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EXHIBIT 10
SOURCING AGREEMENT
This Agency Agreement is entered into on this 19th day of June, 2000 between
Sigma Aircraft Management LLC ("XXX"), a Delaware Limited Liability Company and
Swissjet, Inc., a Florida corporation ("Swissjet"), regarding the appointment of
XXX as agent with respect to sourcing of Aircraft to be contracted by Swissjet
(the "Agreement").
WHEREAS Swissjet desires to appoint XXX as its agent for sourcing of
MD80 aircraft (the "Aircraft") available for acquisition by Swissjet (the
"Sourcing") and XXX desires to accept such appointment, pursuant to the terms
and conditions set forth below.
NOW THEREFORE in consideration of the foregoing recitals and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
conclusively acknowledged, the parties hereto agree as follows:
1) Appointment. Swissjet appoints XXX as its EXCLUSIVE and WORLD WIDE agent in
respect of the Sourcing to specifically perform the duties set forth in
clause 3 below.
2) Term. Subject to the terms hereof, XXX shall perform the duties hereunder
for 24 months from the date of this Agreement, unless further extended or
previously terminated pursuant to the terms hereof (the "Sourcing Period").
3) Duties. As the exclusive and duly authorized agent appointed by Swissjet,
XXX shall perform the following duties (the "Duties"):
a) advising and assisting Swissjet, in any way reasonably requested, in
sourcing Aircraft available for operating lease, lease-purchase or
cash-purchase on the best commercially available terms, such terms and
the physical condition of the aircraft shall be satisfactory to
Swissjet in its sole discretion,
b) introduce Swissjet to lessors and sellers of such potentially suitable
Aircraft,
c) on the request of Swissjet, negotiate acquisition terms for the sourced
aircraft with the potential lessor/seller on terms satisfactory to
Swissjet in its sole discretion, as well as assist in contract
negotiation from the onset of the transaction until the completion of a
lease.
d) Swissjet shall cooperate in all respects as is necessary and
appropriate or reasonably requested by XXX in order to permit XXX to
perform the duties set forth above in this Section 3, including the
furnishing by Swissjet of all information in its possession or, if
requested by XXX, reasonably obtainable, necessary or helpful to XXX in
the performance of such duties.
4) Authority. Although XXX shall be appointed Swissjet's agent and be entitled
to represent Swissjet in matters concerning the Sourcing, SAM's authority
under this Agreement does not permit XXX to hold itself out as having
authority to, and XXX shall not sign for, commit or otherwise obligate
Swissjet in any way and XXX shall not conclude any agreement, oral or
written, in Swissjet's name or otherwise unless it has been authorized to
do so in writing by Swissjet.
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5) Exclusivity. This Agreement confers upon XXX during the Sourcing Period the
exclusive and world-wide right to source Aircraft on behalf of Swissjet.
Swissjet expressly undertakes not to mandate or allow any other party to
act on its behalf with respect the Sourcing of Aircraft during the Sourcing
Period. If a potential lessor contacts Swissjet or expresses interest in
leasing an aircraft directly to Swissjet, such party shall be referred to
XXX by Swissjet and any resulting transaction shall be deemed to have been
arranged exclusively by XXX. XXX shall deliver to Swissjet within a
reasonable period after commencement of the sourcing campaign its list of
potential lessors/sellers with whom XXX has had verbal and/or written
discussions pertaining to the leasing of the Aircraft (the "Prospect List")
and upon the reasonable request of Swissjet, XXX shall deliver to Swissjet
copies of all relevant written correspondence and/or a summary of unwritten
contact between XXX and persons on the Prospect List.
6) Upon expiration of the Sourcing Period, XXX shall provide Swissjet with a
list of the potential lessors/sellers with respect to the Sourcing. Except
after termination of this Agreement in accordance with Section 9 hereof, if
within 180 calendar days after the expiration of the Sourcing Period
Swissjet consummates any transaction relating to a MD82 series aircraft
with any person or entity set forth on such list of lessors/sellers, then
Swissjet agrees to pay XXX 75% of the relevant fee set forth in Section
6(b) below.
7) Pricing.
a) XXX shall be paid a Sourcing Fee of $4,000 payable monthly in arrears
commencing upon July 1, 2000.
b) In the case XXX successfully completes the Sourcing of an Aircraft and
Swissjet acquires such aircraft on terms and conditions satisfactory to
Swissjet, in its sole discretion, XXX shall be entitled to an
Arrangement Fee equal to $75,000 per aircraft payable on the closing
date of such acquisition subject to the following adjustments;
i) In the event multiple Aircraft are acquired from one source subject
to substantially documentation, then the third and fourth aircraft
acquired shall be entitled to a reduction in the Arrangement Fee of
$25,000 per Aircraft and the fifth and subsequent aircraft shall be
entitled to a reduction in the Arrangement Fee of $50,000 per
aircraft.
ii) The Arrangement Fee as adjusted by 7(b)(i) shall in addition be
reduced with the amount of Sourcing Fee received by XXX up to the
date of the payment of the Arrangement Fee.
8) Expenses. All reasonable costs and expenses incurred by XXX with respect to
the Sourcing, including, but not limited to, legal fees, sub-contracted
technical assistance, such as inspections, aircraft evaluation and delivery
assistance, travel and out-of-pocket expenses shall be reimbursed by
Swissjet, subject to receipt of reasonably satisfactory documentation
supporting such expenses, upon demand. XXX shall not incur any expense in
excess of $500 unless Swissjet's prior approval has been obtained.
9) Termination of Agreement. In the event of breach of any material obligation
under this Agreement the non-breaching party shall notify the breaching
party of such breach in writing. Unless such breach (other than a
bankruptcy, insolvency or dissolution event) has been cured by breaching
party within 10 (ten) business days after receipt of such notice, the
non-breaching party may immediately terminate this Agreement without
incurring any further liability and shall be entitled to avail itself of
all remedies afforded by applicable law.
Each party furthermore has the right to terminate the Agreement without
cause with 30 days prior written notice as from November 1, 2000.
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10) Confidentiality. XXX hereby covenants that all non-publicly available
information regarding the Sourcing and Swissjet made available to XXX by
Swissjet as a result of performing the Duties, shall be kept strictly
confidential unless XXX is required by law to disclose such information. In
addition, the parties hereby jointly resolve that the commercial terms of
this Agreement shall remain strictly confidential. However, the parties
shall not be prohibited to disclose the existence of the Agreement and the
commercial relationship between the parties.
11) Governing Law. This Agreement and the relationship among the parties shall
be governed by the laws of the State of New York without regard to conflict
of law provisions. Any dispute arising hereunder shall be brought before
the State or Federal courts located in the County and State of New York,
U.S.A., and the parties hereto hereby submit themselves to the exclusive
jurisdiction of the aforementioned courts.
This Agreement is signed by duly authorized senior executives of both companies
as an indication of their confirmation and acceptance of the terms thereof.
For and on behalf of For and on behalf of
SIGMA AIRCRAFT MANAGEMENT LLC SWISSJET INC.
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Name: Xxx Xxxxxxxx Name: Xxxxx Xxxxxx
Its: President Its: President and CEO
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