<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
AVIATION SALES COMPANY
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.001 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
053672 10 1
- --------------------------------------------------------------------------------
(CUSIP Number)
John A. Maraia
Corporate Counsel
Legal Department
Tomen America Inc.
1285 Avenue of The Americas
New York, New York 10019
(212) 397-5734
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 14, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
(Continued on following pages)
- --------
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON J/T Aviation Partners
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
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3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,501,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,501,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,501,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON PN
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<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON TM Aviation (USA) Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
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4. SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,501,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,501,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,501,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
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<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON TM Aviation (Japan) Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,501,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,501,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,501,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- -------------------------------------------------------------------------------
<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON Tomen Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Japan
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,511,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,511,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,511,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.6%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
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<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON Japan Fleet Service (Delaware) Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,501,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,501,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,501,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
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<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON Japan Fleet Service (Singapore) Pte. Ltd.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Singapore
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,511,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,511,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,511,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.6%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- -------------------------------------------------------------------------------
<PAGE>
- -------------------- -------------------
CUSIP NO. SCHEDULE
053672 10 1 13D
- -------------------- -------------------
- -------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON Japan Fleet Service (Europe) B.V.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A)|_|
(B)|_|
- -------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------
4. SOURCE OF FUNDS WC
- -------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
- -------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands
- -------------------------------------------------------------------------------
7. SOLE VOTING POWER 0
---------------------------------------------------------
NUMBER OF SHARES 8. SHARED VOTING POWER 1,501,000
BENEFICIALLY OWNED See Item 5.
BY EACH REPORTING ---------------------------------------------------------
PERSON WITH 9. SOLE DISPOSITIVE POWER 0
--------------------------------------------------------
10. SHARED DISPOSITIVE POWER 1,501,000
See Item 5.
- -------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,501,000
- -------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
- -------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5%
- -------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- -------------------------------------------------------------------------------
<PAGE>
J/T Aviation Partners, TM Aviation (Japan) Inc., TM Aviation (USA)
Inc., Japan Fleet Service (Delaware) Inc., Japan Fleet Service (Europe) B.V.,
Tomen Corporation and Japan Fleet Service (Singapore) Pte. Ltd. hereby amend and
restate in its entirety the single joint statement on Schedule 13D filed with
the Securities and Exchange Commission (the "SEC") on July 3, 1996, amended and
restated in Amendment No. 1 filed with the SEC on August 7, 1996, with respect
to the shares of Common Stock of Aviation Sales Company as follows:
Item 1. Security and Issuer
-------------------
This Statement relates to the Common Stock, $.001 par value (the
"Shares"), of Aviation Sales Company, a corporation organized and existing under
the laws of the State of Delaware (the "Company"). The address of the principal
executive office of the Company is 6905 N.W. 25th Street, Miami, Florida
33131-1704.
Item 2. Identity and Background
-----------------------
(a, b, c and f) This Statement is being filed by (i) J/T Aviation
Partners, a Delaware general partnership ("J/T"), the principal business of
which is to hold an investment in the Company, (ii) TM Aviation (Japan) Inc., a
Delaware corporation ("TM Japan"), the principal business of which is to act as
a general partner of J/T, (iii) TM Aviation (USA) Inc., a Delaware corporation
("TM USA"), the principal business of which is to act as a general partner of
J/T, (iv) Japan Fleet Service (Delaware) Inc., a Delaware corporation ("JFS
Delaware"), the principal business of which is to act as a general partner of
J/T, (v) Japan Fleet Service (Europe) B.V., a Netherlands corporation ("JFS
Europe"), the principal business of which is aircraft spare parts leasing and to
hold the capital stock of JFS Delaware, (vi) Tomen Corporation, a corporation
organized under the laws of Japan ("Tomen"), the principal business of which is
a general trading company (sogo shosha) involved in domestic and foreign trading
of a wide range of products, including foodstuffs, apparel, housing, industrial
plant, tankers, aircraft and minerals and (vii) Japan Fleet Service (Singapore)
Pte. Ltd., a Singapore corporation ("JFS Singapore"), the principal business of
which is aircraft and aircraft spare parts leasing and general traders of
aviation products and services. The principal office of each of J/T, TM Japan
and TM USA is c/o Tomen America Inc., 1285 Avenue of the Americas, New York, New
York 10019. The principal office of Tomen is 14-27, Akasaka 2-Chome, Minato-Ku,
Tokyo, Japan. The principal office of each of JFS Delaware, JFS Europe and JFS
Singapore is c/o Japan Fleet Service (Singapore) Pte. Ltd., 10 Shenton Way No.
17-06/09, MAS (Monetary Authority of Singapore) Building, Singapore 0207. TM
Japan, TM USA and JFS Delaware each own, respectively, a 35%, 15% and 50%
general partner interest in J/T. TM Japan and TM USA are wholly-owned
subsidiaries of Tomen. JFS Delaware is a wholly-owned subsidiary of JFS Europe
and JFS Singapore owns 60% of the capital stock of JFS Europe. Exhibit 1 hereto
sets forth the name, principal business, address and citizenship of each of the
executive officers and directors of TM Japan, TM USA, Tomen, JFS Delaware, JFS
Europe and JFS Singapore, and is incorporated herein by reference. J/T, TM
Japan, TM USA, Tomen, JFS Delaware, JFS Europe and JFS Singapore are referred to
herein individually as a "Reporting Person" and collectively as the "Reporting
Persons."
(d and e) During the last five years, none of J/T, TM Japan, TM USA,
Tomen, JFS Delaware, JFS Europe or JFS Singapore or any of the persons listed on
Exhibit 1 has been (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities law or finding any violation with respect to
such laws.
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
On February 14, 1992, TM Japan, TM USA and JFS Delaware entered into
the J/T Aviation Partners general partnership agreement for the purpose of
acquiring a partnership interest in AJT Capital Partners, a Delaware general
partnership ("AJT"). TM Japan contributed $1,400,000 for a 35% general
partnership interest, TM USA contributed $600,000 for a 15% general partnership
interest and JFS Delaware contributed $2,000,000 for a 50% general partnership
interest.
AJT was formed in February 1992. J/T contributed $3,840,000 for a 48%
general partnership interest. On February 28, 1992, AJT acquired the majority of
the aircraft spare parts inventory of Eastern Airlines, Inc. from the Trustee of
the Estate of Eastern Air Lines, Inc. for a purchase price of $64,500,000.
On December 2, 1994, AJT contributed net assets in the amount of
$3,729,977 to ASC Acquisition Partners, L.P., a Delaware limited partnership
("ASC Partners") in return for a 20% limited partnership interest. By virtue of
its 48% general partnership interest in AJT, J/T has a 9.6% limited partnership
interest in ASC Partners. In addition, on December 2, 1994, J/T contributed
$36,048 to Aviation Sales Management Company, a Delaware corporation ("ASMC") in
exchange for 360 shares of common stock, $100 par value per share of ASMC which
represented a 48% interest in ASMC. ASMC contributed $75,000 to ASC Partners for
a 2% general partnership interest. Additionally, J/T contributed $1,404,000 to
ASC Partners in exchange for a 37.44% limited partnership interest in ASC
Partners. J/T also contributed $480 to each of Aviation Properties, a Delaware
general partnership and Aviation Properties of Texas, a Delaware general
partnership in exchange for a 48% general partnership interest in both
partnerships.
On January 1, 1996, J/T sold a portion of its limited partnership
interest in ASC Partners in the amount of 6.48% to 5 senior members of
management of ASC Partners pursuant to options held by such members of
management. In return, J/T Partners received promissory notes in the aggregate
principal amount of $689,773.
On June 26, 1996, the limited partners of ASC Partners contributed
their limited partnership interests to the Company pursuant to an Exchange
Agreement by and among the Company and the limited partners of ASC Partners (the
"Exchange Agreement"). J/T received 973,000 shares of Common Stock plus
$8,835,000 for their 30.96% limited partnership interest in ASC Partners.
Additionally, AJT as a limited partner of ASC Partners with a 20% interest
received 1,000,000 shares of Common Stock of the Company pursuant to the
Exchange Agreement. In addition, on June 26, 1996, AJT was dissolved pursuant to
an Agreement to Dissolve by and between J/T and RCP Management L.P., a Texas
limited partnership and a 52% general partner of AJT. Pursuant to the Amended
and Restated Partnership Agreement of AJT dated November 30, 1994, J/T as a 48%
general partner received 480,000 shares of Common Stock of the Company.
Pursuant to a Merger Agreement dated June 26, 1996, by and among
Aviation Sales Management Company, a Delaware corporation ("ASMC"), the Company
and Aviation Sales Operating Company, a Delaware corporation, ASMC was merged
into Aviation Sales Operating Company with each holder of shares of common stock
of ASMC receiving 133 1/3 shares of Common Stock of the Company for one share of
common stock of ASMC. J/T as a holder of 360 shares of ASMC received 48,000
shares of Common Stock of the Company.
On July 25, 1996 the underwriters of the Company's initial public
offering exercised their over-allotment option and pursuant to such option,
75,000 shares of Common Stock of the Company issuable to J/T were sold by the
Company.
<PAGE>
Item 4. Purpose of Transaction
----------------------
J/T, TM Japan, TM USA, Tomen, JFS Delaware, JFS Europe and JFS
Singapore currently intend to hold the Company's Shares for investment purposes.
Neither J/T, TM Japan, TM USA, Tomen, JFS Delaware, JFS Europe nor JFS Singapore
has any current intention to purchase additional Shares.
Other than as discussed herein, neither J/T, TM Japan, TM USA, Tomen,
JFS Delaware, JFS Europe nor JFS Singapore has any formal plans or proposals
which relate to or would result in (i) the acquisition of additional securities
of the Company or the disposition of securities of the Company; (ii) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Company or any of its subsidiaries; (iii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (v) any material
change in the present capitalization or dividend policy of the Company; (vi) any
other material change in the Company's business or corporate structure; (vii)
changes in the Company's charter, bylaws or instruments corresponding thereto or
other actions which may impede the acquisition of control of the Company by any
person; (viii) causing a class of the Company's securities to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(ix) a class of the Company's equity securities becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities and
Exchange Act of 1934; or (x) any action similar to any of those enumerated
above.
Item 5. Interest in Securities of Issuer
--------------------------------
(a) J/T may be deemed to be the beneficial owner of 1,501,000 Shares.
Such Shares constitute 17.5% of the outstanding Shares (based on the Company's
Form 10-Q for the three months ended March 31, 1997). TM Japan through its 35%
general partnership interest in J/T may be deemed to be the beneficial owner of
1,501,000 Shares. TM USA through its 15% general partnership interest in J/T may
be deemed to be the beneficial owner of 1,501,000 Shares. JFS Delaware through
its 50% general partnership interest in J/T may be deemed to be the beneficial
owner of 1,501,000 Shares. Tomen Corporation through its wholly-owned
subsidiaries, TM Japan and TM USA, and through its employment of Kazatami Okui,
a director of the Company, who owns 10,000 stock options of the Company which
are immediately exercisable at an exercise price of $19.00 per share (the "Okui
Options"), may be deemed to be the beneficial owner of 1,511,000 Shares. JFS
Europe through its wholly-owned subsidiary, JFS Delaware, may be deemed to be
the beneficial owner of 1,501,000 Shares and JFS Singapore through its 60% owned
subsidiary, JFS Europe, and through its employment of Tim Lawrence Watkins, a
director of the Company, who owns 10,000 stock options of the Company which are
immediately exercisable at an exercise price of $19.00 per share (the "Watkins
Options") may be deemed to be the beneficial owner of 1,511,000 Shares.
To the knowledge of J/T, TM Japan, TM USA, Tomen, JFS Delaware, JFS
Europe and JFS Singapore, none of the persons described on Exhibit 1 owns any of
the Company's Shares except Kazutami Okui and Tim Lawrence Watkins, directors of
the Company, each own 10,000 stock options granted pursuant to the Company's
1996 Director Stock Option Plan.
(b) Each of TM Japan, TM USA and JFS Delaware may be deemed to share
the power to vote or direct the vote and the power to dispose or direct the
disposition of the Shares owned by J/T. In addition, Tomen, by virtue of its
direct ownership of all of the stock of TM Japan and TM USA, may be deemed to
share with TM Japan, TM USA, JFS Delaware, JFS Europe and JFS Singapore, the
power to vote or direct the vote and the power to dispose or direct the
disposition of the Shares owned by J/T. JFS Europe, by virtue of its direct
ownership of all of the stock of JFS Delaware and JFS Singapore by virtue of its
60% ownership interest in JFS Europe, may each be deemed to share with TM Japan,
TM USA, Tomen and with each other, the power to vote or direct the vote and the
power to dispose or direct the disposition of the Shares owned by J/T. JFS
Singapore through its employment of Tim Lawrence Watkins,
<PAGE>
a director of the Company and the owner of the Watkins Options, may be deemed to
share the power to vote or direct the vote and the power to dispose or direct
the disposition of the Watkins Options with Mr. Watkins. Tomen, through its
employment of Kazutami Okui, a director of the Company and the owner of the Okui
Options, may be deemed to share the power to vote or direct the vote and the
power to dispose or direct the disposition of the Okui Options with Mr. Okui.
(c) None in addition to the transactions described in Item 3.
(d-e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
------------------------------------------------------
As of March 31, 1997, J/T entered into a Pledge Agreement with Marubeni
Aerospace (Singapore) Pte. Ltd. (the "Pledge Agreement") pursuant to which J/T
has pledged 750,500 shares of the Company's Common Stock (the "Collateral") as
collateral for certain obligations of an affiliate of JFS Delaware. Pursuant to
the Pledge Agreement, J/T may distribute the Collateral to JFS Delaware provided
that JFS Delaware executes and delivers a Pledge Agreement whereby it agrees to
pledge and grant a first priority security interest in the Collateral in favor
of Marubeni Aerospace (Singapore) Pte. Ltd.
Except as described in Items 2, 3, 4 and this Item 6, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 and between such persons and any person with
respect to any securities of the Company.
Item 7. Material to be Filed as Exhibits
--------------------------------
The following exhibits are incorporated herein by reference:
1. Executive Officers and Directors of TM Aviation (Japan) Inc., TM
Aviation (USA) Inc., and Tomen Corporation, Japan Fleet Service
(Delaware) Inc., Japan Fleet Service (Europe) B.V. and Japan
Fleet Service (Singapore) Pte. Ltd. who are not Reporting
Persons.
2. Partnership Agreement of J/T Aviation Partners, dated February
14, 1992.*
3. First Amendment to Partnership Agreement of J/T Aviation
Partners, dated November 30, 1994.*
4. Exchange Agreement by and among Aviation Sales Company and the
limited partners of ASC Acquisition Partners, L.P., dated June
26, 1996.*
5. Agreement of Merger by and among Aviation Sales Management
Company, Aviation Sales Company and Aviation Sales Operating
Company dated as of June 24, 1996.*
6. Amended and Restated Partnership Agreement of AJT Capital
Partners, dated November 30, 1994.*
7. Agreement to dissolve AJT Capital Partners Partnership Agreement
between J/T Aviation Partners and RCP Management, L.P. dated as
of June 26, 1996.*
8. Joint Filing Agreement between J/T Aviation Partners, TM Aviation
(Japan) Inc., TM Aviation (USA) Inc., Japan Fleet Service
(Delaware) Inc., Japan Fleet Service (Europe) B.V., Tomen
Corporation and Japan Fleet Service (Singapore) Pte. Ltd.
<PAGE>
9. Pledge Agreement dated as of March 31, 1997 between J/T Aviation
Partners and Marubeni Aerospace (Singapore) Pte. Ltd.
*Previously filed.
<PAGE>
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certify that the information set
forth in this statement is true, complete and correct.
Dated: July 29, 1997
J/T AVIATION PARTNERS
By: JAPAN FLEET SERVICE (DELAWARE) INC.,
General Partner
For J/T Aviation Partners and as a Reporting Person
By: /s/ Tim L. Watkins
-------------------------------------------------
Name: Tim L. Watkins
Title: President
By: TM AVIATION (JAPAN) INC., General Partner
For J/T Aviation Partners and as a Reporting Person
By: /s/ K. Okui
-------------------------------------------------
Name: K. Okui
Title: President
By: TM AVIATION (USA) INC., General Partner
For J/T Aviation Partners and as a Reporting Person
By: /s/ D. Nakano
-------------------------------------------------
Name: D. Nakano
Title: President
TOMEN CORPORATION
By: /s/ K. Okui
-------------------------------------------------
Name: K. Okui
Title:
JAPAN FLEET SERVICE (Europe) B.V.
By: /s/ Tim L. Watkins
-------------------------------------------------
Name: Tim L. Watkins
Title: President
JAPAN FLEET SERVICE (Singapore) Pte. Ltd.
By: /s/ Tim L. Watkins
-------------------------------------------------
Name: Tim L. Watkins
Title: Managing Director
<PAGE>
EXHIBIT INDEX
---------------
Exhibit Sequentially
Numbered Page
--------------------
1. Executive Officers and Directors of TM Aviation (Japan)
Inc., TM Aviation (USA) Inc., and Tomen Corporation,
Japan Fleet Service (Delaware) Inc., Japan Fleet
Service (Europe) B.V. and Japan Fleet Service
(Singapore) Pte. Ltd. who are not Reporting Persons.
2. Partnership Agreement of J/T Aviation Partners, dated
February 14, 1992.*
3. First Amendment to Partnership Agreement of J/T
Aviation Partners, dated November 30, 1994.*
4. Exchange Agreement by and among Aviation Sales Company
and the limited partners of ASC Acquisition Partners,
L.P., dated June 26, 1996.*
5. Agreement of Merger by and among Aviation Sales
Management Company, Aviation Sales Company and Aviation
Sales Operating Company dated as of June 24, 1996.*
6. Amended and Restated Partnership Agreement of AJT
Capital Partners, dated November 30, 1994.*
7. Agreement to dissolve AJT Capital Partners Partnership
Agreement by and between J/T Aviation Partners and RCP
Management, L.P. dated as of June 26, 1996.*
8. Joint Filing Agreement between J/T Aviation Partners,
TM Aviation (Japan) Inc., TM Aviation (USA) Inc., Japan
Fleet Service (Delaware) Inc., Japan Fleet Service
(Europe) B.V., Tomen Corporation and Japan Fleet
Service (Singapore) Pte. Ltd.
9. Pledge Agreement dated as of March 31, 1997 between J/T
Aviation Partners and Marubeni Aerospace (Singapore)
Pte. Ltd.
*Previously filed.
<PAGE>
EXHIBIT 1
---------
Executive Officers and Directors of
TM Aviation (Japan) Inc., TM Aviation (USA) Inc.,
Japan Fleet Service (Delaware) Inc. Japan Fleet Service (Europe) B.V.,
Tomen Corporation and Japan Fleet Service (Singapore) Pte. Ltd.
Who Are Not Reporting Persons
---------------------------------
The following sets forth certain information about executive
officers and directors of TM Aviation (Japan) Inc., TM Aviation (USA) Inc.,
Japan Fleet Service (Delaware) Inc., Japan Fleet Service (Europe) B.V., Tomen
Corporation and Japan Fleet Service (Singapore) Pte. Ltd. who are not Reporting
Persons. Each of such persons is a citizen of Japan, with the exception of Tim
Lawrence Watkins and Harold Marvin Woody, who are citizens of the United States.
Present Principal Occupation or Employment;
Name, Principal Business, and Address in Which
Name and Residence or Such Employment is Conducted (if Different from
Business Address Business Address of Employer)
- ----------------------- -----------------------------------------------
Yasuo Matsukawa Chairman of the Board of Directors
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Akihiro Tsuji President
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hideo Hirata Executive Vice President
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hisashi Takemura Executive Vice President
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kazuo Miyaoka Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Takeshi Emi Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Susumu Matsui Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshiaki Ueki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
1-1
<PAGE>
Exhibit 1 (cont'd)
- ------------------
Present Principal Occupation or Employment;
Name, Principal Business, and Address in Which
Name and Residence or Such Employment is Conducted (if Different from
Business Address Business Address of Employer)
- ---------------------- ------------------------------------------------
Kichibe Ozaki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Tsutomu Nishiwaki Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Katsuhiko Mizutani Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Keiji Kuwata Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Morihiko Tashiro Senior Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Satoshi Miwa Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Naoyuki Matsunobu Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yuzo Takeshige Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hajime Kawamura Managing Director
1285 Avenue of the Americas Tomen Corporation
New York, New York 10019
(business)
Kiyobumi Yamada Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
1-2
<PAGE>
Exhibit 1 (cont'd)
- ------------------
Present Principal Occupation or Employment;
Name, Principal Business, and Address in Which
Name and Residence or Such Employment is Conducted (if Different from
Business Address Business Address of Employer)
- ---------------------- ------------------------------------------------
Hiroshi Uemura Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Michio Ishidate Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kazuhiko Otsuka Managing Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hiroshi Nagatomo Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Hiroyuki Tsuchimoto Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshitaka Mangyoku Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kenzo Inoue Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Kouji Taira Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Yoshio Tadeno Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan
Yoji Kikkawa Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan
Kimikazu Ushizaki Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan
1-3
<PAGE>
Exhibit 1 (cont'd)
- ------------------
Present Principal Occupation or Employment;
Name, Principal Business, and Address in Which
Name and Residence or Such Employment is Conducted (if Different from
Business Address Business Address of Employer)
- ---------------------- ------------------------------------------------
Minota Kano Director
14-27 Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan
Shinichi Yamada Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Takahiko Nishida Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Katsumi Yamada Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan (business)
Toshio Hori Director
14-27, Akasaka 2-chome Tomen Corporation
Minato-ku
Tokyo, Japan
Daizo Nakano President and Director
1285 Ave. of the Americas TM Aviation (USA) Inc.
New York, New York 10019 Vice President
TM Aviation (Japan) Inc.
Kazutami Okui President and Director
14-27 Akasaka 2-chome TM Aviation (Japan) Inc.
Minato-ku
Tokyo, Japan
Akihiko Sato Vice President and Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Delaware) Inc.
MAS (Monetary Authority of Senior Executive Vice President,
Singapore) Building Chief Operating Officer and Director
Singapore 0207 Japan Fleet Service (Singapore) Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
Tim Lawrence Watkins President and Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Delaware) Inc.
MAS (Monetary Authority of President, Chief Executive Officer
Singapore) Building and Director
Singapore 0207 Japan Fleet Service (Singapore) Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
1-4
<PAGE>
Exhibit 1 (cont'd)
- ------------------
Present Principal Occupation or Employment;
Name, Principal Business, and Address in Which
Name and Residence or Such Employment is Conducted (if Different from
Business Address Business Address of Employer)
- -------------------------------------------------------------------------------
Harold Marvin Woody Vice President and Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Delaware) Inc.
MAS (Monetary Authority of Executive Vice President and Director
Singapore) Building Japan Fleet Service (Singapore) Pte. Ltd.
Singapore 0207
Yasumasa Ono Chairman and Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Delaware) Inc.
MAS (Monetary Authority of Chairman
Singapore) Building Japan Fleet Service (Singapore) Pte. Ltd.
Singapore 0207
Keizaburo Fukushi Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Delaware) Inc.
MAS (Monetary Authority of Senior Executive Vice President,
Singapore) Building Chief Financial Officer and Director
Singapore 0207 Japan Fleet Service (Singapore) Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
Toshihiko Koga Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Singapore) Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 0207
Kazutami Okui Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Singapore) Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 0207
Kazuhiko Iwahori Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Singapore) Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 0207
Gen Koyama Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Singapore) Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 0207
Yoichiro Nakamura Executive Vice President and Director
10 Shenton Way # 17-06/09 Japan Fleet Service (Singapore) Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 0207
1-5
<PAGE>
JOINT FILING AGREEMENT Exhibit 8
----------------------
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, the persons named below agree to the joint filing on
behalf of each of them of the Schedule 13D to which this Agreement is an exhibit
(and any further amendment filed by them) with respect to the shares of Common
Stock, $.001 par value, of Aviation Sales Company.
This agreement may be executed simultaneously in any number of
counterparts, all of which together shall constitute one and the same
instrument.
Dated: July 29, 1997
J/T AVIATION PARTNERS
By: JAPAN FLEET SERVICE (DELAWARE) INC.,
General Partner
For J/T Aviation Partners and as a Reporting
Person
By: /s/ Tim L. Watkins
---------------------------------------------
Name: Tim L. Watkins
Title: President
By: TM AVIATION (JAPAN) INC., General Partner
For J/T Aviation Partners and as a Reporting
Person
By: /s/ K. Okui
---------------------------------------------
Name: K. Okui
Title: President
By: TM AVIATION (USA) INC., General Partner
For J/T Aviation Partners and as a Reporting
Person
By: /s/ D. Nakano
---------------------------------------------
Name: D. Nakano
Title: President
TOMEN CORPORATION
By: /s/ K. Okui
---------------------------------------------
Name:
Title:
<PAGE>
JAPAN FLEET SERVICE (Europe) B.V.
By: /s/ Tim L. Watkins
---------------------------------------------
Name: Tim L. Watkins
Title: Director
JAPAN FLEET SERVICE (Singapore) Pte. Ltd.
By: /s/ Tim L. Watkins
---------------------------------------------
Name: Tim L. Watkins
Title: Managing Director
<PAGE>
Exhibit 9
EXECUTION COUNTERPART
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of March 31, 1997 between J/T AVIATION
PARTNERS, a general partnership duly organized and validly existing under the
laws of the State of Delaware (the "Partnership"); and MARUBENI AEROSPACE
(SINGAPORE) PTE. LTD., as agent for the lenders or other financial institutions
or entities party, as lenders, to the Loan Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Agent").
JT Airpartners Leasing (Singapore) Pte. Ltd., a corporation duly
organized under the laws of the Republic of Singapore (the "Borrower"), certain
lenders (the "Lenders") and the Agent are parties to a Loan Agreement dated as
of September 29, 1992 (as amended by the Consent and Agreement dated as of
September 27, 1996, the "Existing Loan Agreement").
The Borrower, certain other parties, the Lenders and the Agent
are party to a Second Consent and Amendment dated as of March 31, 1997 (the
"Second Consent and Amendment"), amending in certain respects the Existing Loan
Agreement (as so amended and as further amended, modified and supplemented, the
"Loan Agreement").
Japan Fleet Service (Delaware) Inc. ("JFS"), a Delaware
corporation, is a general partner of the Partnership and has a fifty percent
interest therein.
JFS and the Borrower are Affiliates and as members of an
integrated group of companies, JFS and its stockholders benefit from the
amendments effected by the Second Consent and Amendment.
As consideration for the Partnership's entering into this Pledge
Agreement, JFS has made certain agreements with the Partnership, and the
Partnership acknowledges the receipt and sufficiency of such consideration.
To induce the Agent and the Lenders to enter into the Second
Consent and Agreement and in consideration of the foregoing, the Partnership has
agreed to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined in this
Agreement, terms with initial capitalization used herein have the meanings given
them in the Loan Agreement. In addition, as used herein:
"Administrative Partner" shall mean TM Aviation (USA) Inc., a
Delaware corporation.
<PAGE>
"Collateral" shall have the meaning ascribed thereto in section 3
hereof.
"Collateral Account" shall have the meaning ascribed thereto in
Section 4.01 hereof.
"Issuer" shall mean Aviation Sales Company, a Delaware
corporation.
"Partners" shall mean the Administrative Partner, JFS and TM
Aviation (Japan) Inc., a Delaware corporation (all of which constitute all of
the partners of the Partnership) and, as the context of this Agreement requires,
any other Person that may be a partner of the Partnership from time to time.
"Partnership Agreement" shall mean the Partnership Agreement of
J/T Aviation Partners dated as of February 14, 1992 among JFS, TM Aviation
(Japan) Inc., a Delaware corporation, and the Administrative Partner (as amended
by the First Amendment to Partnership Agreement of J/T Aviation Partners dated
as of November 30, 1994 and as further amended, modified and supplemented and in
effect from time to time).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at such
date of acquisition, the highest credit rating obtainable from
Standard & Poor's or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits, maturing within 180 days from the
date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws
of the United States of America or any state thereof which has a
combined capital and surplus and undivided profits of not less
than $250,000,000; and
(d) U.S. Dollar-denominated overnight time deposits held
by the bank with which the Collateral Account is established in
accordance with such bank's normal practices.
"Pledged Stock" shall have the meaning ascribed thereto in
Section 3(a) hereof.
2
<PAGE>
"Regulation D" shall mean Regulation D under the Securities Act
of 1933, as amended from time to time.
"Secured Obligations" shall mean, collectively, (a) the
Guaranteed Obligations (as defined in the Guaranty), including (for the
avoidance of doubt), without limitation, all the obligations (as defined by the
Reimbursement Guaranty) and (b) all obligations of the Partnership to the
Lenders and the Agent hereunder.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
as in effect from time to time in the State of New York.
Section 2. Representations and Warranties.
2.01 JFS. JFS, by its signature below, represents and warrants to
the Lenders and the Agent that:
(a) The Partnership is the sole beneficial owner of the
Collateral and no Lien exists or will exist upon the Collateral at any time (and
no warrants, options or other rights to acquire the same exist in favor of any
other Person and no voting trusts, proxies or other commitments, understandings
or arrangements exist with respect to the Collateral (including without
limitation the ability to vote, transfer, or receive dividends in respect of,
the Pledged Stock)), except for the pledge and security interest in favor of the
Agent for the benefit of the Lenders created or provided for herein, which
pledge and security interest constitute a first priority perfected pledge and
security interest in and to all of the Collateral.
(b) The Pledged Stock represented by the certificate identified
in Annex 1 hereto is, and all other Pledged Stock in which the Partnership shall
hereafter pledge and grant a security interest pursuant to Section 3 hereof will
be, duly authorized, validly existing, fully paid and non-assessable and none of
such Pledged Stock is or will be subject to any contractual restriction, or any
restriction under the charter or by-laws of the Issuer of such Pledged Stock,
upon the transfer of such Pledged Stock (except for any such restriction
contained herein), and the grant of the pledge hereby and the transfer of the
shares contemplated hereby will not cause to be operative, or result in a
distribution date, triggering event or business combination under, any "poison
pill" in the charter or the by-laws of the Issuer, including, without
limitation, any "flip-in poison pill," "flip-over poison pill" or any provision
that would give any stockholder of the Issuer the right to have such
stockholder's shares of the Issuer redeemed.
(c) On the date of execution hereof, the Pledged Stock
represented by the certificate identified in Annex I hereto constitutes
approximately 8.76 percent of the issued and outstanding shares of capital stock
of the Issuer (whether or not registered in the name of the Partnership) and
said Annex 1 correctly identifies, as at the date hereof, the Issuer of such
Pledged Stock, the class and par value of the shares
3
<PAGE>
comprising such Pledged Stock and the number of shares (and registered owner
thereof) represented by such certificate. There is only one class of shares of
the Issuer.
(d) The Partnership is a partnership duly formed and validly
existing under the laws of the State of Delaware and the each of the Partners is
a corporation duly organized and validly existing under the laws of the State of
Delaware, and each of the Partnership and the Partners has the requisite power
and authority to carry on its business as now conducted, to own or hold under
lease its properties and to execute and deliver, and perform its obligations
under, this Agreement.
(e) The pledge and the grant of the security interest
contemplated hereby are within the Partnership's powers and have been duly
authorized by all necessary partnership action. This Agreement has been duly
executed and delivered by the Administrative Partner on behalf of the
Partnership (and with the consent of all the Partners) and constitutes a legal,
valid and binding obligation of the Partnership, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(f) The pledge and the grant of the security interest
contemplated hereby (a) do not require any consent or approval of, registration
or filing with, or any other action by, any United States Federal or state (or
any subdivision thereof) or non-United States governmental authority or agency,
except such as have been obtained or made and are in full force and effect and
the filing of any Uniform Commercial Code financing statements required hereby,
(b) will not violate any applicable law or regulation or any order, judgment or
decree of any court, agency or arbitral body, or the charter, by-laws or other
organizational documents of any Partner or the Issuer, (c) will not violate or
result in a default under the Partnership Agreement, any indenture, agreement or
other instrument binding upon the Partnership, any Partner or the Issuer or
their respective assets, or give rise to a right thereunder to require any
payment to be made by the Partnership, any Partner or the Issuer and (d) will
not result in the creation or imposition of any Lien on any asset of the
Partnership or the Issuer (other than the Lien contemplated hereby).
(g) The Partnership is in compliance with all laws, regulations
and orders of each United States Federal, state (and any subdivision thereof)
and non-United States governmental authority or agency applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a material adverse
effect on the Partnership's business or its ability to perform its obligations
hereunder.
(h) The Partnership maintains its books and records with respect
to the Collateral at the office and maintains its principal place of business at
the address indicated beneath the signature of the Partnership hereto.
4
<PAGE>
(i) The Pledged Stock does not represent more than 15 percent of
the issued and outstanding shares of the Issuer.
(j) There are no pending or, to the knowledge of the Partnership
or any Partner, threatened actions or proceedings against the Partnership or
such Partner with any court or administrative agency which, individually or in
the aggregate, if determined adversely to the Partnership, would materially
adversely affect the business of the Partnership or such Partner or its ability
to perform its obligations under this Agreement or would affect the legality,
validity or enforceability of its obligations under this Agreement.
(k) The copy of the Partnership Agreement provided to the Agent
by the Partnership is a true and complete copy thereof, and no other agreements,
document or instrument not delivered to the Agent exist either amending the
original Partnership Agreement (other than the First Amendment thereto referred
to in the definition of "Partnership Agreement" in Section 1 hereof) or that
could have an adverse effect on the rights or interests of the Agent hereunder.
2.02 The Partners (other than JFS). The Partners (other than JFS
but without prejudice to the representations and warranties made by JFS in
Section 2.01 hereof), by their signatures below, represent and warrant to the
Lenders and the Agent that, to the best of their knowledge without
investigation, each of the representations and the warranties specified in
Sections 2.01(c), (d), (e), (h), (i) and (j) hereof is true and correct.
Section 3. Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the secured Obligations, the Partnership hereby pledges and grants
to the Agent, for the benefit of the Lenders as hereinafter provided, a security
interest in all of the Partnership's right, title and interest in the following
property, whether now owned by the Partnership or hereafter acquired and whether
now existing or hereafter coming into existence (all being collectively referred
to herein as "Collateral"):
(a) the shares of common stock of the Issuer represented by the
certificate identified in Annex 1 hereto (the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or return
of capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged Stock
or otherwise received in exchange therefor, and any subscription warrants,
rights or options issued to the holders of, or otherwise in respect of, the
Pledged Stock;
(c) in the event of any consolidation or merger in which the
Issuer is not the surviving corporation, (i) all shares (A) of each class of the
capital stock of the successor corporation formed by or resulting from such
consolidation or merger and (B) received in consideration of, or in exchange
for, the Pledged Stock and (ii) all
5
<PAGE>
other consideration (including without limitation, all personal property,
tangible or intangible) received in exchange for the Pledged Stock;
(d) the balance from time to time in the Collateral Account
representing Collateral described in the other clauses of this Section 3; and
(e) all other tangible and intangible personal property of the
Partnership relating to the Pledged Stock, including, without limitation, all
proceeds, profits, income, benefits, substitutions and replacements of and to
any of the property of the Partnership described in the preceding clauses of
this Section 3 (including, without limitation, any proceeds of insurance thereon
and all causes of action, claims and warranties now or hereafter held by the
Partnership in respect of any of the items listed above) and, to the extent
related to any property described in said clauses or such proceeds, all books,
correspondence, credit files, records and other papers, including without
limitation all tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Partnership or any computer bureau or
service company from time to time acting for the Partnership.
Notwithstanding any provision herein, the Reimbursement Guarantee or in any
other Operative Agreement, but except as provided in clauses (b) through (e)
above, the Collateral shall not include any shares of stock of the Issuer that
have not been pledged pursuant to this Agreement. For the avoidance of doubt, of
the 1,501,000 shares of common stock of the Issuer owned by the Partnership on
the date hereof, 750,500 of such shares as described in Annex 1 hereto shall
constitute Collateral and the remaining 750,500 of such shares shall not
constitute Collateral.
Section 4. Cash Proceeds of Collateral.
4.01 Collateral Account. There will be established promptly by
the Agent with a financial institution to be specified by Agent, which shall
notify the Partnership thereof, a cash collateral account (the "Collateral
Account") in the name and under the control of the Agent into which there shall
be deposited from time to time the cash proceeds of any of the Collateral
(including, without limitation, any and all dividends paid in respect of the
Pledged Stock and proceeds of insurance on the Collateral) required to be
delivered to the Agent pursuant hereto and into which the Partnership may from
time to time deposit any additional amounts that it wishes to pledge to the
Agent for the benefit of the Lenders as additional collateral security
hereunder. The balance from time to time in the Collateral Account shall
constitute part of the Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied as hereinafter provided. Except as
expressly provided in the next sentence, the Agent shall caused to be remitted
the collected balance outstanding to the credit of the Collateral Account to or
upon the order of the Partnership as the Partnership shall from time to time
instruct. However, at any time following the occurrence and during the
continuance of a Loan Event of Default or an Event of Default under, and as
defined in, the Lease or the Sublease, the Agent may (and, if instructed by the
Lenders shall) in its (or their) discretion apply or cause to be applied
(subject to collection) the balance from time to time outstanding to the credit
of the Collateral Account to the payment of the Secured
6
<PAGE>
Obligations in the manner specified in Section 5.09 hereof. The balance from
time to time in the Collateral Account shall be subject to withdrawal only as
provided herein. The Partnership agrees that if the proceeds of any Collateral
hereunder shall be received by it, the Partnership shall as promptly as possible
deposit such proceeds into the Collateral Account. Until so deposited, all such
proceeds shall be held in trust by the Partnership for and as the property of
the Agent and shall not be commingled with any other funds or property of the
Partnership.
4.02 Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to time in such
Permitted Investments as the Partnership (or, after the occurrence and during
the continuance of a Loan Default or Default under, and as defined in, the Lease
or the Sublease, the Agent) shall determine (subject to the Agent's ability to
comply with such determination), which Permitted Investments shall be held in
the name and be under the control of the Agent, provided that at any time after
the occurrence and during the continuance of a Loan Default or an Event of
Default under, and as defined in, the Lease or the Sublease, the Agent may (and,
if instructed by the Lenders shall) in its (or their) discretion at any time and
from time to time elect to liquidate any such Permitted Investments and to apply
or cause to be applied the proceeds thereof to the payment of the Secured
Obligations in the manner specified in Section 5.09 hereof.
Section 5. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 3 hereof, the
Partnership hereby agrees with each Lender and the Agent as follows:
5.01 Delivery and Other Perfection. The Partnership shall:
(a) if any of the shares, securities, moneys or property required
to be pledged by the Partnership under Section 3 hereof are received by the
Partnership, forthwith either (x) transfer and deliver to the Agent such shares
or securities so received by the Partnership (together with the certificates for
any such shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be held by
the Agent, pursuant to the terms of this Agreement, as part of the Collateral or
(y) take such other action as the Agent shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares, securities, moneys or
property in said section 3;
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may be
necessary or desirable (in the judgment of the Agent) to create, preserve,
perfect or validate the pledge and security interest granted pursuant hereto or
to enable the Agent to exercise and enforce its rights hereunder with respect to
such pledge and security interest, including, without limitation, causing any or
all of the Collateral to be transferred of record into the name of the Agent or
its nominee (and the Agent agrees that if any Collateral is transferred into its
name or the name of its nominee, the Agent will thereafter promptly give to the
Partnership copies of any notices and communications received by it with respect
to the Collateral);
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<PAGE>
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such manner as
the Agent may reasonably require in order to reflect the security interests
granted by this Agreement; and
(d) permit representatives of the Agent, upon reasonable notice,
at any time during normal business hours to inspect and make abstracts from its
books and records pertaining to the Collateral, and permit representatives of
the Agent to be present at the Partnership's place of business to receive copies
of all communications and remittances relating to the Collateral, and forward
copies of any notices or communications received by the Partnership with respect
to the Collateral, all in such manner as the Agent may require.
5.02 Other Financing Statements and Liens. Without the prior
written consent of the Agent (granted with the authorization of the Lenders),
the Partnership shall not file or suffer to be on file, or authorize or permit
to be filed or to be on file, in any jurisdiction, any financing statement or
like instrument with respect to the Collateral in which the Agent is not named
as the sole secured party for the benefit of the Lenders.
5.03 Preservation of Rights. The Agent shall not be required to
take steps necessary to preserve any rights against prior parties to any of the
Collateral.
5.04 Special Provisions Relating to Collateral.
(a) The Partnership will cause the Collateral to constitute at
all times fifty percent of the total number of shares of each class of capital
stock of the Issuer owned by the Partnership, provided that if the Partnership
shall dispose of, or acquire, any shares of capital stock not subject hereto
such percentage shall be adjusted as appropriate, but without in any way
altering the percentage of Pledged Stock in relation to all issued and
outstanding shares of capital stock of the Issuer at the time of such
disposition or acquisition (for the avoidance of doubt and notwithstanding
anything to the contrary in the foregoing, any shares acquired by way of a
split-up, revision, reclassification or other like change of the Pledged Stock
or otherwise received in exchange thereof or by way of the exercise of any
subscription warrants, rights or options issued to the holders or, or otherwise
in respect of, the Pledged Stock, shall constitute Collateral). Until the
termination of the pledge and the security interest created hereby pursuant to
Section 5.12 hereof the Partnership shall not enter into any voting trust, grant
any proxies or enter into any other commitment, understanding or arrangement
with respect to the Collateral (including without limitation the ability to
vote, transfer, or receive dividends in respect of, the Pledged Stock), except
for the pledge and security interest in favor of the Agent for the benefit of
the Lenders created or provided for herein.
Notwithstanding the foregoing, the Partnership may distribute the Collateral
(the "Distributed Collateral") to JFS; provided that prior to, or
contemporaneously with, such distribution JFS shall execute and deliver a pledge
agreement whereby it agrees to pledge, and grant a first priority security
interest in, the Distributed Collateral in favor of the Agent for the benefit of
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<PAGE>
the Lenders and which pledge agreement shall be in form and substance reasonably
satisfactory to the Agent and JFS shall prior to, or contemporaneously with,
such distribution take such other actions and execute such other agreements,
documents and instruments as the Agent may reasonably require to ensure that it
receives a first priority perfected pledge or and security interest in the
Distributed Collateral and to ensure that the interest of the Agent and the
Lenders in the Distributed Collateral is no less favorable to them than their
interest in the Collateral. By its signature hereto, JFS agrees to execute and
deliver such pledge agreement and take such other actions and execute such other
agreements, documents and instruments as aforesaid.
(b) So long as no Loan Default or Event of Default under, and as
defined in, the Lease or the Sublease shall have occurred and be continuing, the
Partnership shall have the right to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral for all purposes not
inconsistent with the terms of this Agreement, the Loan Agreement, any other
Operative Agreement or any other instrument or agreement referred to herein or
therein, provided that the Partnership agrees that it will not vote the
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Loan Agreement, any other Operative Agreement or any such other instrument
or agreement; and the Agent shall execute and deliver to the Partnership or
cause to be executed and delivered to the Partnership all such proxies, powers
of attorney, dividend and other orders, and all such instruments, without
recourse, as the Partnership may reasonably request for the purpose of enabling
the Partnership to exercise the rights and powers that it is entitled to
exercise pursuant to this Section 5.04(b).
(c) Unless and until a Loan Default or Event of Default under,
and as defined in, the Lease or the Sublease, has occurred and is continuing,
the Partnership shall be entitled to receive and retain any dividends on the
Collateral paid in cash out of earned surplus.
(d) If any Loan Default or Event of Default under, and as defined
in, the Lease or the Sublease, shall have occurred, then so long as such Loan
Default or such Event of Default shall continue, and whether or not the Agent or
any Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Loan Agreement, any other Operative
Agreement or any other agreement relating to such Secured Obligation, all
dividends and other distributions on the Collateral shall be paid directly to
the Agent and retained by it in the Collateral Account as part of the
Collateral, subject to the terms of this Agreement, and, if the Agent shall so
request in writing, the Partnership agrees to execute and deliver to the Agent
appropriate additional dividend, distribution and other orders and documents to
that end, provided that if such Loan Default or such Event of Default is cured,
any such dividend or distribution theretofore paid to the Agent shall, upon
request of the Partnership (except to the extent theretofore applied to the
Secured Obligations), be returned by the Agent to the Partnership.
9
<PAGE>
5.05 Events of Default, Etc. During the period during which a
Loan Event of Default or Event of Default under, and as defined in, the Lease or
the Sublease, shall have occurred and be continuing:
(a) the Partnership shall, at the request of the Agent, assemble
the Collateral owned by it at such place or places, reasonably convenient to
both the Agent and the Partnership, designated in its request;
(b) the Agent may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may extend the time
of payment, arrange for payment in installments, or otherwise modify the terms
of, any of the Collateral;
(c) the Agent shall have all of the rights and remedies with
respect to the collateral of a secured party under the Uniform Commercial Code
(whether or not said Code is in effect in the jurisdiction where the rights and
remedies are asserted) and such additional rights and remedies to which a
secured party is entitled under the laws in effect in any jurisdiction where any
rights and remedies hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral as if the
Agent were the sole and absolute owner thereof (and the Partnership agrees to
take all such action as may be appropriate to give effect to such right);
(d) the Agent in its discretion may, in its name or in the name
of the Partnership or otherwise, demand, sue for, collect or receive any money
or property at any time payable or receivable on account of or in Collateral,
but shall be under no obligation to do so; and
(e) the Agent may, upon ten business days' prior written notice
to the Partnership with respect to the Collateral or shall then be or shall
thereafter come into the possession, custody or control of the Agent, the
Lenders or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any part of such Collateral, at any exchange, broker's board
or any other place or places as the Agent deems best, and for cash or for credit
or for future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to effect any
such disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the Agent or
any Lender or anyone else may be the purchaser, lessee, assignee or recipient of
any or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any right
or equity of redemption (statutory or otherwise), of the Partnership or any
Partner, any such demand, notice and right or equity being hereby expressly
waived and released. The Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the sale may be so adjourned.
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<PAGE>
The proceeds of each collection, sale or other disposition under this Section
5.05 shall be applied in accordance with Section 5.09 hereof.
The Partnership recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Agent may be compelled, with respect to any sale of
all or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Partnership acknowledges that any such private sales may be at prices and on
terms less favorable to the Agent than those obtainable through a public sale
without such restrictions, and, notwithstanding such circumstances agrees that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the Issuer or issuer thereof to register it
for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Agent shall retain all rights and
remedies under the Operative Agreements with respect to any deficiency.
5.07 Removals, Etc. Without at least 30 days' prior written
notice to the Agent, the Partnership shall not (i) maintain any of its books and
records with respect to the Collateral at any office or maintain its principal
place of business at any place other than at the address indicated beneath the
signature of the Partnership hereto or (ii) change its name, or the name under
which it does business, from the name shown on the signature pages hereto.
5.08 Private Sale. The Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a commercially
reasonable manner. The Partnership hereby waives any claims against the Agent or
any Lender arising by reason of the fact that the price at which the Collateral
may have been sold at such a private sale was less than the price that might
have been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Agent accepts the first offer received and does
not offer the Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Agent under Section 4 hereof or this Section 5, shall be
applied by the Agent to the Secured Obligations in the order of priority for
such Secured Obligations set forth in Section 4.8 of the Mortgage. As used in
this Section 5, "proceeds" of Collateral shall mean cash, securities and other
property realized in respect of, and distributions in kind of, Collateral,
including any thereof received under any reorganization, liquidation or
adjustment of debt of the Partnership or any issuer of or obligor on any of the
Collateral.
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<PAGE>
5.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Agent while no Loan Default or Event of Default
under, and as defined in, the Lease or the Sublease has occurred and is
continuing, upon the occurrence and during the continuance of any Loan Event of
Default or Event of Default under, and as defined in, the Lease or the Sublease,
the Agent is hereby appointed the attorney-in-fact of the Partnership for the
purpose of carrying out the provisions of this Section 5 and taking any action
and executing any instruments that the Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, so long as the Agent shall be entitled under this Section 5 to make
collections in respect of the Collateral, the Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
the Partnership representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the
same.
5.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Partnership shall (i) file such financing
statements and other documents in such offices as the Agent may request to
perfect the security interests granted by Section 3 of this Agreement and (ii)
deliver to the Agent the certificate identified in Annex 1 hereto, accompanied
by undated stock powers duly executed in blank.
5.12 Termination. When all Secured Obligations shall have been
indefeasibly paid in full or the Collateral distributed in accordance with
Section 5.04(a) hereof, this Agreement shall terminate, and the Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of the
Partnership and to be released, provided that in the event of a distribution of
the collateral pursuant to Section 5.04(a) hereof, such remaining Collateral and
money received in respect thereof, shall be pledged in accordance with such
Section 5.04(a). The Agent shall also execute and deliver to the Partnership
upon such termination such Uniform Commercial Code termination statements and
such other documentation as shall be reasonably requested by the Partnership to
effect the termination and release of the Liens on the Collateral.
5.13 Further Assurances. The Partnership agrees that, from time
to time upon the written request of the Agent, the Partnership will execute and
deliver such further documents and do such other acts and things as the Agent
may reasonably request in order fully to effect the purposes of this Agreement.
5.14 Obligations Unconditional. The obligations of the
Partnership hereunder are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the Loan Agreement, the
Lease, the Sublease, any other Operative Agreement or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any guarantee of, or security for, any of the Secured Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety, it being the intent of this Section
5.14 that the obligations of the Partnership hereunder shall be absolute and
unconditional under any and all circumstances.
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<PAGE>
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not affect the liability of
the Partnership or the validity of the pledge and security interest hereunder:
(i) at any time or from time to time, without notice to the
Partnership, the time for any performance of or compliance with any of the
Secured Obligations shall be extended, or such performance or compliance shall
be waived;
(ii) any of the acts mentioned in any of the provisions of the
Loan Agreement or any other Operative Agreement or any other agreement or
instrument referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Secured Obligations shall be
accelerated, or any of the Secured Obligations shall be modified, supplemented
or amended in any respect, or any right under the Loan Agreement or any other
Operative Agreement or any other agreement or instrument referred to herein or
therein shall be waived or any guarantee of any of the Secured Obligations or
any other security therefor shall be released or exchanged in whole or in part
or otherwise dealt with; or
(iv) any other Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Secured Obligations shall fail to
be perfected.
The Partnership hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the Agent
or any Lender exhaust any right, power or remedy or proceed against the Borrower
(or any other Person) under the Loan Agreement or any other Operative Agreement
or any other agreement or instrument referred to herein or therein, or against
any other Person under any guarantee of, or other security for, any of the
Secured Obligations.
5.15 Subrogation. The Partnership hereby agrees that until the
indefeasible payment and satisfaction in full of all the Secured Obligations, it
shall not exercise any right or remedy arising by reason of the exercise of the
Agent or the Lenders of any of their rights under this Agreement, whether by
subrogation or otherwise, against the Borrower, the Lessee or any guarantor of
the Secured Obligations or any other security for the Secured Obligations.
Section 6. Miscellaneous.
6.01 No Waiver. No failure on the part of the Agent or any Lender
to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
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<PAGE>
6.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its "Address for Notices" specified beneath each party's signature
hereto and shall be deemed to have been given at the times specified in Section
11.02 of the Loan Agreement.
6.03 Expenses. The Partnership agrees to reimburse each of the
Lenders and the Agent for all reasonable costs and expenses of the Lenders and
the Agent (including, without limitation, the reasonable fees and expenses of
legal counsel) in connection with (i) any enforcement or collection proceeding
hereunder and all manner of participation in or other involvement with (w)
performance by the Agent of any obligations of the Partnership in respect of the
Collateral that the Partnership has failed or refused to perform, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral, and
for the care of the Collateral and defending or asserting rights and claims of
the Agent in respect thereof, by litigation or otherwise, including expenses of
insurance, (y) judicial or regulatory proceedings relating to the Partnership or
the Collateral and (z) workout, restructuring or other negotiations or
proceedings (whether or not the workout, restructuring or other negotiations or
proceedings is consummated) relating to the Partnership or the Collateral and
(ii) the enforcement of this Section 6.03, and all such costs and expenses shall
be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3 hereof.
6.04 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing, duly executed by the
Partnership and the Agent (with the consent of the Lenders). Any such amendment
or waiver shall be binding upon the Agent and each Lender, each holder of any of
the Secured Obligations and the Partnership.
6.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and permitted assigns of
the Partnership, the Agent, the Lenders and each holder of any of the Secured
Obligations (provided, however, that the Partnership shall not assign or
transfer its rights hereunder without the prior written consent of the Agent).
6.06 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
6.07 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.08 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
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(b) The Partnership hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Partnership or its properties in the courts of any jurisdiction.
(c) The Partnership hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 6.02 hereof. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
6.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
6.10 Agents and Attorneys-in-Fact. The Agent may employ agents
and attorneys-in-fact in connection herewith and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it in good faith.
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<PAGE>
6.11 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
6.12 Recourse; Liability of JFS. The liability of the Partnership
and Partners, other than JFS, under this Agreement is with recourse to the
Collateral only. JFS, by its signature below, agrees that it shall be
responsible on a full recourse basis to the Agent and the Lenders for the
representations, warranties, covenants and all other obligations of it and the
Partnership hereunder (including, without limitation, the payment obligations of
the Partnership under Section 6.03 hereof and, for the avoidance of doubt,
without giving effect to the limitation of recourse to the Partnership and the
other Partners in the preceding sentence) and for the Partnership's and each of
the Partners' negligence or wilful misconduct. The foregoing shall not be
construed to limit the rights of the Agent or the Lenders to exercise any of
their respective rights under the Operative Agreements and to enforce the
Collateral, the Security and the other Security Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the day and year first above
written.
J/T AVIATION PARTNERS
By TM AVIATION (USA) INC., its
Administrative Partner
By___________________________________
Title:
Address for Notices:
Tomen America Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: Daizo Nakano
Telecopier: 212-397-3351
With a copy to:
Orrick, Herrington & Sutcliffe
666 Fifth Avenue
New York, New York 10103-0001
Attention: Daniel A. Mathews, Esq.
Telecopier: 212-506-5151
MARUBENI AEROSPACE (SINGAPORE)
PTE. LTD., as Agent
By___________________________________
Title:
Address for Notices:
16 Raffles Quay #13-00
Hong Leong Bldg.
Singapore 048581
Republic of Singapore
Attention: Mr. Mita
Telecopier: 65-225-3051/8871
17
<PAGE>
Acknowledgement and consent:
JAPAN FLEET SERVICE (DELAWARE) INC.
By:
----------------------------------
Name:
Title:
TM AVIATION (JAPAN) INC.
By:
----------------------------------
Name:
Title:
TM AVIATION (USA) INC.
By:
----------------------------------
Name:
Title:
18
<PAGE>
ANNEX 1
PLEDGED STOCK
---------------
(see Section 2(b) and (c)]
Certificate Registered Number of Shares
No. Owner of the Issuer
Issuer ----------- ---------------- -----------------
- ------
Aviation Sales Company ASC 0047 J/T Aviation 750,500 shares of
Partners common stock, par
value $0.001
Annex I to Pledge Agreement
-----------------------------
19
