Filing # 113933650 E-Filed 09/24/2020 04:13:43 PM
`
`IN THE CIRCUIT COURT OF THE
`ELEVENTH JUDICIAL CIRCUIT IN AND
`FOR MIAMI-DADE COUNTY, FLORIDA
`
`COMPLEX BUSINESS LITIGATION DIVISION
`
`CASE NO. 2020-004163-CA-43
`
`ERNESTO ESTEBAN LOPEZ LINCUEZ, et al.,
`
`Plaintiffs,
`
`v.
`
`ROBERTO G. CORTES, et al.,
`
`Defendants.
`
`/
`DEFENDANT AMICORP SERVICES LTD., INC.’S MOTION
`TO DISMISS THE FIRST AMENDED COMPLAINT FOR
`IMPROPER VENUE, WITH INCORPORATED MEMORANDUM OF LAW
`
`Pursuant to Rule 1.140(b)(3), Fla. R. Civ. P., defendant Amicorp Services Ltd., Inc.
`
`(“Amicorp Miami”), by counsel, respectfully moves the Court to dismiss Amicorp Miami from
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`Counts II (aiding and abetting common law fraud), IV (civil conspiracy to defraud), VII (aiding
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`and abetting statutory fraud), and XXXIX (civil RICO conspiracy) of plaintiffs’ First Amended
`
`Complaint (the “Amended Complaint”), which are the only counts in which Amicorp Miami is
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`named.1/ As set forth more fully below in the incorporated Memorandum of Law, Amicorp Miami
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`should be dismissed for improper venue because as alleged beneficiaries of the Vanguardia Trust
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`and the SBH Asset Trust (the “BVI Trusts”), both of which are trusts formed under British Virgin
`
`Islands (“BVI”) law, plaintiffs (all of whom reside outside Florida) are bound by the mandatory
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`1/
`In accordance with the Court’s Order Granting Plaintiffs’ Motion for Leave to Amend
`Complaint and Add Parties, and Setting Other Deadlines, dated July 22, 2020, Amicorp Miami
`submits this Motion to Dismiss based on improper venue separately from its Motion to Dismiss
`based on other grounds, including, without limitation, failure to state a cause of action, which is
`filed concurrently herewith.
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`54398718;2
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`

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`forum selection clauses in those trust documents, which require plaintiffs’ claims against Amicorp
`
`Miami to be brought in the BVI. There is no “compelling reason” that would support this Court’s
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`declining to enforce the clear and unambiguous mandatory forum selection clauses in the
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`Vanguardia and SBH trust documents.
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`MEMORANDUM OF LAW
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`Venue in Florida is not proper as to claims against Amicorp Miami because the mandatory
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`forum selection clauses in the underlying Vanguardia and SBH trust documents are enforceable
`
`by Amicorp Miami against plaintiffs as alleged beneficiaries of the BVI Trusts.2/
`
`In Atlantic Marine Construction Company v. United States District Court for the Western
`
`District of Texas, 571 U.S. 49, 63 (2013), the Supreme Court found that “a valid forum-selection
`
`clause [should be] given controlling weight in all but the most exceptional cases.” (internal
`
`citations omitted). Consistent with this precedent, Florida law is clear that mandatory forum
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`selection clauses in contract documents are presumptively valid and “should be enforced in the
`
`absence of a showing that enforcement would be unreasonable or unjust.” Estate of Stern v.
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`Oppenheimer Tr. Co., 134 So. 3d 566, 568 (Fla. 3d DCA 2014) (citing Manrique v. Fabbri, 493
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`So. 2d 437, 440 (Fla. 1986)). This is the case even where it means multiple lawsuits in multiple
`
`jurisdictions and/or split causes of action. See Satelites Mexicanos, S.A. de C.V. v. Turn Key, S.A.
`
`de C.V., 847 So. 2d 1068, 1069 (Fla. 3d DCA 2003) (reversing trial court’s denial of moving
`
`2/
`A court may consider evidence outside the four corners of the complaint where, as here, a
`defendant moves to dismiss for improper venue based on a contractual forum selection clause.
`Steiner Transocean Ltd. v. Efremova, 109 So. 3d 871, 873 (Fla. 3d DCA 2013). True and correct
`copies of the SBH and Vanguardia trust agreements are Exhibits A and B, respectively, to the
`Declaration of Careen A. Byfield Leyshon (the “Leyshon Declaration”), which is itself Exhibit
`No. 1 to Defendant Amicorp (BVI) Trustees Limited’s Motion to Dismiss the First Amended
`Complaint for Lack of Personal Jurisdiction and Improper Venue. For the Court’s convenience,
`copies of the Leyshon Declaration and accompanying exhibits are attached hereto as Exhibit No.
`1. The mandatory forum selection clause(s) are set forth in Section 2.2 (on p. 5) of the respective
`trust agreements.
`
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`defendant’s motion to dismiss based on a mandatory Mexico City forum selection clause and
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`remanding with instructions to dismiss all of the claims, including a conspiracy claim, against the
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`moving defendant, leaving the claims pending against the remaining defendants); Am. Safety Cas.
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`Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089, 1093 (Fla. 3d DCA 2011) (holding that a
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`mandatory Georgia forum selection clause required dismissal of the claims against the moving
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`defendant in multi-party litigation, even though it meant multiple lawsuits in different jurisdictions
`
`and a potential risk of inconsistent results); see also Bluesky Greenland Envtl. Sols., LLC v. Rentar
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`Envtl. Sols., Inc., No. 12-cv-81234, 2013 WL 12095168, at *6 (S.D. Fla. Apr. 19, 2013) (granting
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`the moving defendant’s motion to dismiss based on a mandatory forum selection provision in
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`multi-party litigation).
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`A.
`
`Amicorp Miami is Entitled to Invoke the Forum
`Selection Clauses in the Relevant Trust Documents
`
`Florida law provides that non-signatories like Amicorp Miami may invoke a signatory’s
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`forum selection clause where the non-signatory and the signatory are related. See Citigroup Inc.
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`v. Caputo, 957 So. 2d 98, 102 (Fla. 4th DCA 2007) (holding that a non-signatory that constituted
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`an “Affiliated Organization” under the agreement at issue could invoke the forum selection
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`clause). Indeed, as plaintiffs allege (which allegations are taken as true for purposes of this Motion
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`only), defendants Amicorp Miami, Amicorp (BVI) Trustees Limited (“Amicorp BVI”), and
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`Amicorp Services Limited (“Amicorp Malta”) operate as part of the “Amicorp Group,” which
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`“acted as one entity.” (Am. Compl. ¶ 16). Based on these allegations, Amicorp Miami is clearly
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`related to Amicorp BVI, which signed the Vanguardia and SBH trust documents as trustee. As a
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`result, Amicorp Miami is entitled to invoke the mandatory forum selection clauses in the
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`Vanguardia and SBH trust documents. See Citigroup, 957 So. 2d at 102.
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`3
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`B.
`
`Because Plaintiffs’ Claims Involve Rights and Obligations Under
`the BVI Trusts, the Claims Fall Within the Scope of the Exclusive
`BVI Forum Selection Clauses in the Trust Documents
`
`
`The applicable forum selection clauses in the BVI Trusts expressly provide that BVI courts
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`“shall have exclusive jurisdiction in any proceedings involving rights or obligations under this
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`Trust.” See Leyshon Decl. at ¶ 30, Exs. A and B. Forum selection clauses that concern the
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`applicable contract and the “rights or obligations” thereunder are broad in scope. See Wolfe v.
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`TBG Ltd., 2014 WL 325637, at *5 (E.D. Pa. Jan. 28, 2014) (determining that a forum selection
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`clause stating that the “[contract] and the rights of each person hereunder . . . [are] subject to the
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`sole jurisdiction of the English Courts” was “broadly worded”).
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`Plaintiffs’ claims against Amicorp Miami are based on the allegation that Amicorp Miami
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`“introduced the Controlling Defendants to their suite of products,” which somehow (though not
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`expressly alleged) aided the Controlling Defendants’ fraudulent scheme involving their use of the
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`BVI Trusts to conceal the Controlling Defendants’ continuing involvement in the issuance and
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`sale of the promissory notes at issue. (Am. Compl. ¶¶ 17, 93-94). Thus, plaintiffs’ claims involve
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`“rights or obligations” under the BVI Trusts and must be litigated in a BVI court. Accordingly,
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`plaintiffs’ claims against Amicorp Miami should be dismissed in their entirety. Wolfe, 2014 WL
`
`325637, at * 5 (granting a motion to dismiss based on a mandatory forum selection clause because
`
`plaintiffs’ tort claims involved a determination of the parties’ respective “rights”).3/
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`3/
`Amicorp Miami is aware that this Court has declined to enforce a mandatory forum
`selection clause in at least one other case. See Deauville Hotel Prop., LLC v. Endurance Am. Spec.
`Ins. Co., No. 19-CA-016336-43 (Fla. 11th Jud. Cir. 2019). However, the present case is readily
`distinguishable from the circumstances in Deauville because, among other things, Florida has no
`cognizable public policy interest in the resolution of claims filed by foreign plaintiffs where the
`underlying transaction(s) have no connection to Florida. See, e.g., M/S Bremen v. Zapata Off-
`Shore Co., 407 U.S. 1, 15-16 (1972) (rejecting contention that enforcement of the forum selection
`clause would violate public policy of the forum state). Moreover, litigation against Amicorp
`Miami (and, if appropriate, other Amicorp defendants) in the BVI would not split causes of action
`or create a risk of inconsistent results because the claims against Amicorp Miami and the other
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`54398718;2
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`C.
`
`Plaintiffs Are Bound by the Mandatory Forum Selection Clauses
`
`Plaintiffs cannot escape the force and effect of the exclusive forum selection clauses simply
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`because they are allegedly beneficiaries of, and not signatories to, the underlying trust documents.
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`Florida courts routinely enforce contract terms, including mandatory forum selection clauses,
`
`against non-signatories. See, e.g., World Vacation Travel, S.A., de C.V. v. Brooker, 799 So. 2d
`
`410, 412 (Fla. 3d DCA 2001) (holding that a mandatory forum selection clause is enforceable
`
`against non-signatories where the claims relate to the agreement and the relationship of the
`
`parties). Indeed, Florida law clearly provides that a mandatory forum selection clause is
`
`enforceable against a non-signatory who is a third-party beneficiary of the agreement at issue. See
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`Tuttle’s Design–Build, Inc. v. Fla. Fancy, Inc., 604 So. 2d 873, 873–74 (Fla. 2d DCA 1992)
`
`(recognizing that a forum selection clause is enforceable against non-signatories who are third-
`
`party beneficiaries of an agreement). Moreover, in accordance with the Supreme Court’s ruling
`
`in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593 (1991), a forum selection clause is not
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`rendered unenforceable simply because the clause was not negotiated by the party seeking to avoid
`
`enforcement of the clause.
`
`As alleged beneficiaries of the BVI Trusts (Am. Compl. ¶ 97), plaintiffs are third-party
`
`beneficiaries of both the SBH and Vanguardia trust agreements. See Passell v. Watts, 794 So. 2d
`
`651, 653 (Fla. 2d DCA 2001) (holding that the beneficiaries of a trust are third-party beneficiaries
`
`of the applicable trust documents); Hare v. Miller, Canfield, Paddock, & Stone, 743 So. 2d 551,
`
`553 (Fla. 4th DCA 1999) (holding that a beneficiary of the trust at issue is a third-party beneficiary
`
`Amicorp defendants are separate and distinct from plaintiffs’ claims against the other defendants
`in this action and arise out of facts unique to each of the Amicorp defendants and their respective
`relationships (if any) to the BVI Trusts and plaintiffs. See, e.g., Manrique, 493 So. 2d at 440
`(holding that “forum selection clauses should be enforced in the absence of a showing that
`enforcement would be unreasonable or unjust”).
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`54398718;2
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`of the applicable trust documents). The forum selection clauses in the Vanguardia and SBH trust
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`documents are therefore binding on plaintiffs, and plaintiffs’ claims against Amicorp Miami
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`should be dismissed in favor of proceedings in the BVI. Tuttle’s Design–Build, 604 So. 2d at 873–
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`74 (reversing the denial of a motion to dismiss for improper venue and holding that the forum
`
`selection clause “is valid and enforceable” against non-signatories who are third-party
`
`beneficiaries of the agreement).
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`II.
`
`CONCLUSION
`
`Based upon the foregoing, Amicorp Miami respectfully requests that the Court enter an
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`Order (i) dismissing Amicorp Miami from this action, (ii) awarding Amicorp Miami its attorneys’
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`fees and costs pursuant to Section 517.211(6), Florida Statutes, and otherwise, and (iii) granting
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`such other and further relief to Amicorp Miami as the Court deems just and proper.
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`CERTIFICATE OF CONFERRAL
`
`I HEREBY CERTIFY that counsel for Amicorp Miami communicated via electronic mail
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`on September 22, 2020, and by telephone on September 23, 2020, with Angelo Castaldi, lead
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`counsel for plaintiffs, concerning the relief sought in this Motion. Mr. Castaldi advised that
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`plaintiffs are unable to agree to the relief sought herein.
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`Dated: September 24, 2020
`
`
`
`Respectfully submitted,
`/s/Noelle P. Pankey
`ROBERT I. CHASKES, Florida Bar No. 0102271
`NOELLE P. PANKEY, Florida Bar No. 0044727
`AKERMAN LLP
`Three Brickell City Centre
`98 Southeast Seventh Street, Suite 1100
`Miami, Florida 33131
`Telephone:
`(305) 374-5600
`Facsimile:
`(305) 374-5095
`Primary E-mail:
`robert.chaskes@akerman.com
`Secondary E-mail: bria.rios@akerman.com
`Primary E-mail:
`noelle.pankey@akerman.com
`Secondary E-mail: beatrice.terrell@akerman.com
`Counsel for Defendant Amicorp Services Ltd., Inc.
`
`54398718;2
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on this 24th day of September, 2020, true and correct copies of
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`the foregoing and attached exhibits were served, via electronic mail through the Florida Courts E-
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`Filing Portal, on the individuals identified on the attached Service List.
`
`
`/s/Noelle P. Pankey
`NOELLE P. PANKEY
`
`54398718;2
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`SERVICE LIST
`Ernesto Esteban Lopez Lincuez, et al. v. Roberto G. Cortes, et al.
`Case No. 2020-004163-CA-43
`
`Traci H. Rollins, Esquire
`GUNSTER, YOAKLEY & STEWART, P.A.
`777 South Flagler Drive, Suite 500 East
`West Palm Beach, Florida 33401
`trollins@gunster.com
`crossodivita@gunster.com
`eservice@gunster.com
`- and-
`Enrique M. López, Esquire
`GUNSTER, YOAKLEY & STEWART, P.A.
`600 Brickell Avenue, Suite 3500 East
`Miami, Florida 33131
`elopez@gunster.com
`spernas@gunster.com
`eservice@gunster.com
`Counsel for Defendant Sanne Fiduciary Services
`Limited
`
`Luis S. Konski, Esquire
`Ronald Shindler, Esquire
`Ana E. Tovar, Esquire
`FOWLER WHITE BURNETT P.A.
`1395 Brickell Avenue, 14th Floor
`Miami, Florida 33131
`lkonski@fowler-white.com
`rshindler@fowler-white.com
`atovar@fowler-white.com
`Counsel for Defendant FlexFunds ETP LLC
`
`Eric S. Koenig, Esquire
`TRENAM, KEMKER, SCHARF, BARKIN,
` FRYE, O’NEILL &MULLINS, P.A.
`Post Office Box 1102
`Tampa, Florida 33601
`ekoenig@trenam.com
`ranctil@trenam.com
`Counsel for Defendants FlexFunds ETP LLC
`and FlexFunds Ltd.
`
`Complex Business Litigation Division
`cbl43@jud11.flcourts.org
`
`John Arrastia, Esquire
`Jesus Suarez, Esquire
`Michael Friedman, Esquire
`Angelo Castaldi, Esquire
`Carlos Alvarez, Esquire
`GENOVESE JOBLOVE & BATTISTA, P.A.
`100 S.E. Second Street, Suite 4400
`Miami, Florida 33131
`jarrastia@gjb-law.com
`jsuarez@gjb-law.com
`mfriedman@gjb-law.com
`acastaldi@gjb-law.com
`calvarez@gjb-law.com
`Counsel for Plaintiffs
`
`James N. Robinson, Esquire
`Alexandra A. Hoffman, Esquire
`WHITE & CASE LLP
`200 South Biscayne Boulevard, Suite 4900
`Miami, Florida 33131-2352
`jrobinson@whitecase.com
`ahoffman@whitecase.com
`sgoodrich@whitecase.com
`mmateo@whitecase.com
`Counsel for Defendants SGG Management
`(Curaçao) N.V., and SGG Management (BVI) Ltd.
`
`Harvey W. Gurland, Jr., Esquire
`Forrest Hansen, Esquire
`DUANE MORRIS LLP
`201 South Biscayne Boulevard, #3400
`Miami, Florida 33131
`hwgurland@duanemorris.com
`frhansen@duanemorris.com
`
`- and -
`
`David G. Januszewski, Esquire (Pro Hac Vice)
`Sesi V. Garimella, Esquire (Pro Hac Vice)
`Bonnie E. Trunley, Esquire (Pro Hac Vice)
`CAHILL GORDON & REINDEL LLP
`31 Old Slip
`New York, New York 10005
`djanuszewski@cahill.com
`sgarimella@cahill.com
`btrunley@cahill.com
`Counsel for Defendant for Deutsche Bank AG
`
`54398718;2
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`David A. Coulson, Esquire
`Mark A. Salky, Esquire
`Stephanie Peral, Esquire
`GREENBERG TRAURIG, P.A.
`333 Southeast 2nd Avenue
`Miami, Florida 33131
`coulsond@gtlaw.com
`salkym@gtlaw.com
`perals@gtlaw.com
`Counsel for Defendant PricewaterhouseCoopers
`
`54398718;2
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`EXHIBIT NO. 1
`
`EXHIBIT NO. 1
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`

`

`THE
`OF
`COURT
`CIRCUIT
`THE
`IN
`ELEVENTH JUDICIAL CIRCUIT IN AND FOR
`
`MIAMI—DADE COUNTY, FLORIDA
`
`COD/[FLEX BUSINESS LITIGATION DIVISION
`
`CASE NO. 2020-004163—CA-43
`
`ERNESTO ESTEBAN LOPEZ LINCUEZ, er al,
`
`Plaintiffs,
`
`V.
`
`ROBERTO G. CORTES, er al,
`
`Defendants.
`
`/
`
`DECLARATION OF CAREEN A. BYFIELD LEYSHON
`
`Pursuant to Section 92.525, Florida Statutes, I, Careen A. Byfield Leyshon, hereby attest
`
`and affirm as follows:
`
`1.
`
`2.
`
`I am an adult competent to testify to the matters set forth herein.
`
`I am authorized to make this Declaration on behalf of Amicorp (BVI) Trustees
`
`Limited (“Amicorp BVI”).
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`3.
`
`Amicorp BVI is a company organized and in good standing under the laws of the
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`British Virgin Islands with its principal place of business at the Marcy Building, 2nd Floor,
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`Purcell Estate, Tortola, British Virgin Islands.
`
`4.
`
`I make this Declaration in support of Amicorp BVI’s Motions to Dismiss in the
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`above-captioned action.
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`5.
`
`I am familiar with and have access to Amicorp BVI’s business records, as well as
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`its procedures established for making and maintaining such records.
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`6.
`
`The information described in this Declaration and referenced below is taken from
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`Amicorp BVI’S business records and my personal knowledge.
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`54359281;2
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`7.
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`1 have personal knowledge of Amicorp BVI’s routine practices and procedures for
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`making and maintaining the records abOut which I am testifying. They are made at or near the
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`time of the occurrence of the recorded matter(s); made by, or from information transmitted by,
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`persons with personal knowledge of the recorded matter(s); and kept in the course of Amicorp
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`BVI’s regularly conducted business activities.
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`It is the regular practice of Amicorp BVI to make
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`such records. Based upon records maintained by Amicorp BVI, I have gained knowledge of
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`facts set forth in this Declaration and, if called upon as a witness to testify, could and would
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`competently testify as to those facts, under penalty of perjury.
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`8.
`
`Amicorp BVI is a completely separate and distinct entity from Amicorp Services
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`Ltd. Inc. (“Amicorp Miami”), which is a Delaware corporation authorized to transact business in
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`the State of Florida.
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`9.
`
`Amicorp BVI is neither a parent nor a subsidiary of Amicorp Miami.
`
`10.
`
`Amicorp BVI maintains its own books and records separate and distinct from the
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`books and records of Amicorp Miami, and these entities do not share a common bank account.
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`11.
`
`Amicorp BVI’s board of directors is separate from the board of directors for
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`Amicorp Miami, and the meetings of Amicorp BVI’s board of directors are separate from any
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`meetings of Amicorp Miami’s board of directors.
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`12.
`
`Amicorp BVI does not control or have any involvement
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`in the day-to—day
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`management and operations of Amicorp Miami’s business. Likewise, Amicorp Miami does not
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`control or have any involvement in the day—to—day management and operations of Amicorp
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`BVl’s business.
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`13.
`
`Amicorp BVl does not do business as “Amicorp Services Ltd. Inc.”
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`l4.
`
`Amicorp BVI is a completely separate and distinct entity from Amicorp Services
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`Limited (“Amicorp Malta”), which is an entity organized under the laws of Malta with its
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`principal place of business in Malta.
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`15.
`
`16.
`
`Amicorp BVI is neither a parent nor a subsidiary of Amicorp Malta.
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`Amicorp BVI maintains its own books and records separate and distinct from the
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`books and records of Amicorp Malta, and these entities do not share a common bank account.
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`17.
`
`Amicorp BVI’s board of directors is separate from the board of directors for
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`Amicorp Malta, and the meetings of Arnicorp BVI’s board of directors are separate from any
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`meetings of Amicorp Malta’s board of directors.
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`18.
`
`Amicorp BVl does not control or have any involvement
`
`in the day-to-day
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`management and operations of Amicorp Malta’s business. Likewise, Amicorp Malta does not
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`control or have an involvement in the day-to-day management and operations of Amicorp BVI’s
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`business.
`
`19.
`
`Amicorp BVl does not do business as “Amicorp Services Limited.”
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`20.
`
`Amicorp BVI is not insolvent.
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`21.
`
`Amicorp BVI files its own separate corporate tax returns.
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`22.
`
`Amicorp BVI is not registered to do business in the State of Florida and has never
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`maintained any office(s) or place(s) of business in the State of Florida.
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`23.
`
`Other than its counsel of record in this lawsuit, Amicorp BVI has never had any
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`employee, officer, director, or agent residing in the State of Florida.
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`24.
`
`Amicorp BVI does not own, use, possess, or hold a mortgage or other lien on any
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`real property within the State of Florida. Amicorp BVI does not lease or own any personal
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`property in the State of Florida.
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`25.
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`Amicorp BVI has never contracted to insure any person, property, or risk located
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`in the State of Florida.
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`26.
`
`Amicorp BVI has never maintained a lawsuit in Florida or otherwise availed itself
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`of the benefits or protections of the laws of the State of Florida.
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`27.
`
`Amicorp BVI has never had a bank account in the State of Florida.
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`28.
`
`Amicorp BVl does not operate, conduct, engage in, or carry on a business or
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`business venture in the State of Florida.
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`29.
`
`Amicorp BV] has never maintained a telephone number,
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`listing, or mailing
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`address in Florida.
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`30.
`
`Trust documents for the SBH Asset Trust and the Vanguardia Trust (collectively,
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`the “BVI Trust Agreements”) expressly provide that “the Proper Law of the Trust shall be the
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`laws of the British Virgin Islands, the courts of which shall have exclusive jurisdiction in
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`any proceedings involving rights or obligations under this Trust.” (emphasis added). True
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`and correct copies of the SBH Asset Trust Agreement and the Vanguardia Trust Agreement are
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`attached hereto as Exhibit A and Exhibit B, respectively.
`
`31.
`
`As reflected in the BVl Trust Agreements, both the SBH Asset Trust and the
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`Vanguardia Trust are VISTA trusts, formed pursuant to the Virgin Islands Special Trust Act
`
`(“VISTA”). See BVI Trust Agreements, § 3.
`
`32.
`
`Under VISTA, a trustee’s duties are strictly limited. By way of example only,
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`Section 15 0f VISTA expressly provides as follows:
`
`Limitation of trustee’s duties
`
`(1)
`
`. shall have no fiduciary responsibility or duty of care in
`.
`A trustee .
`respect of the assets of, or the conduct of the affairs of, the company .
`.
`.
`.
`
`(2)
`
`Without prejudice to the generality of subsection (1), a trustee .
`
`.
`
`.
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`(a)
`
`(b)
`
`(0)
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`shall not be required to make any enquiry as to whether any facts
`exist which would, or may, whether with or without any other
`information, form the basis of an intervention call;
`
`shall not be obliged to inform any interested person of any fact of
`which it becomes aware, or which it suspects, concerning the
`assets of the company or the conduct of its affairs;
`
`shall not incur liability as accessory to a director’s breach of duty
`by reason of any omission on the part of the trustee to take action
`where the trustee is aware, or suspects, that there has been or will
`be such a breach .
`.
`.
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`33.
`
`Amicorp BVI did not sign the SBH Asset Trust documents or the Vanguardia
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`Trust documents (or any other documents related to the SBH Asset Trust and the Vanguardia
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`Trust) in Miami, Florida.
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`34.
`
`Amicorp BVI performed its services and obligations as trustee of the SBH Asset
`
`Trust and the Vanguardia Trust exclusively in the British Virgin Islands.
`
`35.
`
`Amicorp BVI was not involved in marketing and/or selling any promissory notes
`
`that might have been issued by any subsidiary of the SBH Asset Trust or the Vanguardia Trust.
`
`36.
`
`Amicorp BVI was not involved in the business operations of any subsidiary to the
`
`SBH Asset Trust and/or Vanguardia Trust.
`
`37.
`
`Other than charges for its ordinary and customary fees for services rendered in
`
`relation to its role as trustee of the SBH Asset Trust and the Vanguardia, for which Amicorp BVI
`
`is still owed substantial sums, Amicorp BVI received no additional consideration for agreeing to
`
`act as trustee of these BVI Trusts.
`
`38.
`
`Juan Pablo Demichelis was never an employee, officer, or director of Amicorp
`
`BVI, and Juan Pablo Demichelis was not authorized to act on behalf of Amicorp BVI in relation
`
`to the SBH Asset Trust and/or the Vanguardia Trust.
`
`543592319
`
`

`

`39.
`
`Derk Scheltema was never an employee, officer, or director of Amicorp BVI, and
`
`Derk Scheltema was not authorized to act on behalf of Amicorp BVI in relation to the SBH
`
`Asset Trust and/or the Vanguardia Trust.
`
`Under the penalties of perjury, I hereby declare and affirm that l have read the foregoing
`
`Declaration and that the facts set forth therein are true and correct.
`
`Dated: September fig, 2020
`
`@
`
`CAREEN A. BYFIELD LEYSHON
`
`54359281;2
`
`

`

`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Dated: January 29,2916
`
`The SBH Asset Trust
`
`South Bay Holdings ELC
`
`(Original Seular)
`
`and
`
`Ainicorp (B..V.I.) Trustees Ltd.
`
`(Original Trusue)
`
`SETTLEMENT
`
`re O'Neal
`
`)
` klAWebster
`
`31, Southampton Row, Landon WC1B 514.1d Phone-444 (0)203 078 7295 a Fax +44(0)203 008 6015
`
`wwwonealwebater.Wm
`
`(i) 27 January 2016/ SRN Asset Trust/Setttentent
`
`

`

`Table of contents
`
`' PART I — DISPOSITIVE AND OTHER PROVISIONS
`Definitions and construction
`1,
`Name and Proper Law
`2.
`Declaration of trust and application of VISTA
`Power to receive additional property
`Trusts relating to capital and income
`Ultimate default trusts
`Power to shorten Trust Period
`Exercise of powers
`Retirement, appointment and removal of Trustees
`Appointment of Protector
`Other provisions re Protector
`Proper Law, forum and place of administration
`Payment of taxes and dealings with third parties
`Nature and amendment of Trust
`
`.
`, 4.
`5.
`6.
`7.
`8-
`9.
`10,
`I I,
`12,
`• 13.
`14.
`
`'
`
`PART 2— PERMI I I LD GROUNDS FOR COMPLAINT
`Permitted grounds
`15.1
`15.2
`Interpretation
`
`PART 3 — OPT ICE OF DIRECTOR RULES
`The Appointor
`16.
`Office of director rules
`17.
`Provisions relating to notices
`IL
`Amendment of the office of directors rules
`19.
`Appointor's personal position
`20.
`
`PART 4— INVESTMENT, MANAGEMENT AND
`ADMINISTRATIVE PROVISIONS (SUBJECT TO VISTA)
`Investment and management provisions
`21.
`Power of investment
`21.1
`Power to lend
`21.2
`Powers to borrow, charge and pledge
`21.3
`Power to give guarantees
`21.4
`Power of management
`21.5
`Powers in relation to land and chattels
`21.6
`Power to permit enjoyment of trust property
`21.7
`Power to insure property
`21.8
`Powers in relation to lift insurance policies
`21,9
`21,10 Power to trade or invest through partnerships
`21.11 Power to incorporate companies
`21.12 Powers in relation to companies
`Administrative provisions
`22.1
`Exclusion of apportionment
`22.2
`Power of appropriation
`22,3
`Powers in relation to minors
`Payments to Charities
`214
`Power to appoint agents
`22.5
`
`22.
`
`(1) 27 January 2016/ S131-1 Asset Trust/Settlement
`
`

`

`22.6
`22.7
`22.8
`22,9
`
`Power to employ nominees
`Power to appoint investment advisers
`Power to delegate
`Power to give indemnities and other
`commitments
`Trustees immunities etc,
`Trustee charging
`23.1
`Power to receive remuneration
`23.2
`Indemnity insurance
`23,3
`Power to exercise powers notwithstanding
`23.4
`personal interest
`Protection of the Trustee in respect of
`distributions
`23.6 Protection of the Trustee generally
`Release of powers
`24,
`Schedule - Form of Agreement
`
`23.
`
`23,5
`
`(1) 27 January 20 f 6/ SB14 Asset Trust/Settlement
`
`

`

`SETTLEMENT
`
`DATE:
`
`• PARTIES;
`
`January 29, 2016
`
`South Bay Holdings LLC of 1548 13rickel1 Avenue, Miami, Florida, United States of America
`being a company incorporated under the laws of the state of Florida in the United States of America
`(the 'Original Settlarl; and
`
`2.
`
`Amicorp (B,V,L) Trustees Ltd. being a company incorporated under the laws of the British Virgin
`Islands, the registered office of which is at Marcy Building, r d Floor, Purcell Estate, P.O. Box
`2416, Road Town, Tortola, British Virgin Islands VG 1110 (the 'Original Trustee').
`
`RECTIAL:
`
`The Original Settlor has transferred or intends to transfer 100 shares in North Pointe Holdings (BVI) Ltd..
`also being a company incorporated under the laws of the British Virgin Islands (thelnitial Trust Fund') to
`or on behalf of the Original Trustee to be held upon the trusts hereinafter expressed.
`
`PART I—DISPOSITI YE AND OTHER PROVISIONS
`
`1.
`
`Definitions and construction
`
`In this Deed, where the context admits, the following definitions and rules of construction shall
`apply.
`
`1.1
`
`The 'Beneficiaries' means:
`
`(a)
`
`(b)
`
`ORC Senior Secured Limited, being a company incorporated under the laws of the
`Cayman Islands, with its registered office at 27 Hospital Road, Cayman Corporate
`Center 5th Floor. George Town PO Box 1748 Grand Cayman KY 1-1109, CaYman
`Islands;
`
`SG Strategic Income Limited, being a company incorporated under the laws of the
`Cayman Islands, with its registered office at 27 Hospital Road, Cayman Corporate
`Center 5th Floor. George Town PO Box 1748 Grand Cayman KY1-1109, Cayman
`Islands;
`
`(c)
`
`GMS Global Market Step Up Note Limited, being a company incorporated under
`the laws of the Cayman Islands, with Its registered office at 27 Hospital Road,
`
`27 January 2016 SBH Asset Trust/Settlement
`
`

`

`Cayman Corporate Center 511h Floor. George Town PO Box 1748 Grand Cayman
`K Y1-1 109, Cayman islands;
`
`(d)
`
`Sentinel Global Real Estmle Fund 1 SP (being a segregated portfolio of Sentinel
`Investment Fund SPC, being a company incorporated under the laws of the Cayman
`Islands with its registered office at 27 Hospital Road, Cayman Corporate Center 5th
`Floor, George Town PO Box 1748 Grand Cayman KY1-1109, Cayman Islands;
`
`(e)
`
`Sentinel Global Real Est-ate Fund 11 SP (being another segregated portfolio of
`Sentinel Investment Fund SPC aforesaid);
`
`(I)
`
`the Specified Persons as defined in clause 5.24; and
`
`(g)
`
`Charities
`
`and 'Beneficiary' shall haves corresponding meaning.
`
`1.2
`
`1.3
`
`1,4
`
`1.5
`
`1,6
`
`'Charity' means any trust, foundation, company or other organisation whatever established
`only for purposes regarded as charitable under the laws of the British Virgin Islands and, if
`the Proper Law of the Trust has been changed, also under the Proper Law of the Trust; and
`'Charities' shall have a corresponding meaning.
`
`The 'Company' means North Pointe Holdings (BVI) Ltd. aforesaid.
`
`'company' means any body, incorporated or established in any part of the world which has
`separate legal personality; and 'companies' shall have a corresponding meaning.
`
`In relation to the Company, the expression 'connected company' shall be construed as it is
`in VISTA_
`
`'Connected Person' means, in relation to any person, any company (and any direct or
`indirect parent or subsidiary of that company) in which that person is an office holder, a
`member or is in any other way financially interested and any person which is an office
`holder in, a member of ur in any way financially interested in that person.
`
`1,7
`
`'deed' includes any instrument in writing which is executed and delivered by or on behalf of
`each of the parties to it in the manner required by the Proper Law of the Trust or by the law
`of the place where the same was executed.
`
`1,8
`
`'Designated Trustee' has the same meaning as the expression 'designated trustee' has in
`VISTA,
`
`2
`27 January 2016 SBH Asset Trust/Settlement
`
`

`

`1.9
`
``An individual shall be considered 'incapable' only upon the adjudication of that parson by
`any court or other competent authority as not having the mental capacity to manage his own
`affairs or upon a determination in writing by the Trustee (relying upon such medical or other
`opinions as the Trustee shall consider appropriate) that such person does not have the mental
`capacity to manage his own affairs; and 'capable', 'incapacity' and 'incapacitated' shall
`be construed accordingly.
`
`1.10
`
`'BV1 Business Companies Act' means the BV1 Business Companies Act, 2004 (No 16
`of 20134).
`
`1.11
`
`'minor' means any individual who has not attained the age of 18.
`
`1,12
`
`'securities' means:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`any stocks or shares issued by any company;
`
`debentures (including debenture stock, loan stock, bonds, certificates of deposit And
`an' other acknowledgement of indebtedness) issued by or on behalf of any
`government, local authority, public authority or company;
`
`units in a unit trust or other collective investment scheme; and
`
`any options or warrants to subscribe for, and any other rights to acquire, any of the
`aforesaid.
`
`1.13
`
`'the Shares' means the said 100 shares in the Company and all other shares in the
`