1...... 4

Local Bankruptcy Rule 9077-1(a) ...... 1

Local Civil Rule 37.1 ...... 4

Other Authorities

Restatement (Third) of the Foreign Relations Law of the United States § 442 (Am. Law. Inst. 1987) ...... 9, 10

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Irving H. Picard, as trustee (the “Trustee”) for the substantively consolidated liquidation

of the business of Bernard L. Madoff Investment Securities LLC (“BLMIS”), under the

Securities Investor Protection Act, 15 U.S.C. §§ 78aaa-lll (“SIPA”), and the estate of Bernard L.

Madoff (“Madoff”), by and through his undersigned counsel, respectfully submits this

Memorandum of Law in support of his application by order to show cause (the “Application”)

under Rule 9077-1(a) of the Local Bankruptcy Rules for the Southern District of New York (the

“Local Bankruptcy Rules”), Rule 37 of the Federal Rules of Civil Procedure (the “Rules”) (made

applicable by Rule 7037 of the Federal Rules of Bankruptcy Procedure), and paragraph 21 of the

Litigation Protective Order entered on June 6, 2011 (the “LPO”), for entry of an order

compelling the production of documents from defendants Kingate Global Fund, Ltd. (“Kingate

Global”) and Kingate Euro Fund, Ltd. (“Kingate Euro,” and with Kingate Global, the “Funds”).

PRELIMINARY STATEMENT

Since the Trustee served his First Sets of Requests for Production of Documents and

Things (the “Requests”) on the Funds almost five months ago, all means employed by the

Trustee for obtaining the Funds’ production of documents to the Trustee and thereby facilitating

the progress of this litigation have reached a dead end. It appears that no amount of cooperation

on the Trustee’s part will be able to resolve the impasse consistent with the LPO and related

discovery orders entered by the Court. To date, the Funds have produced only 7% of the

relevant documents in their possession, custody, or control and are admittedly withholding from

production no fewer than 329,332 documents. According to the Funds, they have deferred

review, and withheld production, of the vast majority of those documents pending leave of courts

presiding over non-public proceedings in Bermuda and the BVI.

Of those withheld documents, the Funds have refused to produce no fewer than 235,332

documents on confidentiality grounds under BVI law. This violates the LPO—to which the 09-01161-smb Doc 245 Filed 03/04/16 Entered 03/04/16 10:21:05 Main Document Pg 6 of 27

Funds agreed—and which expressly requires a producing party to produce confidential material

subject to a confidentiality designation and the attendant protections afforded by the LPO. The

LPO neither allows a party to withhold from production any document that contains confidential

material nor permits redaction of confidential material. Yet the Funds are not only withholding

documents that purportedly contain what they deem to be “confidential shareholder information”

(such as shareholders’ names and addresses), they are withholding categories of documents that

might include documents that might contain “confidential shareholder information.”

The Funds further claim that they cannot produce 94,000 relevant documents to the

Trustee until they obtain permission to do so from the Bermuda court presiding over the

Bermuda Action.1 Under Rule 34, the Funds have, at a minimum, the right to possession,

custody, or control of documents that relate to the Funds’ business activities and were created,

received, or maintained by their service providers. Apart from any documents produced to the

Funds in the Bermuda Action, the Funds have not satisfied their burden of showing that they are

unable to collect and produce to the Trustee all such original documents.

The Funds instead have delayed compliance with their document discovery obligations

for over four months and have not provided the Trustee with a date certain for production.

Continuing on this path effectively subordinates the Funds’ obligations under applicable rules of

this Court to determinations made by foreign courts concerning if, when, and under what

circumstances the Funds may perform those obligations.

1 The term “Bermuda Action” refers to the civil action commenced by Kingate Global Fund, Ltd. and Kingate Euro Fund, Ltd. against Kingate Management Limited, FIM Limited, FIM Advisers LLP, First Peninsula Trustees Limited (as Trustee of the Ashby Trust), Port of Hercules Trustees Limited (as Trustee of the El Prela Trust), Ashby Holding Services Limited, El Prela Group Holding Services Limited, Carlo Grosso, Federico Ceretti, Ashby Investment Services Limited, El Prela Trading Investments Limited, and Alpine Trustees Limited in the Supreme Court of Bermuda, Civil Jurisdiction, Commercial List, bearing the caption Kingate Global Fund Ltd. v. Kingate Mgmt. Ltd., No. 2010:454.

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The Funds have filed customer claims in this SIPA liquidation, seeking the benefits

afforded by federal law. They sought the benefit of federal procedural rules when they asked the

Court to dismiss the Trustee’s Fourth Amended Complaint and again when they unsuccessfully

sought an interlocutory appeal of this Court’s decision on that motion. The Funds have received

the benefit of Rule 34, specifically, by the Trustee’s production of core account documents and

bank transfer documents, and by receiving access to data rooms containing almost 9 million

documents, of which the Funds to date have requested production of over 100,000 documents

they consider relevant to the claims or defenses in this proceeding. The Funds cannot have it

both ways. They cannot invoke and seek the benefits of federal law without satisfying the law’s

demands.

Accordingly, the Court should direct the Funds to produce all documents responsive to

the Requests, subject to any confidential designations that the Funds assert in good faith under

the LPO, within thirty days of the date of the Court’s order. If the Funds fail to comply with the

Court’s order, the Trustee asks that he be granted leave to move under Rule 37 for sanctions,

including the striking of the Funds’ customer claims.

BACKGROUND

The Trustee served the Requests on October 7, 2015.2 The Requests seek documents

concerning the Funds’ formation and structure, contractual relationships, due diligence and

investment activity, financial and accounting records, subscriptions and redemptions, bank

accounts, and customer accounts and transfers, as well as documents concerning BLMIS, certain

specific individuals and entities, and investigations and litigation concerning the Funds.3 All

2 Declaration of Anthony M. Gruppuso, Esq. in Support of the Trustee’s Application by Order to Show Cause for Entry of an Order Compelling Defendants Kingate Global Fund, Ltd. and Kingate Euro Fund, Ltd. to Produce Documents (“Gruppuso Decl.”) Ex. A. 3 Id. Ex. A.

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documents in the Funds’ possession, custody, or control are relevant to the claims or defenses in

this proceeding under Rule 26,4 because the Funds existed solely for exclusive investment with

BLMIS. Accordingly, the Requests demand the Funds produce all responsive documents in their

possession, custody, or control.5

The Funds asserted twenty-one “General Objections” to the production of documents

responsive to the Requests.6 By “General Objection # 20,” the Funds object to each of the

Requests to the extent each seeks “information regarding specific shareholders in [the Funds], as

production of such information may require the Joint Liquidators of [the Funds] to breach their

obligations under BVI law and/or provisions included in agreements with shareholders.”7 Under

“General Objection # 21,” the Funds object to each of the Requests to the extent each seeks

“information provided to [the Funds] by other defendants in this case in connection with [the

Funds’] legal proceedings in Bermuda, as production of such information may require the Joint

Liquidators of [the Funds] to breach their obligations under Bermuda law and/or agreements

with these producing parties.”8

During the meet-and-confer process,9 the Trustee learned that the Funds obtained (outside

of this adversary proceeding) no fewer than 399,530 documents—currently in their possession,

4 Fed. R. Civ. P. 26(b)(1). 5 Gruppuso Decl. Ex. A, Instructions ¶ 3. 6 Id. Ex. B, at 2-5. 7 Id. at 5. 8 Id. The Trustee has submitted the Requests and the Funds’ written responses and objections as Exhibit A and Exhibit B respectively to the Gruppuso Decl. To ensure compliance with Rule 37.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, the Trustee has also attached as Exhibit A to this Memorandum a chart setting forth verbatim the Requests and General Objections ## 20 and 21 at issue. 9 To date, the Trustee has requested and participated in five conferences with the Funds’ counsel beginning on October 1, 2015 and continuing into January 2016. True and complete copies of the correspondence exchanged and submitted during that process are attached as Exhibit C through Exhibit V to the Gruppuso Decl. As that correspondence shows, and as required by Rule 37(a)(1) and Local Bankruptcy Rule 7007-1(a), the Trustee’s counsel has conferred with the Funds’ counsel in an effort to obtain the discovery in dispute without the need for motion practice. Gruppuso Decl. ¶ 4.

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custody, or control—relevant to the Trustee’s claims or the Funds’ defenses. The Funds

collected no fewer than 259,730 documents from their service providers and others, without

formal demand and without the need for court order (the “Voluntary Productions”), as follows:

! From Kingate Management Limited (“KML”), 106,880 documents retrieved from its server, which has been imaged and preserved.10

! From Citi Hedge Fund Services Limited, approximately 17,115 documents in electronic form and approximately 350 bankers boxes of documents in paper form, amounting to no fewer than 79,975 documents.11

! From FIM Advisers LLP and FIM Limited (collectively, “FIM”), 53,493 documents.

! From the Funds’ directors, 1,828 documents.

! From HSBC Bank of Bermuda Limited (“Bank of Bermuda”), 66 documents (some of which consist of years of the Funds’ bank statements and are accordingly hundreds of pages in length).

! From Tremont (Bermuda) Limited, approximately 362 documents, and from Bison Financial Services Limited, 11 documents.12

In addition to those Voluntary Productions, the Funds informed the Trustee that the Funds

obtained approximately 139,800 documents through discovery of defendants sued in the

Bermuda Action (the “Bermuda Productions”), as follows:

! From KML, approximately 66,000 documents, of which approximately 43,000 documents were not part of KML’s Voluntary Production.

! From FIM, approximately 47,000 documents, of which approximately, 24,200 documents were not part of FIM’s Voluntary Production.

10 KML’s sole business activity was to serve as manager of the Funds. Notably, the Funds did not maintain a server and thus communicated with their investors through KML and its server. 11 Those 79,975 documents ostensibly represent the contents of 130 of the 350 bankers boxes. See Gruppuso Decl. Ex. L, at 3. The remaining 220 boxes could therefore contain upwards of 135,000 more documents. And at this time, the Trustee does not know whether the documents received by the Funds from Citi Hedge Fund Services Limited constitute the entire universe of documents in its possession responsive to the Requests, and the Trustee also does not know whether those documents include any or all responsive documents that were created or received by Hemisphere Management Limited or BISYS Hedge Fund Services Limited, both of which preceded Citi Hedge Funds Services Limited as administrator of the Funds. Thousands more responsive documents may therefore exist that are within the Funds’ control. 12 See id. Ex. D, at 2-4; id. Ex. P, at 1-2.

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! From the Trust Defendants,13 approximately 26,800, none of which were part of the Voluntary Productions.14

The Funds therefore have in their possession, custody or control no fewer than 353,730

documents15 that relate to the Funds’ business affairs and the relationships between and among

the Funds and the defendants in the Bermuda Action.

By General Objection # 20, the Funds assert that BVI law prohibits the production of any

document that contains “confidential shareholder information,” notwithstanding the protections

afforded confidential material by the LPO. Of the no fewer than 259,730 documents comprising

the Voluntary Productions, the Funds are withholding 235,332 documents from production under

General Objection # 20,16 even though they have not visually reviewed them for confidential

information. Rather than perform such a review—a task common to civil litigation in this

country—the Funds are withholding whole categories of documents from production because

either (i) “more than fifty percent of a specific document category” hit on a shareholder-name

search17 or (ii) “other categories of documents, such as email communications, . . . ran the risk”

of not being identified by a shareholder-name search as containing confidential shareholder

information.18 In addition to the 109,000 documents that the Funds are withholding under that

protocol, the Funds are withholding the approximately 220 boxes of paper documents they

13 The “Trust Defendants” are First Peninsula Trustees Limited, Port of Hercules Trustees Limited, Alpine Trustees Limited, The Ashby Trust, Ashby Holding Services Limited, Ashby Investment Services Limited, El Prela Trust, El Prela Group Holding Services Limited, and El Prela Trading Investments Limited. 14 Id. Ex. D, at 4. 15 This figure represents the Voluntary Productions (exclusive of the 220 remaining bankers boxes of paper documents received from Citi Hedge Fund Services Limited, which, as stated, could constitute upwards of 135,000 additional documents) plus those documents contained within the Bermuda Productions that the Funds have represented are not duplicative of documents contained within the Voluntary Productions. 16 The Funds produced 17,335 documents on or about December 15, 2015, 4,728 documents on or about February 1, 2016, 135 documents on or about February 10, 2016, and 2,200 documents on or about February 18, 2016. 17 The search conducted by the Funds included the names of shareholder nominees, who could not possibly have any expectation of confidentiality within the context of the Funds’ liquidations. 18 See id. Ex. P, at 2 (emphasis added).

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possess, because those documents cannot be electronically searched and the Funds do not wish to

undertake a manual review of them.19 The Funds’ actions thus violate the LPO, which expressly

requires production to the Trustee of all of those documents (subject to the Funds’ good-faith

designations of “Confidential Material” and the Funds’ right to apply to the Court for measures

more protective than those already established in the LPO for the handling and use of

Confidential Material).

Instead of conducting a review and producing documents pursuant to Rule 34 and in

compliance with the LPO, the Funds have applied to a BVI court for permission to produce to

the Trustee documents purportedly containing Confidential Material. The BVI court held a

hearing on the Funds’ application on January 26, 2016, at which time the BVI court set a briefing

schedule and a second hearing date. The Funds’ counsel has represented to the Trustee that a

second hearing was held before the BVI court on February 5, 2016, to permit the Funds to

produce the “Voluntary Productions,” in their entirety, to the Trustee. On March 1, 2016, the

Funds delivered to the Trustee a copy of an order (dated February 5, 2016, and entered February

26, 2016) and note of judgment (dated February 5, 2016) issued by the BVI court purportedly

disposing of the Funds’ application. Although, by condition imposed by the Funds, the Trustee

cannot share the order with the Court, the Trustee represents that the BVI court’s decision is

consistent with and supports the relief sought by the Trustee with this Application.20

Accordingly, the Trustee asserts his rights under the LPO and challenges the Funds’ assertion of

General Objection # 20 to Requests ## 1-43.

19 See id. 20 Notwithstanding the BVI court’s decision of February 5, 2016, on the Funds’ application, the Funds have yet to provide the Trustee with a date certain for production of the Voluntary Productions.

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By General Objection # 21, the Funds contend that “an implied undertaking” bars them

from producing to the Trustee any of the 139,800 documents produced in discovery in the

Bermuda Action.21 The burden of demonstrating that foreign law blocks the Funds’ production

of documents to the Trustee rests with the Funds, but they have not moved this Court for relief

from their discovery obligations. Only Request # 38 demands production of discovery

exchanged in the Bermuda Action, and all of the documents produced in the Bermuda Action are

responsive to one or more of the other forty-two Requests.22 The Funds, moreover, have the

contractual right and practical ability to demand and obtain all documents produced by KML and

FIM in the Bermuda Action independent of whether copies of those documents were included

within the Bermuda Productions. Instead of simply recognizing their rights to possess and

control KML’s and FIM’s documents that relate to the Funds, the Funds have chosen to seek

leave from their “implied undertaking” in the Bermuda court.23 Accordingly, the Trustee

challenges the Funds’ assertion of General Objection # 21 to Requests ## 1-37 and ## 39-43 and

requests an order compelling the Funds to produce all documents responsive to those Requests.

21 See Gruppuso Decl. Ex. L, at 1. 22 The Funds’ counsel confirmed to the Trustee’s counsel during a conference call on December 15, 2015, that the Funds had asserted General Objection # 21 in response to each of the Requests and were withholding all of the documents produced in the Bermuda Action pursuant to it. 23 On November 24, 2015, the Bermuda court held a hearing to address, among other things, the Funds’ request to disclose to the Trustee all documents the Funds obtained through discovery from defendants in the Bermuda Action. The Funds purportedly advised the Bermuda court of the need for expedition, as timely document production facilitated depositions and other aspects of discovery in this proceeding. Notwithstanding the need for urgency, the Bermuda court set a hearing date of March 17, 2016, for the Funds’ application. When the Bermuda court may rule on the Funds’ application is unknown.

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ARGUMENT

I. THE FUNDS POSSESS OR HAVE CUSTODY OF THE VOLUNTARY PRODUCTIONS AND THE BERMUDA PRODUCTIONS, AND THE FUNDS MUST PRODUCE THEM IN THEIR ENTIRETY.

Under Rule 26 and Rule 34, a party must produce documents relevant to a party’s claims

or defenses within the producing party’s “possession, custody, or control.”24 The Rule 34

standard is disjunctive, and only one of the conditions for production must therefore be satisfied.

Here, the Funds do not dispute that they have possession of both the Voluntary Productions and

the Bermuda Productions. The Funds object to production of the Voluntary Productions on

third-party confidentiality grounds arising under BVI law, and their objection to production of

the Bermuda Productions relies on an implicit lack of control arising under Bermuda law

prohibiting disclosure of documents received in discovery in Bermuda litigation. Because the

elements of possession and custody are satisfied as to both the Voluntary Productions and the

Bermuda Productions, and because each set of documents is relevant and responsive to the

Requests,25 both must be produced.26 Whatever limitations the Funds contend that BVI law and

Bermuda law place on discovery of the Voluntary Productions and the Bermuda Productions are

irrelevant and do not overcome the Funds’ obligations under the Rules.27

24 Fed. R. Civ. P. 34(a)(1). 25 Gruppuso Decl. Ex. A, at 18 ¶ 38. 26 See In re Bankers Trust Co., 61 F.3d 465, 469-471 (6th Cir. 1995) (affirming order directing defendant bank to produce documents, which were received from Federal Reserve Board and were in bank’s actual physical possession, and reasoning that “parties in possession of documents forwarded to them by a federal agency have ‘possession, custody or control’ within the meaning of Rule 34, notwithstanding the fact that the agency by regulation retains ownership and restricts disclosure”). 27 The Funds may argue that section 442(1)(c) of the Restatement (Third) of the Foreign Relations Law of the United States, which prescribes several factors for a court to consider when determining whether to order a litigant to produce documents or information located abroad, applies here and leads to the conclusion that a discovery order is unwarranted. Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c) (Am. Law. Inst. 1987) (“In deciding whether to issue an order directing production of information located abroad . . . .”). Those factors are: “the importance to the investigation or litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important

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II. THE FUNDS ARE WITHHOLDING HUNDREDS OF THOUSANDS OF DOCUMENTS FROM PRODUCTION ON PURPORTED CONFIDENTIALITY GROUNDS BUT REFUSE TO REVIEW THOSE DOCUMENTS AND PRODUCE THEM IN ACCORDANCE WITH THE RULES AND THE LPO.

The LPO governs the production and handling of confidential information in this

adversary proceeding.28 Paragraph 2(a) defines “Confidential Material” as material that

“contains trade secret or other confidential research, development, or commercial information;

personal identifying information; or other information the disclosure of which would breach a

legal or contractual obligation . . . .” The Funds’ General Objection # 20 objects to the

production of what the Funds refer to as “confidential shareholder information,” which the Funds

have described to include personal identifying information of shareholders (i.e., names,

addresses, phone numbers and other contact information) and disclosure of which the Funds

contend would breach the Funds’ obligations under BVI law.29 Thus, the LPO’s definition of

Confidential Material squarely includes the “confidential shareholder information” that the

Funds contend supports their wholesale withholding of documents from production.

The Funds are not, however, complying with the LPO’s mandates concerning the

production of Confidential Material. The Funds first have refused to accept and abide by

paragraph 4(e) of the LPO, which excepts from Confidential Material “information sufficient to

interests of the state where the information is located.” Restatement (Third) of the Foreign Relations Law of the United States § 442(1)(c); see also Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 544 & n.28 (1987). Section 442(1)(c) does not, however, apply in this case because the Voluntary Productions and the Bermuda Productions are not “located abroad.” The Funds’ counsel has advised that the Voluntary Productions and the Bermuda Productions are stored electronically in a database accessible to the Funds’ counsel. The Trustee has asked the Funds on several occasions to disclose the physical location of those documents, but they have refused. The Trustee believes that for purposes of section 442(1)(c), the Voluntary Productions and the Bermuda Productions are located within the United States. Indeed, the Funds’ counsel has accessed the Voluntary Productions, and produced constituent documents, from their offices in New York. 28 See Gruppuso Decl. Ex. W, at 14 ¶19 (“All designations of material as Confidential made after the date of the entry of this Order shall be controlled by this Order.”). 29 Such information is relevant and responsive to the Requests because the Funds’ shareholders were immediate transferees of the Funds and because the shareholders may have information relevant to the Trustee’s claims.

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identify an individual or entity . . . as an immediate or mediate transferee of a BLMIS customer,”

which information is among the “confidential shareholder information” the Funds are

withholding.30 Even if such “confidential shareholder information” were Confidential Material,

the Funds would still have to produce it. Under paragraph 5 of the LPO, the Funds must

designate Confidential Material “in good faith and not for the purpose of delaying or obstructing

the ability of any other party to investigate the facts of this controversy or prepare for litigation.”

Once designated, the Funds must produce the Confidential Material to the Trustee and the other

defendants pursuant to paragraphs 10 and 11 of the LPO. Paragraph 10 permits disclosure of

Confidential Material to certain defined groups, which include the parties and their counsel in the

adversary proceeding in which the Confidential Material is produced,31 and paragraph 11

unequivocally states that neither the Trustee nor any other party in this proceeding is precluded

from using Confidential Material for purposes of the prosecution of claims and defenses. To

safeguard the confidentiality of the information, paragraph 15 directs that, for purposes of filing

with the Court, designated Confidential Material be submitted under seal according to specific

procedures.

In violation of Rule 34 and the LPO, the Funds are withholding no fewer than 235,332

documents from production on the basis of confidentiality before visually reviewing and

30 See Gruppuso Decl. Ex. W. Pointing to paragraph 4(e), the Trustee has asserted that such information is not Confidential Material entitled to protection under the LPO. But in an effort to avoid litigating the issue, the Trustee offered to consent to the designation of the Funds’ “confidential shareholder information” as Confidential Material under the LPO, on the condition that the Trustee could use such information covered by paragraph 4(e) without restriction and otherwise with a full reservation of all rights conferred by the LPO. See id. Ex. Q. 31 Specifically, the LPO permits disclosure of Confidential Material to: (1) the Court, Court personnel assisting the Court, and stenographers or other persons involved in taking or transcribing testimony; (2) the producing or receiving parties in the adversary proceeding in which the Confidential Material was produced, officers and employees of the respective parties responsible for the parties’ participation in the adversary proceeding, counsel representing the respective parties in the adversary proceeding, and the litigation assistants, paralegals, secretarial or other clerical personnel, and agents of counsel; (3) authors and recipients of the designated Confidential Material; (4) SIPC; (5) witnesses and their counsel at deposition in an adversary proceeding or Rule 2004 examination; and (6) others as permitted by Court order or agreement of the parties.

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determining that the documents contain Confidential Material. The Funds have instead simply

run a shareholder-name search across only electronically stored documents, eliminating whole

categories of documents from production because (i) they are stored in paper form, (ii) more than

50% of the documents within a category might contain “confidential shareholder information,”

or (iii) a category of documents was susceptible to “the risk” that a shareholder-name search was

ineffective to identify “confidential shareholder information.”32 The LPO prohibits the Funds

from withholding from production any document that contains Confidential Material, let alone

withholding entire categories of documents on speculation that the categories might include

documents that might contain “confidential shareholder information,” which itself is excluded by

paragraph 4(e) from the LPO’s definition of Confidential Material. Rule 34 and the LPO require

the Funds to produce to the Trustee all documents within the Voluntary Productions that are

responsive to the Requests, designating documents as Confidential Material when a good-faith

basis exists for doing so. Rule 37 and paragraph 21 of the LPO33 entitle the Trustee to an order

compelling the Funds to do so.

III. THE FUNDS “CONTROL” ALL OF THE SERVICE PROVIDERS’ DOCUMENTS THAT RELATE TO THE FUNDS, AND THE FUNDS MUST THEREFORE COLLECT AND PRODUCE ALL SUCH DOCUMENTS IN THIS PROCEEDING.

A. The Funds engaged third-party service providers to manage, administer, and perform all of the Funds’ day-to-day business activities.

The Funds had boards of directors but no employees. Accordingly, through a series of

agreements, the Funds delegated to affiliated services providers the duty to conduct all of the

Funds’ day-to-day business activities. KML served as the Funds’ manager; FIM served as

32 See Gruppuso Decl. Ex. P, at 2. 33 Paragraph 21 provides, “In the event anyone shall violate, or threaten to violate, any terms of this Order, any party having standing may apply to this Court, consistent with the Local Bankruptcy Rules of this Court, to obtain injunctive relief against any such person or entity.”

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consultant to KML and distributor for the Funds; Hemisphere Management Limited, BISYS

Hedge Fund Services Limited, and Citi Hedge Fund Services Limited (collectively, the

“Administrators”) served as the Funds’ administrator and registrar; and Bank of Bermuda served

as the Funds’ custodian.34

Those “Service Provider Agreements”35 created a structure that held KML responsible

for implementing the Funds’ investment strategy, performing all duties and functions necessary

to the administration of the Funds, and marketing and selling shares in the Funds. KML had the

right to delegate those responsibilities, and it did so. The Administrators became responsible for

carrying on the general administration of the Funds, including calculating and publishing the

Funds’ net asset value, calculating fees due the Service Providers, providing a corporate

secretary, maintaining the corporate register, maintaining the principal corporate records and

books of account, preparing draft financial statements, arranging for an annual audit of the

Funds, processing all subscription and redemption requests, answering all correspondence with

shareholders, and establishing and maintaining the Funds’ bank, brokerage, and custodian

accounts. As custodian, Bank of Bermuda became responsible for the custody of securities and

cash owned by the Funds, maintaining bank accounts on behalf of the Funds, disbursing cash

(for example, to pay service provider fees and shareholder redemptions), transferring securities

as instructed, and performing all functions necessary to the issuance, subscription, redemption,

and transfer of the Funds’ shares. And as consultant and distributor, FIM handled all aspects of

marketing the Funds to potential investors and provided consulting services to KML on all

34 KML, the Administrators, FIM, and Bank of Bermuda will collectively be referred to as the “Service Providers.” 35 The term Service Provider Agreements refers to the agreements between the Funds and their Service Providers, which the Trustee has described on the attached Exhibit C and has submitted to the Court as Exhibit X through Exhibit OO of the Gruppuso Decl.

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matters relating to the Funds’ investments, including presenting to the Funds’ directors on the

status of the Funds’ performance.36

With that service-provider structure, the Funds outsourced all day-to-day aspects of their

business affairs. Although the Service Providers effectively operated the Funds (under the

constant, day-to-day supervision of KML and its principals, defendants Federico Ceretti and

Carlo Grosso), it was understood and agreed that the records relating to the Funds’ business

affairs belonged to the Funds, not the Service Providers.

B. The Service Provider Agreements expressly convey to the Funds the right to possess and control all documents created, received, or maintained by the Service Providers that relate to the Funds.

Because the Service Providers administered all of the Funds’ business activities, the

Service Providers created, received, and maintained all of the Funds’ documents. Accordingly,

the Service Provider Agreements expressly recognized the Funds’ rights in those documents.37

For example, the Management Agreement dated as of January 1, 2006 between KML and

Kingate Global provides:

Upon termination of the appointment of the Manager, . . . the Manager shall deliver or procure to be delivered to the Fund or successor manager, or as it shall direct, all books of account, records, other registers, correspondence, and documents relating to the affairs of or belonging to the Fund in the possession of or under the control of the Manager.38

36 Attached to this Memorandum as Exhibit B are a series of charts quoting directly from the various agreements between the Funds and the Service Providers showing in detail the broad responsibilities the Service Providers collectively possessed to operate the Funds’ business. 37 The Trustee has culled each of the pertinent contractual provisions from the Service Provider Agreements and compiled them in a chart attached as Exhibit C. 38 See Exhibit C (reciting from clause 5.8(d) of the January 2006 KGF Management Agreement, as defined therein). See also id. (reciting from clause 13.4 of the 1994 KGF Manager Agreement, as defined therein, and from clause 5.8(d) of the July 2004 KGF Co-Manager Agreement, as defined therein).

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The Funds’ administration,39 registrar,40 and distribution41 agreements all conferred identical

rights upon the Funds. The consulting services agreements between KML and FIM likewise

obligated FIM to deliver to KML all such documents, and the Funds’ rights to obtain FIM’s

documents thus flow through their rights to obtain documents from KML.42 The Manager

Agreement dated May 1, 2000 between KML and Kingate Euro and the custodian agreements

between the Funds and Bank of Bermuda used different language to confer the Funds’ rights to

obtain documents and information. Although those agreements did not mandate delivery to the

Funds of documents created and received during the service engagements, they obligated KML

and Bank of Bermuda to make such documents available to the Funds upon request.43

Those express contractual provisions demonstrate the Funds’ right to possess, have

custody of, and control all documents that the Service Providers may have created or received

relating to the Funds.

39 See id. (reciting from clause 13.4 of the 1994 Administration Agreement, as defined therein, from clause 13.4 of the 2000 Administration Agreements, as defined therein, and from clause 14.1 of the 2007 Administration Agreements, as defined therein). 40 See id. (reciting from clause 12.4 of the 2000 Registrar Agreements, as defined therein). 41 See id. (reciting from clause 8.3 of the 2001 Distribution Agreements, as defined therein). 42 See id. (reciting from clause 7 of the 1995 Consulting Services Agreement, as defined therein, and from clause 14.3 of the 2001 Consulting Services Agreements, as defined therein). 43 See id. (reciting from clause 4.6 of the May 2000 KEF Manager Agreement, as defined therein, which required KML to deliver to Kingate Euro, upon its request, “information regarding the activities (i) conducted by [KML] since the inception of this Agreement . . . and (ii) proposed to be conducted by [KML]”); id. (reciting from clause 2.5 of the May 2000 KEF Manager Agreement, as defined therein, which required KML to maintain and preserve all documents “generated or received by [KML] in the ordinary course of business pertaining to the financial condition of [Kingate Euro] or to the compensation payable to [KML],” which Kingate Euro’s auditors were permitted to review and copy ); id. (reciting from clause 9(C) and clause 19(B) of the March 1994 Custodian Agreement, as defined therein, which required Bank of Bermuda to permit Kingate Global to inspect all books, records, and statements maintained by Bank of Bermuda on Kingate Global’s behalf and to deliver to Kingate Global upon termination of the custodian engagement “any . . . property” of Kingate Global in Bank of Bermuda’s custody, and from clause 9(C), 18(B), and 21 of the May 2000 Custodian Agreement, as defined therein, which provided for such right of inspection and obligation to deliver property, as well as authorizing Bank of Bermuda “to maintain all accounts, corporate books and other documents relating to the [Funds] or [their] affairs . . . and to produce at any time during the course of legal proceedings” such documents).

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C. Under Rule 34, the Funds “control” all documents that were created, received, or maintained by the Service Providers during the course of their service engagements, and the Funds must collect and produce them in this proceeding.

The Trustee is entitled to documents that are relevant and are responsive to the Requests

that are in the “possession, custody or control” of the Funds.44 Whether the Funds “control”

documents—and thus have an obligation to collect and produce them under Rule 34—is to be

viewed broadly.45 The Funds need not have “legal ownership or actual physical possession” of

documents to be said to “control” them for purposes of production. Although ownership or

possession will trigger the obligation to produce, should the Funds have “the right, authority, or

practical ability to obtain” documents, then the Funds “control” those documents as a matter of

law.46 To find that the Funds have the “practical ability” to obtain documents that it must collect

and produce, the Funds need only have access to documents and a mechanism for obtaining

them.47 The Funds control documents wherever they may be located, because “the test for

production of documents is control, not location.”48

44 Fed. R. Civ. P. 34(a)(1). That disclosure to the Trustee of the Bermuda Productions might violate an implied undertaking in contravention of Bermuda common law does not preclude a finding that the Bermuda Productions are within the Funds’ control. See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204-06 (1958) (concluding that the responding party controlled documents under Rule 34, notwithstanding that foreign law provided criminal penalties for disclosure of the documents sought). 45 SEC v. Strauss, No. 09 Civ. 4150 (RMB)(HBP), 2009 WL 3459204, at *7 (S.D.N.Y. Oct. 28, 2009) (“Control is construed broadly.”); In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y. 2006) (“The concept of control has been construed broadly.”). 46 In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007); see also Strauss, 2009 WL 3459204 at *7 (recognizing that a party “has control over material that it has the practical ability to obtain” or “that it has the legal right to obtain”); In re Flag Telecom, 236 F.R.D. at 180 (“If the producing party has the legal right or the practical ability to obtain the documents, then it is deemed to have control, even if the documents are actually in the possession of a non-party.”); Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992); M.L.C., Inc. v. N. Am. Philips Corp., 109 F.R.D. 134, 136 (S.D.N.Y. 1986) (“Control includes the legal right of the producing party to obtain documents from another source upon demand.”). 47 See Cooper Indus., Inc. v. British Aerospace, 102 F.R.D. 918, 919-20 & n.2 (S.D.N.Y. 1984) (announcing that “documents and records that a corporation requires in the normal course of its business are presumed to be in its control unless the corporation proves otherwise”); see also Am. Rock Salt Co. v. Norfolk S. Corp., 228 F.R.D. 426, 457 (W.D.N.Y. 2004) (“[D]ocuments held by a party’s agent are deemed to be in a party’s control.”). 48 Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 667 (2d Cir. 1983); In re NTL, 244 F.R.D. at 195 (“The test for the production of documents is control, not location. Documents may be within the control of a party even if

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There can be no reasonable dispute that the Funds control all documents relating to their

affairs that were created or received by KML, the Administrators, Bank of Bermuda, and FIM

during the course of their engagements. The Service Provider Agreements expressly provide the

Funds with the legal right to obtain all such documents,49 because they either require delivery of

actual physical possession of such documents to the Funds upon termination of the engagement50

or permit access to such documents at the Funds’ request.51

The Funds, furthermore, had (and have) “the practical ability to obtain” such documents

from the Service Providers. The Funds, in fact, received and possess the Voluntary Productions

upon request to the Service Providers without formal legal action.52 All of the documents at

issue were created, received or maintained for the sole purpose of operating the Funds and

conducting the Funds’ business affairs. And the Funds by definition had access and the practical

ability to obtain them during the ordinary course of business.53 In addition to access necessary

for business purposes, the Funds’ access to the Service Providers’ documents was facilitated by

they are located abroad.”); In re Flag Telecom, 236 F.R.D. at 182 (“[A] discovery demand is proper under Rule 34 when it is served on a party to the action for documents within their custody or control regardless of where the documents are located.”); Cooper Indus., 102 F.R.D. at 920 (“The fact that the [demanded] documents are situated in a foreign country does not bar their discovery.”). 49 Strauss, 2009 WL 3459204 at *8 (finding that party had legal right to obtain documents because contract with third-party possessor permitted party to access and obtain those documents) (citing United States v. Stein, 488 F. Supp. 2d 350, 363 (S.D.N.Y. 2007) (observing that the meaning of “control” is the same whether raised under Rule 34, Rule 45, or Fed. Crim. R. Proc. 16, and concluding that government had legal right to obtain documents because a third party was obligated by agreement to provide government with documents on request) and In re NTL, 244 F.R.D. at 195-96 (actual possessor of documents was bound by contract with party to make documents available to party)); Golden Trade, 143 F.R.D. at 525 (finding that party had practical ability and legal right to obtain documents from non-party based on contractual provision obligating non-party to use “best efforts . . . to give . . . all reasonably requested assistance and information necessary to proceed with a suit for infringement” of licensed patent). 50 See supra notes 38-42. 51 See supra note 43. 52 Cf. Golden Trade, 143 F.R.D. at 525 (relying on third party’s track record of cooperating with party in conduct of discovery, including producing documents to that party, as required by contractual provision requiring third party to provide party with “all reasonably requested assistance and information necessary” for party to proceed with an action for patent infringement). 53 See Cooper Indus., 102 F.R.D. at 919-20 & n.2 (announcing that “documents and records that a corporation requires in the normal course of its business are presumed to be in its control unless the corporation proves otherwise” and finding that defendant controlled documents in possession of its foreign affiliate because defendant had access to the documents in the course of its day-to-day business).

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overlapping management, which effectively consolidated power over the Funds and the Service

Providers in the hands of a small group of individuals, headed by defendants Ceretti and Grosso.

Two trusts established for the respective benefit of Ceretti and Grosso each owned 50% of KML

(with each trust receiving approximately $150 million in management fees paid to KML by the

Funds), and Ceretti and Grosso each owned 50% of FIM and served as FIM’s executive officers.

Christopher Wetherhill was president and chief executive officer of the holding company for

Hemisphere Management Limited (the Funds’ first Administrator), served as president and

director of KML from inception, and served as a director of both Kingate Global and Kingate

Euro from inception. At one time, Shazieh Salahuddin served both as a director of KML and a

senior employee of FIM. Phillip Evans served as director of KML from at least May 2000, while

at the same time acting as Trust Manager (Partner) with Moore Stephens Services SAM, through

which the Trust Defendants were established and governed. This affiliation between the Funds

and the Service Providers further supports a finding of control over the Service Providers’

documents.54

The Court should therefore find that the Funds have control, within the meaning of Rule

34, over documents responsive to the Requests that were created or received by the Service

Providers, wherever those documents may be located.

D. General Objection # 21 should be stricken as to Requests ## 1-37 and ## 39- 43, and the Funds should be directed to collect from KML and FIM documents responsive to the Requests and produce them to the Trustee.55

Because the Funds control all documents relating to their business affairs that were

created, received, or maintained by the Service Providers in the course of their performance of

54 See Cooper Indus., 102 F.R.D. at 919-20 & n.2. 55 The Trustee does not contend that the originals of the documents produced by the Trust Defendants (who were not Service Providers to the Funds) as part of their Bermuda Productions are within the Funds’ control for purposes of this argument.

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their obligations under the Service Provider Agreements, the Funds and their counsel are

obligated under Rule 34 to collect all such relevant documents—wherever they are located—and

produce to the Trustee all documents responsive to the Requests. The Funds contend, however,

that they control only the copies of documents they received through the Bermuda Productions

and that Bermuda law precludes them from providing the Trustee with copies of those copies.

The Funds’ and their counsel’s position reflects a misunderstanding of the meaning of control

under Rule 34 and the effect of Bermuda law, and a consequent mistaken belief that their Rule

34 obligations are subject to permission from the Bermuda court.

The Funds and the Bermuda Action defendants, as parties to litigation in Bermuda, had

an obligation to collect and produce all documents relevant to the claims or defenses presented.

Accordingly, KML and FIM respectively identified relevant documents in their possession, and

each produced copies of those documents to the Funds.56 Under Bermuda law, when one party

to a Bermuda civil action is compelled to produce documents to another party, the receiving

party is subject to an implied undertaking not to use such documents for any purpose other than

the prosecution and defense of the claims and defenses in that civil action.57 The implied

undertaking thus balances the producing party’s right to keep its own documents private, with

56 KML may have done so by way of producing its server—which was the Funds’ de facto server—so that the Funds could identify and copy documents through word searches. 57 Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177 (HL) 207 (“A solicitor or litigant who receives documents by way of discovery is treated as if he had given an undertaking not to use them for any purpose other than the conduct of the litigation.”); Mahon v. Rahn [1998] Q.B. 424 at 431, 434, 436 (stating that “[i]n civil proceedings a party who obtains discovery may use the documents disclosed to him only for the proper purposes of conducting his own case, and there is an implied undertaking by him not to use them for any collateral or ulterior purpose,” declaring that “the law is well established that a recipient of documents disclosed under compulsion of Court proceedings holds those documents subject to an implied undertaking not, without consent of the Court, to disclose such documents to any third party or use the documents for any purpose other than the action in which they were disclosed,” and explaining that “[c]ompulsion is an invasion of a private right to keep one’s documents to oneself”).

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the public interest in a full and fair adjudication of claims and defenses asserted in litigation;58

the implied undertaking is thus “independent of any question of confidentiality” and “the actual

character of the document or information.”59 Bermuda law does not, however, restrict the

producing party’s use of its own documents, copies of which it may have produced.60 Bermuda

law does not, therefore, prohibit a party from using documents under its control to defend its

rights in any other proceeding, and the Funds have not referenced any principle of Bermuda law

that would prohibit them from collecting, reviewing, and producing documents that may be

located in Bermuda and are responsive to those Requests.

The principles of Bermuda law, when viewed in the context of the procedural history

here, do not restrict or qualify the Funds’ obligations under Rule 34. First, because neither KML

nor FIM has any right to keep private documents in their possession that were created or received

in the course of administering the Funds’ business affairs—because the Funds have the superior

right to control the documents and the privacy of them—the primary rationale for the implied

58 See Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177 (HL) 207-08 (“[T]he undertaking is in reality an obligation imposed by operation of law by virtue of the circumstances in which the document or information is obtained. . . . The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. . . . [T]he undertaking may be varied or released by the courts if the interests of justice so require and, unless the court otherwise orders, ceases to apply when the documents have been read to or by the court, or referred to, in proceedings in open court.”); Mahon v. Rahn [1998] Q.B. 424 at 436 (identifying the two rationales for the implied undertaking in civil proceedings as the “compulsion principle” and the “full and frank disclosure principle”) (internal quotations and citation omitted); Prudential Assurance Co. v. Fountain Page, Ltd. [1991] 1 W.L.R. 756 (QB) 765 (“The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them . . . .”). 59 Prudential Assurance Co. v. Fountain Page, Ltd. [1991] 1 W.L.R. 756 (QB) 765. 60 Mahon v. Rahn [1998] Q.B. 424 at 432, 453 (instructing that “a civil litigant is . . . forbidden only to use the documents disclosed on discovery by his opponent and the information in them; he remains free to sue in another action on the basis of information which he has obtained from another source” and recognizing that the “special protection” afforded by the implied undertaking extends only “to documents disclosed under compulsion of discovery” and “does not apply to any wider class of documents” and observing that the implied undertaking does not apply to documents that a party chooses to disclose voluntarily in support of the party’s claims or defenses) (internal quotations and citation omitted).

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undertaking is absent. Second, the Bermuda Productions are comprised of digital or paper copies

of documents. Although an implied undertaking under Bermuda law may protect that set of

copies, the documents as they exist in other forms and locations are not so protected.61 Under

Rule 34, the Funds control the originals of all relevant documents in the possession, custody, or

control of the Service Providers.62 Bermuda law only prohibits disclosure of the copies produced

by KML and FIM in the Bermuda Action. Bermuda law does not restrict the Funds’ exercise of

control over those original documents and does not bar the Funds from collecting and producing

copies of those same documents outside of the Bermuda Action.63 That a copy of an electronic

or a paper document within the Funds’ control under Rule 34 may have been exchanged in

discovery in the Bermuda Action subject to an implied undertaking arising under Bermuda law

thus does not eradicate the Funds’ rights to exercise control over, and obtain another copy of, the

document for production to the Trustee.64

Because the Funds control the relevant documents created, received, or maintained by the

Service Providers during the course of their engagements with the Funds, the Funds must collect

and produce all responsive documents under Rule 34. The Trustee is aware of no fewer than

67,200 documents that were produced by KML and FIM in the Bermuda Action that are not

61 See Mahon v. Rahn [1998] Q.B. 424 at 453 (“It cannot be the law that a litigant, having from the start information and evidence which would enable him to bring an action against another, becomes disqualified from using it if that information and that evidence are later disclosed to him on discovery in another action to which he is a party.”). 62 See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204- 06 (1958) (concluding that the responding party controlled documents under Rule 34, notwithstanding that foreign law provided criminal penalties for disclosure of the documents sought). 63 Indeed, the Funds’ Rule 34 obligations would exist if the Bermuda Productions did not exist, and the existence of the Bermuda Productions cannot supersede their Rule 34 obligations. If discovery in the Bermuda Action lagged behind discovery in this proceeding and thus no Bermuda Productions existed, Rule 34 would require the Funds to obtain from the Service Providers all documents responsive to the Requests. The timing of discovery in a foreign proceeding in which the Trustee is not a party cannot prejudice rights conferred by Rule 34. 64 The documents contained within the Bermuda Productions exist in their original form. For example, KML’s server has been imaged and preserved. Because the Funds control the documents on that server under Rule 34, the Funds must review the server in its entirety and produce from it documents responsive to the Requests, as well as any responsive paper documents that KML may possess. The same is true for electronic and paper documents that FIM created or received when providing consulting and distribution services for the Funds.

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duplicative of documents collected by the Funds as part of the Voluntary Productions. Should

the Court not order the Funds to produce those documents as part of the Bermuda Productions

that they currently possess and have in their custody, Rule 34 requires the Funds to obtain

separate copies of those documents from KML and FIM, as well as separate copies of any other

responsive documents that KML, FIM, or any other Service Provider may have in their

possession, custody, or control.

CONCLUSION

Because the LPO governs discovery in this proceeding, and because the LPO requires the

Funds to produce all responsive documents to the Trustee, subject to confidentiality designation

and the LPO’s attendant protections, General Objection # 20 must be stricken and the Funds

ordered to produce the Voluntary Productions. Because the Funds control all documents created,

generated, or maintained by the Service Providers in the course of performing services for the

Funds, and because the Funds’ use of those documents is not restricted by Bermuda law, General

Objection # 21 should be stricken as to Requests ## 1-37 and ## 39-43. As required by Rule 26

and Rule 34, the Funds must collect from the Service Providers and produce to the Trustee all

documents responsive to those Requests. For those reasons and the reasons set forth above, the

Trustee respectfully requests that the Court enter an order compelling the Funds to comply with

the Requests within 30 days. Should the Funds fail to comply within that time period, the

Trustee respectfully requests leave to seek sanctions for such failure under Rule 37, including

striking of the Funds’ customer claims.

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Date: March 2, 2016 BAKER & HOSTETLER LLP New York, New York By: /s/ David J. Sheehan 45 Rockefeller Plaza New York, New York 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 David J. Sheehan Email: [email protected] Geraldine E. Ponto Email: [email protected] Gonzalo S. Zeballos Email: [email protected] Anthony M. Gruppuso Email: [email protected] Michelle Usitalo Email: [email protected]

Attorneys for Irving H. Picard, Trustee for the substantively consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the estate of Bernard L. Madoff

23 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 1 of 12

EXHIBIT A 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 2 of 12

Trustee’s Requests for Production Funds’ General Objection Funds’ General Objection # 20 # 21

“[The Fund] objects to the “[The Fund] objects to the Requests Requests to the extent they seek to the extent they seek information information regarding specific provided to [the Fund] by other shareholders in [the Fund], as defendants in this case in connection production of such information with [the Fund’s] legal proceedings may require the Joint Liquidators in Bermuda, as production of such of [the Fund] to breach their information may require the Joint obligations under BVI law and/or Liquidators of [the Fund] to breach provisions included in agreements their obligations under Bermuda law with shareholders.” and/or agreements with these producing parties. [The Fund] is applying to the Bermuda court to permit production of such documents to the Trustee.”

Asserted Asserted

1. All Documents relevant to any claim or defense asserted in the Action. Yes Yes

I. FORMATION AND STRUCTURE

2. All Documents concerning the formation of KEF, including but not limited to Yes Yes articles of incorporation, memoranda of association, articles of association, by-laws, limited or general partnership agreements, limited liability company agreements, trust agreements, and organizational charts, and any other Documents reflecting formation and governance of KEF, as originally constituted and as amended or otherwise modified.

3. All Documents sufficient to identify KEF’s principal place(s) of business, business Yes Yes address(es), and the name(s) and address(es) of KEF’s registered agent(s).

4. All Documents sufficient to identify all members of KEF’s Board of Directors, by Yes Yes year, including but not limited to Documents reflecting their titles, responsibilities, membership on any subcommittees or working groups, tenures, and any changes thereto.

1 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 3 of 12 5. All Documents concerning the formation, authority, and acts of KEF’s Board of Yes Yes Directors, including but not limited to all Documents concerning: (i) the authority possessed by KEF’s Board of Directors; (ii) KEF’s Board of Directors’ exercise of its authority, including but not limited to any such exercise of authority concerning KEF’s investments, KEF’s investments with BLMIS, and KEF’s selection and engagement of BLMIS and all other service providers; (iii) any and all resolutions, orders, directives, or instructions issued by KEF’s Board of Directors; (iv) any and all meetings of KEF’s Board of Directors, including but not limited to agendas, notes, minutes, Documents considered by, distributed to, or created by KEF’s Board of Directors before, during, or after any and all such meetings, and all drafts of such Documents; (v) all Communications to, from, or among KEF’s Board of Directors or any individual Director(s); (vi) the manner in which the Directors were chosen, elected, or appointed to the Board; and (vii) the compensation of Directors.

6. All Documents sufficient to identify all of KEF’s personnel, executives, officers, Yes Yes directors, employees, agents, and/or representatives, including but not limited to their position, title, responsibilities, dates of service, and supervisors.

7. All Documents sufficient to show the telephone numbers and email addresses Yes Yes assigned to all KEF’s directors, officers, and employees, including but not limited to all employer-issued cell phone numbers.

II. CONTRACTUAL RELATIONSHIPS

8. All Documents concerning any agreement or contract, whether oral or written, to Yes Yes which KEF is a party or a beneficiary, including but not limited to all Documents concerning: (i) Manager Agreement dated as of May 1, 2000 between Kingate Management Limited and Kingate Euro Fund, Ltd.; (ii) Kingate Management Limited and FIM Limited Consulting Services Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001; (iii) Deed of Novation between Kingate Management Limited, FIM Limited, and FIM Advisers LLP relating to Kingate Euro, Ltd. dated July 29, 2005; (iv) Kingate Management Limited and FIM Limited Distribution Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001; (v) Kingate Euro Fund, Ltd. and Kingate Management Limited and Hemisphere Management Limited Administration Agreement dated May 1, 2000; (vi) Amended and Restated Administration Agreement between Kingate Euro Fund, Ltd. and Kingate Management Limited and Bisys Hedge Fund Services Limited dated June 1, 2007; (vii) Custodian Agreement made on May 1, 2000 between Kingate Euro Fund, Ltd. and The Bank of Bermuda Limited; and (viii) Registrar Agreement between Kingate Euro Fund, Ltd., Kingate Management Limited and Hemisphere Management

2 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 4 of 12 Limited made as of May 1, 2000.

9. All Documents concerning any agreement or contract, whether oral or written, by, Yes Yes between, or among any of the Defendants.

III. DUE DILIGENCE AND INVESTMENT ACTIVITY

10. All Documents concerning KEF’s operations, requirements, policies, and Yes Yes procedures concerning Risk Management, due diligence, know-your-customer, suspicious activity investigation and reporting, and any other Regulatory compliance policies and procedures. This Request includes all manuals or guidelines for such operations, requirements, policies, and procedures, as well as all Documents sufficient to determine the date and substance of any changes.

11. All Documents concerning KEF’s due diligence processes, including but not Yes Yes limited to the standards and practices employed to investigate, monitor, and oversee the activities and investments of sub-advisers, unaffiliated managers, or third-party funds.

12. All Documents concerning KEF’s methods, protocols, practices and procedures Yes Yes for conducting due diligence on any existing investment or any prospective investment opportunity.

13. All Documents concerning any inquiry, investigation, or due diligence conducted Yes Yes by KEF on any existing investment or potential investment, including but not limited to all Documents reviewed or created as part of that inquiry, investigation, or due diligence, due diligence reports or questionnaires, prospectuses, offering memoranda, private placement memoranda, advertisements, brochures, website postings, website addresses, presentations, pamphlets, pitch books, performance records, term sheets, and marketing or executive summaries.

14. All Documents concerning any potential or actual investment with, or related to, Yes Yes BLMIS, including but not limited to all Documents concerning: (i) due diligence conducted on BLMIS; (ii) any opinions, research, or advice concerning any actual or potential investment with BLMIS; (iii) any marketing materials of BLMIS, including but not limited to any private placement memoranda, offering memoranda, tear sheets, or prospectuses; (iv) any monthly, quarterly, or annual performance reports or summaries of BLMIS; (v) any monthly, quarterly, or annual risk or risk management reports of BLMIS; (vi) any portfolio management reports of BLMIS; (vii) any monthly, quarterly, or annual strategy reviews of BLMIS; (viii) SEC Form(s) ADV or 13F, or any amendments thereto, filed or submitted by BLMIS and any other 3 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 5 of 12 Regulatory filings for BLMIS; (ix) any analysis, discussion, review, simulation, or replication of the split-strike conversion investment strategy purportedly executed by BLMIS or any trade purportedly executed under that strategy, including the volumes of and prices at which BLMIS purportedly purchased or sold securities, the identity of counterparties to trades purportedly executed by BLMIS, and trading activity inconsistent with the split-strike conversion strategy; (x) the management team or management structure of BLMIS; (xi) any investigation, background check, or similar review of the professional experience, education, or other credentials of any BLMIS employee; (xii) the identity or nature of BLMIS’s clients or investors; (xiii) the assets under management of BLMIS, including but not limited to the amount of such assets, the growth of such assets, and the percentage of such assets attributable to particular, or groups of, clients or investors; (xiv) any of BLMIS’s accountants, auditors, accounting firms, or auditing firms, including but not limited, to David G. Friehling or Friehling & Horowitz, CPAs, P.C.; (xv) fees or commissions charged by BLMIS; (xvi) risk models; (xvii) pricing models; (xviii) qualitative or quantitative analyses; (xix) periodic portfolio analyses; (xx) benchmarking analyses; (xxi) performance attribution analyses; (xxii) peer analyses; (xxiii) systematic v. non-systematic return analyses; (xxiv) regression analyses; (xxv) reverse-engineering analyses; (xxvi) risk- adjusted analyses; (xxvii) style-adjusted analyses; (xxviii) scenario analyses; (xxix) drawdown analyses; (xxx) correlation analyses; (xxxi) alpha analyses; (xxxii) comparisons, reviews, or analyses of performance during periods of market stress or market downturn; (xxxiii) the volatility or expected volatility of BLMIS’s performance; (xxxiv) any “scatter diagrams” or histograms created or used to analyze the performance of BLMIS; (xxxv) the Sharpe ratio for BLMIS; and (xxxvi) the Sortino ratio for BLMIS.

15. All Documents concerning any assessment of, or due diligence conducted on, Yes Yes KGF, KEF, BLMIS, or any Feeder Fund, by any Person, including but not limited to all Documents concerning: (i) due diligence questionnaires; (ii) any opinions, research, or advice concerning any actual or potential investment with KEF; (iii) any KEF marketing materials, including but not limited to any private placement memoranda, offering memoranda, tear sheets, or prospectuses; (iv) any KEF monthly, quarterly, or annual performance reports or summaries; (v) any KEF monthly, quarterly, or annual risk or risk management reports; (vi) any KEF portfolio management reports; (vii) any KEF monthly, quarterly, or annual strategy reviews; (viii) KEF’s Regulatory filings; (ix) risk models; (x) pricing models; (xi) qualitative or quantitative analyses; (xii) periodic portfolio analyses; (xiii) benchmarking analyses; (xiv) performance attribution analyses; (xv) peer analyses; (xvi) systematic v. non-systematic return analyses; (xvii) regression analyses; (xviii) reverse- engineering analyses; (xix) risk-adjusted analyses; (xx) style-adjusted analyses; (xxi) scenario analyses; (xxii) drawdown analyses; (xxiii) correlation analyses; (xxiv) alpha 4 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 6 of 12 analyses; (xxv) comparisons, reviews, or analyses of performance during periods of market stress or market downturn; (xxvi) the volatility or expected volatility of KEF’s performance; (xxvii) any “scatter diagrams” or histograms created or used to analyze KEF’s performance; (xxviii) KEF’s assets under management, including but not limited to the amount of such assets, the growth of such assets, and the percentage of such assets attributable to particular, or groups of, clients or investors; (xxix) the Sharpe ratio for KEF; and (xxx) the Sortino ratio for KEF.

16. All Documents concerning the investment activity of KGF, KEF, BLMIS, or any Yes Yes Feeder Fund that relate to the following subjects: (i) the performance of KEF’s investment with BLMIS; (ii) the NAV of KEF, including its calculation; (iii) KEF’s assets under management; (iv) KEF’s investment strategies, including the development, marketing, or execution of any investment strategy; (v) all account statements issued by KEF to any Person; (vi) trade confirmations or other memorialization of purported trades made by, or on behalf of, KEF; (vii) the identification (or lack thereof) of any counterparty to any trades purportedly executed by, or on behalf of, KEF and any attempts to ascertain any such counterparty’s identity; (viii) any review, discussion, or analysis of any options purportedly purchased or sold by, or on behalf of, KEF; (ix) any review, analysis, or statement of prices at which KEF, or any Person acting on behalf of KEF, purportedly purchased or sold securities; and (x) any efforts to verify the securities positions purportedly held by BLMIS for the KEF Account.

IV. FINANCIAL AND ACCOUNTING RECORDS

17. All Documents concerning the accounting or recordation of KEF’s financial Yes Yes performance and activity, including but not limited to all general ledgers, journals, trial balances, reconciliations, statements of cash flow, balance sheets, and profit-and- loss statements, and KEF’s financial statements, whether audited or unaudited, including but not limited to audited annual statements, unaudited quarterly and other interim statements, and draft statements, including all related work papers, notes, schedules, and exhibits.

18. KEF’s foreign and domestic tax returns or other tax reporting Documentation, Yes Yes whether filed, unfiled, or in draft form, and all supporting schedules, work papers, journal entries, and trial balances.

19. All Documents concerning services provided to KEF by Yes Yes PricewaterhouseCoopers, including but not limited to all Documents sent to or received from PricewaterhouseCoopers.

5 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 7 of 12 V. SUBSCRIPTIONS & REDEMPTIONS

20. All Documents provided to, received from, or concerning any and all actual or Yes Yes potential investors, subscribers, or shareholders in KEF, including but not limited to information memoranda, offering memoranda, private placement memoranda, and all other Documents of a similar type concerning the solicitation of investment or subscription in KEF; account opening Documents, investment advisory or management contracts, consent forms, trading authorizations, authorizations to purchase and sell securities, investment contracts, option agreements, and subscription agreements; and all Documents concerning that certain (i) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated October 6, 2008, (ii) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated September 22, 2008, (iii) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated August 1, 2007, (iv) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated May 1, 2006, (v) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated May 1, 2004, (vi) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated January 15, 2003, (vii) Kingate Euro Fund, Ltd. Amended and Restated Information Memorandum dated January 1, 2002, and (viii) Kingate Euro Fund, Ltd. Information Memorandum dated May 1, 2000.

21. All Documents concerning your receipt of funds from any Person for purposes of Yes Yes investment or subscription in KEF.

22. All Documents concerning (i) any and all actual or proposed withdrawals of Yes Yes funds from KEF and (ii) any and all actual or proposed redemption of shares or partnerships interests in KEF.

VI. BANK ACCOUNTS

23. All Documents concerning any and all accounts, whether for deposit, credit, Yes Yes investment or any other purpose, maintained by KEF, in KEF’s name, or by any Person on KEF’s behalf, with any bank, financial institution, or depository trust corporation during the Applicable Period, including but not limited to all statements of account, signature cards, account-opening Documents, periodic reconciliations, deposit slips, withdrawal slips, check registers, canceled checks, wire transfer requests, and wire transfer confirmations. This Request includes all such Documents concerning account number 010-503324-512 and account number 010-503324-511 maintained in KEF’s name, or on its behalf, with Bank Bermuda.

6 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 8 of 12 24. All Documents concerning any and all accounts, whether for deposit, credit, Yes Yes investment or any other purpose, maintained by any Defendant in its own name, or by another on such Defendant’s behalf, with any bank, financial institution, or depository trust corporation during the Applicable Period, including but not limited to: (i) Bank Bermuda; (ii) HSBC-Monaco Bank; (iii) Fortis Bank- Guernsey; (iv) Fortis Bank- Channel Islands; (v) Lombard Odier Darier Hentsch, Geneva; (vi) Bank of NT Butterfield & Sons; (vii) Clariden Leu AG-Zurich; and JPMorgan Chase Bank, N.A. Documents responsive to this Request include, but are not limited to, all statements of account, signature cards, periodic reconciliations, deposit slips, withdrawal slips, check registers, canceled checks, wire transfer requests, wire transfer confirmations, and all other records reflecting cash activity. This Request includes all such Documents concerning (i) account number 010-424174-561 and account number 010- 427174-564 maintained in KGF’s name, or on its behalf, with Bank Bermuda and (ii) a certain demand deposit account maintained in KML’s name, or on its behalf, with Bank Bermuda.

VII. CUSTOMER ACCOUNTS AND TRANSFERS

25. All Documents concerning any and all accounts, including but not limited to the Yes Yes KGF Account or the KEF Account, whether for deposit, credit, investment or any other purpose, maintained by KEF, in KEF’s name, or by any Person on KEF’s behalf, with BLMIS, including but not limited to all sub-advisory agreements, solicitation agreements, trading authorizations, trading directives, margin agreements, authorizations to purchase and sell securities, investment contracts, option agreements, subscription agreements, and limited partnership agreements, customer account statements, statements of NAV, calculations of NAV, trade confirmations, portfolio statements, deposit records, withdrawal records, and all other records of investment or cash activity.

26. All Documents concerning any and all Initial Transfers, including but not limited Yes Yes to all Documents concerning any of the following: (i) the date of each such Initial Transfer, (ii) the amount of each such Initial Transfer, (iii) the account name and account number for the account from which the funds were transferred, (iv) the account name and account number for the account to which the funds were transferred, (v) the method of transfer, (vi) the reason for each such Initial Transfer, and (vii) the disposition of each such Initial Transfer.

27. All Documents concerning any and all Transfers from, between, or among any Yes Yes and all of the accounts referred to in Requests ##23 through 26.

7 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 9 of 12 28. All Documents concerning each and every request made to BLMIS to withdraw Yes Yes moneys from the KGF Account or the KEF Account, including but not limited to consideration of the timing and amount of such request, the decision to make such request, and all Communications concerning such request.

29. All Documents concerning each and every deposit made into the KGF Account Yes Yes or the KEF Account, including but not limited consideration of the timing and amount of such deposit, the decision to make such deposit, and all Communications concerning such deposit.

30. All Documents concerning any review or analysis undertaken to trace monies Yes Yes transferred from any of the accounts referred to in Requests ##23 through 26.

31. All Documents reviewed or relied upon in connection with the analyses attached Yes Yes at Exhibits J & K of the Declaration of Robert S. Loigman in Support of Opposition of Kingate Global Fund, Ltd. and Kingate Euro Fund, Ltd. to Trustee’s Application for Enforcement of Automatic Stay and Injunction, filed on or about February 8, 2014 in Picard v. Kingate Global Fund, Ltd., Adv. Proc. No. 12-01920 (SMB).

32. All Documents concerning management fees, administrative fees, performance Yes Yes fees, or any other fees or commissions charged by, or paid to, KML, BLMIS, FIM Advisers, FIM Limited, Citi Hedge, and any other Defendant.

VIII. BLMIS

33. All Documents concerning BLMIS, including but not limited to all Documents Yes Yes concerning any of the following: (i) Documents received from or sent to BLMIS; (ii) Documents received from or sent to any Defendant concerning BLMIS or KEF’s investments with BLMIS; (iii) any contact, meeting, or attempt to contact or meet with BLMIS or with any BLMIS employee; (iv) all Communications between KEF and BLMIS including but not limited to transcripts or audio recordings of any such telephone calls; (v) all Communications between KEF and any Person concerning BLMIS, including but not limited to transcripts or audio recordings of any such telephone calls; (vi) any agreement or contract, whether oral or written, to which BLMIS is a party; (vii) all Communications with any BLMIS Employee; and (viii) all Documents received from or sent to any Feeder Fund, the Depository Trust & Clearing Corporation, and the Options Clearing Corporation concerning BLMIS.

34. All Documents created on or after December 11, 2008, concerning: (i) the public Yes Yes disclosure that a Ponzi scheme operated out of BLMIS; (ii) the arrest, confession, plea, conviction, or sentencing of either Bernard L. Madoff or of any employee of 8 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 10 of 12 BLMIS; and (iii) all meetings held by KEF’s Board of Directors or KEF’s committees, sub-committees or working groups in which BLMIS’s Ponzi scheme was a subject or topic or was mentioned or referenced.

35. All Documents created on or after December 11, 2008, concerning: (i) any Yes Yes review or modification of KGF’s due diligence process; (ii) any self-critical analysis; (iii) any investigation or review that KGF conducted of itself; and (iv) any Communications with any shareholder or prospective shareholder of KGF concerning (a) subscriptions or redemptions in KGF, (b) the NAV of KGF, (c) the effect on KGF of the arrest of Bernard L. Madoff or the commencement of liquidation proceedings against BLMIS, or (d) KGF’s actions subsequent to the arrest of Bernard L. Madoff or the commencement of liquidation proceedings against BLMIS.

36. All Documents concerning: (i) any analysis or discussion of execution prices, Yes Yes performance, or returns of BLMIS; (ii) any analysis or discussion of the feasibility or impossibility of the purported returns and trades of, BLMIS; (iii) Cambridge Associates LLC; (iv) Robert Rosenkranz or Acorn Partners; (v) Oswald Gruebel; (vi) Jim Vos or Aksia, LLC; (vii) David Giampaolo or Pi Capital; (viii) Neil Chelo or Benchmark Plus Partners; (ix) Albourne Partners; (x) Bayou Group, LLC, Bayou Fund, Bayou Hedge Fund Group, Bayou Management, LLC, Samuel Israel III, or any of their respective affiliates; (xi) Michael Ocrant; (xii) Erin Arvedlund; (xiii) Noreen Harrington; (xiv) Michael Markov, (xv) Gil Berman; (xvi) Edward Thorp; (xvii) Harry Markopolos; (xviii) Chris Cutler; (xix) Eric Lazear; (xx) the article in the May 7, 2001 issue of Barron’s entitled “Don’t Ask, Don’t Tell: Bernie Madoff is so secretive, he even asks his investors to keep mum”; (xxi) the article in the December 16, 1992 issue of the Wall Street Journal entitled “Wall Street Mystery Features a Big Board Rival”; (xxii) the May 2001 MAR/Hedge newsletter entitled “Madoff Tops Charts; Skeptics Ask How”; and (xxiii) any actual, potential, or suspected fraud, Ponzi scheme, or illegal activity (including front running), at BLMIS.

IX. SPECIFIC INDIVIDUALS AND ENTITIES

37. All Documents concerning any of the following: (i) Manzke; (ii) Fairfield Yes Yes Greenwich (Bermuda), Ltd.; (iii) Fairfield Sentry Ltd.; (iv) Amit Vijayvergia; (v) Andres Piedrahita; (vi) Shazieh Salahuddin; (vii) Eric Lazear; (viii) Tremont (Bermuda) Limited; (ix) Tremont Advisers; (x) Tremont Group Holdings, Inc.; (xi) Tremont Partners, Inc.; (xii) Hemisphere Management Limited; (xiii) Christopher Wetherhill; (xiv) Island Storm, Ltd.; (xv) Phillip A. Evans; (xvi) Frank Walters; (xvii) Michael Tannenbaum; (xviii) the law firm of Tannenbaum Helpern Syracuse & Hirschtritt LLP; (xix) MN Services; (xx) UBP; (xxi) M Invest; (xxii) Robert Johnson; (xxiii) BNP Paribas; (xxiv) Barry E. Breen; (xxv) Moore Stephens International 9 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 11 of 12 Services (BVI) Limited; (xxvi) Moore Stephens Services SAM; (xxvii) Hamilton Trust Co. Ltd.; (xxviii) Hamilton Nominees Ltd.; (xxix) Fenton Trust; (xxx) FIM Long-Invest Fund EUR & USD; (xxxi) Dancrest Global Equity Fund; (xxxii) Levco Debt Opportunity Fund & Levco Alternative Fund; (xxxiii) FIM Relative Value Fund; (xxxiv) Five Balanced Fund (Bermuda); (xxxv) Five Balanced Fund (Cayman Islands); (xxxvi) Victoria Global Fund; (xxxvii) FDVG Low Volatility Investments & FDVG Equity Investments; (xxxviii) Silver Shield Fund (Bermuda); or (xxxix) Silver Shield Fund (Cayman Islands).

X. INVESTIGATIONS & LITIGATION

38. All Documents concerning any civil, criminal, or other legal proceedings, such as Yes Yes arbitration, including but not limited to the Bermuda Action and the BVI Proceedings, and any criminal investigation, commenced by or against KEF or any other Defendant, in any jurisdiction, whether foreign or domestic, whether threatened or filed, including but not limited to, any pleadings, motions, correspondence, Documents and discovery produced, deposition transcripts (including exhibits), hearing transcripts, witness statements taken or given by any party/witness or produced in discovery, and orders, rulings, and judgments.

39. All Documents concerning any Communications between KEF and any Yes Yes governmental, Regulatory, or law enforcement entity or official in any jurisdiction, whether foreign or domestic, concerning BLMIS, including but not limited to all Documents received from or sent to any such entity or official.

40. All Documents concerning any Communications between KEF and any Yes Yes governmental, Regulatory, or law enforcement entity or official in any jurisdiction, whether foreign or domestic, concerning any Defendant, including but not limited to all Documents received from or sent to any such entity or official.

41. All Documents concerning any and all payments or consideration made by or Yes Yes received by KEF after December 11, 2008, in connection with KEF’s investment with BLMIS.

42. All Documents concerning any claims filed or actions taken (whether legal, Yes Yes equitable, or otherwise) to recoup or recover any damages or losses KEF alleges to have sustained as a result of KEF’s investment with BLMIS.

43. All Communications with, and all Documents submitted by or on behalf of any Yes Yes investor, subscriber, or shareholder in KEF to, Richard C. Breeden, his attorneys, his accountants, or any other representative of Mr. Breeden or the Madoff Victim Fund 10 09-01161-smb Doc 245-1 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit A Pg 12 of 12 created under the Department of Justice Asset Forfeiture Distribution Program.

11 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 1 of 27

EXHIBIT B 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 2 of 27 Service Provider Obligations to the Kingate Funds

Manager’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

May 2000 Manager Agreement1 July 2004 Co-Manager Agreement2 January 2006 Manager Agreement3

Nature of Specific Contractual Provision Nature of Specific Contractual Provision Nature of Specific Contractual Provision Obligation Obligation Obligation

Overall Fund 2.2 Authority of the Manager. Overall Fund 1.1 Provision of Services. In Overall Fund 1.1 Provision of Services. In Management The Manager shall have full Management accordance with the provisions of Management accordance with the provisions discretion and authority, without the Memorandum and Articles of of the Memorandum and Articles obtaining the Fund’s prior Association of the Fund and the of Association of the Fund and approval, to implement the Information Memorandum, and the Information Memorandum, Investment Objective and under the ultimate supervision of and under the ultimate investment program set forth in the directors of the Fund (the supervision of the directors of the Information Memorandum or “Directors”) from time to time as the Fund (the “Directors”) from Operative Documents and to provided therein, the Co-Manager time to time as provided therein, manager the investment and shall be responsible for performing the Manager shall be responsible reinvestment of the assets of the and obtaining the performance of, for performing and obtaining the Fund in such manner as the and is hereby authorized and performance of, and is hereby Manager considers appropriate, empowered to perform, or obtain authorized and empowered to market the Securities and the performance of, all of the perform, or obtain the otherwise act in connection with following duties and functions performance of, all of the the directions of the Fund. In necessary or appropriate in following duties and functions furtherance of the foregoing, the connection with the management necessary or appropriate in Fund hereby designates and of the Fund: connection with the management appoints the Manager with full of the Fund: power and authority and without (a) Providing investment the need for further approval of management services as described (a) Providing investment the Fund (except as may be in Part II of this Agreement; management services as required by applicable law) to described in Part II of this carry out the following with (b) Providing administrative Agreement; respect to the assets of the Fund: services as described in Part III of (b) Providing administrative

1 Manager Agreement dated as of May 1, 2000 between Kingate Management Limited and Kingate Euro Fund, Ltd. See Gruppuso Decl., Ex. Y. 2 Co-Manager Agreement dated as of July 1, 2004 between Kingate Management Limited and Kingate Global Fund, Ltd. See Gruppuso Decl., Ex. Z. 3 Management Agreement dated January 1, 2006 between Kingate Management Limited and Kingate Global Fund, Ltd. See Gruppuso Decl., Ex. AA. 1 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 3 of 27 (a) subject to compliance with this Agreement; and services as described in Part III any applicable regulatory of this Agreement; and requirements, to effect purchases (c) Providing services as and sales (including short sales) described in Part IV of this (c) Providing services as of securities and other Agreement. described in Part IV of this transactions relating to the Agreement. management of the assets of the The Co-Manager may delegate all Fund, at all times consistent with or part of such responsibilities The Manager may delegate all or the investment strategy set out in pursuant to Section 2.2, 3.2, 4.6 part of such responsibilities the Information Memorandum or and 5.9 below. pursuant to Section 2.2, 4.6 and any Operative Documents; 5.9 below.

(b) to make loans, whether secured or unsecured, to any entity (other than an affiliate of the Manager) of any kind and on such terms and conditions as the Manager deems appropriate;

(c) to make all decisions relating to the manner, method and timing of investment transactions, and to select brokers and dealers (including affiliates of the Manager) for the execution, clearance and settlement of any transactions;

(d) to trade on margin, to borrow from banks, brokers or other financial institutions and to pledge assets of the Fund in connection therewith;

(e) to direct prime brokers and custodians to deliver funds or securities for the purpose of effecting transactions, and to instruct such entities to exercise or abstain from exercising any privilege or right attaching to 2 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 4 of 27 such assets; and

(f) to make and execute, in the name and on behalf of the Fund, or in nominee accounts, all such documents (including, without limitation, customer agreements and other documents in connection with the establishment and maintenance of brokerage accounts) and to take all such other actions which the Manager considers necessary or advisable to carry out its investment management duties hereunder;

(g) to enter into one or more consulting arrangements with one or more consultants, who may be affiliated with the Manager (and upon whom the Manager shall be entitled to rely) in order to hedge the currency risk between the Euro and the U.S. Dollar, including without limitation, to cause the Fund to be a counterparty to one or more FX agreements intended to hedge such risk; and

(h) to retain auditors[,] consultants, experts and attorneys including such firms with whom the Manager (or any director of the Manager) is or may be affiliated[;] and

(i) all other actions as may be necessary or appropriate to further the offering and the 3 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 5 of 27 Investment Objective and investment program as set forth in the Information Memorandum and administrative matters in connection therewith.

Investment 2.1 Investment Program. Subject 2.1 Investment Program. Management to the ultimate supervision of the Subject to the ultimate Services Directors, and in accordance with supervision of the Directors, and the Memorandum and the Articles in accordance with the of Association of the Funds, as Memorandum and the Articles of well as the investment objectives, Association of the Funds, as well policies, guidelines and as the investment objectives, restrictions which are set forth in policies, guidelines and the Information Memorandum, or restrictions which are set forth in which are otherwise the Information Memorandum, communicated to the Co-Manager, or which are otherwise the Co-Manager shall effect the communicated to the Manager, investment strategy for the the Manager shall effect the investment of the assets of the investment strategy for the Fund as well as evaluating and investment of the assets of the selecting potential investments Fund as well as evaluating and which are consistent with such selecting potential investments strategy. Included within this which are consistent with such power are the following: strategy. Included within this power will be managing the (a) Investing the Fund’s assets in investment and reinvestment of accordance with the Information the assets of the Fund, in each Memorandum and managing the case in such manner as the investment and reinvestment of the Manager considers appropriate assets of the Fund in such manner based upon the Manager’s past as the Co-Manager considers practices. appropriate;

(b) Undertaking all actions that may be necessary in the furtherance of the investment objectives of the Fund;

(c) Arranging for the retention of Bernard L. Madoff Investment 4 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 6 of 27 Securities, LLC, a New York based financial institution (“Madoff”), as the Fund’s investment adviser and broker dealer with regard to substantially all of the assets of the Fund;

(d) Investing directly any assets of the Fund that are not allocated to Madoff;

(e) Reviewing from time to time the activity of Madoff to ensure that it complies with the investment guidelines provided to it in accordance with the Information Memorandum.

2.2 Authority of the Manager as to Investment Management. The Co-Manager shall have full discretion and authority without obtaining the Fund’s prior approval, to manager the investment and reinvestment of the assets of the Fund in such manner as the Co-Manager considers appropriate including without limitation hiring such experts, agents and consultants to assist the Co-Manager in performing its duties hereunder as the Co- Manager deems appropriate based upon Co-Manager’s past practices.

Administrative 3.1 Provision of Administrative Administrative 3.1 Provision of Administrative Services Services for Fund. In accordance Services Services for Fund. In accordance with the provisions of the with the provisions of the Memorandum and Articles of Memorandum and Articles of Association of the Fund, and under Association of the Fund, and the ultimate supervision of the under the ultimate supervision of 5 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 7 of 27 Directors from time to time as the Directors from time to time provided therein, the Co-Manager as provided therein, the Manager shall be responsible for performing shall assist the Fund (in a manner (or procuring the performance of) consistent with existing practice) and is hereby authorized and in the performance of certain of empowered to perform (or procure its administrative duties as may the performance of) at the expense be agreed to by the parties from of the Fund, all duties and time to time. functions necessary or appropriate in connection with the administration of Fund, including:

(a) Undertaking all actions that may be necessary for the proper administration of the Fund;

(b) Arranging for the retention of BISYS Hedge Fund Services Limited, Hamilton, Bermuda, or such other Fund Administrator as the Co-Manager may deem appropriate;

(c) Supervising the Fund Administrator in all its functions;

(d) Arranging for the maintenance of an official register of Fund shares (the “Shares”) issued, transferred, redeemed or canceled, arranging for the appointment of a registered agent in the BVI and arranging for the maintenance of the Fund’s registered office and good standing as an international business company in the BVI;

(e) Reviewing the calculation of the Net Asset Value of the Fund’s Shares on the part of the Fund

6 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 8 of 27 Administrator;

(f) Verifying the calculation of the Management Fees charged to the Fund;

(g) Calculating the share of Management Fees payable to Co- Manager Tremont;

(h) Advising as to the payment of invoices payable by the Fund;

(i) Advising as to subscriptions, redemptions, and transfers of Fund Shares;

(j) Advising the Administrator as to whether or not subscription or redemption fees should be charged;

(k) Checking, to the extent reasonable, the accuracy of the Shareholders’ register and reconciling nominees with final investors and, in this regard, assisting the Administrator in establishing the identity of the final investors;

(l) Ensuring that adequate procedures are undertaken by the Fund Administrator to comply with the USA PATRIOT Act and other anti-money laundering laws;

(m) Ensuring that adequate procedures are undertaken by the Fund Administrator to ensure that every subscription, redemption,

7 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 9 of 27 transfer comprises all of the relevant documentation and enclosures;

(n) Advising the Fund with regard to instructions to the banks about receiving/paying out money to and from the Fund;

(o) Reviewing periodically the Fund’s offering documents to ensure continued compliance with applicable laws and regulations;

(p) Overseeing the preparation of the Fund’s interim and annual financial statements;

(q) Organizing, coordinating and facilitating the audit of the Fund;

(r) Maintaining contact with the Fund’s legal advisers in Bermuda, the United States, the BV I and any other jurisdiction where the Fund may operate with a view towards advising the Fund on new legal and regulatory developments that may affect the structure of the Fund, its marketability, and its compliance with laws in general; and

(s) Maintaining contact with the regulatory authorities in Bermuda, the United States and the BVI and elsewhere as needed.

(t) In general, advising the Fund on all aspects related to Fund’s administration, accounting, legal

8 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 10 of 27 and operational matters based upon Co-Manager’s past practices.

3.2 Authority of the Manager as to Administration. The Co- Manager shall have full authority, without obtaining the Fund’s prior approval, to administer the Fund in such manner as the Co-Manager considers appropriate including without limitation hiring such experts, agents and consultants to assist the Co-Manager in performing its duties hereunder as the Co-Manager deems appropriate.

Advisory 3.1 Provision of Placement Advisory 4.1 Provision of Advisory Services Marketing 4.1 Marketing Generally. In Services Duties and Advisory Services. Services and Sale of Shares. In accordance Services accordance with the provisions In accordance with the with the provisions of the of the Memorandum and Articles provisions of the Memorandum Memorandum and Articles of of Association of the Fund and and Articles of Association of Association of the Fund and the the Information Memorandum, the Fund, as they may exist from Information Memorandum, and and under the ultimate time to time, and the Information under the ultimate supervision of supervision of the Directors from Memorandum or Operative the Directors from time to time as time to time as provided therein, Documents, as the case may be, provided therein, the Co-Manager the Manager is hereby authorized and under the ultimate is hereby authorized and and empowered to perform (or supervision of the Directors, the empowered to perform (or procure procure the performance of), all Manager shall be responsible for the performance of), all duties and duties and functions in performing (or procuring the functions in connection with sale connection with the sale of any performance of), and is hereby of any Shares of the Fund and Shares of the Fund and advising authorized and empowered to advising the Fund on general the Fund on general matters perform (or procure the matters affecting the marketing of affecting the marketing of the performance of), all duties and the Shares, including from time to Shares, including from time to functions necessary or time advising the Fund’s Directors time advising the Fund’s appropriate in connection with concerning: Directors concerning: the placement of the Securities outside of the United States and (a) Subject, inter alia, to the (a) Subject, inter alia, to the advising the Fund on general provisions of Section 4.5(b), provisions of Section 4.5(b), matters affecting its structure and soliciting and introducing soliciting and introducing operations, including from time prospective investors in the Fund’s prospective investors in the 9 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 11 of 27 to time advising the Directors Shares; Fund’s Shares, either relying concerning: upon an exemption from (b) Maintaining regular contact registration as a broker dealer or (a) the suitability of the Fund’s and updating existing and by engaging the services of a structure and operating prospective investors to keep them broker dealer which may be an procedures in light of the informed of investment results and affiliate of the Manager; expectations of prospective other information with regard to investors; the Fund; (b) Maintaining regular contact and updating existing and (b) steps which may be taken to (c) Advising the Fund on steps prospective investors to keep enhance the marketability of the that may be taken to enhance the them informed of investment Fund’s Securities and to improve marketability of the Fund’s results and other information investor relations; securities and to improve investor with regard to the Fund; relations; (c) the identification and evaluation of candidates to serve (d) Preparing marketing and other as Directors; material;

(e) general economic and (e) Sending marketing material financial developments in and offering documents to international securities and investors and prospective capital markets affecting the investors; Fund’s investment program[; and] (f) Organizing and supervising the publication of the Fund’s Net (f) in general, all aspects relating Asset Value in newspapers and to the Fund’s administration, other media; accounting, legal and operational matters. (g) Supervising the distribution lists to keep prospective and existing investors informed of developments with regard to the Fund;

(h) Appointing authorized dealers and sales agents to assist it in the sales of any Shares; and

(i) Generally, providing such services as may be required to place the Fund’s shares and to

10 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 12 of 27 maintain good investor relations.

11 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 13 of 27 Administrator’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

May 2000 Administration Agreements4 June 2007 Administration Agreements5

Nature of Specific Contractual Provision Nature of Specific Contractual Provision Obligation Obligation

Administration 3.1 During the continuance of its appointment as Administration During the continuance of this Agreement the Administrator of the Company, the Administrator shall Administrator shall perform the functions of an (subject to the overall policy and supervision of the administrator to the Company as may be requested by the Directors and subject to Clause 3.8) have full power, Company namely: authority and right to carry on the general administration of the Company.

3.4 Without prejudice to the generality of the foregoing but subject always to Clause 3.8, the duties to be performed by the Administrator during the continuance of its appointment as administrator in relation to the Company shall include:-

3.4.1 the general administration of the Company and its management as an investment company and receiving and dealing with applications, notices and correspondence on behalf of the Company;

Net Asset Value 3.4.4 the calculation of the Net Asset Valuation … and Net Asset Value 4.1.1 calculate and publish the net asset value per Share Calculation coordinating with Consultants and agents of the Company Calculation for each class of Shares issued by the Company and the and with the Co-Manager with regard to [the Company’s] subscription and redemption prices per Share for each currency hedging activities and obtaining price quotes in a class of Shares issued by the Company in accordance with manner consistent with the Memorandum; the methodology contained within the Articles, the Offering Memorandum or as directed by the Directors 3.4.5 the calculation of the Subscription Price and the from time to time utilizing, whenever reasonably Redemption Price of the Shares at each Subscription and practicable, such independent pricing services as chosen

4 Kingate Global Fund, Ltd. and Kingate Management Limited and Hemisphere Management Limited Restated and Amended Administration Agreement dated May 1, 2000, and Kingate Euro Fund, Ltd. and Kingate Management Limited and Hemisphere Management Limited Administration Agreement dated May 1, 2000. See Gruppuso Decl., Exs. CC & DD. 5 Amended and Restated Administration Agreement between Kingate Global Fund, Ltd. and Kingate Management Limited and BISYS Hedge Fund Services Limited dated June 1, 2007, and Amended and Restated Administration Agreement between Kingate Euro Fund, Ltd. and Kingate Management Limited and BISYS Hedge Fund Services Limited dated June 1, 2007. See Gruppuso Decl., Exs. EE & FF. 12 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 14 of 27 Redemption Date; by the Administrator from time to time;

3.4.6 the calculation of the fees of the Co-Manager; 4.1.2 oversee and review the calculation and payment of fees payable to the Administrator, the Manager and other service providers to the Company;

Corporate 3.5 The Administrator shall nominate an employee Corporate 4.2.1 provide the services of an officer or employee of the Secretarial whenever requested to do so by the Directors, to be Secretarial Administrator or an affiliate thereof to act as secretary of Services appointed by the Directors as the Secretary of the Services the Company in accordance with the laws of the British Company. Virgin Islands, as may be requested by the Company;

3.5.1 The Administrator shall carry out on behalf of the 4.2.2 continue to permit Bison Court, P.O. Box 3460, Secretary of the Company all the duties and the functions Road Town, Tortola, British Virgin Islands to be the of the Secretary of the Company including without Company’s registered office; limiting the general nature of the foregoing— 4.2.3 be responsible for maintaining the Register in (a) the convening of the meetings of Directors in the name accordance with the statutory provisions for the time being of the Secretary of the Company and taking of the minutes in force and the Articles; thereof; and 4.2.4 take or procure that there are taken reasonable and (b) the keeping and safe-keeping of the statutory books proper precautions for the safe custody of the Register, any and records of the Company; and certificates of the Company held by the Administrator, and of all other documents held by it in performance of its (c) the delivery of all returns required by the laws of the duties in accordance with this Agreement[;] British Virgin Islands … to any competent authority in the British Virgin Islands; and 4.2.5 receive, record and deal with probates, letters of administration, powers of attorney, and other documents (d) all duties properly to be performed by the Secretary of affecting the title of Shares or any dividends payable a company under the laws of the British Virgin Islands[,] thereon in accordance with the Administrator’s normal the Laws or the Articles of the Company.” practice or in accordance with the written instructions of the Company; 3.4.9 the determination of whether or not a person is an Eligible Investor in relation to Shares and whether to 4.2.6 prepare and seal on behalf of the Company Share invoke the compulsory redemption procedures laid down certificates in accordance with the provision of the Articles by the Articles in respect of any person suspect not be and the Offering Memorandum; such an Eligible Investor, determining that the subscriber is not in violation of the applicable anti-money laundering 4.2.7 subject to any instructions to the contrary from the laws, and generally determining whether or not a person Company, ensure that the officer or employee of the should or should not be permitted to hold or continue to Administrator or an affiliate thereof appointed as secretary hold Shares having regard only to the relative provisions, of the Company from time to time (or, if appropriate a suitable alternate) shall organize and attend in person or by

13 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 15 of 27 restrictions and powers contained in the Articles; telephone at board meetings and general meetings of the Company held and prepare agendas, minutes and other documents required at or in connection with such meetings held in the British Virgin Islands or elsewhere;

4.2.8 effect all necessary registrations with governmental and similar agencies in the British Virgin Islands in order to maintain the good standing of the Company …;

4.2.9 establish and maintain such bank accounts as may be necessary and take such action in relation thereto as may be authorized by the directors from time to time;

Preparation of 3.2 The Administrator shall keep or cause to be kept on Preparation of 4.3.1 maintain the principal corporate records and books Financial behalf of the Company at the Administrator’s premises in Financial of account of the Company as required for the proper Statements Bermuda such books, records and statements as may be Statements conduct of the financial affairs for the Company, provided necessary to give a complete record of all transactions however, that the corporate records and books of account carried out by the Administrator on behalf of the Company held by the Company in the British Virgin Islands shall, in and such other books, records and statements as may be any event, be treated as the Company’s principal corporate required by the Laws, the Articles of the Company and records and books of account; shall permit the Company and its respective employees and agents and their Auditors … to inspect such books, 4.3.2 at any time during the Administrator’s business records and statements at all reasonable times. hours permit the Auditor and any duly appointed agent or representative of the Company, at the expense of the 3.4.7 keeping and arranging for safe-keeping of the record Company, to audit or inspect the Register, the financial and accounts of the Company in such manner as will records of the Company and any other documents kept by enable the Company to publish yearly the report and the Administrator under the terms of this Agreement and accounts of the Company expressed in U.S. dollars; make available all such documents and records in its possession to the Auditor, agent or representative during 3.4.8 preparing for the approval of the Directors the business hours whenever reasonably required so to do and annual report and accounts of the Company in U.S. dollars afford all such information, explanations and assistance as and such other reports, notices and documents as the the Auditor, agent or representative may reasonably Company may from time to time require and arranging for require; the dispatch of the same; 4.3.3 reconcile accounting issues with the Company’s Directors, officers, the Auditor or the Company’s legal counsel;

4.3.4 prepare draft financial statements for presentation to the Auditors annually;

14 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 16 of 27 4.3.5 at the end of each fiscal year of the Company, arrange for the books and accounts of the Company to be audited and cause the auditors report to be delivered to the Directors, the shareholders, the Manager and such governmental or regulatory agencies as may be required by law;

Shareholder 3.4.2 the receipt of applications for the subscription, Shareholder 4.4.1 process subscription and redemption requests in Services notices for the redemption and instruments of transfer of Services accordance with the provisions of the Articles and the Shares and being responsible for the administration of the Offering Memorandum and arrange for the issue, transfer, procedure to be followed for the issue, redemption and allotment, conversion and/or redemption of Shares and transfer of Shares; make any corresponding entries on the Register …;

3.4.3 the determination of the number of Shares to be 4.4.2 send all circulars, notices of meetings, reports, issued by the Company as of each Subscription Date as a financial statements and other written material to all result of subscriptions received for Shares; persons entitled to receive the same under the Articles and the Offering Memorandum as the Company may require; 3.4.10 the safe-keeping, preparation and forwarding to shareholders, or to the order of such shareholders, in the 4.4.3 act as may be required by the Company from time to Company of all certificates, cheques, statements, notices time, as proxy agent in connection with the holding of and other documents which the Company is required to meetings of Shareholders, receive and tabulate votes case issue or serve in connection with the said documents; by proxy and communicate to the Company the results of such tabulation accompanied by appropriate certificates; 3.6 The Administrator shall provide a place for receiving applications for Shares, notices of redemptions of Shares, 4.4.4 use reasonable efforts to deal with and answer all instruments of transfer of Shares, Share Certificates, correspondence from or on behalf of Shareholders relating correspondence relating to the subscription, redemption to the Company; and transfer of Shares and providing a place where notices may be served on the Company.

3.7 The Administrator shall answer any questions of prospective or existing holders of Shares relating to the subscription, redemption or transfer of Shares.

Other 3.4.12 the deposit of the moneys received in respect of Other 4.6.1 establish and maintain such bank, brokerage, each application for subscription of Shares into a separate custodian and other accounts as may be necessary or subscriptions account in the name of the Company; advisable and do all such things and take such action in relation thereto as may be authorized by the Directors from 3.4.13 paying out the subscriptions account referred to in time to time; Clause 3.4.12 introductory commissions in accordance with authority granted by the Directors from time to time 4.6.2 obtain approval from the Company for, and draw

15 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 17 of 27 (but which may not exceed 5% of the aggregate upon the bank account(s) of the Company to pay and subscription price of the Shares to be subscribed) to the discharge, all properly due, charged, and documented persons who introduce subscribers for Shares as costs, expenses and liabilities of the Company due to the determined by the Directors and collecting exit or service providers to the Company ….” redemption fees as the case may be.

instructing the Custodian by telefax within thirty days after the Redemption Date of the total amounts (if any) payable in respect of the redemption of Shares;

Custodian’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

March 1994 Custodian Agreement6 May 2000 Custodian Agreement7

Nature of Specific Contractual Provision Nature of Specific Contractual Provision Obligation Obligation

General 2. The Company HEREBY APPOINTS the Custodian to General 2. The Company HEREBY APPOINTS the Custodian to Custodial be and the Custodian HEREBY AGREES to act as Custodial be and the Custodian HEREBY AGREES to act as custodian of the Company in accordance with the Articles custodian of the Company in accordance with the Articles and the terms and conditions hereinafter contained from and the terms and conditions hereinafter contained from the date hereof. The Company agrees to deliver to the the date hereof. The Company agrees to deliver to the Custodian all Securities and cash owned by it, and all Custodian all Securities and cash owned by it, and all payments of income, payments of principal or capital payments of income, payments of principal or capital distributions received by it with respect to the Securities. distributions received by it with respect to the Securities.

1(A). “Securities” shall mean listed and unlisted equity 1(A). “Securities” shall mean listed and unlisted equity and equity related securities including convertible bonds and equity related securities including convertible bonds and warrants; shares or units in collective investment and warrants; shares or units in collective investment schemes; privatization vouchers and coupons; debt schemes; privatisation vouchers and coupons; debt securities including government and corporate issues and securities including government and corporate issues and warrants or options thereon; bank deposits and certificates warrants or options thereon; bank deposits and certificates of deposit. of deposit.

Receive and 5(A). The Custodian shall open and maintain a separate Receive and 5(A). The Custodian shall open and maintain a separate

6 Custodian Agreement between Kingate Global Fund, Ltd. and The Bank of Bermuda Limited and Kingate Management Limited made as of March 1, 1994. See Gruppuso Decl., Ex. II. 7 Custodian Agreement between Kingate Euro Fund, Ltd. and The Bank of Bermuda Limited made as of May 1, 2000. See Gruppuso Decl., Ex. JJ. 16 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 18 of 27 Disburse Cash bank account or bank accounts in its books in the name of Disburse Cash bank account or bank accounts in its books in the name of the Company and, if requested by Proper Instructions and the Company and, if requested by Proper Instructions and subject to applicable laws, a separate bank account or subject to applicable laws, a separate bank account or accounts in the name of the Custodian for the benefit of accounts in the name of the Custodian for the benefit of the Company outside Bermuda with such bank or banks the Company outside Bermuda with such bank or banks and in such place or places as may from time to time be and in such place or places as may from time to time be agreed between it and the Investment Manager. The agreed between it and the Investment Manager. The Custodian shall hold in such bank account or bank Custodian shall hold in such bank account or bank accounts, subject to the provisions hereof, all cash accounts, subject to the provisions hereof, all cash received by it from or for the account of the Company. received by it from or for the account of the Company. The Custodian shall make or procure the making of The Custodian shall make or procure the making of payments out of such account or accounts on behalf of the payments out of such account or accounts on behalf of the Company only:- Company only:-

(a) upon the purchase of Securities for the account of the (a) upon the purchase of Securities for the account of the Company and, where practices permit, subject to the Company and, where market practices permit, subject to delivery of such Securities to or to the order of the the delivery of such Securities to or to the order of the Custodian or anyone nominated by the Custodian in Custodian or anyone nominated by the Custodian in accordance with Clause 9 or in proper form for transfer; accordance with Clause 9 or in proper form for transfer;

(b) for the redemption of shares of the Company pursuant (b) for the redemption of shares of the Company pursuant to the Articles; to the Articles;

(c) for the payment of interest and dividends by the (c) for the payment of interest and dividends by the Company or to the payment by the Company of taxes, Company or the payment by the Company of taxes, management, investment advisory, custodian, secretarial management, investment advisory, custodian, secretarial and registrar and subscription and redemption agents fees and registrar and subscription and redemption agents fees or other operating expenses (including, without limitation or other operating expenses (including, without limitation thereto, fees for legal, accounting and auditing services, thereto, fees for legal, accounting and auditing services, directors’ remuneration, brokerage and commissions); directors’ remuneration, brokerage and commissions);

(d) for payments in connection with the conversion, (d) for payments in connection with the conversion, exchange or surrender of Securities owned by or exchange or surrender of Securities owned or subscribed subscribed for on behalf of the Company held by or to be for on behalf of the Company held by or to be delivered to delivered to the Custodian; the Custodian;

(e) for the transfer of cash from one bank account as (e) for the transfer of cash from one bank account as aforesaid to another bank account as aforesaid or for aforesaid to another bank account as aforesaid or for deposit; deposit;

(f) for payments in connection with insuring Securities or (f) for payments in connection with insuring Securities or

17 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 19 of 27 in providing for the safekeeping thereof otherwise than in in providing for the safekeeping thereof otherwise than in the vault of the Custodian; the vault of the Custodian;

(g) for payments of interest and payment of principal on (g) for payments of interest and payment of principal on all borrowing; all borrowing;

(h) for payments in respect of initial or variation margin (h) for payments in respect of initial or variation margin requirements relative to the operation of any accounts with requirements relative to the operation of any accounts with brokers or other intermediaries; brokers or other intermediaries;

(i) for payments in connection with any stock lending (i) for payments in connection with any stock lending activities; and activities; and

(j) for other corporate purposes. (j) for other corporate purposes.

Receive 6(A). [T]he Custodian shall record and hold in a separate Receive 6(A). [T]he Custodian shall record and hold in a separate Securities account in its books all Securities received by it from time Securities account in its books all Securities received by it or to its to time and shall arrange for all Securities to be deposited order from time to time and shall arrange for all Securities in the Custodian’s vault or otherwise … for the purpose of to be deposited in the Custodian’s vault or otherwise … providing for the safekeeping thereof. for the purpose of providing for the safekeeping thereof.

6(B). [T]he Custodian shall upon receipt of Proper 6(B). [T]he Custodian shall upon receipt of Proper Instructions, open accounts with brokers or other Instructions, open accounts with brokers or other intermediaries in its name on behalf of the Company or in intermediaries in its name on behalf of the Company or in the name of the Company and may make such the name of the Company and may make such arrangements concerning the trading authorisations and arrangements concerning the trading authorisations and other forms of authority with respect to such account or other forms of authority with respect to such account or accounts as it deems advisable. accounts as it deems advisable.

Transfer 7(A). [Upon receipt of Proper Instructions or a resolution Transfer 7(A). [Upon receipt of Proper Instructions or a resolution Securities of the Board of Directors, as the case may be, the] Securities of the Board of Directors, as the case may be, the] Custodian shall transfer, exchange or deliver in the Custodian shall transfer, exchange or deliver in the required form and manner Securities held by it hereunder required form and manner Securities held by it hereunder only:- only:-

(a) upon sales of such Securities for the account of the (a) upon sales of such Securities for the account of the Company and where market practices permit receipt by Company and where market practices permit receipt by the the Custodian of payment therefor; Custodian of payment therefor;

(b) when such Securities are called, redeemed or retired or (b) when such Securities are called, redeemed or retired or

18 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 20 of 27 otherwise become payable; otherwise become payable;

(c) for examination by any broker selling any such (c) for examination by any broker selling any such Securities in accordance with ‘street delivery’ custom; Securities in accordance with ‘street delivery’ custom;

(d) in exchange for or upon conversion into other (d) in exchange for or upon conversion into other Securities alone or other Securities and cash pursuant to Securities alone or other Securities and cash pursuant to any plan or merger, consolidation, reorganization, any plan or merger, consolidation, reorganisation, recapitalization or readjustment or otherwise; recapitalisation or readjustment or otherwise;

(e) upon conversion of such Securities pursuant to their (e) upon conversion of such Securities pursuant to their terms into other Securities; terms into other Securities;

(f) upon exercise of subscription, purchase or other similar (f) upon exercise of subscription, purchase or other similar rights represented by such Securities; rights represented by such Securities;

(g) for the purpose of exchanging interim receipts or (g) for the purpose of exchanging interim receipts or temporary securities for definitive securities; temporary securities for definitive securities;

(h) for the purpose of redeeming in kind shares of the (h) for the purpose of redeeming in kind shares of the Company; Company;

(i) for collecting all income and other payments with (i) for collecting all income and other payments with respect to Securities; respect to Securities;

(j) in connection with stock lending transactions entered (j) in connection with stock lending transactions entered into for the account of the Company; into for the account of the Company;

(k) in connection with short sales entered into by the (k) in connection with short sales entered into by the Company; and Company; and

(l) for other proper corporate purposes. (l) for other proper corporate purposes.

7(B). Upon receipt of Proper Instructions, the Custodian 7(B). Upon receipt of Proper Instructions, the Custodian shall (1) receive and retain confirmations or other shall (1) receive and retain confirmations or other documents evidencing the purchase or writing of an option documents evidencing the purchase or writing of an option by the Company; (2) deposit and maintain in a segregated by the Company; (2) deposit and maintain in a segregated account, either physically or by book-entry, Securities, account, either physically or by book-entry, Securities, cash or other assets in connection with options cash or other assets in connection with options transactions transactions entered into by the Company; and (3) pay, entered into by the Company; and (3) pay, release and/or release and/or transfer such Securities, cash or other assets transfer such Securities, cash or other assets only in only in accordance with a notice or other communication accordance with a notice or other communication 19 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 21 of 27 evidencing the expiration, termination or exercise of any evidencing the expiration, termination or exercise of any such options furnished by the securities or options such options furnished by the securities or options exchange on which such option is trade or such other exchange on which such option is trade or such other organization, party, broker or dealer as may be responsible organisation, party, broker or dealer as may be responsible for handling such options transactions. for handling such options transactions.

7(C). Upon receipt of Proper Instructions, the Custodian 7(C). Upon receipt of Proper Instructions, the Custodian shall (1) receive and retain confirmations evidence the shall (1) receive and retain confirmations evidencing the purchase or sale of a futures contract or an option on purchase or sale of a futures contract or an option on futures contract by the Company; (2) deposit and maintain futures contract by the Company; (2) deposit and maintain in a segregated account for the benefit of any futures in a segregated account for the benefit of any futures commission merchant, or pay to such futures commission commission merchant, or pay to such futures commission merchant, Securities, cash or other assets designated by merchant, Securities, cash or other assets designated by the the Company as initial, maintenance or variation ‘margin’ Company as initial, maintenance or variation ‘margin’ deposits intended to secure the Company’s performance of deposits intended to secure the Company’s performance of its obligations under any futures contracts …and (3) pay, its obligations under any futures contracts …and (3) pay, release and/or transfer Securities or other assets into or out release and/or transfer Securities or other assets into or out of such margin accounts …. of such margin accounts ….

7(D). Upon receipt of Proper Instructions, the Custodian 7(D). Upon receipt of Proper Instructions, the Custodian shall deliver Securities of the Company to lenders or their shall deliver Securities of the Company to lenders or their agents, or otherwise establish a segregated account as agents, or otherwise establish a segregated account as agreed to by the Company and the Custodian, as collateral agreed to by the Company and the Custodian, as collateral for borrowings effect by the Company …. for borrowings effected by the Company ….

7(E). Upon receipt of Proper Instructions, the Custodian 7(E). Upon receipt of Proper Instructions, the Custodian shall enter into foreign exchange contracts or options to shall enter into foreign exchange contracts or options to purchase and sell foreign currencies for spot and future purchase and sell foreign currencies for spot and future delivery on behalf and for the account of the Company delivery on behalf and for the account of the Company with such currency brokers or financial institutions as may with such currency brokers or financial institutions as may be specified pursuant to Proper Instructions. The be specified pursuant to Proper Instructions. The Custodian shall be responsible for the transmission of cash Custodian shall be responsible for the transmission of cash and instructions to and from the currency broker or and instructions to and from the currency broker or financial institution with which the contract or option is financial institution with which the contract or option is made, the safekeeping of all certificates and other made, the safekeeping of all certificates and other documents and agreements evidencing or relating to such documents and agreements evidencing or relating to such foreign exchange transactions and the maintenance of foreign exchange transactions and the maintenance of proper records with respect thereto. proper records with respect thereto.

7(F). Upon receipt of Proper Instructions, the Custodian 7(F). Upon receipt of Proper Instructions, the Custodian shall establish and maintain on its books a segregated shall establish and maintain on its books a segregated 20 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 22 of 27 account or accounts for and on behalf of the Company into account or accounts for and on behalf of the Company into which account or accounts may be transferred cash and/or which account or accounts may be transferred cash and/or Securities or other assets of the Company, including Securities or other assets of the Company, including Securities maintained by the Custodian in a book-entry Securities maintained by the Custodian in a book-entry system or foreign depository, said account to be system or foreign depository, said account to be maintained for such purposes as set forth in such Proper maintained for such purposes as set forth in such Proper Instructions. Instructions.

8. [T]he Custodian shall:- 8. [T]he Custodian shall:-

(a) present for payment all Securities which are called, (a) present for payment all Securities which are called, redeemed or retired or otherwise become payable and all redeemed or retired or otherwise become payable and all coupons and other income items held by it for the account coupons and other income items held by it for the account of the Company which call for payment upon presentation; of the Company which call for payment upon presentation;

(b) hold for the account of the Company hereunder all (b) hold for the account of the Company hereunder all stock dividends, rights and similar securities issued with stock dividends, rights and similar securities issued with respect to any Securities held by it hereunder; and respect to any Securities held by it hereunder; and

(c) exchange interim receipts or temporary securities for (c) exchange interim receipts or temporary securities for definitive securities. definitive securities.

Register 9(A). The Custodian shall register all Securities in respect Register 9(A). The Custodian shall register all Securities in respect Securities of which registration shall be necessary in order to perfect Securities of which registration shall be necessary in order to perfect the transfer thereof or title thereto as soon as practicable the transfer thereof or title thereto as soon as practicable after receipt of the necessary documents by the Custodian after receipt of the necessary documents by the Custodian …. The Custodian shall hold the Securities of the …. The Custodian shall hold the Securities of the Company: (1) by physical possession of the certificates or Company: (1) by physical possession of the certificates or other instruments representing such Securities … or (2) in other instruments representing such Securities … or (2) in book entry form in a depository or clearing system …. book entry form in a depository or clearing system …. The Custodian shall identify Securities held by it The Custodian shall identify Securities held by it hereunder as being held for the account of the Company hereunder as being held for the account of the Company and shall require each agent, sub-custodian and delegate and shall require each agent, sub-custodian and delegate … to identify Securities held by such agent, sub-custodian … to identify Securities held by such agent, sub-custodian and delegate as being held by it, as custodian or fiduciary, and delegate as being held by it, as custodian or fiduciary, for the account of the Custodian or the Company. for the account of the Custodian or the Company.

9(C). The Custodian shall keep or cause to be kept such 9(C). The Custodian shall keep or cause to be kept such books, records and statements as may be necessary to give books, records and statements as may be necessary to give a complete record of all cash and Securities held and a complete record of all cash and Securities held and transaction carried out by it on behalf of the Company and transaction carried out by it on behalf of the Company and

21 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 23 of 27 shall permit the Company and its duly authorized agent(s) shall permit the Company and its duly authorized agent(s) or delegate(s) to inspect such books, records and or delegate(s) to inspect such books, records and statements at any time during normal business hours on statements at any time during normal business hours on giving reasonable notice to the Custodian. giving reasonable notice to the Custodian.

Provide Banking 12. During the continuance of its appointment, the Provide Banking 12. During the continuance of its appointment, the Facilities Custodian or an affiliated company of the Custodian shall Facilities Custodian or an affiliated company of the Custodian shall provide banking facilities for the Company …. provide banking facilities for the Company ….

22 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 24 of 27

Distributor’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

April 2001 Distribution Agreements8

Nature of Specific Contractual Provision Obligation

Distribution 3. Distribution Services

Without prejudice to the generality of the provisions of clause 2 above, the distribution services to be provided by FIM to the Co-Manager under the terms of this Agreement shall include, without limitation:-

(a) the identification and solicitation of prospective investors to purchase the Shares;

(b) the introduction of such prospective investors to the Co-Manager;

(c) the maintenance of regular contact with investors introduced to the Co-Manager to keep them informed of investment results and other information with regard to the Company;

(d) the preparation of marketing and other material for use in the performance of its duties under the terms of this Agreement, subject to approval by the Co-Manager;

(e) the supervision of distribution lists used by the Co-Manager to keep prospective and existing investors informed of developments with regard to the Company;

(f) generally, the provision of such services as may be required by the Co-Manager to enable it [to] fulfil its duties with regard to the placement of the Shares in accordance with the provisions of the Co-Manager Agreement.

8 Kingate Management Limited and FIM Limited Distribution Agreement relating to Kingate Global Fund, Ltd. dated April 23, 2001, and Kingate Management Limited and FIM Limited Distribution Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001. See Gruppuso Decl., Exs. KK & LL. 23 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 25 of 27

Registrar’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

May 2000 Registrar Agreements9

Nature of Specific Contractual Provision Obligation

Registrar 3. Acting as Registrar of the Company including without prejudice to the generality of the foregoing:-

3.1 the provision of facilities for the certification of Shares and for the registration or the recording of the issue, redemption and transfer of shares;

3.2 the maintenance of a register for Shares (the ‘Register’);

3.3 the registration of shareholders on the occasion of each issue and transfer of Shares which are in registered form and the cancellation of entries in the Register in respect of Shares redeemed;

3.4 the registration of probates, letters of administration, powers of attorney, certificates of death or marriage, stop notices and other instruments affecting the legal ownership of the Shares;

3.5 the cancellation of share certificates representing Shares which have been redeemed or transferred;

3.6 the preparation and authentication of share certificates (which shall be provided by blank by the Company) and the dispatch to the persons entitled thereto or to the order of such persons or to their agent;

3.7 the retention for a period of six years from the date thereof of all application forms for the subscription of written instructions for the redemption of and the instruments for the transfer of any Shares or other similar documents and for a period of six years from the date of cancellation, all share certificates which have been cancelled;

3.8 the preparation of lists of the holders of Shares for inclusion in any annual or other return required to be made by the Company;

3.9 the holding of the Register open for inspection in accordance with the Articles of the Company;

3.10 generally performing all such functions as are usually performed by registrars and doing all such acts and things as may be incidental to the above duties or any of them.

9 Registrar Agreement between Kingate Global Fund, Ltd., Kingate Management Limited and Hemisphere Management Limited made as of May 1, 2000, and Registrar Agreement between Kingate Euro Fund, Ltd., Kingate Management Limited and Hemisphere Management Limited made as of May 1, 2000. See Gruppuso Decl., Exs GG & HH. 24 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 26 of 27

Consultant’s Contractual Obligations to the Kingate Funds from May 2000 to December 2008

December 1995 Consulting Services Agreement10 April 2001 Consulting Services Agreements11

Nature of Specific Contractual Provision Nature of Specific Contractual Provision Obligation Obligation

Consulting 1. Effective December 1, 1995 and until this Agreement is Consulting 2.2 FIM hereby agrees with the Manager12 to act as a terminated …, Kingate [Management Limited] hereby consultant to the Manager to provide such advice and appoints FIM [Limited] as Consultant to Kingate to render recommendations as the Manager may from time to time consulting services with respect to the investment of the require in connection with its management of the assets of each Class of Shares of [Kingate Global Fund, Company’s assets and in the implementation of the Ltd.] currently outstanding or to be created in the future. investment objectives and policies of the Company in accordance with the provisions of the Management 3. Without limiting the foregoing, FIM shall: Agreement.

(a) analyse trends in the world’s economies and financial 3. Without prejudice to the generality of the provisions of markets (including equity, fixed-income and money clause 2 above, the consulting services and other services markets, currencies and commodities markets) and to be provided by FIM to the Manager under the terms of recommend to Kingate an allocation of the Fund’s assets this Agreement shall include, without limitation:- in a manner consistent with the Fund’s investment objectives and methodology; (a) reviewing the Company’s structure and operating procedures; (b) research, screen and nominate for selection by Kingate investment advisors that may be appointed by Kingate to (b) preparing such analyses and reports as the Manager manage the Fund’s assets in a manner consistent with the and the Company may require, including such analyses

10 Kingate Management Limited and Kingate Global Fund, Ltd. and FIM Limited Consulting Services Agreement made as of December 1, 1995, as amended by Amendment to Consulting Services Agreement between Kingate Management Limited and Kingate Global Fund, Ltd. and FIM Limited effective December 1, 1995. See Gruppuso Decl., Ex. MM. 11 Kingate Management Limited and FIM Limited Consulting Services Agreement relating to Kingate Global Fund, Ltd. dated April 23, 2001 (with Deed of Novation between Kingate Management Limited, FIM Limited, and FIM Advisers LLP relating to Kingate Global Fund, Ltd. dated July 29, 2005), and Kingate Management Limited and FIM Limited Consulting Services Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001 (with Deed of Novation between Kingate Management Limited, FIM Limited, and FIM Advisers LLP relating to Kingate Euro Fund, Ltd. dated July 29, 2005). See Gruppuso Decl., Exs. NN & OO. 12 Kingate Management Limited is referred to as the “Manager” in the Consulting Services Agreement relating to Kingate Euro Fund, Ltd., but it is referred to as the “Co- Manager” in the Consulting Services Agreement relating to Kingate Global Fund, Ltd. 25 09-01161-smb Doc 245-2 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit B Pg 27 of 27 Fund’s investment objectives and methodology; and reports as may be required for use by the Manager;

(c) advise Kingate concerning all actions which may (c) providing the Manager with assistance and support on appear to FIM that the Fund should take to carry into such matters relating to investors relations as may be effect the purchase and sale of investments pursuant to required by the Manager and the Company; clauses 3.(a) and 3.(b) above; (d) liaising directly with the Manager on such matters (d) provide relevant information covering the relating to the Company’s investment program as may be performance of each asset allocation, asset class and required to enable FIM to properly perform its duties investment advisor recommended to Kingate; hereunder;

(e) monitor on a continuing basis each recommendation (e) providing the Manager with advice regarding the and implementation of approved recommendations Company’s hedging activities in order to reduce the concerning the allocation of the Fund’s assets and the currency risk between the Euro and the U.S. Dollar and appointment of investment advisors, including overseeing of the execution of its recommendation;13 and identification of additional or alternative asset allocations and investment advisors; [(f)] in general, providing advice to and assisting the Manager on such aspects of the Company’s operational, (f) prepare such reports as Kingate may request for administrative, accounting and legal matters as may be inclusion in the annual or other requests of the Fund; required by the Manager and the Company.

(g) provide such information as Kingate may require on 8. FIM will provide such assistance, information and matters related to the investment of the Fund’s assets reports as the Manager and the Company’s auditors may including, inter alia, such information as Kingate may from time to time require in connection with the require to calculate the value of each Class of Shares of preparation of valuations in respect of the Company, the the Fund; preparation by the Manager of periodic reports for submission to the Company and the provision of annual, (h) as requested, attend investment meetings with semi-annual and other reports for the benefit of Kingate, its representatives and consultants; Shareholders or prospective Shareholders of the Company whether these are published by the Company or the (i) in general, comply with any reasonable requests made Manager. FIM shall in addition provide such by Kingate. representative or representatives as the Manager may from time to time request to attend board meetings of the Company with the Manager and report to, and discuss with, the Directors of the Company the performance of the Company and other matters related to the management of the assets of the Company.

13 This clause 3.(e) is present in the Consulting Services Agreement relating to Kingate Euro Fund, Ltd. but not in the Consulting Services Agreement relating to Kingate Global Fund, Ltd. All other substantive provisions quoted here are found in both April 2001 Consulting Services Agreements. 26 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 1 of 7

EXHIBIT C 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 2 of 7 The Funds’ Express Rights to Access, Possess, Custody, and Control Documents Maintained by KML

1994 KGF Manager Agreement1 May 2000 KEF Manager July 2004 KGF Co-Manager January 2006 KGF Management Agreement2 Agreement3 Agreement4 13.4 On termination of the appointment of the Manager under the 2.5 Access to Information. The 5.8(d) Upon termination of the 5.8(d) Upon termination of the provisions of this Clause the Manager Manager shall retain, for a period of appointment of the Co-Manager, … appointment of the Manager, … the shall be entitled to receive the fees at least five (5) years, copies of any the Co-Manager shall deliver or Manager shall deliver or procure to be referred to in Clause 6.2 and 6.3 but documents generated or received by procure to be delivered to the Fund or delivered to the Fund or successor shall not be entitled to compensation the Manager in the ordinary course of successor manager, or as it shall direct, manager, or as it shall direct, all books in respect of such termination; and the business pertaining to the financial all books of account, records, other of account, records, other registers, Manager shall deliver or procure to be condition of the Fund’s assets or to registers, correspondence, and correspondence, and documents delivered to the Company, or as it the compensation payable to the documents relating to the affairs of or relating to the affairs of or belonging shall direct, all books of accounts, Manager. At the request of the Fund, belonging to the Fund in the to the Fund in the possession of or records, other registers, the Manager shall afford to the possession of or under the control of under the control of the Manager. correspondence, documents and assets Fund’s independent auditors the Co-Manager. relating to the affairs of or belonging reasonable access to such documents to the Company in the possession of or during customary business hours and under the control of the Manager, and shall permit the Fund’s auditors to shall take all necessary steps to vest in make copies thereof or extracts the Company or any new Manager any therefrom at the expense of the Fund. assets previously held in the name of or to the order of the Manager on 4.6 Information Concerning behalf of the Company and shall not Activities. The Manager shall provide be entitled to any lien in respect of any to the Fund from time to time and on of the foregoing. request, information regarding the activities (i) conducted by the Manager since the inception of this Agreement or since the most recent date on which the Manager provided information to the Fund regarding the activities of the Manager and (ii)

1 Agreement between Kingate Global Fund Ltd. and Kingate Management Limited purportedly dated as of November 1994, as amended by First Amendment to the Kingate Global Fund, Ltd. Management Agreement dated as of March 1, 1995. See Gruppuso Decl., Ex. X. 2 Manager Agreement dated as of May 1, 2000 between Kingate Management Limited and Kingate Euro Fund, Ltd. See Gruppuso Decl., Ex. Y. 3 Co-Manager Agreement dated as of July 1, 2004 between Kingate Management Limited and Kingate Global Fund, Ltd. See Gruppuso Decl., Ex. Z. 4 Management Agreement dated as of January 1, 2006 between Kingate Management Limited and Kingate Global Fund, Ltd. See Gruppuso Decl., Ex. AA. 1 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 3 of 7 proposed to be conducted by the Manager. The Manager shall furnish information concerning the Manager and any authorized dealers and concerning activities undertaken by it for the Fund as the Fund may reasonably request.

The Funds’ Express Rights to Possess, Custody, and Control Documents Maintained by the Administrators

1994 Administration Agreement5 2000 Administration Agreements6 2007 Administration Agreements7 2000 Registrar Agreements9

13.4 On termination of the 13.4 On termination of the 14.1 Upon the termination of this 12.4 On termination of the appointment of the Administrator appointment of the Administrator Agreement the Administrator shall, appointment of the Administrator under the provisions of this Clause the under the provisions of this Clause the subject to clause 14.2, hand over to the under the provisions of this Clause the Administrator shall be entitled to Administrator shall be entitled to Company the Register and all other Administrator shall be entitled to receive the fees referred to in Clause receive the fees referred to in Clause documents in the possession of the receive the fees referred to in Clause 6.2 but shall not be entitled to 6.2 but shall not be entitled to Administrator in its capacity as 5.1 but shall not be entitled to compensation in respect of such compensation in respect of such Administrator or in relation to the compensation in respect of such termination; and the Administrator termination, and the Administrator functions assigned to it hereunder.8 termination; and the Administrator shall deliver or procure to be delivered shall deliver or procure to be delivered shall deliver or procure to be delivered to the Company, or as it shall direct, to the Company, or as it shall direct, to the Company, or as it shall direct, all books of accounts, records, other all books of accounts, records, other all books of accounts, records, other

5 Administration Agreement between Kingate Global Fund, Ltd., Kingate Management Limited and Hemisphere Management Limited purportedly dated as of November 1994, as amended by First Amendment to the Kingate Global Fund, Ltd. Administration Agreement dated as of March 1, 1995. See Gruppuso Decl., Ex. BB. 6 Kingate Global Fund, Ltd. and Kingate Management Limited and Hemisphere Management Limited Restated and Amended Administration Agreement dated May 1, 2000, and Kingate Euro Fund, Ltd. and Kingate Management Limited and Hemisphere Management Limited Administration Agreement dated May 1, 2000. See Gruppuso Decl., Exs. CC & DD. 7 Amended and Restated Administration Agreement between Kingate Global Fund, Ltd. and Kingate Management Limited and BISYS Hedge Fund Services Limited dated June 1, 2007, and Amended and Restated Administration Agreement between Kingate Euro Fund, Ltd. and Kingate Management Limited and BISYS Hedge Fund Services Limited dated June 1, 2007. See Gruppuso Decl., Exs. EE & FF. 8 Clause 14.2, which entitled the Administrator to withhold delivery of such documents under clause 14.1 until it received full payment of any outstanding fees, compensation, costs and expenses due to it, is inapplicable here. The Funds are in liquidation, and the Administrator, if it has a claim against either Fund for unpaid fees or expenses, is not entitled to priority under clause 14.2. 9 Registrar Agreement between Kingate Global Fund, Ltd., Kingate Management Limited and Hemisphere Management Limited made as of May 1, 2000, and Registrar Agreement between Kingate Euro Fund, Ltd., Kingate Management Limited and Hemisphere Management Limited made as of May 1, 2000. See Gruppuso Decl., Exs GG & HH. 2 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 4 of 7 registered correspondence, documents registered correspondence, documents registered correspondence, documents and assets relating to the affairs of or and assets relating to the affairs of or and assets relating to the affairs of or belonging to the Company in the belonging to the Company in the belonging to the Company in the possession of or under the control of possession of or under the control of possession of or under the control of the Administrator, and shall take all the Administrator, shall take all the Administrator and shall take all necessary steps to vest in the necessary steps to vest in the necessary steps to vest in the Company or any new Administrator Company or any new Administrator Company or any new Administrator any assets previously held in the name any assets previously held in the name any assets previously held in the name of or to the order of the Administrator of or to the order of the Administrator of or to the order of the Administrator on behalf of the Company and shall on behalf of the Company and shall on behalf of the Company and shall not be entitled to any lien in respect of cooperate fully and in good faith with not be entitled to any lien in respect of any of the foregoing. transferring information and data any of the foregoing. about the Company, and shall not be entitled to any lien in respect of any of the foregoing. On termination, all Confidential Information shall be returned to the Company promptly.

14.1 The Administrator acknowledges and agrees that the Confidential Information constitutes a valuable property right to the Company, the Co-Manager and Consultant.

14.1 [T]he Administrator agrees that (a) this provision will survive the termination of the Agreement, and (b) that it will return all Confidential Information, including without limitation, any and all copies made thereof, to the Company or the Co- Manager as the case may be.

14.4 The term ‘Confidential Information’ shall mean any and all information, documents and disclosures (whether written, magnetic or oral) of any kind whatsoever regarding the Company and/or the Company’s business strategies and/or dealings with third parties, including, 3 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 5 of 7 without limitation, the identities of investors in any jurisdiction, all business plans, marketing plans, product information and/or plans, statistical data and possible products, whether derivative or otherwise, term sheets, contracts, proposals, data, designs, drawings, analyses, interpretations, reports, forecasts, financial projections, agreements, and/or any analyses, compilations, memoranda and/or other documents, whether prepared by the Administrator, the Company, the Co- Manager or others, which contain, reflect or include the subject matter of the Confidential Information. This definition shall be construed broadly recognizing the importance of Confidential Information to the Company and the Co-Manager.

4 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 6 of 7

The Funds’ Express Rights to Access Documents Maintained by the Custodian

March 1994 Custodian Agreement10 May 2000 Custodian Agreement11

9(C) The Custodian shall keep or cause to be kept such books, records and 9(C) The Custodian shall keep or cause to be kept such books, records and statements as may be necessary to give a complete record of all cash and statements as may be necessary to give a complete record of all cash and Securities held and transactions carried out by it on behalf of the Company and Securities held and transactions carried out by it on behalf of the Company and shall permit the Company and its duly authorized agent(s) or delegate(s) to shall permit the Company and its duly authorized agent(s) or delegate(s) to inspect such books, records and statements at any time during normal business inspect such books, records and statements at any time during normal business hours on giving reasonable notice to the Custodian. hours on giving reasonable notice to the Custodian.

19(B). Upon the termination of this Agreement the Custodian shall deliver the 18(B). Upon the termination of this Agreement the Custodian shall deliver the Securities, cash and any other property of the Company in its custody hereunder Securities, cash and any other property of the Company in its custody hereunder to such person as the Company may nominate …. to such person as the Company may nominate ….

21. The Custodian is authorized to maintain all accounts, corporate books and other documents relating to the Company or its affairs on computer records and to produce at any time during the course of legal proceedings, copies or reproductions of these documents made by photographic, photostatic or data processing procedures as juridical proof thereof.

10 Custodian Agreement between Kingate Global Fund Ltd. and The Bank of Bermuda and Kingate Management Limited made as of March 1, 1994. See Gruppuso Decl., Ex. II. 11 Custodian Agreement between Kingate Euro Fund, Ltd. and The Bank of Bermuda Limited made as of May 1, 2000. See Gruppuso Decl., Ex. JJ. 5 09-01161-smb Doc 245-3 Filed 03/04/16 Entered 03/04/16 10:21:05 Exhibit C Pg 7 of 7

The Funds’ Express Rights to Possess Documents Maintained by FIM12

2001 Distribution Agreements13 1995 Consulting Services 2001 Consulting Services Agreement14 Agreements15 8.3 Upon termination of this Agreement, FIM shall deliver to the 7. … On termination of the 14.3 Upon termination of this Manager or to such other person or appointment of FIM under the Agreement, FIM shall deliver to the corporation as the Manager shall in provisions of this Clause, FIM shall be Manager or to such other person or writing direct, all books of account, entitled to receive the fees referred to in corporation as the Manager shall in correspondence and records or other Exhibit B up to the effective date of writing direct, all books of account, documents which are in its power termination but shall not be entitled to correspondence and records or other and/or possession, belonging to or compensation in respect of such documents which are in its power relating to the Company. termination; and FIM shall deliver or and/or possession, belonging to or procure to be delivered to Kingate relating to the Company. [Management Limited] or as it shall direct, all books of account, records, other registers, correspondence, documents and assets relating to the affairs of or belonging to Kingate [Management Limited] or the Fund in the possession of or under the control of FIM.

12 The Funds’ right to possess documents maintained by FIM is derivative of their right to possess, have custody of, and control documents maintained by KML. 13 Kingate Management Limited and FIM Limited Distribution Agreement relating to Kingate Global Fund, Ltd. dated April 23, 2001, and Kingate Management Limited and FIM Limited Distribution Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001. See Gruppuso Decl., Exs. KK & LL. 14 Kingate Management Limited and Kingate Global Fund, Ltd. and FIM Limited Consulting Services Agreement made as of December 1, 1995, as amended by Amendment to Consulting Services Agreement between Kingate Management Limited and Kingate Global Fund, Ltd. and FIM Limited effective December 1, 1995. See Gruppuso Decl., Ex. MM. 15 Kingate Management Limited and FIM Limited Consulting Services Agreement relating to Kingate Global Fund, Ltd. dated April 23, 2001 and Deed of Novation between Kingate Management Limited, FIM Limited, and FIM Advisers LLP relating to Kingate Global Fund, Ltd. dated July 29, 2005, and Kingate Management Limited and FIM Limited Consulting Services Agreement relating to Kingate Euro Fund, Ltd. dated April 23, 2001 and Deed of Novation between Kingate Management Limited, FIM Limited, and FIM Advisers LLP relating to Kingate Euro Fund, Ltd. dated July 29, 2005. See Gruppuso Decl., Exs. NN & OO. 6