b & b advisory svc v. bombardier aerospace, et al memo w. thacker

8/7/2019 B & B ADVISORY SVC v. BOMBARDIER AEROSPACE, et al Memo w. Thacker

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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 2 of 35, .

ance. However the Deposit Agreement does not guarantee "substantially similar"contracts, as B&B alleges, but contracts "in substantially similar form", and the obliga-tion to execute contracts was joint between Flexjet and B&B.

B&B clearly states that it is the terms, not the form, of the contracts that it allegesis not substantially similar. (See Memorandum in Support of Motion for Partial Sum-mary Judgment, p. 8 in which B&B alleges that "Flexjet produced a set of agreementswith tenns substantially different" from the Learjet 31A Agreements. (emphasisaddedIt was B&B that rebuffed Flexjet's good faith effort to execute final documents for thesale of the Learjet 45. The fact that B&B has misread the contract, and now attempts totwist the clear words and meaning of the contract from "in substantially similar form"to "substantially similar" terms is no fault of Flexjet. For these reasons B&B is not en-titled to specific performance.

Summary Iudgment StandardPursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judg-

ment is proper "if the pleadings, depositions, answers to interrogatories, and admis-sions to file, together with the affidavits, i f any, show that there is no genuine issue asto any material fact, and that the moving party is entitled to judgment as a matter oflaw." F .R.CP. 56(c). Therefore, in ruling on a motion for summary judgment, thecourt 's objective is to decide whether there are any genuine factual issues that can only

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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 3 of 35

be resolved by a finder of fact because they may reasonably be resolved in favor of either party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986).

The party seeking summary judgment always bears the initial burden of proof ofinforming the court of the basis of its motion and identifying the evidence which demonstrates the absence of a genuine issue of material fact as to the essential elements ofthe nonmoving party's claim. See Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986).Should the moving party fail to satisfy this burden, the motion for summary judgmentmust be denied. See Stults v. Conoeo Inc., 76 F.3d 651, 655 (5th Cir. 1996).

The nonmoving party has the burden of offering specific facts showing a genuine issue for trial. Id. In deciding whether an evidentiary conflict exists to precludesummary judgment, the trial court must view the record in the light most favorable tothe party opposing the motion, including those inferences to be drawn from the underlying facts contained in affidavits and depositions. See Gross v. Southern Rwy. Co.,414 F.2d 292, 296 (5th Cir. 1969). In any event trial courts should award summaryjudgment with caution, being careful to resolve doubts and construe the evidence infavor of the nonmoving party. PYCA Indus. Inc. v.. Harrison Cty. Waste Water Manage-ment Dist., 177 F.3d 351, 360 (5th Cir. 1999).

Law & ArgumentLouisiana Contract Interpretation - Plain language and meaning

On May 13, 2002, B&B filed suit against Flexjet in Civil District Court for theParish of Orleans, State of Louisiana. On or about September 3, 2002, Flexjet removed

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this case to federal court under diversity jurisdiction. The law to be applied by federalcourts in any diversity case is the law of the forum state. Erie R.R. v. Tompkins, 304 U.S.64 (1938).

Under Louisiana law, a contract is read for its plain meaning. In re Liljeberg En-ter., 304 F.3d 410, 439 (5 th Cir. 2002), quoting Nat'l Union Fire Ins. Co. ofPittsburgh, Pa. v.Circle Inc., 915 F.2d 986, 989 (5 th Cir. 1990)(per curiam); La. c.c. art 2047. Therefore acontract will only need interpretation by the court where the contract is ambiguous. Acontract is not ambiguous unless the words are susceptible of more than one reasonablemeaning, or the intent of the parties is unclear. Id. at 439-40. "When the words of thecontract are clear and explicit and lead to no absurd consequences, no further interpreta tion may be made in search of the parties' intent," and the parties' are not allowed "tocreate an ambiguity where none exists and does not authorize the courts to create newcontractual obligatons where the language of the written contract clearly expresses theintent of the parties." Id. at 440, quoting Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316,1326 (5 th Cir. 1994); La. c.c. art 2046.

On or about January 17, 2000 Flexjet and B&B entered into a Non-RefundableDeposit Agreement ("Deposit Agreement") by which B&B agreed to purchase a Learjet45 aircraft. See Non-Refundable Deposit Agreement "Exhibit 1" at paragraph 1. B&Bbases it's entire motion for partial summary judgment requesting specific performanceupon the following language of the Deposit Agreement "Pursuant to the purchase andsale of the Lear 45 Share, Buyer and Seller shall execute a Purchase Agreement, Man-

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agement Agreement, Joint Ownership Agreement, and Master Interchange Agreementin substantially similar fonn as the like-titled agreements executed by Buyer and Sellerfor the. purchase of the existing share as described in Exhibit A." See Exhibit "1" atparagraph 3 (emphasis added).

The contract clearly states that the Learjet 45 contracts will be "in substantiallysimilar form" as that of the Learjet 31A contracts. Where the contracts is clear, courtsare bound to enforce the contracts as written. Grezafji v. Smith, 641 So.2d 210, 213 (La.App. 1 Cir. 1994). B&B is now attempting to mislead this court and create an ambiguitywhere none exists in order to have this court alter the terms of the contract, changing itfrom contracts "in substantially similar form" to "substantially similar" contracts.

Contracts "in substantially similar farm"Under Louisiana law, the meaning of words in a contract will be given their

plain meaning. La. c.c. art. 2047. Form is defined as "the outer shape or structure ofsomething as distinguished from its substance or matter." Blacks Law Dictionary 662(7th ed. 1999). Both the 1997 and 2000 contracts consisted of a Purchase Agreement,Addendum to Purchase agreement, Management Agreement, Addendum to Purchaseagreement, Master Interchange Agreement, Joint Ownership Agreement, and SideletterAgreement. See Andrew Thacker's Unsworn Declaration under Penalty of Perjury, Ex-hibit "3" .

The contract does not guarantee that the substance or content of the new contracts will be "substantially similar" but that they will be "in substantially similar

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form." In fact, B&B states that the provisions "look similar". See B&B's Memorandumin Support of Motion for Partial Summary Judgment at p. 9. B&B never points to anychanges in form, but changes in language. However, even those provisions which B&Balleges contain differences in language, show, upon examination, that the differencesare not substantial. B&B alleges that the transfer fee in the Learjet 45 Purchase and Management

Agreements was not in the Learjet 31A Agreements. A transfer fee is meant only forwhen the customer, while owning its current share, wants to transfer that share toan affiliate or to another customer-owned business. The transfer fee allows Flexjetto recoup the costs of de-registration and re-registration of the aircraft due to a customer initiated action. I f B&B does not transfer its interest it will not incur a transferfee.

B&B alleges that the Learjet 31A Agreements provided for an aircraft with not morethan 100 hours, while the Learjet 45 Agreements provided for an aircraft with notmore than 400 hours. However, both agreements are in the same form, and dealwith the exact same subject, in the exact same area of the contracts. The only difference is the number of hours guaranteed.

While the Learjet 31A agreements provide for annual escalation, and the Learjet 45Aagreements call only for "escalation", both contracts are referring to the escalation ofthe exact same fees. The reason for the change is that costs of maintaining and fu-eling aircraft in today's market is more expensive than it was in 1997, and the fact

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that the Learjet 45 consumes more fuel because it is a larger, faster aircraft. See Ex-hibit "3."

While the Learjet 45 Sideletter agreement does not spell out Flexjet's responsibilitiesfor maintaining the aircraft in exactly the same manner as that in the Learjet 31ASideletter Agreement, such specification is unnecessary. The Learjet 45 Management Agreement does state, in section 3(a), that the Manager is responsible formaintenance, service, and repair of the aircraft. See Management Agreement Exhibit1/4". Therefore the lack of the language specified by B&B is meaningless because themeaning of the terms, is that Flexjet, and not B&B, is responsible for the maintenance and repair of the aircraft the same as the Learjet 31A. In addition, the DepositAgreement does not state that the'Sideletter Agreement will be in substantiallysimilar form. The Deposit Agreement only refers to the Purchase, Management,Joint Ownership, and Master Interchange Agreements. Therefore any change incontent or form to the Sideletter agreement is irrelevant to the Deposit Agreement.

The fact that one agreement guarantees no "squawks" and the other no "materialsquawks" is not a substantial change, the addition of one adjective, in a non-criticalclause, that would not justify a need for specific performance.

B&B also makes much ado about nothing regarding the provisions of the contracts dealing with the possible future act of B&B should it increase it's ownership interest in the plane from 12.5% to 25%. B&B did not raise this issue during the contractnegotiation phase and has never expressed an interest to Flexjet, prior to filing its mo-

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tion for partial summary judgment that it ever intended to purchase a greater interestSee e-mail correspondence between Carolyn Kirkman and Leopold Sher from July 4,2001 - July 24, 2001, Exhibit "5."

The same argument can be said for the provisions B&B cites in pgs. 11-15 of itsMemorandum. The first issue, regarding the availability of the aircraft and "peakdays" is the only issue listed which was raised by B&B and addressed by Flexjet duringthe contract negotiation process. See Exhibit "5." B&B argues that the language is different from that in the Learjet 31A contracts, but does not state how, if at all, suchchanges affect i t If these changes, such as that outlining the procedure when flyingoutside the Prime Service area and Multiple Use inside a Metropolitan area, do not affect B&B, then such changes are not substantial as they do not substantially changeB&B's rights or use from the Learjet 31A to the Learjet 45.

B&B has not shown that the form of the contracts are not "in substantially similar form." In addition, B&B has pointed out some language that is different, but hasfailed to prove how those changes or differences affect them. Therefore, there at leastremain questions of fact, and B&B is not entitled to partial summary judgment as amatter of law.

Sped6c PerformanceB&B is also not entitled to specific performance because B&B failed to perform

all of its obligations under the contract When there exists a bilateral promise of sale, inwhich one party promises to sell and the other promises to buy a thing at a later time,

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such an agreement gives either party the right to demand specific performance. La.e.e. art. 2623. However the party seeking specific performance is required to provethat it has properly performed its part of the contract, or absent performance, "provethat they are and were ready to comply with whatever obligations are devolved uponthem to perform." GrezaJfi v. Smith, 641 So.2d 210, 213 (La. App. 1st Cir. 1994); see alsoDeleon v. WSIS Inc., 728 So.2d 1046, (La. App. 2d Cir. 1999).

B&B again has failed to look at all of the language in paragraph 3 of the Depositagreement which obligates both parties to execute the documents. The Deposit Agreement, states, in pertinent part that; "Pursuant to the purchase and sale of the Lear 45Share, Buyer and Seller shall execute . . . Agreement(s) in substantially similar form."See Exhibit "1", at paragraph 3 (emphasis added). Thus, the obligation to execute newcontracts is reciprocal, with B&B having equal responsibility to execute contracts in"substantially similar form."

The execution of the contracts was not the only obligation under the DepositAgreement which B&B failed to fulfill. B&B had an obligation to accept the aircraftwithin 10 days of actual delivery pursuant to the terms of the Deposit Agreement.Paragraph 2 of the Deposit Agreements states that Flexjet, as the seller of the aircraft, isobligated to deliver the Learjet 45 within 150 to 180 days of March 15, 2001. See Exhibit"1" at paragraph 2 and Exhibit A to the Non-Refundable Deposit Agreement, Exhibit"2". Had Flexjet failed to deliver the aircraft timely, then B&B was entitled to terminate the agreement and B&B's "sole recourse against [Flexjet] shall be [Flexjet's] obli-

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gation to promptly refund to [B&B]" the deposit amount. See Exhibit "1" at paragraph2. The Deposit Agreement also provides B&B's obligation, as the buyer, to pay the balance of the purchase price within 10 days of the actual delivery date of the aircraft.Flexjet's recourse, should B&B fail to pay the purchase price within 10 days of deliveryis to retain the deposit amount as liqUidated damages. See id. These are the only damages allowed the parties should either party fail to timely deliver or accept the aircraft.

Flexjet first attempted to execute contracts for the purchase of the Learjet 45 onDecember 5, 2000, when it sent the first set of draft document to B&B ~ o r its approval.See Exhibit "3". Flexjet sent a second set of documents to B&B on June 1, 2001, incorporating some of B&B's requested revisions. See Exhibit "3". Then on June 25, 2001Flexjet sent the first delivery notice to B&B that the aircraft would be available for delivery on June 29, 2001. See Exhibit "3". This date was within 150 days of the March 15,2001, anticipated delivery date stated in the Deposit Agreement. B&B however failedto accept the aircraft, and so was in breach of the Deposit Agreement entitling Flexjet toretain the $100,000 deposit. See Exhibit "3". Flexjet however, continued to attempt tonegotiate with B&B, negotiating and further revising the documents in an attempt toreach an agreement. See Exhibit "3". On November 1, 2001, Flexjet again notified B&Bof the delivery of the aircraft, which was still to be delivered within 180 days of the anticipated delivery date. See Exhibit "3". Again B&B failed to take delivery, and wastherefore again in breach of the Deposit Agreement. See Exhibit "3".

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B&B therefore did not perform it's part of the contract, and did not comply withthe obligation under the Deposit Agreement to execute agreements in a timely mannerin order to take delivery of the aircraft with 10 days of actual delivery. B&B is there-fore "not entitled to specific performance as a matter of law.

ConclusionBased on the foregoing, Flexjet respectfully submits there are issues of material

fact and law in dispute and B&B's motion for partial summary judgment should be de-nied.

Respectfully submitted,

I \ J I 7 I : t 4 ~ . CARROLL (3898), T.A.R HARD A. FRASER, III (5831)ICHAELA E. NOBLE (28173)GELPI SULLIVAN CARROLL400 Poydras St., Ste. 2525New Orleans, LA 70130Telephone: 504-524-9714Attorneys for Defendants BombardierAerospace Corporation, Bombardier BusinessJet Solutions, Inc. And Jet Solutions, L.L.c.

CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing pleading has been

served upon all counsel of record, postage prepaid and properly addressed, by U.S.Mail, this 0=, day of April, 2003.

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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 12 of 35. . .' . ('" - .

. .:. .:',:

NON-REFUNDABLE DEPOSIT AGREEMENT BOMBARDIERAEROSPACETillS NON-REFUNDABLE DEPOSIT AGREEMENT ("Agreement") is made this FHt day ofa a t l " c t r ~ , JooD, between Bombardier Business Jet Solutions Inc., 14651 Dallas Pkwy., Suite600, DaI as, TX ;75240 ("Seller")

and B & B Advisory Services, L.L.C.having principal offices at 1209 Orange Street, Wilmington, DE 19801telephone (504) 455-7600 facsimile . . (504) 455-7605 ("Buyer')1. This Agreement will confirm Buyer's intent topurchase an undivided property interest in a Learjet 45("Lear 45 Share") for the Purchase Price as set forth inExlubit A. Seller shall sell and deliver the Lear 45 Shareto Buyer, and Buyer shall purchase and take delivery ofthe Lear 45 Share from Seller under the terms containedherein.

existing share as described in Exhibit A ("ExistingShare").4. Buyer shall pay to Seller the non-refundable amountstowards the Purchase Price as set forth in the PaymentSchedule in Exlubit A. On the Actual Delivery Date,Buyer shall pay to Seller an amount equal to . thePurcb.3se Price, less the total payments made by Buyer to2. Seller anticipates that the Lear 45 Share will be ready Seller pursuant to this Agreement and less any !tide -infor delivery on the anticipated delivery date set forth in allowance granted by Seller. tp.

Exhibi t A ("Anticipated Delivery Date"): In the e v e n ~ of-'_ .... __5.__The Monthly Management Fee for the.Lear.45 Share. _a delay caused by government regulation or authonty, d th L 45 Sh MAt, h II. . . trik b' f un er e ear are anagement greemen s awar, CivIl commotion, sear la or disputes, acts 0 b th t fi rth' Exhib' A b' I .. e e amount se a m It su ~ e c t to esca ationGod or other causes beyond Seller's control or Without 'd d' Arti I 4{) f th Exis' Sh 'S II r' r; I I ' ( l iE bl DI") th as provl e m c e a a e ting are se e s ~ a u t or neg Igence an xcusa e e a y , e M tAt ti l th A I D li D tAnti" t d D li D t hall b did din 1 anagemen greemen un e ctua e very a e.ctpa e e very a esee aye accor g y.In the event the Lear 45 Share win not be available for 6. The Variable Rate for the Lear 45 Share, under thedelivery within 150 days before or after the Anticipated Lear 45 Share Management Agreement, shall be theDelivery Date for reasons other than Excusable Delay; or amount set forth in Exhibit A subject to escalation asin the event that the Lear 45 Share will not be made provided in Article 4(a) of the Existing Share'savailable for delivery within 1 days before or after the Management Agreement until the Actual Delivery Date.Anticipated Delivery Date for any reason including anExcusable Delay, Buyer may terminate this Agreementand Buyer's sole recourse against Seller shall be Seller'sobligation to promptly refund to Buyer those amountspreviously paid to Seller. In the event that Buyer doesno t accept delivery of the Lear 45 Share on the deliverydate offered by Seller or does not pay the balance of thePurchase Price within 10 days of the actual delivery dateof the Lear 45 Share ("Actual Delivery Date"), Sellermay terminate this Agreement and retain any amountspaid to Seller pursuant to this A g r e e ~ n t as liquidateddamages and not as a penalty. . f3. Pursuant to the purchase and sale of the Lear 45Share, Buyer and Seller shall execute a PurchaseAgreement, Managenient A g r e e r i : t e ~ t , Ioint ,OwnershipAgreement, and Master' I n t e ~ h a I i g e A,greement .insubstantially siniiIar form as i b . ~ ' l i k e . . # t l e d agi-eementsexecUted by Buyer and S . e i i e r : f ~ t t h e purchase of theLASIS99IDEP/1

BUYER:

BY:

TITLE:

SELLER:BY:

TITLE:

EXHIBIT

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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 14 of 3504/29/2003 lfi:32 F ~ ~ APR-29-2003 15:51

UNITED SIATES DISTRICT COURTEASTERN DJSTRICf OP LOUISIANA

B & B ADV1SQRY SER'lICES, L.L.C. ))))Flaintiff, )v.

BOMBARDlBR ABROSl:ACE CORPORA-TION, BOMBARDIER BUSINESS JETSOLUTIONS, INC., andJET SOLUTIONS, L.L.C.

))))))))

Defendants. )--------------------------)

Civil Action No. 02-2695

SECTION'"AnJUDGE ZAlNEY

MAG. (3)MAGISTRATE KNOWLES

UNSWORN STATEMENT UNDER PENALTY OF PERJURY

13743

I, ANDREW THACKER, as in-house counsel of Flexjet (consisting of BombardierAerospace Corp. an d Bombal'di.@r Bush"'les$ Jet S o l u t : i . o n s ~ Inc.) am authori2:ed to makethis unsworn statement under penalty of ~ t j u r y on behalf of Flexjet.

In 1997, B&B pUl'(:hased a 12.5% interest in a. Learjet 31A.In January 2000, B&B and FIexjet began contract negotiations for the purchase of

a LearJet 45 upon the ext."CUtion of B&B's 1997 contracts.

EXHIBIT3


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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 15 of 3504/29/2003 15:32 p ~ ~ APR-29-2003 15:51 IaI 00:\P.03/05

The Learjet 31A is ClIte of the most popular Bombardier aircraft. The Learjet 31Aseats up to seven passengers with an average long mnge cruise speed of 455 miles perhour. The Learjet: 45 holds up to nine p a s s e n ~ s and has a long range cruise speed of495 miles per hour. In addition, the cabin length of the Learjet 4.."i is 2.67 feet longer thanthat of the LeaIjet31A.

The aircraft fractional ownership industry has ~ h a n g e d between 1997 and 2000and therefore the standard contract language has been slightly modified in order tokeep up with industry practices and Flexjet's growU, JOT the benefit of both Flexjet andit s own2rs. Despite some of these language differences, the f o r m ~ of the contracts are insubstantially the same form, that being a Purchase Agreement, Addendum to P l l r c h a s ~ Agreement, Master Agreement, Addendum to Master Agreemel11:, Master InterclwngeAgreement Joint OwneJship Agreement, and Sideletter Agreement were issued in both1997 and 2000. In addition, each of these contracts has substantially si.ntilar subheadings and subparts.

In January of 2000, B&B and Flex-jet entered into i t Non.Refundable Depositagreement with which B&:B promised to purchase Lerujet 45. As part of that depositagreement, B&:B We!.S Tequired to place a $100,000.00 deposit towards the purchase ofthe aircraft. The contract stated. that should Flexjet faU to delivet the aircraft within 180days of the anticipated delivery date, B&5 would be entitled to terminate the agreementand the $100,000.00 would be refunded.. In. the event B&B did not accept the Learjet 45on the date offeredl Flexjet was allowed to terminate the agreement and r.etain th e de-


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posit amount. nus was the only recourse granted either pa:rty undex the Non-Refundable Deposit Agreement. Pu1'8wmt the Deposit Agreement, both Flexjet andB&B had redprocal obligation to execute agreements in "substantially sUnilar form" forthe Learjet 45 f1B the like titled agreements executed for the Learjet 31 A.

Pursuant to this agreement, Flexjet had begun contract negotiations for a Leajet45 with B&::B and sent the first draft set of documents for B&B's review and approval onDecember 5, 2000. Flexjet and B&:B participated in various correspondence negotiationsand Flexjet :rent a second set of documents with modified terms as per MB's requests toB&B on June 1, 2001. On June 25, 2001, Flex:jet gave notice to B&:B that the Learjet 45was scheduled for delivery on June 29, 2OOt,t and that the documents in final form mustbe Teceived upon delivery of th e aircraft. On June 27, 2001. B&B refused delivery of theaircraft and, therefore, was in breach of the Non-Refundable Deposit Agreement.Flexjet,. however, continued to attempt to reach an agreement with B&:B and on Sep-tember 19, 2001, sent a third set of draft documents to Bk8 with further revisions for'8&Bs review. O n November 11 20011 Flexjet gave the second n o t i ~ e to B ~ B that the au-craft would be delivered on Novmnber 12, 20011 and that the agreem.ent must be final-ized and executed by tlult date. Despite FIexjet'a continued efforts to reach an equitableagreement for either. the purchase of the Leal'jet 45 or the re-purchase o f S&B's currentshare of a Learjet 31A., B&:B refused to agree to Flexjet's contract provJsions and filedsuit against Flexjet on May 13, 2002.

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MANAGEMENT AGREEMENT JDRAFT

BOMBARDIERAEROSPACE

TIllS MANAGEMENT AGREEMENT ("Management Agreement") is made and entered into as of the day of______ , 2001, by and between Bombardier Aerospace Corporation, a Delaware corporation having itsprincipal offices a t 14651 Dallas Parkway, Suite 650, Dallas, Texas 75240 telephone (972) 720-2800facsimile (972) 720-2474 ("Manager")and B & B Advisory Services. L.L.C.having principal offices at 401 Veterans Blvd. Ste. 102. Metairie. LA 70005telephone (504) 455-7600 facsimile '(504) 455-7605 ("Owner").

Preamble. Owner, having entered into a "Purchase Agreement"with Bombardier Business Jet Solutions Inc., "Seller", owns thepercentage property interest set forth in Exhibit A (the "Interest") inthat certain aircraft described in Exhibit A attached hereto and madea part hereof (the "Aircraft"), and Owner together with such otherparties who own the remaining undivided interests in the Aircraft (the"Additional Interest Owners") (the Owner and the Additional InterestOwners shall be collectively referred to as the "Joint Owners") areparties to a "Joint Ownership Agreement" and "Master InterchangeAgreement" entered into concurrently herewith and have agreed toengage the services of Mahager to manage theAircraft for the benefitof the Joint Owners and at the direction of the Majority Owners (asdefined in Section 1) in accordance with the procedures set forthherein. The parties hereto agree as follows:1. Provision of Management Services. Manager agrees to providemanagement services for the benefit of the Joint Owners and at thedirection of the Majority Owners in accordance with the termshereof. Owner shall identify to Manager a designated representativeauthorized to make decisions on behalf of Owner with respect to theAircraft, and Manager shall obtain from each of the AdditionalInterest Owners the identity of the designated representativeauthorized to make decisions for such Additional Interest Owner withrespect to the Aircraft to the extent not otherwise provided for herein.Manager shall advise each such representative in writing or bytelephone (to be confirmed in writing) as soon as practicable ofissues for which a decision is required and the date or time by whichsuch decision must be provided to Manager. Manager shall act inaccordance with the decision of Joint Owners holding a majority ofthe percentage ownership interests in the Aircraft held by the JointOwners (the "Majority Owners"); provided, however, if no suchdecision is made by Majority Owners on or before the date or timespecified by the Manager in its notice, then the Manager shall act inaccordance with the decision of the party identified in Exhibit A asdecision maker for the year during which the decision deadlinespecified by the Manager occurs; provided, further, if such decisionmaker shall fail to decide by the deadline specified by the Manager,then the right and obligation to make the final decision shall bevested in the party identified in Exhibit A as decision maker for thefollowing year.2. Term. This Management Agreement shall commence on theClosing Date (as defined in Section 1.3 of the Purchase Agreement)and, subject to the provisions of Section 6(c), shall automaticallyterminate on the date Owner no longer owns an Interest unlessassigned to and assumed by a transferee in accordance with theGoverning Documents (as defined in the Preamble of the PurchaseAgreement). In the event that an interest in another aircraft issubstituted for Owner's Interest pursuant to Section 5{c) of the

I L J l ~ 2 ~ 1

Purchase Agreement, then this Management Agreement shallthereupon apply to the substituted aircraft and Exhibit A shall bedeemed amended to refer instead to the substituted aircraft.3. Services Provided by Manager.(a) Manager shall arrange for the Aircraft to be inspected,maintained, serviced, repaired, overhauled and tested by dulycompetent personnel, in accordance with approved maintenance andpreventive repair programs therefor, including the standards andguidelines established by the Federal Aviation Administration (the"FAA") and manufacturer's recommended maintenance, and shallkeep and maintain the Aircraft in good operating condition, ordinarywear and tear excepted, and in such condition as may be necessary tomaintain in good standing the airworthiness certification of theAircraft.(b) Manager shall cause to be maintained on behalf of Ownerall records, logs and other materials required by the FAA to bemaintained in respect of the Aircraft. Any other manuals provided orused by Manager in connection with the services provided hereunderwill be and remain the exclusive property of Manager and, ifprovided to Owner, shall be returned to Manager upon termination ofthis Management Agreement.(c) Manager shall not pennit or allow the Aircraft to beoperated or located in any area excluded from coverage by anyinsurance required by the terms of this Management Agreement._ (d) Manager shall provide professionally trained and qualifiedpilots who shall familiar with and licensed to operate the Aircraft,recurrent pilot training, pilot medical examinations and unifonns,hangar space, general s ~ o r a g e space, tie-down as required, normal (asavailable) in-flight catering as described in Exhibit A, flight planningand weather services, communications, Aeronautical Radio, Inc. (orits equivalent) and a computerized maintenance program.(e) Manager shall make on behalf of Owner all necessarytake-off, flight and landing arrangements, and, at Owner's request andexpense, shall coordinate ground transportation.(f) Manager shall, at its expense, arrange for and obtain (i)all-risk aircraft hull insurance with respect to the Aircraft, against anyloss, theft or damage to the Aircraft (including any engines or partswhile removed from the Aircraft), for an amount not less than the fairmarket value of the Aircraft as reasonably detennined by Manager,naming Manager, Owner, and the Additional Interest Owners as losspayees and as insureds with losses payable as provided by Section 6as their respective interests may appear; and (ii) liability insurance forbodily injury and property damage for the Aircraft in an amount notless than $200,000,000 combined single limit liability coverage, andOwner, Manager, Additional Interest Owners, and such other partiesas may be mutually agreed shall be insured. The insurance requiredhereunder shall be maintained by Manager in full force and effectthroughout the term hereof. All such insurance shall contain a breach


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of warranty endorsement in favor of Manager, Owner and AdditionalInterest Owners. IN ALL CASES, OWNER AGREES TIlAT TIlEPROCEEDS OF SUCH INSURANCE TO WHICH IT ISENTITLED SHALL BE DEEMED TO BE ACCEPTED ASOWNER'S SOLE RECOURSE AGAINST MANAGER FOR ANYLOSS OR DAMAGE TO TIlE OWNER OR TIlE AIRCRAFTEXCEPT TO TIlE EXTENT CAUSED BY OR DUE TO THEGROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TIlEMANAGER.(g) Manager shall provide assistance to and consult withOwner on matters regarding the Aircraft including but not limited to:(i) FAA and manufacturer's correspondence and directives;(ii) Administration and enforcement of warranty claims;(iii) Administration and enforcement of insurance matters;(iv) Parts replacement, services and maintenancearrangements; and(v) Preparation and filing of FAA and FederalCommunications Commission mandatory reports o r registrations.(h) Manager shall provide all administrative servicesnecessary to enable Owner to participate in the Interchange Programcontemplated by the Master Interchange Agreement.(i) Manager shall file such documents as are necessary andappropriate for filing and perfecting the encumbrances created by theGoverning Documents and to ensure the terms thereof are binding atall times upon all Owners of all Interests in the Aircraft.

(j ) Manager shall cause to be maintained on behalf of Ownerall records, logs, and other materials required by the FAA to bemaintained in respect of the Aircraft. Owner may, upon reasonablenotice to Manager and at Owner's expense, inspect and copy suchrecords, logs and other materials at such times during Manager'sbusiness hours as it shall not interfere with the performance byManager of its business. Any other manuals provided or used byManager in connection with the services provided hereunder will beand remain the exclusive property of Manager and, if provided toOwner, shall be returned to Manager upon termination of thisManagement Agreement.4. Compensation and Reimbursement.(a) As compensation for the services to be performed byManager hereunder, Owner hereby agrees to pay to Manager aMonthly Management Fee in the amount set forth in Exhibit A,payable in advance on the first day of each month throughout theterm of this Management Agreement, and a Variable Rate charge inthe amount set forth 10 Exhibit A multiplied by the number of OwnerOperation Hours (as defined in Section 5 (d)) actually flown byOwner during the previous month, which Variable Rate charge shallbe payable within 30 days after date of the invoice therefor. In theevent the Monthly Management Fee, Variable Rate charge or otheramounts due to Manager hereunder shall not be promptly paid whendue, Owner shall pay interest from the date the fees were due at therate of 15 percent per annum (but not in excess of the maximum ratepermitted by law). The Monthly Management Fee and the componentof the Variable Rate which does not relate to fuel (the Non FuelComponent as set forth 10 Exhibit A) may, in Manager's salediscretion, each be adjusted on January I of each calendar yearduring the term hereof by an amount not to exceed the percentagechange in the Consumer Price Index for all Urban consumers - U.S.cIty average, all items (1982-84 = 100) ("Consumer Price Index")during the immedIately preceding calendar year. In addition theretothe Vanable Rate shall (i) increase by the amount set forth inExhIbit A beginning on the first day of the thirtieth (30th) monthfrom the date of this Management Agreement and continuing everymonth thereafter, and (ii) may increase or decrease as a result ofadjustments to the component of such charge that relates to fuel (theFuel Component as set forth 10 ExhibIt A) by the amount of the FuelComponent Adjustment Factor (set forth in ExhIbIt A) for each $.01per gallon that the U.S. Average Jet-A Fuel Price per gallon, aspublished in Business and Commercial AVIation, (excluding any fueltax for which Manager IS exempt), IS at least $.06 more or less per

I UIO-2000/MN2

gallon than the Base Fuel Price (set forth in Exhibit A, excluding anyfuel tax for which Manager is exempt).(b) Owner shall be and remain responsible for any and allfederal, state, local and foreign taxes, charges, imposts, duties andexcise taxes, and other similar assessments, including associatedinterest and penalties (except net income or any other similar taxesimposed upon the net income of Manager) relating to the ownership,operation, maintenance or use of the Aircraft, charges for Owner'suse of flight phones on board the Aircraft, and all special landingpermits and fees, head taxes, departure taxes, immigration, customs,handling fees, overflight, navigation, and air space fees and similarcharges including associated interest and penalties.(c) Owner hereby agrees that Manager shall have the right,during such periods of time that the Aircraft is not actually beingutilized by Owner or by an Additional Interest Owner or under theMaster Interchange Agreement, to utilize the Aircraft for recurrentflight training for Manager pilots and for demonstration flIghts, andManager shall be entitled to retain for its own account anyreimbursement actually received by Manager in such use of theAircraft.(d) Upon execution of this Agreement, Owner will advance toManager a sum equal to one month's estimated Variable Rate charge(i.e., Variable Rate multiplied by Allocated Hours (as defined inSection 5(a per year divided by 12) to be used by Manager to deferthe cost of maintenance, fuel and miscellaneous expenses incurred byManager and as a result of invoicing Variable Rate charges in arrears.Such amount shall be returned to Owner at the expiration of thISAgreement after payment by Owner of all sums due to Manager.(e) Owner shall pay its proportionate share (based uponOwner's Interest in the Aircraft) of the costs of complying with anyairworthiness directives, manufacturer's alert/mandatory servIcebulletins, new FAA Part 91 requirements or manufacturer'srecommended service bulletins applicable to the Aircraft. Managershall use all reasonable efforts to pursue any reimbursement from themanufacturer or other appropriate party for such costs.(f) Owner shall reimburse Manager for all costs and expensesincurred by Manager resulting from extraordinary wear, tear ordamage caused by Owner and not covered by insurance carriedpursuant to Section 3(f).(g) The services explicitly provided in ArtIcle 3 of thisManagement Agreement will be at the sale expense of the Manager,with the exception of those expenses specifically delineated asOwner's responsibility in Article 4.5. Availability and Operation of Aircraft.(a) Owner and Manager hereby agree that Owner shall beentitled to the use of the Aircraft, and Manager agrees to make theAircraft available, for the number of Owner OperatIOn Hours (asdefined in Section 5 (d each year set forth in Exhibit A (the"Allocated Hours") plus all unused Allocated Hours carried overfrom previous years ("Available Hours"), subject to the notice andother requirements of Section 5 (b) and the limitatIOns of Section 5(c). Owner agrees and acknowledges that, due to its participation inthe Master Interchange Agreement, Owner may be provided the useof another aircraft; provided, however, that Manager shall usereasonable efforts to obtain for Owner the Aircraft before providmgOwner with any other aIrcraft available under the Master InterchangeAgreement; provided further, however, that Manager shall not beliable in the event that the Aircraft or any aircraft under the MasterInterchange Agreement is unavailable at any given time; andprOVIded further, however, that in the event the Aircraft and allaIrcraft under the Master Interchange Agreement are unavailable atany gIven time, Manager will provide Owner with use of a SUItableand comparable replacement aircraft ("Substitute Aircraft"), subjectto the notice and other requirements of Section 5 (b) and otherapplIcable proviSIOns of this Management Agreement. Any aircraftso provided by Manager shall be deemed an AIrcraft when used byOwner for purposes of this Management Agreement and for purposesof determming Owner's use of its Allocated Hours. Except asprOVIded for in the sentence to follow, any upgrades or downgrades,


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which are provided for in Section 2 of the Master InterchangeAgreement, shall be provided to Owner solely on an as availablebasis, which availability shall be determined by Manager at its owndiscretion. Notwithstanding the precedmg, in the event the size ofthe Interest is at least 12.5 percent, Owner shall be exempt from the"as available" restriction for a Learjet 31 A, Learjet 60, or CanadairChallenger upgrade or a downgrade request for 2 calendar days percontract year, provided that Owner provide Manager with 48 hoursprior notice, that all of the exempted flight segments on such day arecontiguous (as defined in this Section 5 (g)), and that suchexemptions may not be used on a Peak Day and may not be carriedforward to future contract years. Under the same tenns andconditions, in the event the size of the Interest is greater than 12.5percent, OW!1er shall be entitled to an additional upgrade/downgradeexemption for one calendar day for each 6.25 percent component ofthe Interest in excess of 12.5 percent (e.g., a 25 percent Interestwould entitle Owner to 2 additional exempt calendar days). All ofthe remaimng tenns and conditions of this Management Agreementand the Master Interchange Agreement will apply to the exemptedupgrade/downgrade flight segments, including but not limited to thesentence to follow and the 12.5 percent limit on the total number ofupgrade hours as set forth in the Master Interchange Agreement. Forany upgrades and downgrades that are requested by Owner andprovided by Manager, as provided for in the Master InterchangeAgreement, Owner shall be charged the then current InterchangeProgram variable rate applicable to new owners for the aircraft model(or replacement model) utilized, and Owner's Allocated Hours shallbe reduced according to a ratio ofthe Comparative Hourly Cost listedin Exhibit A to the Master Interchange Agreement (which is subjectto change by Manager pursuant to such Exhibit A) divided by theVariable Rate to one. For example, If the Comparative Hourly Costfor a particular model divided by the Variable Rate is 1.9 (making theapplicable ratio 1.9: I), l!Ild Owner utilizes J4 Owner OperationHours on a flight segment on such aircraft model (or replacementmodel), then for such upgrade Owner's Allocated Hours would bereduced by 4.6 hours, and Owner would be charged the applicablevariable rate for 2.4 hours. If Owner, an affiliate of Owner, or a partyotherwise related to Owner also owns an interest in an InterchangeAircraft managed under a separate Management Agreement, Ownershall not be entitled to use the Aircraft on the same day that suchparty uses an aircraft provided by Manager; such use shall instead beon an as available basis.(b) The "Prime Service Area" shall be defined to mean an areahmited to the contiguous U.S. and any point within 200 nauticalrmles thereof. Owner agrees that it shall provide Manager with aflight schedule or any alterations being made to a previouslyscheduled flight, as far in advance as possible and in any case Ownershall give Manager the minimum number of hours telephonic noticeset forth in Exhibit A prior to the anticipated flight; provided,however, that such notice shall instead be minimum of 48 hours if theproposed destination or departure pomt is outside the PrIme ServiceArea or Owner desires to schedule such flight on a "Peak Day". FortripS on Peak Days, the 48 hours notice must be provided prior to12:0 Iam of such Peak Day as opposed to 48 hours prior to the timeof departure. Further, Manager shall be entitled to delay oraccelerate requested departure times on Peak Days by up to 3 hours.Peak Days shall be as publIshed from time to time by Manager andshall not exceed 10 days in any calendar year. In addition, Owneragrees that It shall provide Manager with the following mformationfor each proposed flight:(i) proposed departure pomt;(ii) destination;(iii) date and time of flight;(iv) the number of anticipated passengers;(v) the nature and extent of luggage to be camed;(VI) the date and time of a return flight, Ifany;(vii) any other information concernmg the proposed flightthat may be pertinent or is reasonably reqUired by Manager.

I UIO-20001MAl3

(c) In addition to the foregoing, in the event Owner shalldesire to use the Aircraft in any year in excess of the AvaIlable Hoursto which it is entitled for such year, Owner shall be permitted to usethe Aircraft at the Variable Rate for up to an additional number ofhours in such year (the "Excess Hours"), other than during the finalyear of this Management Agreement, set forth in Exhibit A, and suchExcess Hours shall be charged against Owner's Allocated Hours forthe following year during the term hereof, thereby reducingaccordingly the Allocated Hours to which Owner is entitled to usethe Aircraft in such subsequent year. Similarly, in the event Ownerfails to use the Aircraft in any given year for the full Allocated Hoursto which it is entitled, then Owner shall be entitled to use the Aircraftin any subsequent year or years during the term hereof for the amountof such unused hour(s) in addition to Owner's Allocated Hoursattributable to such subsequent year or years. Notwithstandinganything to the contrary contained herein, Owner's total use of theAircraft (i.e., Available Hours plus Excess Hours) in any year of thisManagement Agreement shall, under no circumstances, exceed thenumber of Total Available Hours in first year as set forth m ExhibitA. If at the expiration or earlier termination of this ManagementAgreement Owner has exceeded the Allocated Hours to which It wasentitled prior to the expiration or termination of this ManagementAgreement (i.e., Allocated Hours per year divided by 12, multipliedby the number of months this Management Agreement was in effect),then Owner shall pay to Manager the Pro Rata Charge as set forth inExhibit A with respect to each Excess Period of use. The number ofExcess Periods shall be calculated as the total hours flown during theterm of this Management Agreement, less the Allocated Hours towhich it was entitled prior to the termination of this ManagementAgreement as defined In the preceding sentence, the difference of thetwo then divided by Allocated Hours per year divided by 12. For thepurposes of this Management Agreement (excepting when "calendar"precedes the word) "year" shall mean the period of time beginning onthe date hereof and on the same date for each subsequent year duringthe term hereof, and ending at 12:00 midnight on the day before thesame date of the year next following.(d) Manager and Owner agree that the use of the Aircraftshall be deemed to commence at the time Owner takes off on theAircraft and shall terminate when the Aircraft lands at the destinationairport. In addition, one tenth of an hour shall be added to each takeoff and each landing to compensate Manager for taxi time on take-offand landing. Each such hour of use of the Aircraft shall be definedherein as an "Owner OperatIOn Hour" which shall be measured andaccounted for in one tenth of one hour increments. Notwithstandmgthe foregoing, Owner agrees that all flight segments shall bemeasured in one tenth of one hour increments and shall be deemed tobe a minimum of I hour's duration; except that the foregoing I hourminimum flight segment duration shall not apply to (1.) any flightsegment caused solely as a result of government regulation such as acustoms stop or a fuel stop necessitated by the airport of departurefor a specific leg, in which event Owner shall be charged for actualOwner OperatIOn Hours plus $200, (ii.) any flight segment during acalendar day during which Owner's use of the Aircraft equals at least4 Owner Operation Hours, or (IiI.) three flight segments per yeardUrIng the term of this Management Agreement as specified byOwner to Manager. On days which Owner has scheduled more thanone flight segment, the mimmum flight segment duration of one hourreferenced in the precedmg sentence will not apply to the reductIOnof Allocated Hours for those segments that are due solely to stops,during any trip for any flight segment taken by Owner solely forpicking up or dropping off passengers, provided, however, that thesemtenm stops will not reqUire the Aircraft to be on the ground formore than one hour, and upon this occurrence, Owner wlll be billedfor one hour for such flight segment, With only the Owner OperatIOnHours bemg deducted from Owner's Allocated Hours. In additIOn,Owner acknowledges and agrees that on all flight segmentsorigmatmg or terminating outside the Pnme Service Area, m addItIOnto actual Owner OperatIOn Hours, Owner shaII be charged theVariable Rate for all flight hours required to ferry the Aircraft to or


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from such origination or termination point outside the Prime ServiceArea, to or from, as the case may be, the nearest suitable internationalairport within the contiguous U.S. regardless of whether or notManager shall actually ferry the Aircraft to or from the contiguousU.S., but such ferry hours shall not be charged against Owner'sAllocated Hours. As an alternative to the Owner's paying theVariable Rate charge for such ferry flights to or from the contiguousU.S., Owner shall be entitled to be billed as if Owner kept theAircraft outside the Prime Service Area, provided that the entire tripdoes not exceed 5 calendar days (including, if applicable, any day orportion thereof used for ferry flights). In order to elect this secondbilling option for a trip, the first segment of the trip must originatewithin the Prime Service Area and the last segment must terminatewithin the Prime Service Area, provided that contiguous flightsegments, as defined in Section 5(g), within the round trip mayoriginate and terminate outside the Prime Service Area In the eventOwner elects this second billing option, Owner shall be deemed tohave used the Aircraft for the greater of 3 Owner Operation Hoursper day or the actual number of Owner Operation Hours used perday, and Owner shall be surcharged $300 for each night the flightcrew remains outside the Prime Service Area For example, if Ownerflies (i) from an airport inside the Prime Service Area ("Airport #1'')to an airport outside the Prime Service Area ("Airport #2") andreturns from Airport #2 to Airport #1, and (ii) the flight from Airport# 1 to Airport #2 occurs on the first day of the round triE and theflight back to Airport #1 from Airport #2 occurs on the 5 and lastday of the round trip, and (iii) the round trip utilizes 12 OwnerOperation Hours, and (iv) Owner elects to be billed as if the Aircraftwas kept outside the Prime Service Area, then Owner will be deemedto have used 9 Owner Operation Hours (3 each for days 2, 3, and 4of the trip) in addition to the 12 actually utilized, for a total of 21Owner Operation Hours for the entire trip. Owner acknowledgesthat, eyen if Owner elects this second billing_option, Manager shallalways have the right to provide different aircraft for differentsegments of a trip as provided for in Section Sea). Manager shall notunder any circumstances be obligated to provide more than one crewfor any of Owner's trips outside the Prime Service Area, but may doso at its sole discretion in the event that Owner's flight schedule, inManager's opinion, requires Manager to provide more than onecrew. Regardless of whether Owner elects the first or second billingoption with respect to ferrying, if Manager provides more than onecrew for any of Owner's trips that originate or terminate outside thePrime Service Area, then for such trips Owner shall pay for all of theadditional expenses incurred by Manager as a result of providing theadditional flight crew, including but not limited to positioning,repositioning (room and board), and travel expenses (business classfor flight segments outside the Prime Service Area and coach classotherwise) for the additional crew, and travel and salary expensesincurred in order to return the original crew to the Prime ServiceArea Owner agrees that, in the event Manager elects not to providemore than one crew and, in Manager's opinion, more than one crewis required, Owner shall be required to revise the flight segments toensure that the crew will not exceed Manager's internal crew dutyday policies and to allow for adequate crew rest.(e) There shall be no charge to Owner in the event Owner islate or cancels a scheduled flight, except that (i) the Aircraft shall be

permitted to leave in the event Owner is more than ninety minutes latefor the flight and has not notified Manager that Owner will be lateprovided however, if less than ninety minutes after the scheduleddeparture time the Owner reschedules the departure to a time less than4 hours after the originally scheduled departure, then the Aircraft mustremain positioned until the rescheduled departure time; (ii) if Managerhas pre-positioned an aircraft specifically for such canceled flight,Manager may charge Owner for all crew and aircraft repositioningexpenses (not to exceed 2 hours times the Variable Rate) unlessOwner has given Manager 4 hours prior notice of such cancellation onflights completely within the "Prime Service Area" or 24 hours priornotice of such cancellation for all other flights and; (iii) in the eventOwner is more than four hours late, Manager may charge a fee for

I L J I 0 - 2 0 0 0 ~ A J 4

each separate occurrence not to exceed the "late charge" amount setforth in Exhibit A ("Late Charge").(f) The Aircraft may be used at any time during any day of theweek and shall be available at any airport suitable for landing inaccordance with the FAA Regulations under which the Aircraft is thenbeing operated and for which Manager can obtain a landing slot andprovided the same does not violate the terms of applicable insurancecoverage or any U.S. laws, regulations or applicable policies. Inaddition, any operations outside the contiguous U.S. shall be subjectto all applicable laws, regulations and policies.(g) "Multiple Use" shall mean the flying of more than oneflight segment on the same calendar day (such multiple segmentsbeing referred to as "First Leg" and "Second Leg") in the event suchsegments are not contiguous. Contiguous segments shall include onlythose occupied legs for which the time of departure for the Second Legis subsequent to the time of arrival for First Leg, and for which theairport of departure for the Second Leg is the same as the airport ofarrival for the First Leg. If the size of the Interest is less than 25percent of a Lerujet 60 or a Lerujet 31A or less than 50 percent of aCanadair Challenger, Owner shall not be entitled the Multiple Use.Instead, Multiple Use will be provided by Manager solely on an asavailable basis, which availability shall be determined by Manager atits sole discretion. If the size of the Interest is at least 25 percent of aLerujet 60 or a Lerujet 31A or at least 50 percent of a Canadair

Challenger, Owner shall be entitled to the following kind of MultipleUse during a calendar day: flying two segments which are notcontiguous or flying two trips (or two sets of segments) which are notcontiguous with one another but for which all segments within eachtrip are contiguous with one another. Regardless of the size of theInterest, the Multiple Use of aircraft other than as provided for in thepreceding sentence will be provided by Manager solely on an asavailable basis, which availability shall be determined by Manager atits sole discretion. Notwithstanding the foregoing, Multiple Use shallnot be available to Owner on Peak Days or on any calendar day inwhich an aircraft is being provided to Owner for a flight segment thatoriginates or terminates outside of the Prime Service Area, or on anycalendar day for which Owner exercises the exemption from the "asavailable" restriction for an upgrade or downgrade request underSection Sea) herein.(h) "Metropolitan Area" shall be defined to include any pointwithin a 15 statute mile radius of the center of the city as found in thecurrent year's Rand McNally Road Atlas. In the event that Ownerflies into one airport in a Metropolitan Area and flies out of anotherairport in t h ~ same Metropolitan Area during the same calendar day,the two legs shall be deemed to be contiguous for purposes of SectionS(g) above, but the repositioning of the aircraft from one such airportto the other shall bl; included as Owner Operation Hours as defined inSection Sed) of this Management Agreement and be charged to Owner.However, the minimum flight segment duration of one hour will notapply to the reduction of Allocated Hours for these Owner OperationHours for repositioning; provided however, Owner will be billed forone hour for these Owner Operation Hours, with only the OwnerOperation Hours being deducted from Owner's Allocated Hours.(i) In the event Owner elects to (i.) fly into one airport in aMetropolitan Area ("Airport #1") and, (ii.) on the same calendar day,fly out of another airport ("Airport #2") which is outside the sameMetropolitan Area but is within 50 statute miles of Airport #1, and(iii.) Manager can reasonably accomplish both flight segments byutilizing the same aircraft and crew, the two legs shall be deemed to becontiguous for purposes of Section 5(g) above, but the repositioningleg from Airport #1 to Airport #2 shall be included as OwnerOperation Hours as defined in Section Sed) of this ManagementAgreement and be charged to Owner as if it were a live leg: theminimum flight segment duration of one hour shall apply to thereduction of Owner's Allocated Hours and to the application of theVariable Rate charge.


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"(j) For purposes of this section, "Measured Period" shall bethe contract year of the Management Agreement, provIded that in theevent Owner has prevIOusly executed one or more managementagreements with Manager for the same model of aircraft ("PreviousAgreements"), then the Measured Period shall instead be the contractyear of the Previous Agreement with the earliest effective date.Notwithstanding the eventual termination of the Previous Agreements,the Measured Period shall not change throughout the course of theManagement Agreement. In the event that Manager provides aSubstitute Aircraft to Owner for Owner Operation Hours consisting ofmore than 5 percent of Owner's Measured Hours over the course of anyof the first 4 complete or partial Measured Periods ("Excess SubstituteHours") over the course of this Management Agreement, the ExcessSubstitute Hours shall be replenished to Owner's Allocated Hours as setforth below. "Measured Hours" for a given Measured Period shall be thegreater of (i) Owner's cumulative pro rata Allocated Hours to whichOwner was entitled during the Measured Period, considering theManagement Agreement and all Previous Agreements, o r (ii) thecumulative Owner Operation Hours used during the Measured Period,considering the Management Agreement and all Previous Agreements.Manager shall notify Owner of any Excess Substitute Hours within 90days after the end of each of the first 4 Measured Periods. Such ExcessSubstitute Hours shall be added back to Owner's Allocated Hours underthe Management Agreement, provided that in the event any PreviousAgreements are still in effect at the time of replenishing, the ExcessSubstitute Hours shall instead be added back to Owner's AllocatedHours under the Previous Agreement with the earliest effective date. TheVariable Rate charges and other charges related to the Excess SubstituteHours shall remain unchanged. The replemshing of the ExcessSubstitute Hours shall not change the maximum Total Available Hours(as set forth in the Section 5(c) of this Management Agreement), that canbe used in any given year under the Management Agreement or thePrevious Agreements. No hours shall be replenished under this sectionfor the Management Agreement or any Previous Agreement which is notin effect for at least 6 months during any Measured Period."

6. Loss or Damage to the Aircraft.(a) In the event of any damage to or loss, theft or destructionof the AIrcraft by any cause whatsoever ("Loss or Damage") notinvolving a total loss, all aIrcraft hull insurance proceeds in respectthereof shall be paId to Manager in trust for the repair and restorationof the Aircraft to good repair, condition and working order.(b) In the event of Loss or Damage to the Aircraft undersubparagraph (a) above, Manager shall use reasonable efforts toarrange for Owner an alternate aircraft in accordance with the tennsof SectlOn Sea) hereof while the Aircraft is being repaired as may benecessary as provided under the Master Interchange Agreement.(c) In the event of a totai loss of the AIrcraft as determined bythe insurer or insurers that have issued the all-risk hull insurance withrespect to the Aircraft ("Total Loss"), unless Seller exercises itsoption to replace the Aircraft in accordance with Section 5(b) of thePurchase Agreement, Owner shall be entitled to receive its portion ofthe aircraft hull insurance proceeds m accordance with Section 3(f),and in whIch event this Management Agreement will terminate. Inthe event such replacement option IS exercised, Owner shall beentitled to fly and enjoy all the benefits of this ManagementAgreement dunng the period from loss to replacement withoutinterruption. Owner and Manager agree to execute all documentsnecessary to accomphsh the foregoing.7. No Liens, Claims, Charges or Encumbrances. Manager andOwner agree that, throughout the term of this ManagementAgreement, neither party shall cause or penmt, through its own actsor failure to act, any hens, claims, charges or encumbrancesattributable to It to attach to the AIrcraft or the Interest, other than (i)mechanics' liens to be dIscharged in the ordmary course of business,(il) the rights of any AdditIOnal Interest Owner pursuant to the terms

UIO-2000/MN5

of Joint Ownership Agreement and (iii) in the case of Owner, a Lien,if any, as permitted pursuant to Section 3 of the Joint OwnershipAgreement.8. Force Majeure. Manager shall have no liability for delay orfailure to furnish the services contemplated by this ManagementAgreement when such delay or failure is caused by Force Majeure asdefined below. Owner and Manager agree that when, in thereasonable view of Owner, Manager or the pilots of the Aircraft,safety may be compromised, Owner, Manager or the pilots mayterminate a flight, refuse to commence a flight, or take other actionnecessitated by such safety considerations WIthout liability for loss,injury, damage or delay. In the event Manager is more than 60minutes late in furnishing the Aircraft at any time due to any reasonother than Force Majeure or for safety considerations as set forth inthis Section 8, Owner shall be granted additional flight time at noadditional cost in the month of Owner's choice during the term hereofequal to the length of the delay, up to a maximum of 2 hours peroccurrence. The foregoing shall be Owner's sole remedy for delay orfailure to furnish the Aircraft by Manager. For purposes of thisManagement Agreement, "Force Majeure" shall mean an act of God,strike or lockout or other labor dispute, act of the public enemy, war(declared or undeclared), blockade, revolution, civil commotion,lightning, fire, storm, flood, earthquake, explosion, governmentalrestraint, embargo, sudden or unexpected aircraft mechanical failure,inability to obtain or delay in obtaining equipment or transport,inability to obtain or delay in obtaining governmental approvals,permits, licenses or allocations and any other cause whether of thekind specifically enumerated above or otherwise, provided that inorder for any of the foregoing to constitute "Force Majeure", it mustnot be reasonably within the control of the Manager.9. Events of Default by Owner. The occurrence and continuation ofany of the following shall constitute an "Event of Default" by Ownerunder this Management Agreement;(a) The failure of Owner to pay when due any amountrequired to be paid by Owner hereunder; provided, however, theOwner may cure such Event of Default by paying such amount to theManager within 10 days after the date such payment is duehereunder;(b) Any lien, claim, charge or encumbrance, other than a Lienpermitted pursuant to Section 3 of the Joint Ownership Agreement,shall attach to the Aircraft or the Interest as a result of Owner's acts.or failure to act;(c) The breach by Owner of any other provision of thISManagement Agreement, any other agreement with Manager, whichbreach shall continue for 10 days after written notice to Owner byManager, or such other party to the relevant agreement;(d) Owner shall:(i) admit in writing its inability to pay, or fail to pay, debtsgenerally as they oecome due;(ii) file a petition in bankruptcy or a petition under anyinsolvency act or file an answer admittmg or faihng to deny thematerial allegation of such petition;(iii) make an assignment for the benefit of its creditors;(iv) consent to the appointment of, or possession by, acustodian for itself or for the whole or substantially all of itsproperty; (v) upon a petition in bankruptcy filed against It, beadjudicated, or have an order for relief granted as, a bankrupt; or(vi) file a petition or answer seeking reorganization orarrangement or other aid or relief under any bankruptcy or insolvencylaws or any other law for the relief of debtors or file an answeradmitting, or failing to deny, the material allegatIOns of a petltionfiled agamst it for any such relief;(e) A court of competent jurisdictlOn shall enter an order,judgment or decree appointing, without the consent of Owner, acustodian for Owner or the whole or substantIally all of its property,or approving a petitIOn filed against it seeking reorgamzation or


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arrangement of Owner under any bankruptcy or insolvency laws orany other law for the relief of debtors, and such order, judgment ordecree shall not be vacated or set aside or stayed within 60 days fromthe date of entry thereof; or(f) Under the provision of any law for the relief of debtors,any court of competent jurisdiction or custodian shall assume custodyor control of Owner or of the whole or any substantial part of itsproperty without the consent of Owner, and such custody or controlshall not be terminated or stayed within 60 days from the date ofassumption of such custody or control.10. Remedies for Event(s) of Default by Owner. In addition to anyother remedies provided for herein or otherwise available to Managerat law or in equity, upon the occurrence of an Event of Default byOwner, Owner shall no longer be entitled to management services, itsuse of the Aircraft or any other aircraft hereunder or under the MasterInterchange Agreement for the Allocated Hours for one month foreach 30 day period (or part thereof) that Owner is in default untilsuch default is cured; provided, however, in -the case ofthe Events ofDefault specified in paragraphs (a), (b) or (c) of Section 9, Managershall first declare Owner in default; provided, further, that the failureof Manager to declare Owner in default shall not prevent such eventfrom becoming or continuing to be an Event of Default hereunder.Any such reduction of the Allocated Hours shall be in addition to andnot in lieu of Manager's right to bring an action or claim againstOwner for all sums which may be due and owing hereunder and topursue all other remedies available to it at law or in equity. Upon theoccurrence of an Event of Default, the original Seller of the Aircraftor its designee shall have the right, but not the obligation, torepurchase Owner's Interest at a 20 percent discount from the fairmarket value (determined in accordance with Section 4 of thePurchase Agreement) as liquidated damages and not as a penalty.11. Events of Default by Manager. . The occurrence andcontinuation of any of the following shall constitute an Event ofDefault by Manager under this Management Agreement;(a) The failure by Manager to maintain in full force and effectduring the term of this Management Agreement the insurancerequired by Section 3(f) hereof(b) In the event that Manager is more than 60 minutes late infurnishing the Aircraft to the Owner on five or more separateoccasions during any calendar year within the term hereof undercircumstances which entitle the Owner to free additional flight timepursuant to Section 8 hereof( c) The breach by Manager of any other material provision ofthis Management Agreement or any other agreement with Ownerwhich breach shall continue for 30 days after written notice toManager by Owner (given according to Section 20 hereof) to correctsuch breach and which notice must describe the breach complainedof; provided that if such breach complained of in the notice cannot becured within 30 days and Manager is diligently attempting to curethat breach, such breach shall not be deemed a default of Managerunless such material breach shall not be cured at the end of 60 daysfrom the giving of the said notice or within such other delay asOwner and Manager may agree.12. Remedies for Event(s) of Default by Manager. In addition toany other remedies provided for herein or otherwise available toOwner at law or in equity, upon the occurrence of an Event ofDefault by Manager; Owner may cancel this Management Agreementand remarket the Aircraft pursuant to the terms of Section (4) of thePurchase Agreement. In the event that Owner exercises the option tocancel this Management Agreement pursuant to an Event of Defaultby Manager, Manager shall pay to Owner an amount equal to thebrokerage fee incurred by Owner pursuant to the terms of Section (4)of the Purchase Agreement; provided however, that Manager shall beentitled to deduct therefrom any and all amounts then due to Managerby Owner hereunder.

I L J I 0 - 2 0 0 0 ~ A J 6

13. Limita tion of Liability. MANAGER SHALL, IN NO EVENT,BE LIABLE TO OWNER FOR ANY INDIRECf, SPECIAL ORCONSEQUENTIAL DAMAGES AND/OR PUNITIVE DAMAGESOF ANY KIND OR NATURE UNDER ANY CIRCUMSTANCESOR FOR ANY REASON INCLUDING ANY DELAY ORFAILURE TO FURNISH THE AIRCRAFT OR CAUSED OROCCASIONED BY THE PERFORMANCE OR NONPERFORMANCE OF ANY MANAGEMENT SERVICESCOVERED BY THIS AGREEMENT.14. Third Party Beneficiaries. Owner acknowledges that, inconsideration of the mutual covenants set forth in this ManagementAgreement together with the Master Interchange Agreement and theJoint Ownership Agreement, all other Additional Interest Owners ofthe Aircraft are third party beneficiaries of this ManagementAgreement.15. Independent Contractor . The relationship of Manager toOwner hereunder is that of an independent contractor. In no eventshall this Management Agreement be construed as creating a jointventure, partnership or other form of association or cooperativearrangement between the parties.16. Assignments.(a) This Management Agreement shall not be assigned byOwner except in cases as may be allowed by the Purchase Agreementwithout the prior written consent of Manager. Notwithstanding theforegoing, provided that owning or managing the Interest is notBuyer's sole material purpose for existence, this ManagementAgreement may, upon 30 days prior written notice to Manager, beassigned in its entirety and only in its entirety by Owner to any entityto which Owner transfers all or substantially all of its assets andbusiness pursuant to a merger, acquisition, or other suchreorganization or to any affiliate of Owner provided that (i) theInterest is transferred to the same person in accordance with thePurchase Agreement and other Governing Documents are assigned tosuch person and, in Manager's opinion in any such case, such transferis acceptable in terms of such transferee's creditworthiness,geographic location or flight patterns and any other factors Managerreasonably determines to be applicable, (ii) such transferee is acitizen of the United States (as defined in 49 U.S.C. Section 40102, asamended) or otherwise eligible to register aircraft with the FAApursuant to Part 47 of the Federal Aviation Regulations, and (iii)such transferee shall execute all other documents relating to theAircraft necessary to reflect such transferee's ownership, themanagement of the Aircraft by Manager and the transferee'sparticipation in the Interchange Program. The assignment shall not beeffective until and unless the assignee has acquired Owner's Interestand executed such documents as Manager, as manager of theAircraft, shall deem necessary to evidence assignee's assumption ofOwner's obligations with respect to the Aircraft. Buyer shall pay toSeller the Transfer Fee listed in Exhibit A to pay for administrativecosts necessary to facilitate such transfer. Any such assignment shallnot operate to relieve Owner or Manager of any liabilities accruedprior to such assignment.(b) This Management Agreement may be assigned byManager, without consent of Owner, to any affiliate of Manager.(c) This Management Agreement shall be binding upon andshall inure to the benefit of the parties hereto, their representatives,successors and permitted assigns.17. Entire Agreement. This Management Agreement constitutes theentire understanding among the parties and there are norepresentations, warranties, conditions, covenants or agreementsother than as set forth expressly herein or in the other GoverningDocuments.18. Amendments. This Management Agreement may not be altered,changed or amended except by an instrument in writing signed by allparties hereto.


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19. Governing Documents. Governing Documents shall be definedas this Management Agreement, the Purchase Agreement, the JointOwnership Agreement, the Master Interchange Agreement and anyother documents that the Buyer and SeIler under the PurchaseAgreement or the Owner and Manager under this ManagementAgreement may agree upon, sign and designate as a GoverningDocument or such other document that Joint Owners may sign and sodesignate if approved by Manager and SeIler as defined in thisManagement Agreement and the Purchase Agreement.20. Governing Law. This Management Agreement shaIl beinterpreted and governed by the laws of the State of Texas applicableto contracts made and to be performed therein without giving effectto the principles of conflict laws thereof.21. Notices. Any notice to be given shall be deemed sufficientlygiven if sent by registered or certified mail, commercial courier orfacsimile to the party to which said notice is to be given at its addressas shown on page I unless such address is changed by notice given tothe other party. Notices so sent shall be deemed to be received uponthe earlier of (i) 2 days foIlowing sending in the manner providedabove or (ii) actual receipt by the receiving party.22. Counterparts. This Management Agreement may be executed inone or more counterparts each of which shall be deemed an original,all of which together shall constitute one and the same agreement.23. Severability. In the event that anyone or more of the provisionsof this Management Agreement shall for any reason be held to beinvalid, illegal or unenforceable, the remaining provisions of thisManagement Agreement shall be unimpaired and the invalid, illegalor unenforceable provision shall be replaced by a mutually acceptableprovision, which, being valid, legal and enforceable, comes closest to

I UIO-20001MN7

the intention of the parties underlying the invalid, illegal orunenforceable provision.

MANAGER Bombardier Aerospace CorporationBy:

Title:

OWNER B & B Advisory Services. L.L.c.

By:

Title:


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Kirkman, CarolynFrom:Sent:To:Cc:Subject:

Hello Lee,

Kirkman, CarolynTuesday, July 24,200112:05 PM'Sher, Leopold''[email protected]'; '[email protected]'; Bringe, DeanRE: FlexJet

We have reviewed the comments and attached are our replies. What Jdid was copy the last email you sent into Word anadded our response beneath each of your comments. We look forward to hearing from you soon. Thank you!

Comments 2.doc

Best regards,Carolyn

-Original Message-From: Sher, Leopold [SMTP:[email protected]: Friday, July 06,200110:38 AMTo: 'ckirkman@flexjelcom'Cc: '[email protected]'; '[email protected]'Subject: RE: FlexJetHi Carolyn, hope all is well. Mr. Burrus and I have discussed the revisedSideletter Agreement and we wish to reiterate all the items discussed in myJuly 4, 2001, email, below, and note the fOllowing additional items:1. The exemptions from the "as available" restriction to upgrades anddowngrades should not be limited to the 1st contract year. We accommodatedyou in transferring our ownerShip, and in consideration of ouraccommodation, you agreed to give us these upgrades. The exemptions(whichshould be a total of 6 as we indicated in our previous email) should beavailable at any time throughout the contract period.2. We wish to reemphasize the importance of the rounding issue. Giving usadditional hours for your unilateral changing of the rounding calculationsin your favor is certainly appreciated but does not fully compensate us forthe past and future rounding calculations. We paid for time that should nothave been charged to us and we will do the same under the new contract weare about to sign with you. This is just not right. As we discussed on ---the phone, a more fair and appropriate solution would be to provide that wewould not pay the variable rate for the extra hours(i.e., the Special CoreHours and the Additional Core Hours) you kindly gave us. This alsO".wouldnecessitate changing the method of application of hours you provided inparagraph 2 of page 10 of the Sideletter so that the Additional Core Hourswould be listed as number "(2)" as opposed to number "(4)."Thanks for your help and please let us hear from you.All the best, Lee.

Leopold Z. SherSher Gamer Cahill Richter Klein McAlister & Hilbert, L.L.C.Twenty-Eighth Floor909 Poydras StreetNew Orleans, Louisiana 70112

1EXHIBIT5


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Tel: 504-299-2101Fax: 504-299-2301'.

The information contained in this electronic message may be attorneyprivileged and confidential information intended only for the use of theowner of the email address listed as the recipient of this message. If youare not the intended recipient, or the employee or agent responsible fordelivering this message to the intended recipient, you are hereby notifiedthat any disclosure, dissemination, distribution, or copying of thiscommunication is strictly prohibited. If you have received thistransmission in error, please immediately notify us by telephone at504-299-2100 and return the original message to us at Sher Gamer CahillRichter Klein McAlister & Hilbert, L.L.C., Twenty Eighth Floor, 909-PoydrasStreet, New Orleans, LA 70112 via the United States Postal Service.

> -Original Message> From: Sher, Leopold> Sent: Wednesday, July 04,20014:10 PM> To: '[email protected]'> Cc: '[email protected]'; '[email protected]'> Subject: FlexJet>> Carolyn, hope you had a nice 4th. Thank you for your quick turnaround of> the revised Sideletter Agreement. Mr. Burrus has not had an opportunity> to review your revisions yet, he and I have not spoken since you produced> the revisions and I have not yet thoroughly reviewed the revisions and,> accordingly, we reserve the right to make additional comments and> suggestions._After a brief review, these are my preliminary observations> to your revisea Sideletter Agreement:>> 1. On page 3 in the fourth to last line of the first paragraph, you refer> to days that are "contiguous" to Peak Days. Technically, all days in the> year are "contiguous" to Peak Days in one way or another. What do you> mean and why is there this additional restriction?>> 2. In the next paragraph on the same page, you say that if we repurchase> after 60 months, we get to keep carryover hours. Why does this right only> exist if we keep the plane for 60 months? We are not keeping our plane> now for 60 months. As a matter of fact, just a few months ago, you asked> us to swap planes and we had not been in the program for 60 months. The> carryover hours are our hours and we should be able to keep them if we> continue to buy your planes, whether we keep the plane a full 60 months.> It is for this same reason that carryover hours should not be limited to> 10 percent of the Allocated Hours, as you have provided in this same--> paragraph as a further limitation on carryover hours. We never agreed to.> that and we should be able to keep all carryover hours.>> 3. In this same paragraph you refer to "and other fees" in the 4th to> last line. We do not agree to these "other fees" and we have not seen> this terminology used at any other time when referring to our paying the> variable rate.>> 4. On page 4, second paragraph, you make certain statements regarding> lawsuits, etc. We thought you were going to make additional statements> similar to those made in the prior sideletter relating to proceedings with> taxing authorities, manufacturers and statements dealing with the subject> of depreciation and the fact that the regulatory authorities have> recognized fractional ownership. Also, when we first got into the> program, we were advised for tax purposes by representatives of FlexJet to> operate our interest through a Delaware entity and take possession and> ownership of the plane in Delaware. Could you please have the Sideletter

2


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:> reflect that the place we are now taking possession and ownership does not> give rise to a tax problem and that we no longer have to operate through a> Delaware entity?>> 5. As Mr. Burrus advised during our telephone conference last Friday, one> of the most important, if not the most important issue remaining open is> the rounding problem. In order to try to compensate us for the rounding> problem, on pages 9 and 10 you provide for 5 "Special Core Hours" and 25> "Additional Core Hours." Thank you for those hours. We thought, however,> as a compromise and to fairly compensate us for the rounding issue, we> would not have to pay the variable rate for these core hours.>> 6. In the third paragraph on page 10, you address what happens when the> plane is not equipped with a life raft and the flight is from New Orleans> to Palm Beach. The solution you propose is what we discussed on the phone> but we were not supposed to limit its application to trips between these 2> cities. Anytime you fly us without a life raft and the flight path is> adjusted as a result, appropriate adjustments should be made so that the> additional flight time should not be deducted and we should not be billed> for the extra time.>> 7. In the last paragraph on page 10, you provide for the exemption from> the "as available" restriction to upgrades or downgrades on 4 occasions.> I thought we were receiving a total of 6 exemptions, the 2 that everyone> receives under 5(a) of the Management Agreement and 4 in addition to those>2.>> Please let me hear from you on these issues and I will get back to you as> soon as I speak to Mr. Burrus and finish reviewing your fine work.>>> Thanks very much for your help and best regards. Lee>>>>> Leopold Z. Sher> Sher Gamer Cahill Richter Klein McAlister & Hilbert, L.L.C.> Twenty-Eighth Floor> 909 Poydras Street> New Orleans, Louisiana 70112>> Tel: 504-299-2101> Fax: 504-299-2301>> The information contained in this electronic message may be attorney> privileged and confidential in formation intended only for the use of t h e ~ > owner of the email address listed as the recipient of this message. If> you are not the intended recipient, or the employee or agent responsible> for delivering this message to the intended recipient, you are hereby> notified that any disclosure, dissemination, distribution, or copying of> this communication is strictly prohibited. If you have received this> transmission in error, please immediately notify us by telephone ,at> 504-299-2100 and return the original message to us at Sher Gamer Cahill> Richter Klein McAlister & Hilbert, L.L.C., Twenty Eighth Floor, 909> Poydras Street, New Orleans, LA 70112 via the United States Postal> Service.>>>

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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 28 of 35e--Original Message--From: Sher, Leopold [SMTP:[email protected]]Sent: Friday, July 06, 2001 10:38 AMTo: 'cl


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Case 2:02-cv-02695-JCZ Document 53 Filed 04/29/03 Page 29 of 35 .

> 2. In the next paragraph on the same page, you say that if we repurchase> after 60 months, we get to keep carryover hours. Why does this right only> exist i f we keep the plane for 60 months? We are not keeping our plane> now for 60 months. As a matter o f fact, just a few months ago, you asked> us to swap planes and we had not been in the program for 60 months. The> carryover hours are our hours and we should be able to keep them if we> continue to buy your planes, whether we keep the plane a full 60 months.> It is for this same reason that carryover hours should not be limited to> 10 percent of the Allocated Hours, as you have provided in this same> paragraph as a further limitation on carryover hours. We never agreed to> that and we should be able to keep all carryover hours.The substitution of the aircraft is not relative to whether unused hours are carried overfrom one interest to another. The carry over ofhours from one interest to the next is aconcession and we think this is a fair offer. The program has always been that under-flying can result in a loss of hours, depending on how many hours are not flown eachyear.

> 3. In this same paragraph you refer to "and other fees" in the 4th to> last line. We do not agree to these "other fees" and we have not seen> this terminology used at any other time when referring to our paying the};> variable rate.The "other fees" are those incurred as a result of the flight taken on those hours for which t...Owner is responsible, e.g., landing fees, etc. To make this more specific, after "and other "

fees", we can insert"as set forth in the Governing Documents and designated as theresponsibility ofOwnerlBuyer." .

> 4. (a) On page 4, second paragraph, you make certain statements regarding> lawsuits, etc. We thought you were going to make additional statements> simil