Irving H. Picard, being duly sworn, deposes and says: 1. I am the court-appointed trustee ( SIPA Trustee ) for the liquidation of Bernard

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1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re BLM AIR CHARTER LLC, Debtor. Chapter 11 Case No AFFIDAVIT OF IRVING H. PICARD PURSUANT TO RULE OF THE LOCAL BANKRUPTCY RULES FOR THE SOUTHERN DISTRICT OF NEW YORK IN SUPPORT OF CHAPTER 11 PETITION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss: Irving H. Picard, being duly sworn, deposes and says: 1. I am the court-appointed trustee ( SIPA Trustee ) for the liquidation of Bernard L. Madoff Investment Securities, LLC ( BLMIS ) pursuant to the Securities Investor Protection Act ( SIPA ). BLMIS is the 100% economic owner of the above-captioned debtor (the Debtor ). 2. I respectfully submit this Affidavit pursuant to Rule of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ). Except as otherwise indicated, all facts set forth in this Affidavit are based upon my personal knowledge, my review of relevant documents, my discussions with Alan Nisselson, Esq., the trustee ( Chapter 7 Trustee, and together with the SIPA Trustee, the Trustees ) for the Chapter 7 bankruptcy estate of Bernard L. Madoff ( Madoff ), and my opinion based on experience and as the SIPA Trustee.

2 3. I am authorized to submit this Affidavit in support of the petition by the Debtor for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) filed on the date hereof (the Petition Date ). 4. Annexed hereto as Exhibit A is an Authorization to File Bankruptcy Petition executed by both Trustees evidencing the authority given by us in our respective fiduciary capacities to, among other things, commence this Chapter 11 case. The Debtor s Business 5. Debtor, a limited liability company organized under the laws of the State of New York, which entity formerly maintained its principal place of business at the offices of BLMIS at 885 Third Avenue, New York, New York. BLMIS is the sole owner of the Debtor s economic interests, and Madoff is its sole Manager. 6. Debtor was formed to acquire, own, hold, sell, and otherwise deal with and dispose of interests in aircraft. It currently holds title to interests in one aircraft -- a 50% tenantin-common interest in an Embraer Legacy 600, Model EMB-135 BJ aircraft, and certain related aircraft accessories (together, the Aircraft ). Events Leading to the Chapter 11 Filing BLMIS and Madoff Background 7. On December 11, 2008 (the BLMIS Petition Date ), Madoff was arrested by federal agents for violation of the criminal securities laws, including, inter alia, securities fraud, investment adviser fraud, and mail and wire fraud, and the Securities and Exchange Commission ( SEC ) filed a complaint in the United States District Court for the Southern District of New York (the District Court ) alleging that Madoff and BLMIS engaged in fraud through BLMIS investment advisory business (the IA Business ). 2

3 8. On December 12, 2008, The Honorable Louis L. Stanton of the District Court entered an order, which appointed Lee S. Richards, Esq., as receiver for the assets of BLMIS (the Receiver ). 9. On December 15, 2008, pursuant to 15 U.S.C. 78eee(a)(4)(A), the SEC consented to a combination of its own action with an application of the Securities Investor Protection Corporation ( SIPC ). Thereafter, pursuant to 15 U.S.C. 78eee(a)(4)(B), SIPC filed an application in the District Court alleging, inter alia, that BLMIS was not able to meet its obligations to securities customers as they came due and, accordingly, its customers needed the protections afforded by SIPA. Also on December 15, 2008, Judge Stanton granted the SIPC application and entered an order pursuant to SIPA (the Protective Decree ), which, in pertinent part, appointed the SIPA Trustee for the liquidation of the business of BLMIS pursuant to 15 U.S.C. 78eee(b)(3), and removed the liquidation case to the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ) pursuant to 15 U.S.C. 78eee(b)(4). 10. On December 18, 2008, the District Court entered the Order on Consent Imposing Preliminary Injunction Freezing Assets and Granting Other Relief Against the Defendants (the Preliminary Injunction Order ), which, among other things, clarified that the Receiver is only appointed as to the assets concerning the London entity, Madoff Securities International Ltd. On February 26, 2009, the Receiver submitted a report and application to terminate the receivership with the District Court. After receipt of submissions by the SIPA Trustee, the SEC, and the Department of Justice, and after a hearing on March 23, 2009, the District Court issued an order discharging the Receiver and terminating the receivership. 11. By orders dated December 23, 2008 and February 4, 2009, respectively, the 3

4 Bankruptcy Court approved the SIPA Trustee s bond and found that the SIPA Trustee was a disinterested person. Accordingly, the SIPA Trustee is duly qualified to serve and act on behalf of the estate of BLMIS. 12. On April 10, 2009, the District Court entered an order (the April 10 Order ) modifying article V of the Preliminary Injunction Order to allow certain parties to file an involuntary bankruptcy petition against Madoff (the Madoff Petition ), and on April 13, 2009, the Madoff Petition was filed in the Bankruptcy Court ( (BRL)) (the Madoff Bankruptcy Case ). On April 14, 2009, the District Court entered an amendment to the April 10 Order (the April 14 Amendment ). 13. On April 20, 2009, this Court entered an order in the Madoff Bankruptcy Case directing the United States Trustee to appoint an interim trustee pursuant to Section 303(g) (the Appointment Order ). On April 21, 2009, the United States Trustee filed a Notice to Interim Trustee of Appointment, appointing Alan Nisselson, Esq., as Chapter 7 Trustee. 14. On May 5, 2009, the SIPA Trustee and SIPC, by their counsel, filed a joint motion for entry of an order pursuant to section 105(a) of the Bankruptcy Code substantively consolidating the Madoff chapter 7 estate into the BLMIS Liquidation (the Substantive Consolidation Motion ). On June 9, 2009, this Court approved and entered a Consent Order which, among other things, approved the Substantive Consolidation Motion nunc pro tunc to December 11, At a plea hearing on March 12, 2009, in the case captioned United States v. Madoff, Case No. 09-CR-213(DC), Madoff pled guilty to an 11-count criminal information filed against him by the United States Attorneys Office for the Southern District of New York, admitting that he operated a Ponzi scheme through the IA Business. On June 29, 2009, Madoff 4

5 was sentenced to a prison term of 150 years, which he is currently serving. Debtor s Proceedings 16. Since its formation in 2001 and until Madoff s arrest, the Debtor was managed by Madoff. As a result, since Madoff s arrest in December 2008, no effective management of the Debtor has existed. 17. From 2001 through 2008, virtually all of the funds used by the Debtor to purchase and maintain its assets, including the Aircraft, were transferred from BLMIS by Madoff. 18. Since the BLMIS and Madoff bankruptcy proceedings, funds are no longer immediately available for Debtor to make payments under its warranty and maintenance service agreements for the Aircraft and its engines with Embraer Aircraft Customer Services, Inc. ( EACS ) and Rolls-Royce Corporation ( Rolls-Royce ). Debtor is jointly and severally obligated for payments due under such agreements with BDG Aircharter, Inc. ( BDG ), an affiliate of Blumenfeld Development Group, Ltd. and the owner of the other 50% interest in the Aircraft, but upon information and belief, since the BLMIS Petition Date or earlier, both Debtor and BDG have failed to make some or all of the payments alleged by EACS or Rolls Royce to be owed under their respective agreements. 19. On October 30, 2009, counsel for Rolls Royce sent a letter to Windels Marx Lane & Mittendorf, LLP, as special counsel to the Trustees, and to BDG s general counsel, which letter, among other things, (i) demanded payment of amounts due under Rolls Royce s agreement with Debtor and BDG of approximately $181,000, by November 13, 2009, and (ii) threatened that, in the absence of payment, Rolls Royce would terminate the agreement on that date. An extension of the termination date was requested, but as of the date of this filing has not been granted. 5

6 20. It is my understanding that the termination of a private jet s warranty and maintenance service agreements may result in a significant loss in value of the Aircraft. 21. In light of the foregoing events, the Trustees have determined that the best interests of the Debtor (including without limitation the need to preserve and maximize the value of the assets and to minimize liabilities), its estate, its creditors, and other parties in interest dictate the filing of a chapter 11 case for the Debtor. Objective of Chapter 11 Case 22. Immediately, the Trustees seek to stay Rolls Royce s threatened termination of its warranty agreement, so as to avoid a potential loss of value to the Aircraft. 23. Further, the Trustees believe that the Aircraft can be marketed and sold for a significant price pursuant to the relevant provisions of the Bankruptcy Code. Information Required by Local Rule In accordance with Local Rule (a)(2) and to the best of my knowledge, information, and belief, no case has previously been filed by or against the Debtor under Chapters 7, 11, 13, or any other provision of the Bankruptcy Code. 25. In accordance with Local Rule (a)(3) and to the best of my knowledge, information, and belief, no creditors committee was organized before the Petition Date. 26. In accordance with Local Rules (a)(4) and (5), and to the best of my knowledge, information, and belief, Debtor has no secured creditors and only two unsecured creditors (excluding the over $25 million owed to BLMIS): (i) Embraer Aircraft Customer Services, Inc., 276 SW 34th Street, Fort Lauderdale, FL 33315, Attention: Indy Piquet, Esq. and Mr. Scott Kaliste, Telephone: x1037 and (ii) Rolls-Royce Corporation, P.O. Box 420, Speed Code: U17, Indianapolis, Indiana , Attention: Mr. Tyler C. Dunn, 6

7 Commercial - AE Customer Business and 1875 Explorer St., Suite 200, Reston, VA 20190, Attn: Rhonda Van Lowe, Telephone: (703) In accordance with Local Rules (a)(6), the following is a summary of the Debtor s assets and liabilities. The Debtor s books and records reflect that it currently has in its name only two assets: (i) its 50% tenant-in-common interest in the Aircraft, which entire Aircraft was purchased in March 2008 for approximately $25 million; and (ii) a bank account in its name at Bank of New York Mellon with a remaining balance of approximately $770,000. follows: company. 28. The Debtor s books and records further reflect that the Debtor s liabilities are as a. BLMIS transferred over $25 million to Debtor from 2001 to 2008, and those amounts have not been repaid. BLMIS is the largest creditor of the Debtor s estate; and b. two trade creditors: (i) EACS, which claimed as of April 29, 2009 that it was owed collectively by the Debtor and BDG $240, under its warranty agreement for the Aircraft for unpaid amounts accrued from March 2008 through April 2009; and (ii) Rolls-Royce, a trade creditor which provides warranty and maintenance services to the Aircraft s engines, and which asserted that as of October 20, 2009, it was owed by the Debtor and BDG $181, for amounts accrued under its warranty service agreement. 29. In accordance with Local Rules (a)(7), the Debtor is not a publicly held 30. In accordance with Local Rules (a)(8), and to the best of my knowledge, information, and belief, no property of the Debtor is in possession or custody of any custodian, public officer, receiver, trustee, assignee for the benefit of creditors, mortgagee, pledge, assignee of rents, secured creditor or any agent for any of the foregoing. 1 As noted above, BDG is a joint and several obligor under the Rolls Royce and EACS warranty agreements. Furthermore, (a) BDG is obligated to Valley Commercial Capital, LLC ( Valley ) pursuant to a loan from Valley with respect solely to BDG s interests in the Aircraft, and (b) Talon Air, Inc. ( Talon ) provides certain management services and hangar rental services for the Aircraft, which services are provided pursuant to an 7

8 31. In accordance with Local Rules (a)(9), and to the best of my knowledge, information, and belief, the Debtor did not own, lease, or otherwise hold any arrangements for any premises from which its business was operated. 32. In accordance with Local Rules (a)(10), and to the best of my knowledge, information, and belief, the Aircraft is hangared at Republic Airport in Farmingdale, New York. Books and records of the Debtor are in the possession of the SIPA Trustee at c/o Baker & Hostetler LLP, 45 Rockefeller Plaza, New York, NY The Debtor does not have any assets located outside of the United States. 33. In accordance with Local Rules (a)(11), and to the best of my knowledge, information, and belief, no actions are currently pending against the Debtor. 34. In accordance with Local Rules (a)(12), the Debtor is currently under the management of the Trustees, as the respective trustees to BLMIS and Madoff. Sworn to and subscribed before me This 12th day of November 2009 /s/ Damian Smith Damian Smith Notary Public, State of New York No. 01SM Qualified in New York County Commission Expires June 18, 2011 By: /s/ Irving H. Picard Irving H. Picard agreement between Talon, BLMIS and an affiliate of BDG. Neither BDG, Valley, nor Talon are creditors of the Debtor s estate, however these parties have been included in the creditor matrix for notice purposes only. 8