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EXHIBIT 10.33
AIRPLANE LEASING AGREEMENT
This Airplane Leasing Agreement (the "Agreement") is entered into on
February 15th, 1999, by and between CRL Network Services, Inc., a California
corporation ("Customer"), and FBN Holding Corp., a Delaware corporation (the
"Company").
RECITALS
Whereas, the Company has, from time to time, leased a Cessna Citation I
aircraft, serial # 500-107, U.S. Registration N79RS (the "Airplane") owned by
the Company to Customer for various transportation needs of Customer, and in
return therefor, Customer has paid the Company's hourly lease rate as in effect
from time-to-time;
Whereas, the Company and Customer desire to set forth the terms and
conditions of such arrangement in this Agreement;
Now, therefore, in consideration of the foregoing recitals, the terms
and conditions set forth herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. LEASE OF AIRPLANE. For so long as the Company shall own and operate
the Airplane, and during such periods of time as the Airplane may be available
for use as determined by the Company, the Company agrees to the non-exclusive
lease of the Airplane to Customer on the terms and conditions set forth in this
Agreement. If Customer desires to lease the Airplane, Customer shall contact the
Company and inquire about its availability. If the Airplane is available during
the period requested, the Company shall make the Airplane available to Customer.
For such use, Customer shall pay to the Company the hourly rate that shall then
be in effect for each hour that the Airplane in flight; provided, however, that
such hourly rate shall be the lowest hourly rate offered by the Company to any
third party (other than Customer) during the preceding three months. Subject to
the proviso of the immediately preceding sentence, the Company may change the
hourly rate upon thirty (30) days prior written notice to the Company. Any
amounts due by Customer shall be paid within thirty (30) days following the
completion of each use of the Airplane by Customer. The Company's lease of the
Airplane shall be on an all inclusive "wet" basis, meaning that the hourly rate
constitutes the entire payment to be made by Customer for its use of the
Airplane and all gasoline used by Customer shall be supplied by the Company.
2. TERMINATION. This Agreement may be terminated at any time by either
party upon fifteen (15) days prior written notice to the other party.
3. NO OBLIGATION ON CUSTOMER TO LEASE AIRPLANE. Nothing set forth herein
shall create any obligation on the part of the Company to lease the Airplane.
Without limiting the generality of the foregoing, the Company shall be free at
any time to lease any other airplanes or arrange any other form of
transportation it may elect in any and all circumstances. If
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Customer shall elect to lease the Airplane, Customer shall have no obligation to
lease the Airplane for any minimum period of time.
4. REPRESENTATIONS. Each party represents and warrants that this
Agreement has been duly and validly executed and delivered by such party, and
that this Agreement constitutes the valid and binding obligation of such party,
enforceable in accordance with its terms.
5. INSURANCE. The Company shall maintain at all times both hull and
liability insurance coverage with respect to the Airplane in amounts customary
for similar craft.
6. INDEMNIFICATION. Customer shall indemnify the Company against any
loss of or damage to the Airplane and any liability arising out of or in
connection with Customer's negligence or misconduct in connection with the
operation or use of the Airplane, reasonable wear and tear accepted.
7. USE. Customer shall use the Airplane in conformance with all
requirements of state and federal statutes and regulations, and in conformance
with the limitations set forth in the insurance coverage described in Section 5
of this Agreement. Customer agrees to land the Airplane only at established
airports except as a precautionary or emergency measure, and to allow only
licensed and qualified pilots to fly the Airplane. Customer shall not pledge,
loan, mortgage, sublet or part with the possession of the Airplane or permit any
liens to be incurred upon the Airplane during the periods of time Customer that
leases the Airplane pursuant to this Agreement.
8. MAINTENANCE. During the periods of time that Customer leases the
Airplane pursuant to this Agreement, Customer shall keep the Airplane in good
condition. At the end of each lease period, Customer shall return the Airplane
to the Company in as good a condition as when received, reasonable wear and tear
excepted.
9. DEFAULT. Upon material default of any of the conditions of this
Agreement, the Company shall have the right to terminate this Agreement and to
take possession of the Airplane without legal process wherever the Airplane may
be found.
10. DISPUTE RESOLUTION AND BINDING ARBITRATION. Customer and the Company
agree that in the event a dispute arises concerning or relating to this
Agreement, such dispute shall be submitted to binding arbitration in accordance
with the rules of the American Arbitration Association then in effect. The
arbitration shall take place in Reno, Nevada, and both Customer and the Company
agree to submit to the jurisdiction of the arbitrator selected in accordance
with American Arbitration Association rules and procedures. Customer and the
Company agree that the arbitration procedure provided for in this section will
be the exclusive avenue of redress for any disputes relating to or arising from
this Agreement, and that the award of the arbitrator shall be final and binding
on both parties, and nonappealable. The arbitrator shall have discretion to
award monetary and other damages, or no damages, and to fashion such other
relief as the arbitrator deems appropriate. The arbitrator shall also have
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discretion to award the prevailing party reasonable costs and attorneys' fees
incurred in bringing or defending an action under this provision.
11. MISCELLANEOUS.
(a) Notices. Any notice or communication required or permitted by
this Agreement shall be deemed sufficiently given if in writing and, if
delivered personally, when it is delivered or, if delivered in another manner,
the earlier of when it is actually received by the party to whom it is directed
or when the period set forth below expires (whether or not it is actually
received): (i) if deposited with the U.S. Postal Service, postage prepaid, and
addressed to the party to receive it as set forth below, forty-eight (48) hours
after such deposit as registered or certified mail; (ii) if accepted by Federal
Express or other nationally recognized courier in circumstances under which such
service guarantees next business day delivery, to the address of the party to
receive it as set forth below, on the next business day following being so sent;
or (iii) if by telecopy, to the telecopier number set forth below, as of the
date sent if confirmation of receipt is received and such notice is also
promptly mailed by registered or certified mail (return receipt requested) in
the manner set forth above.
To the Company:
FBN XXXXXXX XX.
XXX 0000XXXXXXX XXXXXXX, XXXXXX 00000
Fax: 000-000-0000
Attention: President
To Customer:
CRL Network Services, Inc.
Xxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
or to such other address or to the attention of such other person as the
recipient party will have specified by prior written notice to the sending
party.
(b) Severability. If any term or provision (or any portion
thereof) of this Agreement is determined by a court to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other terms
and provisions (or other portions thereof) of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or
provision (or any portion thereof) is invalid, illegal or incapable of being
enforced, this Agreement shall be deemed to be modified so as to effect the
original intent of the parties as closely as possible to the end that the
transactions contemplated hereby and the terms and provisions hereof are
fulfilled to the greatest extent possible.
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(c) Entire Agreement. This document constitutes the final,
complete, and exclusive embodiment of the entire agreement and understanding
between the parties related to the subject matter hereof and supersedes and
preempts any prior or contemporaneous understandings, agreements, or
representations by or between the parties, written or oral.
(d) Counterparts. This Agreement may be executed on separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
agreement.
(e) Successors and Assigns. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Customer and the Company, and
their respective successors and assigns.
(f) Attorneys Fees. If any legal proceeding is necessary to
enforce or interpret the terms of this Agreement, or to recover damages for
breach therefore, the prevailing party shall be entitled to reasonable
attorney's fees, as well as costs and disbursements, in addition to any other
relief to which he or it may be entitled.
(g) Amendments. No amendments or other modifications to this
Agreement may be made except by a writing signed by both parties. Nothing in
this Agreement, express or implied, is intended to confer upon any third person
any rights or remedies under or by reason of this Agreement.
(h) Choice of Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the internal
law, and not the law of conflicts, of the State of Nevada.
(i) Further Assurances. Each of the parties hereto agrees to use
all reasonable efforts to take or cause to be taken, all appropriate actions,
and to cause to take or to be taken, all things necessary, proper or advisable
under applicable laws to effect the transactions contemplated by this Agreement.
(j) Fees and Expenses. Each of the parties hereto shall bear its
own fees and expenses incurred in connection with the preparation of this
Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
CUSTOMER:
CRL Network Services, Inc.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President & CEO
COMPANY:
FBN HOLDING CORP.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
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