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EXHIBIT 10(e)
AIRCRAFT PURCHASE AGREEMENT
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This Aircraft Purchase Agreement ("Agreement") is made between the
parties hereafter named on the date set forth below.
1. PARTIES
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1.1 MPW Industrial Services, Inc., an Ohio corporation having its
principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the
"Seller").
1.2 Miramonte Aviation, LLC, an Ohio limited liability company having
its principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser").
2. RECITALS
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2.1 Seller is the owner of a certain aircraft, aircraft engines and
related parts, equipment and appliances, all as more particularly described on
Exhibit 2.1 attached hereto and made a part hereof (collectively hereafter, the
"Aircraft").
2.2 Purchaser desires to purchase the Aircraft from Seller and Seller
is willing to sell the Aircraft to Purchaser subject to the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
3. AGREEMENT; TERMS OF SALE
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3.1 Sale. Purchaser agrees to purchase from Seller and Seller agrees to
sell to Purchaser the Aircraft.
3.2 Binding Agreement. By execution of this Agreement, Seller and
Purchaser shall be bound by the terms and conditions hereof.
3.3 Purchase Price. Purchaser agrees to pay Seller a purchase price of
$3,600,000.00 for the Aircraft ("Purchase Price"), which sum as of the Closing
Date (as defined in Section 3.4 hereof) shall be offset against and reduce the
outstanding balance due to Purchaser as assignee of a portion of that certain
Subordinated Promissory Note executed by Seller in favor of ▇▇▇▇▇ ▇. ▇▇▇▇▇ on
October 31, 1997 for a principal amount of $13,099,200.00.
3.4 Closing Date. The sale transaction contemplated hereby shall be
closed on or before February 11, 1998 ("Closing Date"). The closing shall take
place at the offices of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, 1900 Huntington Center, ▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or such other location as shall be agreed
to by the parties hereto.
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3.5 Delivery of Aircraft. On the Closing Date, Seller shall deliver the
Aircraft to Purchaser at Newark, Ohio, or such other place as may be mutually
agreed upon. Seller shall be responsible for any costs and expenses associated
with such delivery.
3.6 Risk of Loss. The risk of loss, injury, destruction or damage to
the Aircraft by fire or casualty or other occurrence shall be assumed by the
Purchaser at the time of delivery of the Aircraft pursuant to Section 3.5 or
upon execution of the ▇▇▇▇ of Sale, whichever event shall first occur, and such
occurrence after delivery or transfer of title shall not relieve Purchaser from
any obligation thereunder.
3.7 Seller's Representations, Warranties and Covenants. Upon closing,
Purchaser will accept the Aircraft in its "as is", "where is" condition. ANY
WARRANTIES OF OR WITH RESPECT TO FITNESS FOR A PARTICULAR PURPOSE OR OF
MERCHANTABILITY, PROFITABILITY OR MARKETABILITY ARE SPECIFICALLY DISCLAIMED.
SELLER DOES NOT MAKE NOR WILL SELL OR MAKE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY MATTER SET FORTH IN THIS
AGREEMENT EXCEPT THAT:
3.7.1 Seller is an Ohio corporation duly organized, validly
existing and in good standing under the laws of the State of and has all
requisite power and authority to own its interest in the Aircraft.
3.7.2 All necessary consents and approvals have been obtained
by Seller for the execution and delivery of this Agreement. The execution and
delivery of this Agreement and all documents to be executed and delivered by
Seller pursuant hereto have been duly and validly authorized and approved by all
necessary action of Seller.
3.7.3 Seller has no knowledge of existence of any fact or
circumstance that, at the date of its execution of this Agreement and as of the
Closing Date, would constitute a breach by Seller hereof.
3.7.4 Seller has no knowledge of and has received no notice
from any governmental authority of any violation of any law, ordinance, rule,
regulation applicable to the ownership, use or operation of the Aircraft or any
part thereof.
3.7.5 At the time of full payment of the Purchase Price by
Purchaser, Seller shall transfer to Purchaser title to the Aircraft pursuant to
the ▇▇▇▇ of Sale (in form attached hereto as Exhibit 3.8.5), conveying title of
the Aircraft to Purchaser free and clear of any liens, charges or encumbrances.
Seller warrants that the ▇▇▇▇ of Sale shall pass to Purchaser good and
defensible title to the Aircraft.
3.7.6 To the extent that any manufacturer's warranties are
still in effect with respect to the Aircraft (other than warranties that by
their terms are unassignable), Seller will reasonably assist Purchaser to
maintain continuity of the warranties and take such other reasonable steps to
assist Purchaser to process warranty claims directly with the manufacturers.
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3.7.7 Seller will transfer to Purchaser at the time of
delivery of the Aircraft all available books and records that pertain to the
operation and maintenance of the Aircraft, including without limitation all
engine and airframe logbooks, maintenance records and all airworthiness
certificates relating to the Aircraft.
THE PARTIES UNDERSTAND AND AGREE THAT SELLER'S LIABILITY, WHETHER IN CONTRACT,
IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE
PURCHASE PRICE (OR SO MUCH THEREOF AS HAS BEEN PAID BY PURCHASER) AND UNDER NO
CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT, MAY BE BROUGHT BY PURCHASER MORE THAN ONE (1) YEAR AFTER THE
CAUSE OF ACTION HAS ACCRUED.
3.8 Purchaser's Representations and Warranties; Covenants.
3.8.1 Purchaser represents that all necessary consents and
approvals have been obtained by Purchaser for the execution and delivery of this
Agreement. The execution and delivery of this Agreement and all documents to be
executed and delivered by Purchaser pursuant hereto have been duly and validly
authorized and approved by all necessary action of Purchaser.
3.8.2 Purchaser hereby agrees to indemnify and hold Seller
harmless from and against any and all liabilities or responsibility whatsoever
in any manner arising out of or attributable to the ownership, custody,
movement, sale, use, operation or disposition of the Aircraft.
3.9 Sale Closing Adjustments. At the closing, the Purchase Price shall
be adjusted as of the Closing Date as follows:
3.9.1 Taxes and Other Expenses. Purchaser hereby agrees to pay
the taxes, duties or fees that may be assessed or levied by any federal, state
or local taxing authority as a result of the sale, delivery, re-registration or
ownership of the Aircraft, but specifically excluding any capital gains, income
or other similar taxes of Seller and Purchaser shall indemnify Seller and hold
Seller harmless from all liability of loss, cost and expense by reason thereof.
4. GENERAL TERMS
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4.1 Acceptance/Effectiveness of Agreement. Each of the terms contained
in this Agreement are conditioned upon each of the other terms contained herein.
Accordingly, neither Seller nor Purchaser shall have any obligation hereunder if
this Agreement is canceled pursuant to its terms. Purchaser must execute this
Agreement and deliver such executed copies to Seller not later than 5:00 p.m. on
February 11, 1998. Purchaser's execution hereof shall constitute an agreement by
Purchaser to perform and satisfy all of the other terms and conditions of this
Agreement no later than the Closing Date.
4.2 Matters to be Completed on Closing Date. Among other matters, on
the Closing Date: (i) Seller shall deliver to Purchaser the ▇▇▇▇ of Sale; and
(ii) Purchaser and Seller shall execute such documents as are necessary to
reduce the principal amount of the Subordinated Promissory Note
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by an amount equal to the Purchase Price. Seller shall deliver to Purchaser
possession of the Aircraft, including any log books and other records that the
Seller may have pertaining to the Aircraft.
4.3 Notice. All notices are required to be given or given hereunder
shall be in writing or by telecommunication device capable of creating a written
record, including without limitation, telefax or telecopy, and shall be deemed
to have been "received" when delivered by hand, courier, telefax or telecopy or,
if mailed three (3) days after deposit of same in the United States Mail
provided, in such latter event, that the notice is sent by certified mail with
postage fully prepaid thereon. All notices must be addressed as follows:
If to Seller: If to Purchaser:
MPW Industries Services, Inc. Miramonte Aviation, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as a party receiving such notice shall have
requested in writing in accordance with the provisions of this Section 4.3.
4.4 Further Assurances. Each party hereto shall execute and deliver
such other and further documents or perform such acts as may be reasonably
requested by the other to confirm and consummate the transaction evidenced
hereby.
4.5 Complete Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the Aircraft, and there are no other
agreements m existence as of the date hereof. Any amendment to this Agreement
shall be valid only if the same is in writing and executed by the parties
hereto.
4.6 Seller's Successors and Assigns. This Agreement shall inure to the
benefit of Seller's successors and assigns and the same shall be bound hereby.
4.7 Time of the Essence. Time is of the essence with respect to the
performance by Purchaser of the terms and conditions of this Agreement.
4.8 Applicable Law. This Agreement and the construction and enforcement
hereof shall be governed by the laws of the State of Ohio.
4.9 Return of Documents. If this Agreement is terminated for any reason
whatsoever and Purchaser is entitled to return of the Deposit, Purchaser shall
properly deliver to Seller all documents received from Seller or its agents and
representatives in connection with this matter including all reports received
from Seller with respect to the Aircraft.
4.10 Enforceability. If any one or more provisions of this Agreement
shall be found to be illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first above
written.
"SELLER"
MPW INDUSTRIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Vice President, Chief Financial Officer
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and Secretary
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Dated: February 11, 1998
"PURCHASER"
MIRAMONTE AVIATION, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President
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Dated: February 11, 1998
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EXHIBIT 2.1
DESCRIPTION OF AIRCRAFT
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Make and Model: 1989 Cessna Citation V Airframe
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Serial Number: 560-0007
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Registration #: N57VP
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Make and Model Engines:
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Engine Serial #:
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Avionics:
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EXHIBIT 3.8.5
▇▇▇▇ OF SALE
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