William J. Honan (WJH 1922)

Michael J. Frevola (MJF 8359)

HOLLAND & KNIGHT LLP

195 Broadway

New York, New York 10007-3189

(212)513-3200

ATTORNEYS FOR PLAINTIFF

WILHELMSEN PREMIER MARINE FUELS AS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WILHELMSEN PREMIER MARINE FUELS AS,

Plaintiff,

-againstUBS PROVEDORES PTY LTD. a/k/a

USS-UBS INTERNATIONAL and

RAECORP INTERNATIONAL PTY LTD.,

Defendants.

STATE OF NEW YORK )

) ss:

COUNTY OF NEW YORK )

07 Civ. 5798 (CM)

AFFIDAVIT OF

MICHAEL J, FREVOLA IN

SUPPORT OF PLAINTIFF'S

AMENDED MOTION TO

VACATE DISMISSAL ORDER

Michael J. Frevola, being duly sworn, deposes and says:

1. I am a member of the firm of Holland & Knight LLP, attorneys for plaintiff

Wilhelmsen Premier Marine Fuels AS ("Wilhelmsen"), and I am duly admitted to practice before

the United States District Court for the Southern District of New York.

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 1 of 8
2. I am familiar with the facts and circumstances underlying this dispute and my

statements are based upon my own personal knowledge, except those statements stated on

information and belief which I believe to be true.

3. I provide this affidavit in support of Wilhelmsen's amended application to vacate

the Order of Dismissal with prejudice dated January 14, 2008 granted in favor of Defendants

UBS Provedores Pty Ltd. a/k/a USS-UBS International ("UBS") and RaeCorp International Pty

Ltd. I have annexed as Exhibit 161 a true copy of my Affidavit, dated January 24, 2008

(hereinafter "Frevola Affidavit I"), filed in support of Wilhelmsen's original motion to vacate the

Court's order of dismissal, dated January 14, 2008 ("Wilhelmsen's Initial Motion"), which

Affidavit I reaffirm and incorporate herein.

4. As described in detail below, since the filing of Wilhelmsen's Initial Motion,

Wilhelmsen has obtained information which suggests that UBS has been paid approximately

$3.55 million on its claims pending before the U.S. Government, of which amount UBS was to

pay Wilhelmsen over $2 million under the terms of the parties' Settlement Agreement dated

October 22, 2007 (the "Settlement Agreement"). Despite being challenged directly on this issue,

UBS has declined to provide any substantive rebuttal of Wilhelmsen's contentions and has

compelled Wilhelmsen to file this amended application.

5. The parties' Settlement Agreement, annexed as Exhibit #1 to the van Hemmen

Certification dated February 1, 2008 filed with this Court (Document #35), provides in relevant

part that:

1

 In the interests of clarity, the numbering of exhibits annexed to this affidavit follows sequentially from those

attached to my earlier affidavit of January 25, 2008 in support of Plaintiffs Motion to Vacate Dismissal Order

("Frevola Aff. I"),

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WHEREAS, UBS has submitted a claim to the U.S. government under its

contract with the Defense Energy Support Center in the amount of THREE MILLION

ONE HUNDRED EIGHTY THOUSAND EIGHT HUNDRED FIFTY THREE DOLLARS AND

FIFTY-EIGHT CENTS ($3,180,853.58), relating to amounts invoiced pursuant to

invoice number 10039 and concerning the bunkerings [claimed in Wilhelmsen's

Verified Amended Complaint], which claim presently is under review by the U.S.

government (the "Government Claims").

* * *

6. In addition to the Initial Payment and the Second Payment, UBS will pay

to Wilhelmsen TWO MILLION EIGHTY-SEVEN THOUSAND EIGHT HUNDRED

NINETY-ONE DOLLARS AND SEVENTY-FIVE CENTS ($2,087,891.75), which payment

will become due when the U.S. Government pays the Government Claims to

UBS. UBS warrants that it will use its best endeavors to recover from the U.S.

government on the Government Claims and will provide to Wilhelmsen copies of

its application for the Government Claims as well as a full record of its

correspondence with the U.S. government concerning the Government Claims.

The Parties agree that this amount will be paid in full from the Government

Claims payment before UBS is entitled to keep any of the Government Claims

payment for itself. . . .

Van Hemmen Certification dated Feb. 1, 2008 (Document #35), Ex. 1, at pp. 1, 4 (emphasis

added). UBS' counsel proposed the language inserted into the relevant "Whereas" clause above

of the Settlement Agreement which described and defined the Government Claims.

6. After the parties had executed the Settlement Agreement, Wilhelmsen retained

counsel with the Washington, D.C. office of the law firm of Peckar & Abramson, P.C. to make

inquiries with the U.S. Government, and specifically the Defense Energy Supply Center

("DESC"), as to the status of UBS' claims pending before the DESC for UBS1 fueling services

provided to U.S. Government vessels in Sasebo and Nara, Japan.

7. As recounted in detail in the accompanying Affirmation of Ronald Uscher, Esq.

dated May 20, 2008 ("Uscher Affirmation"), Peckar & Abramson approached DESC and

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 3 of 8
requested documents from DESC pursuant to the Freedom of Information Act ("FOIA") relating

to the contract between DESC and UBS (the "DESC/UBS Contract").

8. During the same time period that the FOIA inquiries were being made to DESC,

UBS produced to me some documents purportedly related to its Government Claims (as that

term is defined in the parties' Settlement Agreement). On February 1, 2008, UBS' counsel

e-mailed to me eight pages of documents. On February 8, 2008, UBS's counsel e-mailed to me

another 72 pages of documents regarding the Government Claims. Those documents were

heavily redacted, despite the parties' Settlement Agreement having no provision in it that would

allow for such redactions and, despite the Settlement Agreement, specifically providing that UBS

would provide to Wilhelmsen a full record of its correspondence with the DESC (see Settlement

Agreement paragraph 6, quoted above, in which UBS agreed to "provide to Wilhelmsen copies

of its application for the Government Claims as well as a full record of its correspondence with

the U.S. government concerning the Government Claims.").

9. On April 2, 2008, I wrote to UBS' counsel, Jeanne-Marie van Hemmen, Esq., to

question the completeness of UBS' document production. The basis for that inquiry was that the

documents produced by UBS did not - according to Wilhelmsen's government claims counsel -

contain essential elements of a traditional government claim submission. (See Uscher

Affirmation, 1 7). In that letter, I requested that UBS confirm either (a) that it had provided the

entirety of UBS' claims submissions, or (b) that UBS had not produced the entirety of its

documents. A true copy of my April 2, 2008 letter to UBS1 counsel is annexed as Exhibit 17.

10. UBS' counsel response in its entirety was as follows:

My client confirms that UBS has produced all claims related documents. UBS

states that there were no applicable protocol [sic] for submission of its claim

which was submitted in the emails provided to Wilhelmsen.

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 4 of 8
A true copy of UBS' counsel's e-mail to me dated April 4, 2008 is annexed as Exhibit 18.

11. As Ronald Uscher, Esq., explains in his affirmation, DESC provided documents

responsive to Wilhelmsen's FOIA request in March 2008. Those documents indicate that UBS

has received $3,550,783.66 from DESC in payment of its claims made to DESC, and that such

payment occurred in or after December 2007. (Uscher Affirmation, ff9-ll). After receiving

UBS1 counsel's April 2, 2008 letter confirming that UBS had provided the entirety of its claims

documents, based on the documents provided by UBS and DESC, Wilhelmsen's government

claims counsel concluded that this payment was made by DESC in satisfaction of UBS*

Government Claims (the basis for these conclusions is discussed in the accompanying Uscher

Affirmation paragraphs 15 to 19).

12. I again wrote to UBS' counsel on April 10, 2008 and set forth Wilhelmsen's basis

for believing that UBS had been paid for its Government Claims and that UBS had failed to pay

Wilhelmsen. In that letter, Wilhelmsen demanded payment, by April 14, 2008, of the

$2,087,891.75 due under paragraph 6 of the Settlement Agreement. A true copy of my letter to

UBS' counsel dated April 10, 2008 is annexed as Exhibit 19.

13. In response to this letter, UBS' counsel replied on April 17, 2008, tacitly

confirming that UBS had received the $3,550,783.66 payment from DESC and relaying

"instructions" from her client as to the nature of that payment. The entirety of her message

follows:

I am instructed by my client that the payment of $3,550,783.66 relates to services

rendered by UBS to DESC which are in no way referable to the claim referenced

in the Settlement Agreement.

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 5 of 8
A true copy of UBS' counsel's e-mail to me dated April 17, 2008 is annexed as Exhibit 20

(emphasis added),

14. On April 28, 2008, I wrote to UBS' counsel again. Based on the available

information, I outlined Wilhelmsen's position that the Government Claims had been paid. On

behalf of Wilhelmsen, I demanded an imredacted set of the previously produced Government

Claims documents and "the claim documentation for the purported other claim that DESC paid

to UBS." A true copy of my April 28, 2008 letter is annexed as Exhibit 21.

15. In addition, we advised UBS that if it refused to comply with the requests,

Wilhelmsen reserved the right to approach the Court to order the document production. (Exhibit

21).

16. On April 29, 2008, UBS1 counsel sent documents by email which consisted of Tax

Invoice 10454 in the amount of $3,550,783.66 and amendment to the Contract P0004. A true

copy of the covering email, Tax Invoice 10454 and amendment P0004 are annexed as

Exhibit 22. These documents are analyzed by Mr. Uscher in paragraphs 17 to 19 of his

affirmation.

17. According to UBS' counsel's covering email annexed as part of Exhibit 22, "these

documents establish that the $3,550,783.66 payment by the government to UBS did not relate to

the Government Claims but to a separate and distinct claim." However, that fact is not evident at

all. P0004 states on page 2 of 2:

On March 8, 2007, USS-UBS submitted a claim under Item 765-61 (Sasebo,

Japan) in accordance with FAR 33.206 for $3,550,783.66 for costs incurred in

response to the Government's request for surge capabilities to meet requirements

that did not materialize.

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 6 of 8
See Ex. 22. Tax Invoice 10454 is dated September 24, 2007 and not March 8, 2007. P0004

indicates payment of a claim submitted March 8, 2007. UBS has not provided any claim dated

March 8, 2007. It has redacted claimed amounts and other information from Tax Invoice 10039,

dated March 7, 2007, which may have been submitted to DESC the following day; in other

words, on March 8, 2007. Presently Wilhelmsen has no means to confirm whether the

$3,550,783.66 paid to UBS was for the Government Claims under Tax Invoice 10039 of for

another claim submitted by UBS but for which UBS has produced no documentation.

18. UBS entered into a Settlement Agreement in which it specified and identified

certain Government Claims and undertook to provide documentation of those claims, UBS"

evasive responses to requests for information and demands for documents are inexplicable and

can only raise suspicion that UBS does not want Wilhelmsen to have the information that UBS is

obliged by written agreement to provide.

19. At this point, the dismissal should be vacated even if the DESC payment in

December, 2007 was not for the Government Claims. Wilhelmsen cannot identify the claim that

was made in Tax Invoice 10039. Therefore, Wilhelmsen will never be able to identify payment

of that claim by DESC. UBS has breached the provisions and the spirit of the Settlement

Agreement.

20. Clearly, UBS intended to settle the case, but to wriggle out of every possible

payment required under the Settlement Agreement. Such gamesmanship does not further the

interests of justice or encourage settlement of claims.

21. Following receipt of UBS' counsel's April 28, 2008 email (Exhibit 22), counsel

had further correspondence on May 5, 2008. A true copy of the May 5, 2008 email chain is

annexed as Exhibit 23. The text of my email was as follows:

7

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 7 of 8
Our April 28 letter requested that:

(1) UBS produce unredacted copies of the documents it

previously provided; and

(2) UBS produce the entirety of its claim documents for the

"other claim" on which it purportedly was paid,

Please advise whether UBS will comply with these requests.

(Exhibit 23), To date, no reply to my May 5 request has been received.

22. At this juncture, from the best information Wilhelrnsen has been able to assemble,

UBS has committed the following breaches of the Settlement Agreement in sequence:

• It has failed to pay the entirety of the Initial Payment amount promised to be paid

under the Settlement Agreement, in that Wilhelmsen has yet to receive the final

$68,885.12 promised by UBS;

• It has breached its obligation (a) to provide a "full record" of the Government Claims

or (b) to use its "best endeavors" to prosecute the Government Claims; and

• It has breached its obligation to pay to Wilhelmsen the first $2,087,891.75 of the

$3,550,783.66 it tacitly acknowledges having received from DESC.

23. For the foregoing reasons, Wilhelmsen respectfully requests that this Court grant

Wilhelmsen's amended motion to vacate this Court's order of dismissal dated January 14, 2008

and permit Wilhelmsen to seek affirmative relief against UBS.

Michael J. Frevola

Sworn to before me this

Notary Public

Elvin Ramos

Notary Public, State of New "Vbrtt

NO. 01RA4870243

Qualified in Queens County

Certificate filed in New York County

Commission Expires September 2,2018

Case 1:07-cv-05798-CM-HBP Document 39 Filed 05/20/2008 Page 8 of 8