FILED: NEW YORK COUNTY CLERK 06/28/ :14 PM INDEX NO /2013 NYSCEF DOC. NO. 388 RECEIVED NYSCEF: 06/28/2017

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1 PRE-ARGUMENT STATEMENT Pursuant to Section of the Rules of the Supreme Court, Appellate Division, First Department, Plaintiff Deutsche Bank AG ( Deutsche Bank or Plaintiff ) respectfully submits this Pre-Argument Statement in connection with the accompanying Notice of Appeal from each and every part of the within Decision and Order, dated June 9, 2017, and filed in the office of the Clerk of the Court on June 9, 2017 (Motion Sequence No. 007) of the Supreme Court of the State of New York, County of New York (Hon. Anil C. Singh, J.S.C.), which granted the motions of defendants Ivan Gonell Santana ( Gonell ) and the CSCSNE Trust (the Trusf ) to dismiss the action as against them and denied as moot the alternative motion of Gonell and the Trust to stay the action as against them. A copy of the Decision and Order is attached hereto as Exhibit A. 1. The title of this action is set forth in the above caption. 2. The full names of the parties are as they appear in the above caption. Defendant Ivan Gonell Santana was added as a party in an amended complaint filed on September 23, Counsel for Plaintiff-Appellant is: David G. Januszewski Sheila C. Ramesh Johnathan R.L. Sharkey Cahill Gordon & Reindel LLP Eighty Pine Street New York, New York (212) Counsel for Defendants-Respondents Ivan Gonell Santana and the CSCSNE Trust is: Robin L. Alperstein Jesse T. Conan Becker, Glynn, Muffly, Chassin & Hosinski LLP 299 Park Avenue New York, New York (212) of 11

2 5, This appeal is taken from the Supreme Court of the State of New York, County of New York. 6. In this action, Deutsche Bank alleges that certain purported transfers of assets by Deutsche Bank s judgment debtor, defendant Sebastian Holdings, Inc. ( SHI ), and SHFs alter ego, defendant Alexander Vik ( Vik ), to defendants were fraudulent and should be set aside. This includes a transfer by Vik of ownership of defendant C.M. Beatrice, Inc. ( Beatrice ) to the Trust. Gonell is the current Trustee of the Trust. Deutsche Bank also seeks a declaration that Vik is the alter ego of SHI and of Beatrice and other relief 7. The court below in its Decision and Order granted the motion of Gonell and the Trust to dismiss the action as against them, and denied as moot the alternative motion of Gonell and the Trust to stay the action as against them. 8. The grounds for seeking reversal of the lower court s Decision and Order are, inter alia, that the lower court (1) erred in granting the motion of Gonell and the Trust to dismiss the action as against them, and (2) erred in denying as moot the motion of Gonell and the Trust to stay the action as against them instead of denying the motion on the merits. 9. Pursuant to Section (b)(8) of the Rules of the Supreme Court, Appellate Division, First Department, the following related cases are pending: a. Deutsche Bank AG v. Erik Martin Vik, st al. New York Supreme Court, County of New York, Index No /2016. Defendants motions to dismiss have been granted. Plaintiff has filed a notice of appeal to the Supreme Court, Appellate Division, First Department. b. Deutsche Bank AG v. Sebastian Holdings, Inc., New York Supreme Court, County ofnew York, Index No /2013. Plaintiffs motion for summary judgment in lieu of 2 of 11

3 complaint has been granted, judgment has been entered, and post-judgment discovery is ongoing. c. Deutsche Bank AG v, Sebastian Holdings, Inc. and Alexander Vik, Superior Court, Judicial District of Stamford/Norwalk, at Stamford, Connecticut, No.: FST-CV Motions for summary judgment have been denied, and appeals are pending. d. Erik Martin Vik v. Deutsche Bank AG, Borgarting Court of Appeal, Oslo, Norway, Case No ASK-BORG/04. An execution lien has been upheld, and appeal is pending. i. Related proceedings for an enforced sale of shares {Deutsche Bank AG v. Erik Martin Vik and Sebastian Holdings Inc., Enforcement Officer, Oslo, Norway, Case No. T ) are also pending. e. Deutsche Bank AG v. (1) Sebastian Holdings, Inc. and (2) Alexander Vik (defendant for costs purposes only), High Court of Justice, Queen s Bench Division, Commercial Court, London, England, Case No.: CL Post-judgment enforcement proceedings are ongoing. f Sebastian Holdings, Inc. v. (1) Sarek Holdings Ltd, (2) Alexander Vik, (3) Per Johansson, (4) Otto Inc., (5) Reiten & Co Capital Partners VI, GP Limited, and (6) Reiten & Co Capital Partners VII, GP Limited, Supreme Court, Turks and Caicos Islands, Action No. CL-44/2017. Receivers appointed to pursue recovery of certain interests and sums have filed an action and effected service on defendants. Proceedings have been commenced by the receivers in England and Wales and in Guernsey. 10. No other appeal is pending in this action. 3 of 11

4 Dated: New York, New York June 28, 2017 Cahill Gordon & Reindel llp Attorneys for Plaintiff Deutsche Bank AG By: s/ David G. JamiszeM ski David G. Januszewski Sheila C. Ramesh Johnathan R.L. Sharkey Eighty Pine Street New York, New York (212) To: Becker, Glynn, Muffly, Chassin and Hosinski LLP Attorneys for Defendants Ivan Gonell Santana and the CSCSNE Trust 299 Park Avenue New York, New York (212) Zaroff&ZaroffLLP Attorneys for Defendants Alexander Vik, Carrie Vik, and Sebastian Holdings, Inc. 300 Garden City Plaza, Suite 240 Garden City, New York (516) Richard M. Ziccardi, Esq. Attorney for Defendant C.M. Beatrice, Inc. 167 Dover Parkway Stewart Manor, New York (516) (By E-Filing) 4 of 11

5 Exhibit A 5 of 11

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DEUTSCHE BANK AG, - against - Plaintiff, ALEXANDER VIK; CARRIE VIK, AS AN INDIVIDUAL AND AS TRUSTEE OF THE CSCSNE TRUST; IVAN GONELL SANTANA AS TRUSTEE OF THE CSCSNE TRUST; THE CSCSNE TRUST; C.M. BEATRICE, INC.; AND SEBASTIAN HOLDINGS, INC., Defendants. Index No /2013 ORDER WITH NOTICE OF ENTRY Motion Sequence No. 007 PLEASE TAKE NOTICE that annexed hereto is a true copy of an Order of the Supreme Court, New York County, dated June 9, 2017, and entered in the office of the Clerk of that Court on June 9, Dated: New York, New York June 28,2017 CAHILL GORDON & REINDEL LLP By: s/ David G. Januszewski David G. Januszewski 80 Pine Street New York, New York (212) Attorneys for Plaintiff Deutsche Bank AG 6 of 11

7 - IFILLIU; ^URK uoum' d:lii!m"'ti^y05y26ir'o'2;52 pmi NYSCEF DOC. NO. 385 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY NYSCEF DOC. NO. 388 RECEIVED INDEX NYSCEF: NO / /28/2017 RECEIVED NYSCEF: 06/09/2017 PRESENT: ANIL C. SINGH I Index Number: /2013 Justice PART ^45 DEUTSCHE BANK AG vs VIK, ALEXANDER Sequence Number: 007 DISMISSAL The following papers, numbered 1 to, were read on this motion to/for Notice of Motion/Order to Show Cause Affidavits Exhibits Answering Affidavits Exhibits Replying Affidavits INDEX NO. MOTION DATE MOTION SEQ. NO. ino(s).. I No(s). I No(s). Upon the foregoing papers, it is ordered that this motion is UJ O DKIOB) IN ACCOROANCrWITH ACCOMPANYWG DECWONI ORDER 3 O Q Ui CC a. lu u. O'.. di P o ^ V) o m a: «o Ui z i <2 o UJ J < o O 11 i Dated 1. CHECK ONE: 2, CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE; AML CLINCH., J.S.C.... CASE DISPOSED ^WNON-FINAL DISPOSITION MOTION IS^^^ailGRANTED DENIED -GRANTED IN PART OTHER... SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT REFERENCE i 1 of 5 7 of 11

8 (FILED; NEW YORK.COUNTY CLERK 06/ ; 5^ PW, NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 06/09/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 45 DEUTSCHE BANK AG, -against- Plaintiff, ALEXANDER VIK, CARRIE VIK, AS AN INDIVIDUAL and AS TRUSTEE of THE CSCSNE TRUST, IVAN GONELL SANTANA AS TRUSTEE OF THE CSCSNE TRUST, THE CSCSNE TRUST, C.M. BEATRICE, INC., and SEBASTIAN. HOLDINGS, INC., DECISION & ORDER Index No /2013 Mot. Seq. 007 Defendants. HON. ANIL C. SINGH, J.: In this action for, inter alia, fraudulent conveyance, Ivan Gonell Santana (Santana), the trustee of the Cscsne Trust, and the Cscsne Trust (the Trust) move to dismiss the complaint or alternatively to stay the action as against them (motion sequence 007). In January 2009, DB sued SHI in the United Kingdom (UK) seeking the amount owed by SHI in connection with its FX accounts. On November 8, 2013, the UK court handed down a judgment against SHI and in favor of DB for approximately $243 million in unpaid margin calls, and denied SHFs claims (Deutsche Bank AG V Sebastian Holdings. Inc., Case No: 2009 Folio 83, [2013] EWHC 3463 (Comm), 1 2 of 5 8 of 11

9 [FILED; NEW YORK COUNTY CLERK 06/09/201702:52 PMl TTTOEX' 'TTCrrTSTZ? 772'DT3 NYSCEF DOC. NO. 385 RECEIVED NYSCEP; 06/09/ WL [High Court of Justice Queen's Bench Division Commercial Court 2013]). DB proceeded to attempt to collect the judgment against SHI, and to render Vik and the other defendants liable for the judgment on the basis of alter ego and fraudulent conveyance. In 2013, DB commenced an action for summary judgment in lieu of complaint against SHI in this court. Deutsche Bank AG v Sebastian Holdings, Inc., Index No /13 (SupCt, NY County 2013). DB smotion was granted and, in May 2016, a judgment based on the UK judgment was entered with the Clerk of the Court. DB commenced a separate 2013 action against SHI, Alexander Vik, Santana and the Trust, seeking to set aside allegedly fraudulent transfers by Vik, and alleging that SHI and other entities were Vik s alter ego. Deutsche Bank AG v Vik, Index No /2013 (Sup Ct, NY County 2013) (the 2013 action). DB alleges that SHI, due to the losses in the FX accounts maintained at DB, faced imminent margin calls from DB in October In that month, to avoid paying DB, Vik stripped SHI of its assets, causing approximately $1 billion to be transferred from SHI to himself or to other entities controlled by him or members of his family. DB alleges that one billion Norwegian kroner (NOK) certificates of deposit were transferred from SHI to VBI. All the shares in Confirmit were transferred from SHI, Confirmit s sole owner, to Vik. At the time, the shares were 2 3 of 5 9 of 11

10 NYSCEF DOC. NO RECEIVED I-NDBX^-M9-. NYSCEF: 16 l-a&j-/ 06/28/ ^ [FILED: NEW YORK COUNTY c erk D'6 / 0 5 / lttrs:2~piit NYSCEF DOC. NO. 385 RECEIVED NYSCEF: 06/09/2017 worth $92 million. Also in October 2008, $730 million was transferred from SHI to Beatrice, Inc. (Beatrice), and then Beatrice was transferred to the Trust. Before that, Vik was the sole shareholder of Beatrice, a TCI corporation and a defendant in the 2013 action. In October 2008, Vik created the Trust. DB alleges that Vik caused these transfers. In this action, DB seeks to set aside the conveyances made in October 2008, and to pierce the corporate veil between Vik, Beatrice, and SHI in order to make the first two liable for the judgment against SHI. Discussion In the 2013 action, Santana, the trustee of the Trust, correctly argues that the court has no jurisdiction over him and that, unless he is party to the action, the Trust cannot be a party to the action. Without a trustee, a trust cannot maintain or defend a lawsuit (Gleason v Town of Clifton Park Planning Bd.. 90 AD3d 1205, 1206 [3d Dept 2011]: Salanitro Family Trust V Gorina. 49 Misc 3d 153 [A], 2015 NY Slip Op [U] [App Term, 2d Dept 2015]; Ronald Henry Land Trust v Sasmor, 44 Misc 3d 51, 52 [App Term, 2d Dept 2014]). As DB does not allege any connections between Santana and New York, the court cannot find that it has jurisdiction over him. DB argues that jurisdiction over the trust confers jurisdiction over the trustee, citing In re Deyette (16 Misc 3d 1124[A], *2, 2007 NY Slip Op 51559[U] [Sup Ct, Nassau County 2007]). That case 3 4 of 5 10 of 11

11 NYSCEF [FILED: DOC. NEW NO. 388 YORK COUNTY CLERK 06/ ; 52 PMF - RECEIVED NDEX- NYSCEF: NO-:-' -r^^st/2 06/28/ » NYSCEF DOC. NO. 385 RECEIVED NYSCEF; 06/09/2017 is of no aid to DB, because jurisdiction over the trustee was based on the Surrogate's Court Procedure Act 210 (2) (b). An additional basis for jurisdiction was that the trust was a New York trust, and the acts by which it was administered were connected to New York. That the same applies to the Trust is not alleged. ORDERED that the motion by Ivan Gonell Santana and the Cscsne Trust to dismiss the complaint as against themselves (motion sequence number 007) is granted and the complaint is dismissed as against said defendants, and the alternative motion to stay the action is denied as moot. Date; June 9, 2017 New York, New York Anil C.jSingh 4 5 of 5 11 of 11