EXHIBIT 10.19
AIRCRAFT USAGE AGREEMENT
THIS AIRCRAFT USAGE AGREEMENT ("AGREEMENT") is made and entered into as
of the 1st day of September, 2002, by and between C5, L.L.C., a Nevada limited
liability company ("C5") and VESTIN GROUP, INC., a Delaware corporation
("VESTIN").
W I T N E S S E T H:
WHEREAS, C5 is the owner of a Citation V jet aircraft bearing tail
number 80AB (the "AIRCRAFT"); and
WHEREAS, Vestin maintains a principal office in Las Vegas, Nevada but
conducts business throughout the United States; and
WHEREAS, Vestin wishes to reserve the use of the Aircraft subject to
the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Recitals. The foregoing recitals are incorporated herein as if
fully rewritten herein.
2. Grant of Preferred Right to Use Aircraft. C5 hereby grants to
Vestin the right to use the Aircraft during the term of this Agreement upon
reasonable advance notice from Vestin. Vestin's right to use the Aircraft shall
not be exclusive, but shall be on a preferred basis over any other proposed
user. C5 shall make the Aircraft available to Vestin twenty-four (24) hours per
day, seven (7) days per week.
3. Hourly Charge; Monthly Minimum Usage. Vestin shall be charged,
each month, at the rate of Three Thousand Dollars ($3,000) per hour for the
initial ten (10) hours of use of the Aircraft during each such month;
thereafter, Vestin shall be charged at the rate of Two Thousand Five Hundred
Dollars ($2,500) per hour. Notwithstanding the foregoing, in consideration of C5
extending preferred status to Vestin hereunder, Vestin shall guarantee C5 a
minimum monthly payment equivalent to sixteen (16) hours of usage each month
(the "MONTHLY GUARANTEE"), which Monthly Guarantee, together with any direct
costs paid by Vestin for the use of the Aircraft shall, upon payment, be
credited against Vestin's actual monthly charge for use of the Aircraft to the
extent Vestin's actual monthly charge exceeds such Monthly Guarantee and direct
costs. Vestin shall remit to C5, in immediately available funds, all monthly
charges due hereunder no later than
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the third day of the month immediately following the month for which such
charges were incurred.
4. C5 Obligations. C5 shall be responsible and pay directly for
(i) the maintenance and upkeep of the Aircraft in accordance with all Federal
Aviation Administration rules and regulations, and such other applicable laws,
rules and regulations governing or applicable to such Aircraft; (ii) property
damage and liability insurance on the Aircraft; (iii) 24-hour availability of
duly licensed and certified pilots in good standing to operate the Aircraft;
(iv) all landing, tie-down, tug and hanger fees; (v) all jet fuel expended
during Vestin's use of the Aircraft, and (vi) all taxes, whether city, state or
federal, incurred by C5 in connection with the ownership, use or operation of
the Aircraft.
5. Term. The term of this Agreement shall be for a period of one
(1) year (the "INITIAL TERM") from the date hereof; provided, however, this
Agreement shall automatically renew for successive periods of one (1) year each
(a "RENEWAL PERIOD") unless terminated by either party hereto no less than
thirty (30) days prior to the end of the Initial Term or each applicable Renewal
Period.
6. Prevailing Party Fees. In the event of a default of any
condition or obligation of this Agreement on the part of any party hereto which
results in any legal proceeding, the non-prevailing party shall pay to the
prevailing party of the litigation all reasonable costs and expenses of the
legal proceeding and any appeal therefrom, including reasonable attorney's fees.
7. Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. The parties intend that each
representation, warranty and covenant contained herein shall have independent
significance. If any party has breached any representation, warranty or covenant
contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party has not
breached shall not detract from or mitigate the fact that such party is in
breach of the first representation, warranty or covenant.
8. Amendments and Waivers. No oral modification hereof shall be
binding upon the parties; all modifications and amendments shall be in writing
and signed by the parties. Failure by any party to insist upon or enforce any of
its respective rights, benefits or remedies shall not constitute a waiver
thereof. Any party hereto may waive the benefit of any provision or condition
for such party's benefit contained in this Agreement; provided, however, such a
waiver must be specifically expressed in writing.
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9. Survival of Agreement. All covenants, representations and
warranties contained in this Agreement or made in writing by any party in
connection herewith shall survive the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby.
10. Successors and Assigns. All covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the heirs, personal representatives, executors,
administrators, affiliates, successors and assigns of the parties hereto whether
or not so expressed. Except as otherwise expressly provided herein, nothing
expressed in or implied from this Agreement is intended to give, nor shall be
construed to give, any Person, other than the parties hereto and their permitted
successors and assigns, any benefit or legal or equitable right, remedy or claim
under or by virtue of this Agreement or any such other document.
11. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
12. Counterparts. This Agreement may be executed in two (2) or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
13. Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard to
principles of conflict of laws.
15. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given (a) when delivered
personally to the recipient, (b) one (1) Business Day after being sent to the
recipient by reputable overnight courier service (charges prepaid), (c) three
(3) Business Days after posting in the United States mail having been mailed to
the recipient by certified or registered mail, return receipt requested and
postage prepaid, or (d) when sent via facsimile if a copy is delivered
personally, couriered or mailed to the recipient as set forth above. Such
notices, demands and other communications shall be sent to the parties at the
addresses indicated below:
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If to C5, to: C5, L.L.C.
0000 X. Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxx X. Xxxxxx
If to Vestin, to: VESTIN GROUP, INC.
0000 Xx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
16. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties and supersedes any prior
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first set forth above.
WITNESSES: C5:
C5, L.L.C., a Nevada limited liability company
By: IJAMMM, INC., a Nevada corporation, its Manager
By: /s/ Xxx X. Xxxxxx
________________________ -------------------------------
Name: Xxx X. Xxxxxx
Title: President
VESTIN:
VESTIN GROUP, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
________________________ -------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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