EXHIBIT 10(
ii )(i
)
AIRCRAFT PURCHASE
AGREEMENT
THIS AIRCRAFT PURCHASE AGREEMENT is dated as of
March 17, 2009 (the “Effective Date”) among POMEROY IT
SOLUTIONS SALES COMPANY, INC., a Delaware corporation and POMEROY
SELECT INTEGRATION SOLUTIONS, INC., a Delaware corporation (each a
“Seller” and collectively, the “Sellers”)
and M.G.A. 546 Leasing Corp., a Delaware corporation
(“Buyer”) (the “Agreement”).
RECITALS:
A. Sellers
are the owner of the Aircraft (as defined below);
B. Sellers
and Buyer desire to enter into an agreement for the sale of such
Aircraft by Sellers to Buyer.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements set forth herein and other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. SALE
OF AIRCRAFT. Subject to the conditions and on the basis
of the representations and warranties set forth in this Agreement,
at the Closing (as defined below), each Seller agrees to sell,
convey, transfer, assign and deliver to Buyer, and Buyer agrees to
purchase and acquire from Sellers, for the Purchase Price (as
defined below), all of Sellers’ right, title and interest in
and to that certain 2006 RAYTHEON AIRCRAFT COMPANY HAWKER 850XP
aircraft, bearing Serial Number 258753 and Registration Number
N805M, together with all engines, avionics, documents (including
the Aircraft Documents) and equipment thereto, as more particularly
described on Exhibit “A” hereto, (collectively,
the “ Aircraft ”). Upon
execution and delivery of this Agreement, Sellers shall provide
notice to SunTrust Equipment Finance & Leasing Corp.
(“SunTrust”) terminating the Aircraft Lease Agreement
to which the Aircraft is subject and shall use commercially
reasonable efforts to cause SunTrust to execute and deliver such
documents and instruments and to take such further actions as are
reasonably necessary to evidence such termination.
2. INSPECTION
& ACCEPTANCE
2.1 Seller
shall make the Aircraft available to Buyer, beginning on or about
March 18, 2009 at the Hawker Beechcraft Service Center at Tampa
International Airport (TPA), Tampa, Florida (the “Inspection
Facility”) to enable Buyer to determine that the Aircraft and
all of its parts, components and systems comply with the
requirements of this Agreement, in that with all systems, cabin,
galley, avionics and components airworthy and functioning normally
and within the parameters and tolerances specified by the
manufacturer(s), and with all applicable FAA Airworthiness
Directives and mandatory service bulletins complied with and
current through the date of Closing. The flat rate cost
of the pre-purchase inspection (the “Pre-Purchase
Inspection”), the scope of which shall be identified in
Exhibit B, shall be at Buyer’s pre-paid expense, and shall
commence upon arrival of the Aircraft at the Inspection
Facility. The Pre-Purchase Inspection shall be conducted
in accordance with generally accepted industry standards. Buyer
shall accept or reject the Aircraft within three (3) business days
following its receipt of the Inspection Facility’s report of
the discrepancies as a result of the Pre-Purchase
Inspection.
(A) If
Buyer finds the Aircraft unacceptable, Buyer will notify Seller in
writing that the Aircraft is unacceptable, withdraw the Deposit
from Escrow, and this Agreement shall have no further force or
effect.
(B) If
Buyer finds the Aircraft acceptable, Buyer will notify Seller in
writing of its technical acceptance of the Aircraft in the form of
Exhibit C, Aircraft Technical Acceptance
Notification. A copy of the executed Exhibit C
shall be forwarded to the Escrow Agent to make the Deposit
nonrefundable. Buyer’s acceptance of the
Aircraft shall include a list of airworthiness discrepancies which
must be rectified and performed in order for the Aircraft to comply
with the terms and conditions of this Agreement. Upon receipt of
the executed Exhibit C Seller will at its expense cause the
Inspection Facility to repair all airworthiness discrepancies (the
“Discrepancies”) which render the Aircraft in
non-compliance with the terms of this Agreement ; provided,
however, that within three (3) business days following receipt of
such list of airworthiness discrepancies, Seller may terminate this
Agreement in which case, the Deposit shall be refunded to Buyer,
Seller shall reimburse the Buyer the flat rate cost of the
Inspection in the sum of US$20,450, and this Agreement shall have
no further force or effect.
(C) If
Seller is not in receipt of the Aircraft Technical Acceptance
Notification or written notice of rejection of the Aircraft within
the allotted three ( 3 ) business days following completion of the
Pre-Purchase Inspection, this Agreement shall become null and void
and the Deposit shall be refunded to the Buyer.
2.2 Following
Aircraft return-to-service, the Seller shall conduct a one-hour
pre-closing test flight of the Aircraft (at Buyer’s expense
for fuel), with not more than three of Buyer’s
representatives aboard, to confirm that the Aircraft is in Delivery
Condition (the “Test Flight”). Notwithstanding the
presence of Buyer’s representatives, Seller and
Seller’s pilots shall be in operational control of the
Aircraft at all times prior to, during and immediately following
such Test Flight. If the Aircraft is not in
substantially the same condition as at the time of the Pre-Purchase
Inspection (other than correction or repair of any identified
airworthiness discrepancies) , it will be returned to the
Inspection Facility for further repairs at Seller’s expense
followed by another Test Flight.
3. DELIVERY
3.1
Delivery . Sellers shall cause, at Buyer’s
sole cost and expense (for fuel and the hourly cost of the
maintenance program), the delivery of the Aircraft to Charlotte
Douglas International Airport (CLT) in South Carolina or another
airport reasonably acceptable to Sellers (the “
Delivery ”) on or before 1:00 p.m. (Eastern Standard
Time) on the later of April 30, 2009 or two (2) business days
following successful completion of the Test Flight (the date of
such Delivery, “ Closing Date
”). Sellers covenant and agree that the Aircraft
shall be delivered with (all of which shall constitute
“Delivery Condition”):
(A) a
United States Certificate of Airworthiness;
(B) all
engines, avionics and equipment, and substantially and materially
in that operating and physical condition, as existed at the
expiration of the Inspection Period;
(C) those
original log books, records, maintenance manuals, and flight
manuals of the Aircraft as existed at the time of the Inspection
Period to the extent Sellers have such documents in their
possession, including but not limited to all records relating or
required to be maintained with respect to the Aircraft, all
airframe, engine, interior and accessory logbooks, weight and
balance manuals, equipment and system operating manuals, overhaul
records, maintenance records (with complete FAA f or ms 8110-2,
8110-3, IFCA and STCs f or all installations) , maintenance
contracts, airframe and Aircraft component warranties, engines
warranties, avionics warranties, wiring diagrams, burn
certificates, type certificate documents, drawings, data, and all
issued FAA Form 337's, and any and all supporting technical
documentation or other technical information in Seller’s
possession or under its control which relate specifically to the
Aircraft (e.g., any supplements to any of the foregoing and all
"yellow tag" or comparable documents associated with the Aircraft
or any part or component which requires original installation
and/or life limitation traceability), all of which shall be true,
correct, and complete (the “Aircraft
Documents”);
(D)
with no title clouds, notations, liens and/or
encumbrances, unless created by Buyer, which warranty of clear
title shall survive Closing and Aircraft delivery;
(E)
with Honeywell’s MSP power by the hour
engines and auxiliary power unit maintenance program in full force
and effect, paid up and current through the date of delivery, and
transferable to Buyer upon Buyer’s payment of the
program’s administrative transfer fee; and
(F)
with the CAMP computerized maintenance program
in full force and effect, paid up and current through the date of
delivery, and transferable to Buyer upon Buyer’s payment of
the program’s administrative transfer fee.
4. PURCHASE
PRICE; CLOSING
4.1
Purchase Price . For and in consideration of the
sale of the Aircraft by Sellers to Buyer, Buyer shall pay to
Sellers the aggregate amount of Eight Million Two Hundred Thousand
and 00/100 United States Dollars ($8,200,000) (the “
Purchase Price ”).
4.2
Delivery of Purchase Price . On the Closing Date,
Buyer shall deliver the Purchase Price to the Escrow Agent’s
(specified on Schedule 1) account. Upon the execution
hereof, Buyer shall pay to the account of the Escrow Agent, the
amount of One Hundred Thousand and 00/100 United States Dollars
($100,000) (the “ Deposit ”) to be held and paid
in accordance with the terms hereof. All payments
required to be made hereunder shall be made by wire transfer of
immediately available funds to the applicable account.
4.3
Closing Deliverables . On or before the Closing
Date:
(A) Sellers
shall deliver to Buyer, or Escrow Agent (i) a Lease Termination
executed by Sellers and SunTrust and evidence of the termination of
any international interest in favor of SunTrust, (ii) an FAA Bill
of Sale duly executed by Sellers, (iii) such assignments as are
reasonably necessary to transfer Sellers’ right and interest
in the MSP service plan for the engines and the APU, in each case,
if presently enrolled and (iv) Sellers’ administrator’s
or Professional User Entity ’s consent for the purpose of
registering Buyer’s contract of sale interest in the
Aircraft’s airframe and engines, and (v) such other
instruments and documents as are reasonably necessary and required
by Buyer to complete the transactions contemplated hereby,
including, without limitation, the execution of any and all
documents required by any Governmental Authorities to facilitate
the transfer of the Aircraft; and
(B) Buyer
shall deliver to Sellers or the Escrow Agent (i) an FAA
Registration Application duly executed by Buyer or the Owner
Trustee of a trust established by the Buyer, (ii) an Acceptance
Certificate substantially in the form of Exhibit B and (iii) such
other instruments and documents as are reasonably necessary and
required by Sellers to complete the transactions contemplated
hereby, including, without limitation, the execution of any and all
documents required by any Governmental Authorities to facilitate
the transfer of the Aircraft and evidence of the payment of, or
exemption from the payment of, all amounts referred to in Sections
4.5(A) and 8.1.
4.4 On
the Closing date, Buyer shall acknowledge receipt and delivery of
the Aircraft and Seller and Buyer shall execute and deliver to each
other a Delivery Receipt in the form attached hereto as Exhibit D,
at which time Buyer and Seller shall ask the Escrow Agent to (i)
transfer the Purchase Price, less Sellers’ share of the
Escrow Agent’s fees, to Seller; (ii) date and file the Lease
Termination, FAA Bill of Sale and any and all other documents
necessary to convey good and marketable title to the Aircraft to
Buyer free and clear of any and all liens and encumbrances, and
(iii) register Buyer’s contract of sale interest in the
Aircraft’s airframe and engines (collectively, the
“Closing”).
4.5
Costs . Costs and expenses relating to the
transactions contemplated by this Agreement shall be borne and paid
as follows:
(A) all
transfer taxes, registration fees, use and excise taxes, import or
export taxes, sales taxes, or any other similar taxes, if any,
relating to the purchase and sale of the Aircraft shall be borne
and paid for solely by Buyer;
(B) all
fees and expenses of Escrow Agent shall be borne and paid for fifty
percent by Buyer and fifty percent by Sellers; and
(C) except
as otherwise specifically provided in this Agreement, Sellers and
Buyer shall each bear their own costs and expenses arising out of
the negotiation, preparation, execution, delivery and performance
of this Agreement, including, without limitation, any filing fees
and costs of any Governmental Authority or by the consummation of
the transactions contemplated herein, including, without
limitation, legal and accounting fees and expenses.
5. SELLERS
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH HEREIN, BUYER
ACKNOWLEDGES THAT IT IS PURCHASING THE AIRCRAFT IN AN “AS IS,
WHERE IS” CONDITION AND SELLERS DO NOT MAKE, HAVE NOT MADE,
NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE AIRCRAFT OR ANY COMPONENT THEREOF, OR ANY ENGINE,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO CONDITION,
AIRWORTHINESS, DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF
MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, USE OR OPERATION, SAFETY, PATENT,
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