91

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 1 of 59
Case 1:07-cv-05798-CM Document 33 Filed 01/25/2008 Page 1 of

William J. Honan (WJH 1922)

Michael J. Frevola (MJF 8359)

HOLLAND & KNIGHT LLP

195 Broadway

New York, NY 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

USS4JBS INTERNATIONAL and

RAECORP INTERNATIONAL PTY LTD.,

Defendants.

07 Civ. 5798 (CM)

AFFIDAVIT OF MICHAEL J.

FREVOLA IN SUPPORT OF

PLAINTIFF'S MOTION TO

VACATE DISMISSAL ORDER

STATE OF NEW YORK )

)ss:

COUNTY OF NEW YORK )

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

L 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 39-2 Filed 05/20/2008 Page 2 of 59
Case 1:07-cv-05798-CM Document 33 Filed 01/25/2008 Paqe 2

2. I am familiar with the facts and circumstances underlying this dispute and my

statements are based upon my own personal knowledge.

3. I provide this affidavit in support of the application of Plaintiff Wilhelrnsen

Premier Marine Fuels AS 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,

4. On July 19, 2007, our office was contacted by Mr. John Cyna of HSBC USA

Bank, N.A, to advise that HSBC had frozen the amount of $68,885.12 in accordance with the

Order of Attachment and Writ of Attachment issued by this Court. HSBC's correspondence

memorializing this attachment also advised that UBS was the originator on the wire transfer, I

have annexed as Exhibit 1 a true copy of HSBC's July 19, 2007 fax confirming the attachment,

5. On July 25, 2007S Holland & Knight notified UBS's Australian counsel that

Wilhelmsen had attached an amount of about $68,000 in the custody of HSBC. I have annexed

as Exhibit 2 a true copy of my letter to UBS's Australian counsel.

6. Over the course of the next three months, various ganiishee banks reported to

Wilhelmsen that they had attached a total of $1,108,544,50 in funds being transferred to or from

7, On September 10, 2007, Ms. Jeanne-Marie Van Hemrnen, counsel for UBS, e~

mailed me to request details of the various attachments made by garnishee banks in connection

with the Order of Attachment and Writ of Attachment issued in this proceeding. I have annexed

as Exhibit 3 a true copy of Ms. Van Hemrnen's e-mail dated September 10, 2007,

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 3 of 59
Case 1:07-cv-05798-CM Document 33 Filed 01/25/2(

8. In connection with providing this information to counsel for UBS, I called Mr.

Cyna at HSBC and obtained the identity of the beneficiary of the wire transfer reported frozen by

Mr. Cyna on July 19, 2007. Mr. Cyna told me that the originator on the wire transfer was UBS

and the beneficiary on that frozen wire transfer was Australia Bunkering. I also confirmed that

the exact amount of the attachment was $68,885.12, I provided that information to Ms. Van

Hemmen by e-mail that day. I have annexed as Exhibits 4 and 5 true copies of my e-mail to

UBS's counsel on September 10, 2007 that related these facts to her,

9. In addition to providing counsel for UBS with this information, on September 14,

2007 I also provided counsel for UBS with Mr. Cyna's contact details so that she could contact

HSBC to confirm the amount under attachment. I provided this information in response to

UBS's counsel's request. I have annexed as Exhibit 6 and Exhibit 7, respectively, true copies of

UBS's counsel's request for bank contact details and my responses to this request,

10, UBS's counsel contacted several of the garaishee banks by the e-mail addresses

provided by Wilhelmsen. in the case of HSBC, Wilhelmsen's counsel only had Mr. Cyna's

telephone number, which it provided to UBS's counsel. I have annexed as Exhibit 8 a true copy

of an e-rnail sent by UBS's counsel to a garnishes bank requesting information regarding UBS's

funds under attachment.

11, Turning to the negotiation of the Settlement Agreement, counsel for UBS has

suggested in recent communications that the negotiation of numbered Paragraph 1 of the

Settlement Agreement included the parties' contemplation that Wilhelmsen would bear the risk

of loss in the event that funds comprising the Initial Payment were not received by Wilhelmsen,

This suggestion is overbroad and incorrect as applied to the relevant circumstances.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 4 of 59
Case 1 :Q7-cv-G5798-CiVi Document 33 Filed 01/2

12. The terms of the Settlement Agreement largely were negotiated between the dates

of Tuesday, October 16, 2007 and Friday, October 19, 2007. I e-mailed the first draft of the

Settlement Agreement to counsel for UBS at 9:40 a.m. on Tuesday, October 16, 2007. The first

version of numbered Paragraph 1 contained an additional sentence at the end, which provided

that "Wilhelmsen's not receiving the Initial Payment by 5 p.m. Eastern Standard Time on

November 1,2007 will render this Agreement null and void."

13. At 3:15 p.m. on Wednesday, October 17, 2007, counsel for UBS responded to me

by e-mail with a revised Paragraph 1 that deleted the final sentence of Paragraph 1. After I

received this revised Paragraph 1,1 spoke with counsel with UBS (I believe later that same day)

about this revision. During that discussion, counsel for UBS explained that she could not

<guarante j * e that the Attached Funds would not be frozen en route to Wilhelmsen's bank account by^

other creditors of UBS. As shown by the document annexed as Exhibit 9, this concern was a

valid concern. The document annexed as Exhibit 9 is a Rule B attachment order obtained by

another creditor of UBS, Australia Bunkering, on October 24, 2007 (or two days after UBS and

Wilhelmsen executed the Settlement Agreement),

14. After I discussed with Wilhelmsen the risk of having a portion of the Attached

Funds frozen, and the possibility that Wilhelmsen might have to fight other creditors for those

funds, Wilhelmsen decided to accept that risk. Specifically, Wilhelmsen accepted the risk that

mat some portion of the Attached Funds might be attached by another creditor before those funds

reached Wilhelmsen's bank account.

15. In contrast, no discussion ever occurred between me and counsel for UBS on the

issue of which party would bear the risk of loss in the event that UBS essentially never sent the

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 5 of 59
Case 1 ;Q7~cv-G5798-CM DocumentSS Filed 01/25/2008 Page 5 of 9

Attached Funds to Wilhelmseri in the first place. If counsel for UBS had said, for example, that

It could not guarantee that it would originate the Initial Payment of $1,108,544.50, but that it

might only originate $500,000, that would have been a term to which Wilhelmsen would have

16. Similarly, could have proposed other language which would not have obligated

UBS to pay the sum certain of $1,108544.50, but UBS did not. For example, UBS simply could

have proposed that it would release all funds attachment, rather than give a defined amount. But

UBS did not do this.

17. For these reasons, a suggestion made by UBS that it and Wilhelmsen discussed

risk of loss in this context simply is not correct,

18. On October 22, 2007, the parties executed their Settlement Agreement which had

the following exhibits: (I) Wilhelmsen's claims under the 2007 Bunkering Agreement that

comprised Wilhelmsen's claims in this proceeding; (2) the Consent Order that the parties would

submit to this Court to direct the release of the agreed sum of $1,108,544.50; and (3) a "Cease

and Desist" letter to be served by Wilhelmsen on the Garnishee Banks to stop any further

attachment of funds in this proceeding,

19. The Consent Order was submitted by the parties to the Court and endorsed by the

Court the same day that the Settlement Agreement was signed. To facilitate the settlement, that

same day Wilhelmsen circulated the Consent Order and the "Cease and Desist" letter to the

garnishes banks in order to release the funds that were to constitute Defendants' Initial Payment

obligation under the Settlement Agreement. Over the course of the next several days,

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 6 of 59
Willielmsen received all of the funds due under the Initial Payment provided under the

Settlement Agreement with the exception of the amount of $68,885.12 which HSBC had

reported as frozen on July 19, 2007. With regard to HSBC, I annex as Exhibit 10 a true copy of

my telefax to Mr. Cyna dated October 24, 2007 advising of the settlement.

20. In addition to the amount of $1,108,544.50, which was defined as the "Attached

Funds" and which comprised the Initial Payment under the Settlement Agreement, Wilhelmsen

also had attached the approximate amount of $44,000 at Citibank, N.A. ("Citibank") on or about

October 22, 2007. As I understood this to be an amount that would exceed the 51,108,544,50 to

which Wilhelmsen was entitled, I notified counsel for UBS of this latest attachment. Ultimately,

Wilhelmsen released the $44,000 to the trust account of counsel for UBS,

21. During the discussion between counsel regarding the release of the $44,

Citibank, counsel for UBS asked the following question:

Can you provide rne with confirmation that Wilhelmsen has

received all of the "Initial Payment" and that Citibank still has the

$44,000?

A true copy of UBS's counsel's e-mail dated October 29,2007 is annexed as Exhibit 11.

22. In response to that inquiry, I replied;

On the Initial Payment side, I have to confirm exact numbers with

Wilhelmsen through Nordea London but I am pretty sure that we

have gotten everything but the S68K from HSBC (the numbers

match up that way). I spoke to HSBC a little earlier and I just re*

sent my fax of last Wednesday attaching the Consent Order,

HSBC confirmed that they still have the S68K, so that also leads

me to believe that this is a still remaining amount outstanding.

A true copy of my e-mail dated October 29, 2007 to UBS's counsel is annexed as Exhibit 12.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 7 of 59
Case 1 ;G7-ev-05798~GM Document 33 Filed 01/25/2008 Page 7 of

23. After the Settlement Agreement was executed, I continued to speak with HSBC

about the outstanding $68,885,12. On October 29, 2007, I spoke again with Mr. Cyna and resent my fax dated October 24, 2007, On October 30, 2007, I spoke again with Mr. Cyna, at

which point he advised that he had been told by his wire department that the HSBC funds had

been released that day to Wilhelmsen. After receiving this word, I asked Wilhelmsen to check

their accounts to confirm that no payments had been received from HSBC. Wilhelmsen advised

that they had not received the HSBC payment.

24. On November 2, 2007, I spoke with HSBC once again, Mr. Cyna advised that

HSBC was trying to send the funds to Wilhelmsen and they were "bouncing back" (his words).

25. On November 6, 2007,1 spoke once again with HSBC for an update on the status

of payment of the remaining $68,885.12, Mr. Cyna spoke with his wire department and they told

him that the indications were that the funds did go out to Nordea (Wilhelrasen's bank), but that

they have not yet received a confirmation receipt from Nordea. The HSBC representative asked

that Wilhelmsen check again with Nordea to see if the funds now have arrived.

26. On December 4, I once again contacted HSBC to determine the status of its

payment of the outstanding 568,885.12. Once again, I was told that the wire department had sent

the funds to Wilhelmsen's London account and that hopefully it would not result in a "bounce

back."

27. On December 18, 2007, I repeated my inquiry with Mr. Cyna and was advised

that Wilhelmsen should check recent activity to see if the funds finally had cleared at

Wilhelmsen's London account.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 8 of 59
Case 1 :G7~cv-05798-CM Document 33 Filed 01/25/2008 Page 8 of

28. On or about December 28, 2007, I spoke once again with Mr Cyna. In

conversation, he advised me for the first time that HSBC did not have the $68,885.12 in funds

that it previously had reported as under attachment. According to Mr. Cyna, the funds attached

on July 19, 2007 were released on or about July 20, 2007 through a computer error that occurred

during an upgrade or other type of computer maintenance session. I have not spoken with Mr,

Cyna since that telephone conversation,

29. Approximately ten days later, counsel for UBS e-mailed me to confirm that UBS

had satisfied its requirements under the Settlement Agreement, thereby warranting this Court to

enter an order of dismissal, A true copy of UBS's counsel's e-mail is annexed as Exhibit 13.

30. Later that week, I replied that HSBC had not released to Wilhelmsen the funds

that it had held and UBS continued to owe $68,885.12 under the Settlement Agreement, In that

response, I also reminded UBS's counsel that UBS had failed to fulfill its obligations under the

Settlement Agreement with regard to "providing] to Wilhelrnsen 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," This suggested to me that UBS likewise was failing to

fulfill its obligation under the Settlement Agreement to use its "best endeavors to recover from

the U.S. government on the Government Claims." Although I gave UBS two weeks (that is,

until today, January 25) to meet these outstanding obligations, UBS still remains in default of

these obligations under the Settlement Agreement as well, A true copy of my response to UBS's

counsel's e-mail is annexed as Exhibit 14.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 9 of 59
Case 1:07-cv-05798-CM Document 33 Fiied 01/25/2008 Page 9 of 9

31. On January 11, 2008, UBS stated that it had fulfilled its payment obligations

under the Settlement Agreement, denied any liability for the outstanding amount of $68,885,12

and advised that it had filed a request for the Court to enter an order of dismissal based on the

terms of the Settlement Agreement. A true copy of UBS's January 11, 2008 e-mail is annexed as

Exhibit 15,

WHEREFORE, Plaintiff respectfully requests that the Court vacate its Order of

Dismissal.

Sworn to before me this

25th day of January, 2008

Notary Public

Qualified to Queens County

Certificate filed in New York County

Commission Expires September 2, 2010

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 10 of 59
Case 1:07-cv-Q5798-CM Document 33-2 Filed 01/25/2008 Page 1 of 4<

EXHIBIT 1

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 11 of 59
Case 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 2 of 49

HCT>r ^fct •""^^fc. • ^^(M^^|U-j' ^fcr*'

July 19,5007

Michael J.KrevoIa

Holland &KniehtLLP

New York, Nsw 10007

DearMr.Frevola;

Re; Writ of Maritime Attachment

Against: UBS Provecto Pty Ltd, aka USB-USS International

Court Mex No, 07 cv 5798

This will confirm our recent telephone conversation where we sdvised you that HSBC Bank USA,

N.A. has captured a wire payment originating from UBS Provetlgres Pty Ltd m response to the

captianed Writ of Maritime Atuchment and Garnishment. You Erected HSBC Bank USA, N,A, to

hold this payment The payment in the amount of $68,885,12 is being held until further notice from

If! can be of further assistance, please contact me at (716) 841-2639.

Sincerely,

Legal Assistant

Legal Processing Department

HSBC liable USA, National

f\ rTfi-it.." /•-.„-._ n,-n-..iTM. vi%^ t AWl

THTQi P

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 12 of 59
Case 1:07-cv-05798-CM Document 33-2 Fifed 01/25/2008 Page 3 of 49

EXHIBIT 2

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 13 of 59
-05798-CM Document 33-2 Hied 01/25/2008 Page 4 of 4<

Tel 212 513 3200 Holland & Knight Li_P

Fax 212 385 9010 195 Broadway, 2<Hh Floor

New York, NY 10007-3189

www.hktaw.eom

Michael J212 513 3516

My 25,2007

VIA E-mail

NRBARBI Solicitor

15/900 Brunswick Street

New Farm Qld 4005

Att: Adrian Dore, Esq.

&e= Wilh&lms&n Premier Marine Fuels AS v. UBS Pryyedores Pty Ltd.

SDNY Docket W; 0? Civ. 5798 (CM)

Our File; 5QG177-03213

Dear Sirs:

We are counsel for plaintiff Wilhelmsen Premier Marine Fuels AS ("Wilhelmsen") In the

referenced matter. It is our understanding that you are Australian counsel for UBS Provedores Pty

Ltd, ("UBS"), the defendant in the referenced matter. If you are not counsel for UBS, please advise

us accordingly and we will send this correspondence directly to UBS.

We write to advise that Wilhelmsen has attached the approximate sum of $68,000 frozen by

HSBC on July 19, 2007, the amount of $68,865.12 frozen by XPMorgaa Chase on My 20, 2007,

and the amounts of $29,610.37 and $275,399,86 frozen hy JPMorgan Chase on My 23,2007, We

attach copies of the notices we have received concerning the JPMorgan Chase attachments; we have

not yet received correspondence from HSBC regarding the exact amount of feat attachment,

The attachment of these &nds was effected in connection with the above-referenced matter,

which involves a claim hy Willielmsen for fiiel/bunkers purchased by UBS. We enclose a copy of

the Summons, Verified Complaint, Order of Attachment and Writ of Attachment for your reference.

Should UBS not appear in the above-referenced proceeding, we will seek a default against

UBS and execute on the attached fonds.

Very truly yours,

HOLLAND & KNIGHT LLP

By:

Michael J, Brevola

oc: Via E-mail

Carl Bnchholz, 'Esq.

Rawle & Henderson, LLP

Counsel for JPMorgan Chase Bank

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 14 of 59
Case 1 ;07-ev-G5798-CM Document 33-2 Fiied 01/25/2008 Page 5 of 49

EXHIBIT 3

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 15 of 59
Wilhelmsen v. Ut&se 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 6 of 49 Page 1 of 2

Frevola, Michael (NYC -X73516)

From; Jeanne-Marie Van Hemmen [Jvanhemmen@bvgk!aw,cQm]

Sent: Monday, September 10,2007 1:13 PM

To; Frevoia, Michael (NYC - X73518)

Subject; Re: W)ihe!msen v. UBS

Dear Mike,

Please confirm that die only funds seized as of this date pursuant to the Raecorp, attachment is the $10,000 destined for BYGK.

Also please confirm that the ordy funds seized as of this date pursuant to the UBS attachment are the following;

1. $210,795.94 received by Citibank for the benefit of USS-UBS International;

2. $289,378.30 received by Citibank for the benefit of USS-UBS International;

3, $275,399.86 received by JP Morgan from USS-UBS International for the benefit of a third party;

4, $68,865.12 received by IP Morgan from USS-UBS International for the benefit of a third party;

5. $29,610.3? received by JP Morgan, Your correspondence does not indicate whether this was for the benefit of USS-UBS International or from

USS-UBS for the benefit of third party. Please so indicate.

6, $68,000 received by HSBC. Your correspondence does not indicate whether Ifais was for the benefit of USS-UBS International or from USSUBS for the benefit of a third party. Please so indicate.

Thanks for your assistance.

----- Original Message —

From.' mtohaef.frevofa@hMaw.com

To; jvanhemmen@bvgklaw.com

Sent: Thursday, September 06, 2007 2:04 PM

Subject: Wilhelmsen v, UBS

As requested, I attach the Amended Complaint, Exhibits, and the Amended Writ,

I look forward to seeing you tomorrow.

«sdny 07cv5798 amended comp!aint.pdf» «sdny 07cv5798 amended complaint - ex 1 .pdf» «sdny Q7cv5798 amended

complaint - ex 2.pdf»

«sdny 07cv5798 amended complaint - ex 3,pdf>> «sdny 07cv5798 amended cornpSaint - ex 4.pdf» «SDNY G7cM5798

amended writ.pdf»

iand*Kniqht

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 16 of 59
WUhelmsen v.

ise1:07-cv-05798- Document 33-2 Filed 01/25/2008 Page 7 of 49

Michae! 3, Frevola, Esq.

Partner

Holland & Knight LLP

195 Broadway

New York, New York 10007

Main 212 513 3200

Direct 212513 3516

Mobile 516 521 6365

Fax 212 385 9010

Email rnichae!,frevola@hk!aw,com

www.hkfaw.com

This e-mail is from a law firm, Holland & Knight LLP {"H&K"), and is intended solely for the use of the individuals) to whom it is addressed.

If you beiieve you received thus e-mail in error, pieass notify the sender immediately, delete the e-mail from your computer and do not copy or disclose

ft to anyone else. If you are not sn existing client of B&K, do not construe anything in this e-mail to make you a client uniess it contains a specific

statement to that effect and do not disclose anything to H&K in reply (hat you expect it to hold in confidence. If you property received this e-rnaii as a

client, co-counsel or retained expert of H&K, you should maintain iEs contents in confidence in order to preserve the attorney-client or work produce

privilege thai; rnay fee available to protect conffdentiaiity,

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 17 of 59
EXHIBIT 4

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 18 of 59
Wilhelmsen v, Wise 1:07-cv-G5798-CM Document 33-2 Filed 01/25/2008 Page 9 of 49 Page 1 of:

FrevoEa, Michael (NYC -X73516)

From: Frevola, Michael (NYC - X73518)

Sent: Monday, September^, 2007 1 ;51 PM

To; X-Beiancouri, Van Hernmen, Greco & Kenyon - Van Hemmen, J M

Subject; RE; Wffhefmsen v. UBS

Dear Jeanne-Marie:

Your recitation of information is correct with the following minor edits/additions:

1, The precise amount attached for Raecorp $9,980.00 and we confirm that it is the only attachment of Raecorp funds of which we

are presently aware (I copied you a few minutes ago on my e-rnai! to Bank of America requesting the release of those funds - if you

did not receive it, please let me know and I will send you another copy).

2. With regard to item number 4, it is our understanding that JP Morgan Chase actuaiiy restrained two separate wires from UBS for

the benefit of a third party, both in the identical amounts of $68,885.12.

3, With regard to your itqrn number 5, the $29,610.37 transfer was for the benefit of a third party,

4. With regard to your item number 8, the exact amount was $68,885.12 and it was transferred by UBS for the benefit of a third

trust that the foregoing is responsive to your request.

Holland & Knight LLP

From; Jeanne-Marie Van Hemmen [mai!to:jvanhemmen@bvgk!aw.com]

Sent; Monday, September 10, 2007 1:13 PM

To: Frevois, Michael (NYC - X7351G)

Subject; Re: Wffhefmsen v. UBS

Please confirm that tiie only funds seized as of this date pursuant to the Raecorp. attachment is the $10^000 destined for BVGK.

Also please confirm that the only funds seized as of this date pursuant to the 'UBS attachment are the following;

!. $210,795,94 received by Citibank far the benefit of USS-UBS International;

2, $289,378.30 received by Citibank for the benefit of USS-UBS International;

3, $275,399.86 received by JP Morgan from USS-UBS International for. the benefit of a third party;

4, $68,865 J2 received by JP Morgan from USS-UBS International for the benefit of a tbird party;

5, $29,610,37 received by JP Morgan. Your correspondence does not indicate whether this was for the benefit of USS-UBS International or from

USS-UBS for the benefit of third party. Please so indicate.

6, $68,000 received by HSBC. Your correspondence does not indicate whether this was for the benefit of USS-UBS International or from USSUBS for the benefit of a third party. Please so indicate.

Blanks for your assistance,

L

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 19 of 59
»e 1:G7-cv~05?98-CM Document 33-2 Filed 01/25/2008 Page 10 of 49 page 2 of 2

Jeanne-Marie Van Hemmen

- Original Message —

To; I van hemrnen@bvqklaw. corn

Sent; Thursday, September OS, 2007 2:04 PM

Subject: Wilheimsen v. UBS

Dear Jeanne-Marie:

As requested, I attach the Amended Complaint, Exhibits, and the Amended Writ,

I look forward to seeing you tomorrow.

Best regards,

Mike Frevola

«$dny 07cv5798 amended complaint,pdf» «sdny Q7cv5788 amended compiaint - ex 1 .pdf» «sdny 07cv579S amended

complain! — ex 2,pdf»

«sdny 07cv5798 amended complaint - ex 3.pdf» «sdny 07cv5798 amended compiaint -- ex 4.pdf» «SDNY 07cv5798

amended writ.pdf»

Holland* Knight

Partner

Holland & Knight LLP

195 Broadway

New York, New York 10007

Main 212 513 3200

Direct 212 513 3516

Mobile 516 521 6365

Fsx 2l2 385 9010

Email rnichae!.frevola@hklaw,com

This e-mml is from a law firm, Holland & Knight UP ("H&K"), and is intended solely for the use of the tndlvtduaKs) to whom it is addressed,

ve you received this e-mail !n error, please notify the sender immediately, delete the e-mail from your computer and do not copy or

disclose it to anyone else. If you are not en existing client of H&K, do not construe anything in this e-mail to make you a ciient unless it contains e

specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold tn confidence. If you properly received this e •

mail ss a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney- die HE or work

product privilege that may be available to protect confidentiality.

1/25/2008

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 20 of 59
Case 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Rape 11 of 41

EXHIBIT 5

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 21 of 59
senv. 1:07~CY-0579S-CM Document 33-2 Filed 01/25/2008 Page 12 of 49 Page 1 of;

Frevoia, Michael (NYC - X73516)

From: Frevoia, Michael (NYC - X73516)

Sent: Monday, Septem&er 10, 2007 2:48 PM

To: X-Beiancourt, Van Hernmen, Greco & Kenyon - Van Hemmen, J M

Subject: RE: Wiiheimsen v, UBS

John Cyna at HSBC advised me that the HSBC attachment was originated by UBS for the benefit of Australia Bunkering, Ha may

have mixed up the details, but that is the order of the transaction as explained to me (and read back to him by me}.

Best regards,

Mike

Michael 3. Frevoia, Esq.

Holland & Knight LLP

From; Jeanne-Marie Van Hemmen [maiito:jvanhemmen@bvgklaw,com]

Sent: Monday, September 10, 2007 2:47 PM

To; Frevoia, Michael (NYC -X735I6)

Subject; Re; Wiiheimsen v. UBS

Please confirm that the HSBC attachment was from a third party for the benefit qf UBS.

— Original Message —

From; michael.ffevolsiSjh Maw, corn

Sent: Monday, September 10,2007 1:55 PM

Subject: RE: Wiiheimsen v. UBS

Michael J. Frevoia, Esq.

Holland & Knight LLP

From: Jeanne-Marie Van Hemmen [mailto;jvanhemmen@bvgklawfcom]

Sent: Monday, September 10, 2007 1:55 PM

To: Frevoia, Michaei (NYC - X73516)

Subject; Re; Wiiheimsen v. UBS

Thanks for the clarification.

—„, Original Message —

From: michaei-frevola@hklaw.com

To: lvanhemmen@bvgklaw.com

Sent Monday, September 10, 2007 1:51 PM

Subject: RE: Wilhelrnsen v. UBS

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 22 of 59
Wilhelmsen v, 1:07-cv-05?98-CM Document 33-2 Filed 01/25/2008 Page 13 of 49 Page 2 of:

Dear Jeanne-Marie:

Your recitation of information is correct with the following minor edits/additions:

1. The precise amount attached for Raecorp £9,980.00 and we confirm that it is the only attachment of Raecorp funds of which

we are presently aware {\ copied you a few minutes ago on my e-mail to Bank of America requesting the release of those funds -

if you did not receive it, please Set me know and I will send you another copy),

2, With regard to item number 4, it is our understanding thai JP Morgan Oiase actually restrained two separate wires from UBS

for the benefit of a third party, both in the identical amounts of $88,865.12.

3, With regard to your item number 5, the $29,610.37 transfer was for the benefit of a third parly.

4. With regard to your item number 6, the exact amount was $68,885.12 and it was transferred by UBS for the benefit of a third

I trust that the foregoing is responsive to your request.

Best regards,

Frevols

Michael 3, Frevola/ Esq.

Holland & Knight LLP

From: Jeanne-Marfe Van Hemmen [mailto:jVanhemmen@bvgkJaw.com]

Sent: Monday, September 10, 2007 1:13 PM

To; Frevola, Michael (NYC - X73516)

Subject: Re; Wilhelmsen v, UBS

Dear Miks,

Please confirm that the only funds seized as of this date pursuant to the Raecorp. attachment is the $10,000 destined for BVGK.

Also please confirm that the only funds seized as of this date pursuant to the LTBS attachment arc the following;

. $210,795,94 received by Citibank for the benefit of USS-UBS International;

2, $289,378-30 received by Citibank for the benefit of USS-UBS International;

3. S275.399.S6 received by JP Morgan from USS-UBS International for the benefit of a third party;

.865.12 received by JP Morgan from USS-UBS International for the benefit of a third party;

5, $29,610.3? received by JP Morgan. Your correspondence does not indicate whether this was for the benefit of USS-UBS International c

from USS-UBS for the benefit of third party. Please so indicate.

6, $68,000 received by HSBC. Tour correspondence does not indicate whether this was for the benefit of USS-QBS International or from

USS-UBS for the benefit of a third party. Please so indicate.

Thanks for your assistance.

rds,

Jeanne-Marie Van Hemmen

To; j vanhemrrien@trvgk;iaw-Cgrn

Sent: Thursday, September 08, 2007 2:04 PM

Subject; Wilheimsen v. UBS

i/;

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 23 of 59
Page 14 of 49 Page 3 of:

Dear Jeanne-Marie;

As requested,! attach the Amended Complaint, Exhibits, and the Amended Writ

I look forward to seeing you tomorrow.

Best regards,

«sdny 07cv5798 amended comp!a!nt.pdf» «sdny 07cv5798 amended complaint - ex 1,pdf» «$dny 0?cv5798 amended

complaint - ex 2.pdf»

«sdny 07cv5798 amended complaint - ex 3.pdf» «sdny 07cv5798 amended cornpiaint -~ ex 4.pdf» «SDNY 07cv5798

amended writpdf»

Holland + Knight

Nichaei 3. Frevoia, Esq.

Partner

Holland & Knight LLP

195 Broadway

York, New York 10007

Main 212 513 3200

Direct 212 513 3516

Mobile 516 521 6365

Fax 2123859010

Email mrchae). frevoia@hkfaw.com

www.hklaw.com

NOTICE: This e-mai! is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individuals) to whom it is

addressed. If you oeHeve you received this e-mail in error, please notify the sender immediately, delete the e-maii from your computer and do r

copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it

contains a specific statement to that effect and do not disclose anything to H&K En reply that you evpect it to hold in confidence. If you properly

received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the

attorney-client or work product privifsge that may be available to protect conficientiaiityCase 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 24 of 59
Case 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 15 of 4<

EXHIBIT 6

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 25 of 59
Wilhetasen Pre@|f^1^^ Page 1 of:

Frevola, Michael {NYC -X73516)

From; Jeanne-Marie Van Hemmen Qvanhemmen@bvgklaw.com]

Sent: Friday, September 14, 2007 2:58 FM

To: Frevola, Michael (NYC - X73516)

Subject; Re; Wiihelrnsen Premier Marine Fuels AS v. UBS Provedores Pty Ltd., 07-5798 PMAG - amended writ

If you could send those telephone numbers and contact info when you have a moment, I would appreciate it.

Jeanne-Marie

—- Original Message -—

From; miohael.frevolaigjhKlaw.com

To: ivanhemmen@bvflkiaw.com

Sent: Tuesday, September 11, 2007 5:08 PM

Subject; FW: WiShelmsen Premier Marine FueJs AS v, UBS Provedores Pty Ltd,, 07-5798 PMAG -- amended writ

Dear Jeanne-Marie:

I attach below a notice from Citibank of another smail amount attached ($2,619.67) that we received earlier this afternoon.

Best regards,

Michael 3. Frevola, Esq.

Holland & Knight LLP

From; Corner, Rodd [ma!lto:rodd,corner@citi.corn]

Sent: Tuesday, September 11, 2007 3:24 PM

To; Green, Rudy (NYC - X73591); Frevola, Michael (NYC - X73516); Honan, Bill (NYC - X7330Q)

Subject: RE: Wilheimsen Premier Marine Fuels AS v, UBS Provedores Pty Ltd., 07-5798 PMAG - amended writ

Importance: High

Please be advised that Citibank has received a payment for the benefit of USS-UBS international in the amount of $2f

($2,644,67 minus $25 fee). We will continue to hold this payment until further notice from you.

NOTE TO FTN UNIT: Please continue to hoid this payment.,..thanks, Rodd

NYFTA

,NYS!DCB 100527

TEST MR

0527 10C1TIUS33AXXX39245

0527 lOCmMYKLAXXXOQQOO

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 26 of 59
20:3147253011/0

:23B:CRED

:32A;07G910USD2644,67

:33B:USD2654,62

:50K:/0115737015

BARWIL WESTEXT SON BHD

1 SENTRAL, 18TH FLOOR,

JLN TRAVERS,

KUALA LUMPUR SENTRAL,

:52D:BARWIL WESTEXT SON BHD

;57A:NATAAU33Q33

:59:/465073883

USS-UBS INTERNATIONAL

:70:REFUND OF CREDIT BALANCE,

RATE CONFIRMED BY MISS PiK YENG.

;71A:BEN

;71F:USDQ,00

Rodd Corner

of the Genera! Counsel

388 Greenwich St, 17th Floor

Hew York, NY 10013

Tel: 212-81 6-3049

Fax:648-291-1533

----- Origins! Msssao6 ----

From: rudy.green@hklaw.com [mailto:rudy.green@hklaw.com]

Sent; Monday, September 10, 2007 9:00 AM

To: Diana.Semd@us.fortis.com; aebpmag@zekiaw.com; Mihaiik, Mary 8 [CMB-GCO]; jennlfer.paiey@ubs.com;

maritime,attachments@wacnovia.corn; reisert@navlaw.com; johanna.vargas@us.standardchartered,com;

lynr»e.britt@us.fortis,com; lauren.mafer@us.fortfs.com; lpfechocki@mw-law.com; john.bardakjy@sgdb.com;

joneii!@cbkria.com; acole@cbkna.com.; pmag@zeklaw,corn; pmag@americas.bnpparibas.com; nmortonfabtmna.com;

yroman@us,mufg.jp; yhoiiand@us,rnufg.jp; mtlcired-cuevas@leurnfusa.com; carlos.cabrales@teumiusa.com;

errickf@bpop.com; tdaniels@cbkna.corn.; Comer, Rodd [CMB-GCO]

Subject; Wiihelmsen Premier Marine Fuels AS v. UBS Provedores Pty Ltd., 07-5798 PMAG - amended writ

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 27 of 59
49 Page 3 of 3

«SDNY 07CV5798 amended writ.pdf>> «SDNY 07cv5798 - Order for Issuance of Amended Writ of Aitachment.pdf»

Dear Ladies and Gentlemen:

Attached are copies of the following documents:

1, Amended Writ of Attachment and Garnishment;

2. Order for Issuance of an amended Writ of Attachment and Garnishment;

It is our understanding that you will accept service of the above documents by email after the

initial service. If yon have any questions, please contact me at (212) 513-3891.

Best regards,

Holland + Knight

Rudy D. Green

Managing Clerk

Holland & Knight LLP

195 Broadway

New York, N.Y. 10007-3189

Nain 212-513-3200

Direct 212-513-3591

Fax 212-513-3591

Email rudy.green@hklaw.com

NOTICE; This e-mai! is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individuals) to whom it is

addressed, If you betteve you received this e-mail m error, please notify the sender ^rnmedtately, delete the e-mail from your computer and do

not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client

unless it contains a specific statement to that effect antf do not disclose anything to H&K in reply that you expect It to hold in confidence. If

you properly received tins e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contends in confidence in order to

the attorney -client or work product privilege that may be avaitefcte to protect confidentiality.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 28 of 59
Case 1:07-cv~05798-CM Document 33-2 Filed 01/25/2008 Page 19 of 49

EXHIBIT 7

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 29 of 59
FrevoiajJViicha©! X73516)

Frevola, MichaeS (NYC - X73516)

Friday, September 14,2007 4:11 PM

X~BetancQurt, Van Hemrnen, Greco & Kenyon - Van Hernmen, J M

FW: Mary B. Mihalik

Mary B Mihaiik.vcf; Barry J Giickman.vcf; Ying Wang.vcf; Patricia McElveen.vcf

Dear Jeanne-Marie:

Sorry for the delay.

You may fecal! seeing a notice letter from Rawie & Henderson in the notices that I passed to you. They

JPMorgan Chase and (if I recall correctly) Bank of New York, .

Barry Glickman (v-card befow) represents Sank of America and Amex, and may have a few others.

Mary Mihalik Is Citibank.

Ying Wang is Bank of China,

Patricia McElveen is ABNAmro.

Best regards,

Nichaei J, Frevola,- Esq.

Holland & Knight LIP

Mary B Mihaiitvtf Barry 3 ring Wang.vcf (657 Patricia

[4 K8) 3!ickman,vcf (657 B; B) 4cEiveen,vcf (480

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 30 of 59
Case 1 :G7-cv-G579S-CM Document 33-2 FiSed 01/25/2008 Page 21 of 49

Frevola, Michael (NYC - X73516)

From: Frevola, Michael (NYC - X73516)

Sent: Friday, September 14,2007 5:02 PM

To: X-Be tan court, Van Hemmen, Greco & Kenyan - Van Hemmen, J M

Wiliieimsen/UBS - More Banks

Attachments: John Cyna.vcf; Johanna Vargas.vcf; Yvonne Fafconer.vcf; Nancy Morton.vcf; Paula Pena.vcf

John Cyna is HSBC.

Yvonne Falconer is Deutsche Bank.

Nancy Morton is BOT-M UFJ,

Paula Pens and Johanna Vargas are Standard Chartered.

Wachovia is represented by the firm thai put in an interrogatory response/answer (on which i previously copied you),

Societe Generals is represented by Rich Reisert (see SocGen's answer on the docket).

This e-mfli! and the previous one encompasses about 14 of the 20 or so banks that we serve and a!! of the ones that

usually get hits from. Piease let me Know if you have any further questions.

Best regards,

Mike Frevola

Michael 3, Frevoia, Esq.

Holland a Knight LLP

John Cyna.vcf (4 lohanna Vsrgas-vcf Yvonne Nancy Morton.vcf Paula Pena.vcf

I Falconer.vrf (3118} (252 Ei) (297 B)

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 31 of 59
Case 1:07~cv-05798-CM Document 33-2 Filed 01/25/2008 Paqe 22 of 49

EXHIBIT 8

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 32 of 59
Case 1:07-cv-05793-CM Document 33-2 Filed 01/25/2008 Page 23 of 49 Page 1 of 1

Frevola, Michael (NYC -X73516)

From: Jeanne-Marie Van Hemmen Ovanhemmen@bvgklaw.cQm]

Sent; Friday, September 14,2007 3:34 PM

To; Norberto.B.Bonga@jpmchase.com; Johnette.Reid@jprnchase.com; teresa.j,goidberg@chase-com

Cc: cbuckholz@rawle.com; lphniposian@rawle.oom; Frevola, Michael (NYC - X73516)

Subject: Wiihelmsen Premier Fuels v. UBS Provedores Pty Ltd, SONY: 07-5798

Dear Mssrs Bongs, Reid and Goldberg,

We are attorneys representing UBS Provedores Pty Ltd and Raecorp. International in the referenced matter. We understand JP Morgan Chase

garnished a number of funds transferred through the bank since July, 20Q7,

We require a statement of all the funds garnished to date in connection with UBS' and Raecorp's emergent application with the Court that will

be filed on Monday, September 17, 2007. We attempted to reach your attorneys at Rawle Henderson in connection with our request but have not

had success reaching them. Given the time constraints., we felt compelled to reach out directly to you. Your assistance in this matter is greatly

appreciated. My telephone number is (732) 53G~4646 should you have any questions.

Very Truly Yours,

Betancourt, Van HemmeiL, Greco & Keriyon

BY Jeanne-Marie Van Hemmen

1/25/200?

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 33 of 59
EXHIBIT 9

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 34 of 59
FUSDS SONY p^f^j

[DOCUI^ENT

I (ELECTRONICALLY

UNITED STATES DISTRICT C|

SOUTHERN DISTRICT OF

AUSTRALIA BUNKERING PTY LTD.,

Plaintiff,

-against- ORDER FOR ISSUANCE OF

AN AMENDED WRIT OF

UBS PROVEDORES PTY LTD. a/k/a USS-UBS ATTACHMENT

INTERNATIONAL and RAECORP, INTERNATIONAL AND GARNISHMENT

PTY LTD.,

Defendants,

, ___,,.„._ , :_ „, . . -fc , X ' ^ -"

UPON reading the Verified Complaint, for issuance of process of maritime attachment

and garnishment pursuant to Rule B of the Supplemental Rules for Certain Admiralty and

Maritime Claims of the Federal Rules of Civil Procedure ("Supplemental Rule 0")s and the

affidavits and papers submitted in support thereof, and the Court finding that fee conditions for

an action under Supplemental Rule B appear to exist;

NOW, upon motion of Peckar & Abramson, P.C., attorneys for plaintiff, it is hereby

ORDERED that the Clerk issue process of attachment and garnishment pursuant to

Supplemental Rule B as prayed for in the Amended Verified Complaint in the amount of i -f J * *

$1,544,460.16 against all goods, chattel, credits, letters of credit, bills of lading, debts, effects

add monies, funds, credits, wire transfers, accounts, electronic fond transfers, freights, subfreights, charter hire, sub-charter hire, or any other tangible or intangible property belonging to,

claimed by, being held for or on behalf of; or being transferred for the benefit of UBS

Provedores Pty Ltd, and/or USS-UBS International and/or Raeeorp, International pry Ltd., by

any garnishee within this district, including, inter alia, fimds or account held in the names of

UBS Provedores Pty Ltd, and/or USS-UBS International and/or Raecorp. International Pty Ltd.

with the following financial institutions:

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 35 of 59
33-2 Filed 01/25/2008 Paqe 28 of 4<

Bank of America, N,A.

The Bank of New York

Citibank N.A.

Deutsche Bank Trust Company Americas

HSBC Bank USA, N.A.

JPMorgan Chase Bank, RA.

UBS AG Wachovia Bank, N.A.

Societe Generate

Standard Chartered Bank

BNP Paribas

Calyon Investment Bank

American Express Bank

Commerzbauk

ABN Amro Bank

Bank Leumi USA

Fortis Financial Groups

Banco Popular; Travelex, Ltd

mid it is further

ORDERED that said Order will be equally applicable to any other gamishees upon

whom a copy of the Process of Maritime Attachment and Garnishment may be served, in an

amount up to and including 1,544,406.16, pursuant to Supplemental Rule B; and it isixirther

OKBERE0 that any persons claiming an interest in the property attached or garnished

pursuant to this Order and the process of maritime attachment and garnishment shall, upon

application to this Court, be entitled to a prompt hearing at which plaintiff shall be required to

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 36 of 59
Case 1 :G7~cv-05798-CM Document 33-2 Filed 01/25/2008 Page 27 of 49

show why the attachment and garnishment should not be vacated or other relief granted; and it is

further

ORDERED that supplemental process enforcing this Court's Order may be issued by the

Clerk upon application without further Order of the Court; and it is further

ORDERED that following initial service upon any garnishee by the United States

Marshal or any other person designated or authorized by Order to make service in this action,

subsequent or supplemental service of Process of Maritime Attachment and Garnishment may

thereafter be made by way of facsimile transmission or other verifiable electronic means,

including email, to each garnishee so personally served^ and it is further

ORDERED that service on any garnishee herein be deemed to be effective

continuous service throughout the remainder of the day upon which such service is made

commencing from the time of such service through the opening of gamishee's business the next

business dayt and it is fiirther""~~~"——- O^1^'^ p f^^**"*****" ^

ORDERED that a copy of this Order be attached to and served with the said process of

maritime attachment and garnishment; and it is further

ORDERED pursuant to Rule 4{c)(l) of the Federal Rules of Civil Procedure that the

writs of attachment and garnishment may be served by any person, who is not less than 18 years

of age, and who is not a party to this action.

Dated: New York; New York

October /V .2007

SO

U.S.DJ.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 37 of 59
Case 1:07-cv-05798~CM Document 33-2 Filed 01/25/2008 Page 28 of 49

EXHIBIT 10

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 38 of 59
'07-cv-05798 „ V_/ / V^ V v/*-' * *-*w- Documen L^w^Wi f $",51 Itt xJ" 33- W £2- 1 Fiipr HC7\-fi

Holland-8-Knight

Tel 212 513 3200

Fait 212 385 9010

Holland £ Knighl LLP

195 Broadway

NewYork.NYlOQQ7.-313?

www.hkUw.com

TO;

johu CBE_~_

HAME

CITY

FROM;

Michael J. Frevola

NAME

FOR THE RECORD.-

DATE: October 24, 2007

FAXED BY:

HSBC

COMPANY/FfKM

STATE

(212)513-3526

TELEPHONE

URGENCY*, D SUPERRUSH

FILE*: 500177,003213

(716)841-7651

FAX NUMBER

._(716)E41-26S9

(TELEPHE3NB NUMBER)

5"

TOTAL PAGES (Encoding Cover Sheet)

O RUSHQ KB3UIAR.

CLIENT NAME: Wilheltnsen

CONFIRMED: NAME: TIME:

If you did not receive all of the

pages or find that they are

illegible, please call

212 513 3200

CONFIDENTIALITY NOTICE; This facsimile, along with my documents, files, or

attachments, may etintain infomiation thai is t'onfiiJajitia!, privileged, or otherwise exempt St>rn

dSsciosure, tf you are not the intended recipient or a person responsible for delivering it to the

inlerided pjcipient, 5013 are hereby notified tha( efiy disclosure, copying, printing, distribution or use

of any inibttnat£Qi\ wnteineci in or attached to this fecsimtk is strictly prohibited, Ef yau havs

nsceived Eisis Jacsiuijle in error, pleasa immediately notify us by facsunOe or by telcphwie collect m

Qis riun^ets stated sbo>^, and destroy the original fecsimffe and its attechments without reading,

^printing, or saving in any manner. Your Coqpcredon jj appreci&led. Thanic >'QU1

MESSAGE;

Re: Writ of Maritime Attachment and Garnishment

Against UBS Provedoies Pty Ltd, aka \3SB-USS International

Court Index No. 07 cv 5798

Dear John,

Further to our telephone conversation of this morning, I attach, a copy of the Consent

Order issued by Judge McMahon in the referenced matter which disposes of the attached funds

and directs payment to Wilhelnisen Premier Marine Fuels AS,

Please let me know if you have any questions, and I would appreciate it if you could

advise when the funds have been forwarded to Wilhehnsea

Mike Frevafe

# 48SQ474

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 39 of 59
Case 1:07-cv-05?98-CM Document 33-2 Filed 01/25/2008 Page 30 of 49

DiST EXEC m NxtflHB-HB & ^ »« ***** PQ81/OM

UNITED STATES OfSTUJCT COURT

SOUTHERN DISTRICT OF KEW YORK

500 P3EA&L STREET

NEW YORK, NEW YORK 10007

PHONE; 2JZ-805-63ZS

JUOGEMCMA00N

DISTRICT

FROM:

PAOES {INCLUDING THIS COVER SHEBT);

THE EWSWATON /IT ti'flS F/iCSErfltfi"TRA>JSMK!£J6H C CONFm£KTW, AM? fy£A V 8E"PRrVIL&ca>. Xf YOU a* ^ KS^IVED 1W5

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 40 of 59
Case 1:07~cv-05798-CM Document 33-2 Fiied 01/25/2008 Rape 31 of 49

QJST EXEC Get 22 2007

William J. Honan(WW 1922)

MichaeU. Frevola (MJF 8359)

HOLLAND & KNIGHT tU>

1 95 Broadway

Hew York, NY 1Q0Q7-31S9

(212)513-3200

ATTORNeYS FOR PLAINTIFF

WiLHELMSEN PREMIER MARJNH FUELS AS

UNITED STATES DISTRICT COURT

SOUTHER^ DISTRICT OF NBW YORK

WIIHELMSSN PREMIER MARINE FUELS AS,

USDS SDNY

DOCUMENT

ELECTKONICALLY FILED

DATE FILED;

07 Civ. 579S(CM}

CONSENT

QRDIH

-againsiUBS PROVEDORES JPTV LtP,

tESS-UBS imERNATIONALana

HAECQRP INTBRNAT10NAL PTY LTD.,

Defendants.

WHEREAS, on or about June 19, 2007, Wilhelrassn Premiei Marine Fuels AS ("Plaintiff")

filed this sctiou Against UBS Provedorw Pty Lid, aft/a USS-UBS Tntemstio^a} ("UBS"), and

obtained ths issuance of a Writ of Attachment and Garnishment and sin Order for Issuance of a

Writ of Att&chrnsht and Oataishmenl dsted OD Of aboul June 28, 2007; and

:, on or show At^ysi 53, 2007, PtemiHT subseqiwnily fijed it

complaint to add Kaecotp Intenrnttona! Pty Ltd. ("Raegorp") as an additional defendant (UBS

collectively will het-eimmer bc and fcfcrred to "Defendants"), and obtained the issuance

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 41 of 59
of an Amwdad Writ af Attachment <md Garnishment and an. Order Cor Issuance of an Amended

Writ of Attachment and Garnishment dated on or about August 29, 2007; and

WHEREAS, the "Writ of Attachment and Garnishment and an Ordor fox Issuance of a Writ

of Attachment arsd Garnishment dated on or about June 28, 2007 and tna Amended Writ of

Attachment and Garnishment and an Order for Issuance of a Amended Writ of Attachment and

Garnishment dated on or about August 29, 2007 (coUtttively referred to as the "Process of

Mariibne Attachment and Garnishment") were subsequently served on various garnishee hanks

m ibis dislffcr; and

, PIvinlifThas attached funds thst >vere bcia^ routed from or to accounts jjejd toy

UBS iai Cbs collective sum of SI»tOS,S*I4,50 (the "Security"], which Security prcsstitly is in the

possession of the following gsmighees; (1) the amounts of 3210,795.94, $289,378.30, $2,619,67

am $93,625.00 with Citibank, N.A-; (2} tKo amount of mS^SS, $65^65,12, $6S,S65.U

and £29,610,37 with JPMor&an CHa5ei (3) ihe arooum of S6SfS85.!2 with HSSC Bank USA,

N.A.* and (4) the amounts of $300,00 tsid $200.00 at Wachovia Bank, N.A.; and

WHEREAS, rhc Piaintiff and the Defendants have agreed to scttk Plaintiffs claims;

NOW, pursuant to the subjoined, consent of tb« aUomeys for Plaintiff and Defendants, it is:

ORI>£BKI> that the entirety of the Security is to released and wired to ihc following account

Baak Namo:

Swift:

fB AN Number:

Account Nutrtben

, London

NPEAGB2L

G010NI>EA404g7S59955la2

59955 1 02

Beneficiary Name: WHhdmsen Premier Marins Fuels AS

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 42 of 59
Document 33-2 Filed 01/25/2008 Page 33 of

DIST EXEC SDNY Fax:212-B05~03a3 Dot 22 2QQ7

and it is further

thai this Consent Order likewise shaU apply to (Ui further funds frozen by

to The Process of Maritime Attachment and Garnishment and release of such

funds is directed without Plaintiff having to apply for a supplemental conssai order. All

frozen amounts shall fee transferred I* accordance with tfa« origins! wire lostrwcitons.

Dated: October Jf_, 2007

HOLLAND & KK10HT LLP

// fif l p**4/n

By: ^JU/^JU^

MJcbsel J. Frsvola

195 Broadway

New York, New York 10007

(212)513-3516

(212) 385-9010 fax

mi chae 3. fre vola@hkl aw. com

Plaintiff Wilkstms&i Premier Marine

SETAKCOURT, VAN HJBMMJeN, GRECO & KENYON

Jeanne^Marie van Hemmcn

46 Trinity PJace

Nsw Yoflc, New York 10006

(212)297-0050

jvanhcnunen@bvgklaw.com

•< for &$fSudanis

;t?rp foiernatfonn? Pty

Ply Ud. oAfa &$S~UBS International

United States Pistrict Judge

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 43 of 59
Document 33-2 Filed 01/25/2008 Paqe 34 of 49

JOB STATUS REPORT

WE, TIME

FAX NO./NAME

DURATION

FftQE(S)

RESULT

MODE

TIME

NAME

TELfc

SER.I- 8RQ5J1510513

10/24 12:11

917168.417651

00:61:23

05

OK

STANDARD

ECM

Houana+wii'

Joha Cyna

MAMB

CITY

FROM;

Miohse] t Frevola

NAME

ff^THERECQKD:

DA-m: October 24,mi

FAXHDW:

gnf T5E212513KJ

Fax2123a590

HSBC

COMPANY/PlftM

STATE

(212)513^3526

TELB?HfONB

URCBWCY; Q SVPERRU?H

FILES: 500177,003213

JO HoUantf A Kntgfe UP

KBwYorfc,NVlQ007-3lB9

wvw.hHtaw.com

(716) $41-7651

PAX KUMSBR

(716) 841-2639

(TELEPHONE NUMBER)

5"

TQTALPAGSS C&Ctedrng Cover SlieM)

DOTSHDWOOUR

CLIENT NAME: Withdmsen

CONf'iRMElSl D YES Q MO KAWS; f&*E{

TfvrmHt^«n*TiPwiwft1>nfrtip C0«RP^^^Sr ?ia&CX' TWi Awfcnflc, slong wtft any documenis, Riu, or

pages or find that they

212 513 3200

if you tw nof (he mted«fl T2c^i«it or s person respwri^fcic for delivering R to Eho

* imi BJC h^efjy iwdficd (hatary diecfs^uwi, ftupyifffc priaaRgidistributo or UK

of any infbmiBtiofi contsinoi in or attaclicd TO ttsis ftcsfltHte is Hrtctiy prohiWi*d, If you tiavc

received this ftcsiffi/tc in aw. picas* ifflmndiate])* sotify ^s 5jy ftesSffifl* Of hy tclaplionc es!1wt si

(he wum^ira BtaMd aboyo, artd iJestroy tKe ortginif Qicsimfle mid is ateettjttcnts witiiogt orading,

MESSAGE;

Re; Writ of Maritime Attachment and Garnistuneat

Against UBS Provedores Fty Ltd, aka USB-USS Znteroational

Court Index No. 07 cv 5798

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 44 of 59
Case 1:07-cv-05798-CM Document 33-2 Filed 01/25/3008 Page 35 of 49

11

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 45 of 59
20071636 B - ASWtettafl7te703B798-CM Document 33-2 Filed 01/25/2008 Page 38 of 49 Page 1 of 2

Frevoia, Michael (NYC - X73516)

From: Jeanne-Marie Van Hemmen Ovanhemmen@bvgkiaw.com]

Sent: Monday, October 29, 2007 4:34 PM

To: Frevola, Michael (NYC -X73516)

Subject: Re: 20071636 B - Arbitration no 7962

Hi Mflce,

No. You can do anything with the correspondence I sent you. I did not think it appropriate for me to correspond with the LCIA directly under

die circumstances.

Can you provide me with confirmation that Wilheknsen has received all of the "Initial Payment" and that Citibank still has the S44,000?

Iearme-Marie3

— - Original Message —

From; mighael.frevDl3@hkiaw.com

Sent Monday, October 29, 2007 4: 18 PM

Subject: RE; 20071636 Q -Arbitration no 7962

Dear Jeanne-Marie:

Understood- Would you mind if we Forwarded your e-mait to the LCIA, so that the LCtA can see that you have received the

Best regards.

Michael 3, Frevoia, Esq.

Holland a Knight UP

From: Jeanne-Marie Van Hemmen [mailto:jvanhemmen@bvgklaw.com]

Sent: Monday, October 29, 2007 4:19 PM

To: Frevofa, Michael (NYC - X73516)

Subject; Fw: 20071636 B - Arbitration no 7962

Dear Michael,

We received the email below from Ms. Ruth Byrne, who is apparently affiliated with the LCIA, As you are aware, it is UBS' position that

the LCIA has no jurisdiction over the WilhelmsenAJBS dispute ("Dispute"), Accordingly, we decline to provide the LCIA confirmation of a

settlement or any other information relevant to the Dispute, Pleas© be guided accordingly,

:atme~Marie Van Heramen

— Original Message —

To; Lassa Brauiaset; jyanhemrnen@bygklaw.com ; biifrae@ussubsint.cQm ; biiirae@raecorpinl.com

CBi^li§.y^QlB@Mliwicerti; Knut,8iQrnebVQ@wilheims_enitaiti; Hans• ;MJ3orge@wilheirnsen.corn

Cc: Casework

Sent: Friday, October 26, 2007 7:20 AM

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 46 of 59
2Q071636B

Subject: RE: 20071838 B - Arbitration no 7982

Document 33-2 Filed 01/25/2008 Page 37 of 49 Page 2 of 2

I acknowledge receipt, yesterday, of Nordisk Legai Services' letter confirming that, subject to certain conditions, the above matter

has reached a settlement. ! should be grateful if, for the sake of good order, the Respondent's counsel would confirm their

agreement with this position. We also look forward to hearing further from the parties once the conditions to settlement have been

/Ith kind reoards

Counsel

70 Fleet Street

London EC4Y1EU

Tel; +44(0)2079367007

Fox; +44 {0} 20 7936 7008

Anne Metie MevSk [Tnalfto:ammevlk@nordisk.no] On Behalf of Lasse Brautaset

25 October 2007 15:24

It biilrae@raecorpmt.corn: billrae@ussubsint.com: michae!

!<P^t.Bj_Qrnebye@wifheimsen.com: Hans.M.BorQe@wiihelmsen.com

20071636 B - Arbitration no 7962

This email has been scanned by the MessageLabs Email Security System.

For more information please visit http://www.messagelabs.com/email

This email has been scanned by the MessageLabs Email Security System.

For more information please visit http://wwwjnessagelabs.com/email

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 47 of 59
Case 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 38 of 4!

EXHIBIT 12

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 48 of 59
20071636 B - A^fr«tfcOTo$^798-CM Document 33-2 Filed 01/25/2008 Page 39 of 49 Page I of 3

Frevofa, Michael (NYC -X73516)

From: Frevola, Michael (NYC - X73518)

Sent: Monday, October 29, 2007 4:44 PM

To: X-Betancourt, Van Hemmen, Greco £ Kenyon - Van Hemmen, J M

Subject: RE: 20071836 B - Arbitration no 7962

Dear Jeanne-Marie;

OK. Sounds reasonable to me.

On the initiai Payment side, ! have to confirm exact numbers with Wilhelrnsen through Nordea London but I'm pretty sure that we

have gotten everything but the $68K from HSBC (the numbers match up that way), I spoke to HSBC a little earlier and 1 just resent my fox of last Wednesday attaching the Consent Order, HSBC confirmed that they still have the S88K, so that also leads me to

believe that this te the sole remaining amount outstanding.

As for the $44K at Citibank, I specificalfy saw the wiring directions which kepi the $44K at Citibank, so - while I haven't checked

today - I'm pretty certain that it stands ready for our disposal. Any word on what the $44K was paying off?

Best reards,

Michael J. Frevola* Esq.

Holland a Knight LLP

From: Jeanne-Marie Van Hemmen [mailto:jvanhemmen@bvgklavy.com]

Sent: Monday, October 29, 2007 4:34 PM

To: Frevoia, Michael (NYC - X73516)

Subject; Re: 20071636 B - Arbitration no 7962

Hi Mike,

No- You can do anything with the correspondence I sent you. I did not think it appropriate for me to correspond with thy LCIA directly under

the circumstances,

Can you provide roe with confirmation that Wilhelrnsen has received all of the "Initial Payment" and that Citibank still has the $44,000?

Jeanne-Marie3

-—. Original Message —

From; michaeLfrevoia@hkiaw.com

To: jvanhemmen@bvgklaw.cora

Co: l_brautas&i@nQrdi_sk,no

Sent; Monday, October 29, 2007 4:18 PM

Subject: RE; 20071636 B - Arbitration no 7962

Dear Jeanne-Marie:

Understood, Would you mind if we forwarded your e-maii to the LGIA, so that the LCIA can see that you have received the

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 49 of 59
20071636 B - AfMwmWeWSTSS-CM Document 33-2 Filed 01/25/2008 Page 40 of 49 Page 2 of 3

Michael 3, Frevoia, Esq.

Holland & Knight LLP

From: Jeanne-Marie Van Hemmen [mai!to;jvanhemmen@bvgklaw,cofn]

Sent: Monday, October 29, 2007 4:19 PM

To: Frevoia, Michael (NYC - X73516)

Cc Lasse Brautaset

Subject: Fw: 20071636 B - Arbitration no 7962

We received the email below from Ms. Ruth Byrne, who is apparently affiliated with the LCIA. As you are aware, it is UBS1 position that

LC1A has no jurisdiction over the Wilhelmsen/UBS dispute ("Dispute"), Accordingly, we decline to provide the LCIA confirmation of a

settlement or any other information relevant to the Dispute. Please be guided accordingly,

Jeanne-Marie Va~n Hemmen

To: Lasse Brautaset; ivanhemrnenCajbvgkiaw.com ; billrae@ussub5int.com ; bHlraeffiraecorplnt.com ;

michae!.frevo!a@hkiaw.CQm ; KnLit.Bjornebye@wilheim3en.com ; Hans.M,Borqe@wilhe!mseR.cgni

Cc: Casework

Sent; Friday, October 28,2007 7:20 AM

Subject: RE: 20071836 B - Arbitration no 7962

Dear Sirs,

I acknowledge receipt, yesterday, of Nordisk Legal Services' letter confirming that, subject to certain conditions, the above matter

has reached a settlement, i should be grateful if, for the sake of good order, the Respondent's counsel would confirm their

agreement with this position. We also look forward to hearing further from the parties once the conditions to settfemsnt have been

met.

With kind regards

LCiA

70 Heel Street

London EC4Y 1EU

Tel: +44 (0) 20 7938 7007

Fax: +44 (0) 20 7938 7008

www.lcia.Qrq

From; Anne Metbe Mevik [mailto:arnmevik@nordisk.no] On Behalf Of Lasse Brautaset

Sent; 25 October 2007 15:24

t.BjQrnebye@wilheimsen.c

Subject; 20071636 B - Arbitration no 7962

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 50 of 59
?00?1636 B - AS$MtiWkC?*798-C!V! Document 33-2 Filed 01/25/2008 Page 41 of 49 Page 3 of 3

This email lias b«en scanned by the MessageLabs Email Security System.

For more information please visit http://www.messagelabs.com/email

This eraail has been scanned by the MessageLabs Email Security System.

For more information please visit http://www.niessagelabs.com/email

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 51 of 59
Case 1:07-cv-G5798-CM Document 33-2 Filed 01/25/21

EXHIBIT 13

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 52 of 59
Case 1 :Q7~cv-05798-CIV1 Document 33-2 Filed 01/25/2008 Page 43 of 49 Page 1 of

Frevola, Michael (NYC -X73518)

From: Jean Marie Van Hemmen Ovanhemmen@bvgklaw.com]

Sent: Monday, January 07, 2008 3:47 PM

To: Frevola, Michael {NYC - X73516)

Subject: Wlihelmsen

Dear Michael,

! hope you had fun holidays, and I wish you a happy New Year.

it appears UBS timely furnished the Second Payment to Wilheimsen, pursuant to the Settlement Agreement, However, I have not

seen any evidence of Wiihelrnsen'g compliance with its obligation to submit an order to the SONY discontinuing its lawsuit with

prejudice and and vacating the attachment. Nor does it appear Wiiheimsen's arbitration demand was vacated. Please confirm my

understanding that these steps have not been taken yet by Wilheimsen. Let me know if there is any reason for Wifhelmsen's

noncornpliance, other than the fact I did not demand action sooner.

regards,

Jeanne-Marie Van Hemmen

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 53 of 59
EXHIBIT 14

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 54 of 59
Case 1:07-cv-05798-CM Document 33-2 Fited 01/25/2008 Page 45 of 49

Frevoia, Michael (NYC * X73516)

From: Frevoia, Michael (NYC - X73516)

Friday, January 11,2008 8:43 AM

X-Befaneourt, Van Hemmen, Greco £ Kenyan - Van Hemmen, J M

Wilhelmsen/UBS

Dear Jeanne-Marie;

Let me take the opportunity to wish you a Happy New Year, I regret the delay in responding but I hadn't looked

at the file much in the last several weeks and I needed to confirm where things stood before replying to your

"••'* i v \j &

As you will have seen by the e-mail copied to you from the LCIA, Wilhelmsen has notified the LCIA that it has

withdrawn its London arbitration demand. I confirm that we have not filed for dismissal of the New York Rule

B proceeding.

! must disagree with your position that Wilhelmsen is in breach of the Settlement Agreement by not yet

dismissing the New York Rule B proceeding. "UBS offered various forms of consideration to Wilhelmsen in

exchange for the discontinuance of the New York Ru!e B proceeding and the compromising of its claims against

UBS. Certain material portions of that consideration have not yet been provided to Wilhelmsen, although

First, UBS has provided nothing whatsoever to Wilhelmsen regarding the Government Claims, despite UBS1

obligation in the Settlement Agreement 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," On at least one occasion, on November 13, 2007,1 reminded you of this and you told me that UBS

was assembling the documentation. We never have received those documents.

Second, UBS likewise warranted to use its "best endeavors to recover from the U.S. government on the

Government Claims." We have seen no evidence of this and, in view of the lack of production of the promised

documents discussed in the preceding paragraph, we suspect that UBS is not complying with this obligation as

well.

Third, Wilhelmsen still has not received S68.S85.12 that it was supposed to receive from HSBC that was part of

the Initial Payment of the Settlement Agreement. After a lengthy inquiry, it appears that HSBC let these fimds

go even though they properly were under attachment at the time of the release. As a resu.lt, UBS remains

$68,885,12 short of its obligation to pay Wilhelmsen under the Initial Payment.

Accordingly, we demand that UBS provide these promised elements of consideration within the next 14 days,

that is, by 5 p.m. EST on Friday, January 25,2008.

I look forward to hearing from you.

Holland + Knight

Michael 3. Prevola, Esq.

Partner

Holland & Knight LLP

Broadway

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 55 of 59
Case 1:07-cv-05798~CM Document 33-2 Filed 01/25/2008 Page 46 of 49

New York, New York 10007

Main 212 513 3200

Direct 212 513 3516

rax 212 385 9010

Email michael.frevola@hklaw.com

:iaw.com

NOTJCE; Tjiis e-msi! is from a law firm, Holland & Knight LLP ("H&K"), and is intended soleiy for the use of the individual^} to

whom ft is addressed. If you befieve you received tin's e-mail in error, please notify the sender immedfatefy, deiete the e-rnasf from

your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in

this e-mail to make you a client unless it contains a specific statement to thst effect and do not disclose anything to H&K in reply

that you expect it to hold rn confidence. If you properly received this e-mail as a client, co-counsei or retained expert of H&K, you

should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to

protect confidentiality.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 56 of 59
Case 1 :G7-cv-05798-GM Document 33-2 Filed 01/25/2008 Page 47 of 49

EXHIBIT 15

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 57 of 59
Wilhelmsen/UB£ase 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 48 of 49 pme \ Of ?

o TM

FrevoSa, Michael (NYC -X73516)

Jean Marie Van Hemmen Ovanh8mrnen@bvgk!aw.com]

Friday, January 11, 2008 1:31 PM

Frevola, Michael (NYC - X73516)

RE: Wiihelmsen/UBS

i just returned to the office and received your response to my emails and telephone calls. As you are probably aware already, I

submitted the order dismissing the case to the Court myself when you did not return my emaiis and phone calls as promised

yesterday.

Dismissal of the case is required by the terms of the settlement agreement. UBS' obligations precedent to Wilhelmsen's

dismissal of the case have been satisfied. UBS submitted the consent order directing the attached funds to be paid to Wilhelmsen

and msde the Second Payment. Wiihelmsen is obligated by the settlement agreement to now dismiss its case with prejudice. The

bank error, of which you only informed me today, was Wilheimsen's risk, UBS has no obligation to pay Wilhelmsen additional funds

beyond the Second Paym&nt (and, of course, funds recovered from the government, should that occur).

Regarding your request for documentation regarding the Government Claim,! will follow up with UBS and provide whatever they

have, i deny that you requested this documentation on November 13, 2007. My recollection is that you asked if UBS had received

any information from the Governement regarding the claim. My understanding is that UBS had not. in any event, provision of that

documentation is not a condition precedent to the dismissal with prejudice of Wilhelmsen's lawsuit,

Wilhelmsen's failure to dismiss its claims against UBS with prejudice at this juncture would b§ a materia! breach of the terms of

the settlement agreement, relieving UBS of tts remaining obligations under the agreement, including paying out on any recovery on

its Government Claim. Please confirm Wilheimsen's intention to permit entry of the order dismissing its claims with prejudice.

From; michae1.frevoia@hkiaw.com [mailto:michaeLfrevola@hklaw.com]

Sent: Friday, January 11, 2008 8:45 AM

To: Jean Marie Van Hemrnen

Subject; Wiiheimsen/UBS

Dear Jeanne-Marie:

Let me take the opportunity to wish you a Happy New Year, I regret the delay in responding but I hadn't looked at the

file much in the last several weeks and I needed to confirm where things stood before replying to your inquiry.

As you will have seen by the e-mail copied to you from the LCIA, Wilhelmsen has notified the LCIA that it has

withdrawn its London arbitration demand. I confirm that we have not filed for dismissal of the New York Rule B

lins.

I must disagree with your position that Wilhelmsen is in breach of the Settlement Agreement by not yet dismissing the

New York Rule B proceeding, UBS offered various forms of consideration to Wilhelmsen in exchange for the

discontinuance of the New York Rule B proceeding and the compromising of its claims against UBS. Certain material

portions of that consideration have not ye£ been provided to Wilhelmsen, although promised by UBS.

First, UBS has provided nothing whatsoever to Wilhelmsen regarding the Government Claims, despite UBS' obligation in

the Settlement Agreement to "provide to Wilheimseti 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." On at least one occasion, on

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 58 of 59
Wilhelmsen/UBKase 1:07-cv-05798-CM Document 33-2 Filed 01/25/2008 Page 49 of 49 Page 2 of 2

November 13, 2007,1 reminded you of this and you told me that UBS was assembling the documentation. We never

have received those documents.

Second, UBS likewise warranted to use its "best endeavors to recover from the U.S. government on the Government

Clsims." We have seen no evidence of this and, in view of the lack of production of the promised documents discussed in

the preceding paragraph, we suspect that UBS is not complying with this obligation as well.

Third, Wilhelmsen still has not received $68.885.12 that it was supposed to receive from HSBC that was part of the Initial

Payment of the Settlement Agreement, After a lengthy inquiry, it appears that HSBC let these funds go even though they

properly were under attachment at the time of the release. As a result, UBS remains $68,885.12 short of its obligation to

pay Wilhelmsen under the Initial Payment,

Accordingly, we demand that UBS provide these promised elements of consideration within the next 14 days, that is, by 5

p.m. EST on Friday, January 25, 2008.

I look forward, to hearing from you.

Regards,

Mike Frevola

Michael 3, Frevola, Esq.

Partner

Holland & Knight LLP

dway

;, New York 10007

Main 2125133200

Direct 212 513 3516

Fax 212 335 9010

Email michael.frevola@hkiaw.com

wwvy.hj<:law, corn

NOTICE; This e-rnaii is from a Saw firm, Holland & Knight LLP ("H&K"), and is intended solety for the use of the individuals) to whom it is addressed. I

yau believe you received Ws e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it

to anyone else, If you are not an existing ciie-nt of HS.K, do not construe Anything in this e-mail to make you a ch'ent unless it contains a specific

statement to that effect and do not disclose anything to M&K in reply that you expect it to hold in confidence, If you properly received this e-mail ss a

client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product

that may be available to protect confidentiality.

Case 1:07-cv-05798-CM-HBP Document 39-2 Filed 05/20/2008 Page 59 of 59