Exhibit 10.20
New York, New York
May 30, 2008
GUARANTY OF PAYMENT
FOR VALUE RECEIVED, and to induce
CITICORP USA, INC., a Delaware corporation, having its principal
place of business at Citicorp Center, 666 Fifth Avenue, New York,
New York 10103 (“Lender”), to lend to 57 AVIATION
SERVICES, LLC, a Delaware limited liability company, whose
principal place of business is 9 West 57th Street, 39th Floor, New
York, New York 10019 (the “Borrower”), the principal
sum of SIXTEEN MILLION SEVEN HUNDRED SIXTY-THREE THOUSAND SEVEN
HUNDRED EIGHTEEN AND 53/100 DOLLARS ($16,763,718.53) (the
“Loan”), evidenced by the Promissory Note (the
“Note”) and secured by an Amended and Restated First
Priority Aircraft Mortgage and Security Agreement (the
“Mortgage”), each as described in Exhibit A attached
hereto and made a part hereof, and by other documents executed in
connection therewith (the “Other Security
Documents”),
The undersigned, OZ MANAGEMENT LP,
OZ ADVISORS LP and OZ ADVISORS II LP, each a Delaware limited
partnership with an office at 9 West 57th Street, 39th Floor, New
York, New York 10019 (hereinafter referred to as
“Guarantor”) hereby absolutely, joint and severally and
unconditionally guarantee to Lender the prompt and unconditional
payment of the said principal sum and the interest thereon, as the
same shall become due and payable under the Note, and any and all
sums of money which, at any time, may become due and payable under
the provisions of the Note, the Mortgage or the Other Security
Documents, including, without limitation all costs and expenses
(including reasonable attorney’s fees) incurred by and the
due and prompt performance of all of the terms, agreements,
covenants and conditions thereof (collectively, the
“Debt”).
It is expressly understood and
agreed that this is a continuing guaranty and that the obligations
of Guarantor hereunder are and shall be absolute under any and all
circumstances, without regard to the validity, regularity or
enforceability of the Note, the Mortgage, or the Other Security
Documents, a true copy of each of said documents Guarantor hereby
acknowledges having received and reviewed.
Any indebtedness of Borrower to
Guarantor now or hereafter existing (including, but not limited to,
any rights to subrogation Guarantor may have as a result of any
payment by Guarantor under this Guaranty), together with any
interest thereon, shall be, and such indebtedness is, hereby
deferred, postponed and subordinated to the prior payment in full
of the Debt. Until payment in full of the Debt (and including
interest accruing on the Note after the commencement of a
proceeding by or against Borrower under the Bankruptcy Reform Act
of 1978, as amended, 11 U.S.C. Sections 101 et seq., and the
regulations adopted and promulgated pursuant thereto (collectively,
the “Bankruptcy Code”) which interest the parties agree
shall remain a claim that is prior and superior to any claim of
Guarantor notwithstanding any contrary practice, custom or ruling
in cases under the Bankruptcy Code generally), Guarantor agrees not
to accept any payment or satisfaction of any kind of indebtedness
(not to include any equity distributions) of Borrower to Guarantor
and hereby assigns such indebtedness to Lender, including the right
to file proof of claim and to vote thereon in connection with any
such proceeding under the Bankruptcy Code, including the right to
vote on any plan of reorganization.
Guarantor agrees that, with or
without notice or demand, Guarantor will reimburse Lender, to the
extent that such reimbursement is not made by Borrower, for all
expenses (including reasonable attorney’s fees) incurred by
Lender in connection with the collection of the Debt or any portion
thereof or with the enforcement of this Guaranty.
All moneys available to Lender by
Guarantor hereunder for application in payment or reduction of the
Debt may be applied by Lender in such manner and in such amounts
and at such time or times and in such order and priority as Lender
may see fit to the payment or reduction of such portion of the Debt
as Lender may elect.
Guarantor hereby waives notice of
the acceptance hereof, presentment, demand for payment, protest,
notice of protest, or any and all notice of non-payment,
non-performance or non- observance, or other proof, or notice or
demand.
Guarantor further agrees that the
validity of this Guaranty and the obligations of Guarantor
hereunder shall in no way be terminated, affected or impaired
(i) by reason of the assertion by Lender of any rights or
remedies which it may have under or with respect to either the
Note, the Mortgage, or the Other Security Documents, against any
person obligated thereunder, or (ii) by reason of any failure
to file or record any of such instruments or to take or perfect any
security intended to be provided thereby, or (iii) by reason
of the release or exchange of any property covered by the Mortgage
or other collateral for the Loan, or (iv) by reason of
Lender’s failure to exercise, or delay in exercising, any
such right or remedy or any right or remedy Lender may have
hereunder or in respect to this Guaranty, or (v) by reason of
the commencement of a case under the Bankruptcy Code by or against
any person obligated under the Note, the Mortgage or the Other
Security Documents, or the death of any Guarantor, or (vi) by
reason of any payment made on the Debt or any other indebtedness
arising under the Note, the Mortgage or the Other Security
Documents, whether made by Borrower or Guarantor or any other
person, which is required to be refunded pursuant to any bankruptcy
or insolvency law; it being understood that no payment so refunded
shall be considered as a payment of any portion of the Debt, nor
shall it have the effect of reducing the liability of Guarantor
hereunder. It is further understood, that if Borrower shall have
taken advantage of, or be subject to the protection of, any
provision in the Bankruptcy Code, the effect of which is to prevent
or delay Lender from taking any remedial action against Borrower,
including the exercise of any option Lender has to declare the Debt
due and payable on the happening of any default or event by which
under the terms of the Note, the Mortgage or the Other Security
Documents, the Debt shall become due and payable, Lender may, as
against Guarantor, nevertheless, declare the Debt due and payable
and enforce any or all of its rights and remedies against Guarantor
provided for herein.
Guarantor further covenants that
this Guaranty shall remain and continue in full force and effect as
to any modification, extension or renewal of the Note, the
Mortgage, or any of the Other Security Documents, that Lender shall
not be under a duty to protect, secure or insure any security or
lien provided by the Mortgage or other such collateral, and that
other indulgences or forbearance may be granted under any or all of
such documents, all of which may be made, done or suffered without
notice to, or further consent of, Guarantor.
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Guarantor agrees that so long as the
Loan shall remain outstanding, OZ Management LP
(“Management”), OZ Advisors LP (“Advisors
I”) and OZ Advisors II LP (“Advisors II”) shall
maintain average Liquid Assets (hereinafter defined) in an
aggregate amount that shall at all times (tested quarterly) be
equal to an amount greater than the then outstanding principal
balance of the Note. The term “Liquid Assets” shall
mean cash, unrestricted marketable securities and other liquid
investments of the undersigned, including the undersigned’s
assets held at Lender or one of Lender’s affiliates, solely
to the extent that each may be converted to cash within ninety
(90) days, as determined by Lender in its reasonable
discretion, without the consent of any person or entity.
Guarantor further agrees that so
long as the Loan shall remain outstanding, each of the Guarantors
will, unless the Lender shall otherwise consent in writing:
(i) comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon the undersigned
or the undersigned’s property, except to the extent contested
in good faith and by appropriate proceedings; (ii) furnish or
cause to be furnished to the Lender, as soon as available and in
any event within forty-five (45)&n
