UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
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)
March 13, 1998
--------------------------------------------------------------
(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.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect for 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 1 of 16 Pages
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CUSIP No. 053672 10 1 Page 2 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J/T Aviation Partners
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
0
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
0
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
0
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<PAGE>
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CUSIP No. 053672 10 1 Page 3 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TM Aviation (USA) Inc.
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
225,150
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
225,150
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
225,150
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
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CUSIP No. 053672 10 1 Page 4 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TM Aviation (Japan) Inc.
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
405,350
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
405,350
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
405,350
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.2%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
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CUSIP No. 053672 10 1 Page 5 of 16 Pages
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================================================================================
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tomen Corporation
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Japan
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
640,500
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
640,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
640,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.7%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
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CUSIP No. 053672 10 1 Page 6 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Japan Fleet Service (Delaware) Inc.
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
750,500
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
750,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
750,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
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CUSIP No. 053672 10 1 age 7 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Japan Fleet Service (Singapore) Pte. Ltd.
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Singapore
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
760,500
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
760,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
760,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
O
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<PAGE>
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CUSIP No. 053672 10 1 Page 8 of 16 Pages
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Japan Fleet Service (Europe) B.V.
- --------------------------------------------------------------------------------
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 ITEMS 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands
- --------------------------------------------------------------------------------
7. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE VOTING POWER
0
- --------------------------------------------------------------------------------
8. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED VOTING POWER
750,500
- --------------------------------------------------------------------------------
9. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SOLE DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
10. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON WITH SHARED DISPOSITIVE POWER
750,500
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
750,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
O
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<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 and amended and
restated in Amendment No. 2 filed with the SEC on July 31, 1997, 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."
Page 9 of 16 Pages
<PAGE>
(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.
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
Page 10 of 16 Pages
<PAGE>
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.
On March 13, 1998, J/T distributed all of the shares of Common Stock
held by it to its general partners. TM Japan received 525,350 Shares, TM USA
received 225,150 Shares and JFS Delaware received 750,500 Shares.
Item 4. Purpose of Transaction
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 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. Either TM Japan or TM USA may sell Shares in
the public market from time to time.
Page 11 of 16 Pages
<PAGE>
Item 5. Interest in Securities of Issuer
(a) TM Japan may be deemed to be the beneficial owner of 405,350 Shares
or 4.2% of the outstanding Shares (based on the Company's Form 10-K for the year
ended December 31, 1997). TM USA may be deemed to be the beneficial owner of
225,150 Shares or 2.3% of the outstanding Shares. JFS Delaware may be deemed to
be the beneficial owner of 750,500 Shares or 7.8% of the outstanding 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 640,500 shares or 6.7% of the outstanding Shares. JFS Europe
through its wholly-owned subsidiary, JFS Delaware, may be deemed to be the
beneficial owner of 750,500 Shares or 7.8% of the outstanding 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 760,500 Shares or 7.9% of the outstanding 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) 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 and TM USA the power to
vote or direct the vote and the power to dispose or direct the disposition of
the Shares owned by each of TM Japan and TM USA. 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
each other, the power to vote or direct the vote and the power to dispose or
direct the disposition of the Shares owned by JFS Delaware. JFS Singapore
through its employment of Tim Lawrence Watkins, 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) On March 27, 1998, TM Japan sold 53,800 Shares at $43.0826 per
share and 45,200 shares at $42.4121 per share in the public market. On March 30,
1998, TM Japan sold 300 Shares at $41.50 per share in the public market and on
March 31, 1998, TM Japan sold 20,700 Shares at $41.375 per shares in the public
market.
(d) Not applicable.
(e) On March 13, 1998, TM USA ceased to be the beneficial owner of more
than five percent of the outstanding Shares. On March 27, 1998, TM Japan ceased
to be the beneficial owner of more than five percent of the outstanding Shares.
Page 12 of 16 Pages
<PAGE>
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. On March 12, 1998, JFS Delaware
entered into an Amended and Restated Pledge Agreement with Mitsubishi Trust and
Banking Corporation, Singapore Branch pursuant to which JFS Delaware pledged the
Collateral to JT Airpartners Leasing (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 13 of 16 Pages
<PAGE>
9. Pledge Agreement dated as of March 31, 1997 between J/T Aviation
Partners and Marubeni Aerospace (Singapore) Pte. Ltd.*
10. Amended and Restated Pledge Agreement dated as of March 12, 1998
between Japan Fleet Service (Delaware) Inc. and The Mitsubishi Trust and Banking
Corporation, Singapore Branch.
- ----------
*Previously filed.
Page 14 of 16 Pages
<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: April 23, 1998
J/T AVIATION PARTNERS
By: JAPAN FLEET SERVICE (DELAWARE) INC.,
General Partner
For J/T Aviation Partners and as a
Reporting Person
By: /s/ K. Fukushi
--------------------------
Name: Keizaburo Fukushi
Title: Director
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/ M. Shirasaki
--------------------------
Name: M. Shirasaki, General Manager
Title: Electronics Department
JAPAN FLEET SERVICE (EUROPE) B.V.
By: /s/ K. Fukushi
--------------------------
Name: Keizaburo Fukushi
Title: Director
JAPAN FLEET SERVICE (SINGAPORE) PTE. LTD.
By: /s/ Y. Ono
--------------------------
Name: Yasumasa Ono
Title: Director
Page 15 of 16 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Sequentially
Numbered Page
-------------
<S> <C> <C>
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.*
10. Amended and Restated Pledge Agreement dated as of March 12, 1998
between Japan Fleet Service (Delaware) Inc. and The Mitsubishi Trust
and Banking Corporation, Singapore Branch.
</TABLE>
- -------------------
* Previously filed.
Page 16 of 16 Pages
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.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment;
Name, Principal Business, and Address in
Name and Residence or Which Such Employment is Conducted (if
Business Address Different from Business Address of Employer)
---------------- --------------------------------------------
<S> <C>
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)
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
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)
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)
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
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)
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)
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
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 Yoshikawa 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
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)
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
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.
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
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
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
</TABLE>
6
Exhibit 8
JOINT FILING AGREEMENT
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: April 23, 1998
J/T AVIATION PARTNERS
By: JAPAN FLEET SERVICE (DELAWARE) INC., General Partner
For J/T Aviation Partners and as a Reporting Person
By: /s/ K. Fukushi
--------------------------
Name: Keizaburo Fukushi
Title: Director
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
1
<PAGE>
TOMEN CORPORATION
By: /s/ M. Shirasaki
--------------------------
Name: M. Shirasaki, General Manager
Title: Electronics Department
JAPAN FLEET SERVICE (EUROPE) B.V.
By: /s/ K. Fukushi
--------------------------
Name: Keizaburo Fukushi
Title: Director
JAPAN FLEET SERVICE (SINGAPORE) PTE. LTD.
By: /s/ Y. Ono
--------------------------
Name: Yasumasa Ono
Title: Director
2
Exhibit 10
EXECUTION COPY
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of March 12, 1998
between JAPAN FLEET SERVICE (DELAWARE), INC., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Pledgor"); and
THE MITSUBISHI TRUST AND BANKING CORPORATION, SINGAPORE BRANCH, 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 an Amended and Restated
Loan Agreement dated as of August 25, 1997 (as amended, modified, supplemented
and in effect from time to time, the "Loan Agreement").
The Pledgor and the Borrower are Affiliates and as members of an
integrated group of companies, the Pledgor and its stockholders benefit from the
Loan Agreement.
J/T Aviation Partners, a Delaware limited partnership of which the
Pledgor is a 50% partner (the "Partnership"), and the Agent are parties to a
Pledge Agreement dated as of March 31, 1997 (the "Existing Pledge Agreement")
pursuant to which the Partnership pledged 750,500 shares of Issuer (the
"Original Pledged Stock") in favor of the Agent as collateral for the Borrower's
obligations under the Loan Agreement and the Agent thereby acquired a first
priority lien on the Original Pledged Stock.
The Partnership plans to distribute the Original Pledged Stock to the
Pledgor, whereupon the Pledged Stock referred to herein representing the same
750,500 shares of Issuer shall be issued in the name of the Pledgor in exchange
for the Original Pledged Stock.
Pursuant to the terms of the Existing Pledge Agreement, all shares
received in exchange for the Original Pledged Stock remain subject to a first
priority lien in favor of the Agent, and the Partnership is in any event
prohibited from transferring the Original Pledged Stock.
The Pledgor is willing to pledge the Pledged Stock in exchange for the
Original Pledged Stock, and in connection therewith, has requested that the
Agent amend and restate the Existing Pledge Agreement, among other things, so
that the Pledgor will assume the obligations of the Partnership as pledgor
thereunder, and the Agent is willing to amend and restate the Existing Pledge
Agreement on such terms and conditions.
Accordingly, the parties hereto agree that the provisions of the
Existing Pledge
<PAGE>
Agreement are hereby amended and restated 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:
"Collateral" shall have the meaning ascribed thereto in Section 3
hereof.
"Collateral Account" shall have the meaning ascribed thereto in Section
4.1 hereof.
"Issuer" shall mean Aviation Sales Company, a Delaware corporation.
"Permitted Investments" shall mean:
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;
investments in commercial paper maturing within 270 days 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.;
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
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.
"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 Pledgor 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. The Pledgor represents and
warrants to the Lenders and the Agent that:
(a) The Pledgor is the sole legal and 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 Pledgor 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 1 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 Pledgor) 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 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 Pledgor is a corporation duly organized and validly
existing under the laws of the State of Delaware and 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 Pledgor's powers and have been duly
authorized by
<PAGE>
all necessary corporate action. This Agreement has been duly executed
and delivered by the Pledgor and constitutes a legal, valid and binding
obligation of the Pledgor, 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 the Pledgor or the Issuer, (c)
will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Pledgor or the Issuer or their
respective assets, or give rise to a right thereunder to require any
payment to be made by the Pledgor or the Issuer and (d) will not result
in the creation or imposition of any Lien on any asset of the Pledgor
or the Issuer (other than the Lien contemplated hereby).
(g) The Pledgor 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
Pledgor's business or its ability to perform its obligations hereunder.
(h) The Pledgor 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 Pledgor
hereto.
(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 Pledgor
or any Partner, threatened actions or proceedings against the Pledgor
or such Partner with any court or administrative agency which,
individually or in the aggregate, if determined adversely to the
Pledgor, would materially adversely affect the business of the Pledgor
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 Pledgor has determined that the distribution of the
Original Pledged Stock and this Agreement are in the best interests of
its creditors, and represents a practicable course of action to improve
the financial position of the Pledgor without impairing the rights and
interests of such creditors.
(l) Neither the distribution of the Original Pledged Stock nor
this Agreement is made with any intent to hinder, delay, or defraud any
entity to which the Pledgor or the Partnership is or will become
indebted to on or after the date of this Agreement. The Pledgor is not
insolvent at the time of, or as a result of this Agreement. The Pledgor
is not engaged in business or a transaction, or about to engage in
business or a transaction, for which the assets remaining with it after
this Agreement will be an unreasonably small amount of capital. The
Pledgor does not intend to incur, or believe that it will incur, debts
beyond its ability to pay as such debts mature. This Agreement is not
entered into with any intent to evade any applicable law or public
policy.
(m) The Partnership determined at the date of the Existing
Pledge Agreement that the Existing Pledge Agreement was in the best
interest of its creditors, and represented a practicable course of
action to improve the financial position of the Partnership without
impairing the rights and interests of such creditors.
(n) The pledge contemplated by the Existing Pledge Agreement
was not made with any intent to hinder, delay, or defraud any entity to
which the Partnership was or was to become indebted to on or after the
date of the Existing Pledge Agreement. The Partnership was not
insolvent at the time of, or as a result of, the Existing Pledge
Agreement. The Partnership was not engaged in business or a transaction
for which the assets remaining with it after the Existing Pledge
Agreement would have been an unreasonably small amount of capital. At
the date of the Existing Pledge Agreement, the Partnership did not
intend to incur, or believe that it would incur, debts beyond its
ability to pay as such debts mature. The Existing Pledge Agreement was
not entered into with any intent to evade any applicable law or public
policy.
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 Pledgor hereby pledges and grants to the Agent, for the
benefit of the Lenders as hereinafter provided, a security interest in all of
the Pledgor's right, title and interest in the following property, whether now
owned by the Pledgor 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
<PAGE>
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
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
Pledgor 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 Pledgor 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 Pledgor 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 Pledgor or any computer bureau or service
company from time to time acting for the Pledgor.
Section 4. Cash Proceeds of Collateral.
4.1 Collateral Account. There will be established promptly by the Agent
with a financial institution to be specified by Agent, which shall notify the
Pledgor 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 Pledgor 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 cause to be remitted the collected balance outstanding to the credit
of the Collateral Account to or upon the order of the Pledgor as the Pledgor
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
<PAGE>
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 Obligations
in the manner specified in Section 5 .9 hereof. The balance from time to time in
the Collateral Account shall be subject to withdrawal only as provided herein.
The Pledgor agrees that if the proceeds of any Collateral hereunder shall be
received by it, the Pledgor 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 Pledgor for and as the property of the Agent and shall not be
commingled with any other funds or property of the Pledgor.
4.2 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 Pledgor (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 5.9 hereof.
Section 5. Further Assurances: Remedies. In furtherance of the grant of
the pledge and security interest pursuant to Section 3 hereof, the Pledgor
hereby agrees with each Lender and the Agent as follows:
5.1 Delivery and Other Perfection. The Pledgor shall:
(a) if any of the shares, securities, moneys or property required
to be pledged by the Pledgor under Section 3 hereof are received by the
Pledgor, forthwith either (x) transfer and deliver to the Agent such
shares or securities so received by the Pledgor (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
<PAGE>
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
Pledgor copies of any notices and communications received by it with
respect to the Collateral);
(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 Pledgor'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 Pledgor with respect to the Collateral,
all in such manner as the Agent may require.
5.2 Other Financing Statements and Liens. Without the prior written consent
of the Agent (granted with the authorization of the Lenders), the Pledgor 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.
5.3 Preservation of Rights. The Agent shall not be required to take steps
necessary preserve any rights against prior parties to any of the Collateral.
5.4 Special Provisions Relating to Collateral.
(a) The Pledgor will cause the Collateral to constitute at all
times 100% of the total number of shares of each class of capital stock
of the Issuer owned by the Pledgor. Until the termination of the pledge
and the security interest created hereby pursuant to Section 5.12
hereof, the Pledgor 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.
(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 Pledgor 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 Pledgor
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
<PAGE>
Operative Agreement or any such other instrument or agreement; and the
Agent shall execute and deliver to the Pledgor or cause to be executed
and delivered to the Pledgor all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse,
as the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the rights and powers that it is entitled to
exercise pursuant to this Section 5.4(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 Pledgor 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 Pledgor 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 Pledgor
(except to the extent theretofore applied to the Secured Obligations),
be returned by the Agent to the Pledgor.
5.5 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 Pledgor 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 Pledgor, 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
<PAGE>
Pledgor 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 Pledgor or otherwise, demand, sue for, collect or receive any money
or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to
do so; and
(e) the Agent may, upon ten business days' prior written notice to
the Pledgor of the time and place, with respect to the Collateral or
any part thereof that 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
Pledgor 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.
The proceeds of each collection, sale or other disposition under this Section
5.5 shall be applied in accordance with Section 5.9 hereof.
The Pledgor 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 Pledgor
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.
5.6 Deficiency. If the proceeds of sale, collection or other realization of
or upon the Collateral pursuant to Section 5.5 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.
5.7 Removals, Etc. Without at least 30 days' prior written notice to the
Agent, the Pledgor 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 Pledgor hereto or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
5.8 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 5.5 hereof conducted in a commercially reasonable manner.
The Pledgor 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.
5.9 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 Pledgor or any issuer of or obligor on any of the Collateral.
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 Pledgor 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 Pledgor
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 Pledgor shall (i) file such financing statements and
other documents in such offices as the Agent may request to perfect the security
<PAGE>
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 5.4(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 Pledgor and to be
released, provided that in the event of a distribution of the Collateral
pursuant to Section 5.4(a) hereof, such remaining Collateral and money received
in respect thereof, shall be pledged in accordance with such Section 5.4(a). The
Agent shall also execute and deliver to the Pledgor upon such termination such
Uniform Commercial Code termination statements and such other documentation as
shall be reasonably requested by the Pledgor to effect the termination and
release of the Liens on the Collateral.
5.13 Further Assurances. The Pledgor agrees that, from time to time upon
the written request of the Agent, the Pledgor 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 Pledgor 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 Pledgor hereunder shall be absolute and unconditional
under any and all circumstances. 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 Pledgor or the validity of the pledge and
security interest hereunder:
(a) at any time or from time to time, without notice to the
Pledgor, 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;
(b) 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;
(c) 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
<PAGE>
(d) any other Lien granted to, or in favor of, the Agent or any
Lender Lenders as security for any of the Secured Obligations shall
fail to be perfected.
The Pledgor 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 Pledgor 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.
6.1 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.
6.2 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.
6.3 Expenses. The Pledgor 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 Pledgor in respect of the
Collateral that the Pledgor 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 Pledgor 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 Pledgor or the Collateral and (ii) the enforcement
of this Section 6.3, and all such costs and expenses shall be Secured
Obligations entitled to the benefits of the collateral security provided
pursuant to Section 3 hereof.
6.4 Amendments, Etc. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by the Pledgor 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 Pledgor.
6.5 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of the
Pledgor, the Agent, the Lenders and each holder of any of the Secured
Obligations (provided, however, that the Pledgor shall not assign or transfer
its rights hereunder without the prior written consent of the Agent).
6.6 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.
6.7 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.
6.8 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.
(b) The Pledgor 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 Pledgor or its
properties in the courts of any jurisdiction.
(c) The Pledgor 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
<PAGE>
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 6.2 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.
6.9 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.
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.
[Signature page follows.]
<PAGE>
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.
JAPAN FLEET SERVICE (DELAWARE) INC.
By /s/ K. Fukushi
---------------------------------
Title: Director
Address for Notices:
32 Loockerman Square, Suite L-100
Dover, Delaware
U.S.A.
With a copy to:
---------------
Japan Fleet Service Co., Ltd.
Izumi Kojimachi Building
1-10, Kojimachi, Chiyoda-ku
Tokyo, 102 Japan
Attention: Mr. Keizaburo Fukushi
Telecopier: 813-3234-1069
THE MITSUBISHI TRUST AND BANKING
CORPORATION, SINGAPORE BRANCH,
as Agent
By /s/
---------------------------------
Title: General Manager
Address for Notices:
6 Battery Road #08-01
Singapore 049909
Attention: Mr. Yutaka Hamabe
Chief Manager
Telecopier: 65-22-1857
<PAGE>
ANNEX 1
PLEDGED STOCK
[See Section 2(b) and (c)]
=================|==============|=====================|=========================
| Certificate | Registered | Number of Shares
Issuer | No. | Owner | of the Issuer
- -----------------|--------------|---------------------|-------------------------
Aviation Sales | ASU 0154 | Japan Fleet Service |750,500 shares of common
Company | | (Delaware), Inc |stock, par value $0.001
=================|==============|=====================|=========================
