UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
AVIATION SALES COMPANY
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(Name of Issuer)
Common Stock, $.001 par value
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(Title of Class of Securities)
053672 10 1
-------------------------------------------------------------------
(CUSIP Number)
Tim L. Watkins
President
Japan Fleet Service (Delaware) Inc.
10 Shenton Way #11-08/09
MAS (Monetary Authority of Singapore) Building
Singapore 079117
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 5, 1999
--------------------------------------
(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 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).
1
<PAGE>
CUSIP NO. SCHEDULE
053672 10 1 13D
- ------------------------ -----------------------
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1. NAME OF REPORTING PERSON Japan Fleet Service (Delaware) Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) |_|
(B) |_|
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3. SEC USE ONLY
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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)
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6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
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NUMBER OF SHARES | 7. SOLE VOTING POWER 0
|
OWNED |
|
BY EACH REPORTING |
|
PERSON WITH |
- -----------------------|--------------------------------------------------------
| 8. SHARED VOTING POWER 750,500
| See Item 5.
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|
| 9. SOLE DISPOSITIVE POWER 0
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| 10. SHARED DISPOSITIVE POWER 750,500
| See Item 5.
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 750,500
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 6.0%
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14. TYPE OF REPORTING PERSON CO
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2
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CUSIP NO. SCHEDULE
053672 10 1 13D
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- --------------------------------------------------------------------------------
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) |_|
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3. SEC USE ONLY
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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)
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6. CITIZENSHIP OR PLACE OF ORGANIZATION Singapore
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NUMBER OF SHARES | 7. SOLE VOTING POWER 0
|
OWNED |
|
BY EACH REPORTING |
|
PERSON WITH |
- -----------------------|--------------------------------------------------------
| 8. SHARED VOTING POWER 750,500
| See Item 5.
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|
| 9. SOLE DISPOSITIVE POWER 0
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| 10. SHARED DISPOSITIVE POWER 750,500
| See Item 5.
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 750,500
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 6.0%
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14. TYPE OF REPORTING PERSON O
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3
<PAGE>
CUSIP NO. SCHEDULE
053672 10 1 13D
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- --------------------------------------------------------------------------------
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) |_|
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3. SEC USE ONLY
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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 Netherlands
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NUMBER OF SHARES | 7. SOLE VOTING POWER 0
|
OWNED |
|
BY EACH REPORTING |
|
PERSON WITH |
- -----------------------|--------------------------------------------------------
| 8. SHARED VOTING POWER 750,500
| See Item 5.
- -----------------------|--------------------------------------------------------
|
| 9. SOLE DISPOSITIVE POWER 0
- -----------------------|--------------------------------------------------------
| 10. SHARED DISPOSITIVE POWER 750,500
| See Item 5.
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 750,500
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 6.0%
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14. TYPE OF REPORTING PERSON O
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4
<PAGE>
Japan Fleet Service (Delaware) Inc., Japan Fleet Service (Europe) B.V. and
Japan Fleet Service (Singapore) Pte. Ltd. hereby amend 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, amended and restated in Amendment No. 2 filed with the
SEC on July 31, 1997 and amended and restated in Amendment No. 3 filed with the
SEC on March 13, 1998, with respect to the shares of Common Stock of Aviation
Sales Company as follows:
Item 1. Identity and Background
(a, b, c and f) This Statement is being filed by (i) Japan Fleet Service
(Delaware) Inc., a Delaware corporation ("JFS Delaware"), the principal business
of which is aircraft and aircraft spare parts leasing and general traders of
aviation products and services, (ii) 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, and
(iii) 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 JFS Delaware, JFS Europe and JFS Singapore is c/o
Japan Fleet Service (Singapore) Pte. Ltd., 10 Shenton Way No. 11-08/09, MAS
(Monetary Authority of Singapore) Building, Singapore 079117. JFS Delaware is a
wholly-owned subsidiary of JFS Europe and JFS Singapore owns approximately 89%
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 JFS Delaware, JFS Europe and JFS Singapore, and is incorporated
herein by reference. 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 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 2. Purpose of Transaction
JFS Delaware may sell Shares in the public market from time to time.
Item 3. Interest in Securities of Issuer
(a) JFS Delaware may be deemed to be the beneficial owner of 750,500
Shares or 6.0% 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 6.0% of the outstanding shares and JFS Singapore through its
approximately 89% owned subsidiary, JFS Europe, may be deemed to be the
beneficial owner of 750,500 Shares or 6.0% of the outstanding Shares.
5
<PAGE>
To the knowledge of JFS Delaware, JFS Europe and JFS Singapore, none of
the persons described on Exhibit 1 owns any of the Company's Shares.
(c) On February 5, 1999, JFS Delaware sold 100,000 Shares at $46.00 per
share and 100,000 shares at $45.75 per share in the public market.
(d) On February 5, 1999, JFS Delaware ceased to be the beneficial owner of
more than five percent of the outstanding Shares.
Item 4. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
On March 12, 1998, JFS Delaware entered into an Amended and Restated
Pledge Agreement with Mitsubishi Trust and Banking Corporation, Singapore Branch
(the "Agent") pursuant to which JFS Delaware pledged the Collateral to the
Agent.
On January 27, 1999, JFS Delaware and the Agent entered into the Pledged
Stock Disposition Letter Agreement pursuant to which JFS Delaware is allowed to
sell the Collateral, from time to time. On February 4, 1999, JFS Delaware, the
Agent and Salomon Smith Barney Inc. ("Salomon") entered into a Securities
Account Control Agreement pursuant to which the Agent will have control over the
securities account established at Salomon to which the Collateral has been
credited.
Except as described in Item 2 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 5. Material to be Filed as Exhibits
The following exhibits are incorporated herein by reference:
1. Executive Officers and Directors of Japan Fleet Service (Delaware) Inc.,
Japan Fleet Service (Europe) B.V. and Japan Fleet Service (Singapore) Pte. Ltd.
who are not Reporting Persons.
8. Joint Filing Agreement between Japan Fleet Service (Delaware) Inc.,
Japan Fleet Service (Europe) B.V. and Japan Fleet Service (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.*
11. Pledge Stock Disposition Letter Agreement dated as of January 27, 1999
between Japan Fleet Service (Delaware) Inc. and The Mitsubishi Trust and Banking
Corporation, Singapore Branch.
6
<PAGE>
12. Securities Account Control Agreement dated as of February 4, 1999 by
and among Japan Fleet Service (Delaware) Inc., The Mitsubishi Trust and Banking
Corporation, Singapore Branch and Salomon Smith Barney Inc.
*Previously filed.
7
<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: February 26, 1999
JAPAN FLEET SERVICE (DELAWARE) INC.
By: /s/Tim L. Watkins
--------------------------------
Name: Tim L. Watkins
Title: President
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: President
8
<PAGE>
EXHIBIT INDEX
Exhibit
Sequentially
Numbered Page
-------------
1. Executive Officers and Directors of Japan
Fleet Service (Europe) B.V. and Japan Fleet
Service (Singapore) Pte. Ltd. who are not
Reporting Persons.
8. Joint Filing Agreement between Japan Fleet
Service (Delaware) Inc., Japan Fleet Service
(Europe) B.V. and Japan Fleet Service
(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.*
11. Pledge Stock Disposition Letter Agreement
dated as of January 27, 1999 between Japan
Fleet Service (Delaware) Inc. and The
Mitsubishi Trust and Banking Corporation,
Singapore Branch.
12. Securities Account Control Agreement dated as
of February 4, 1999 by and among Japan Fleet
Service (Delaware) Inc., The Mitsubishi Trust
and Banking Corporation, Singapore Branch and
Salomon Smith Barney Inc.
- -------------------
* Previously filed.
9
<PAGE>
EXHIBIT 1
---------
Executive Officers and Directors of
Japan Fleet Service (Delaware) Inc. Japan Fleet Service (Europe)B.V.
and Japan Fleet Service (Singapore) Pte. Ltd.
Who Are Not Reporting Persons
The following sets forth certain information about executive officers and
directors of Japan Fleet Service (Delaware) Inc., Japan Fleet Service (Europe)
B.V., 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 who is a citizen of the United States.
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)
- ------------------------------ ----------------------------------------------
Akihiko Sato Vice President and Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Delaware)Inc.
MAS (Monetary Authority of Senior Executive Vice President,
Singapore) Building Chief Operating Officer and Director
Singapore 079117 Japan Fleet Service (Singapore)Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
Tim Lawrence Watkins President and Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Delaware)Inc.
MAS (Monetary Authority of President, Chief Executive Officer
Singapore) Building and Director
Singapore 079117 Japan Fleet Service (Singapore)Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
Yasumasa Ono Chairman and Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Delaware)Inc.
MAS (Monetary Authority of Chairman
Singapore) Building Japan Fleet Service (Singapore)Pte. Ltd.
Singapore 079117
<PAGE>
Keizaburo Fukushi Secretary, Treasurer and Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Delaware)Inc.
MAS (Monetary Authority of Senior Executive Vice President,
Singapore) Building Chief Financial Officer and Director
Singapore 079117 Japan Fleet Service (Singapore)Pte. Ltd.
Director
Japan Fleet Service (Europe) B.V.
Makoto Oikawa Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Singapore)Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 079117
Kazutami Okui Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Singapore)Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 079117
Kazuhiko Iwahori Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Singapore)Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 079117
Gen Koyama Director
10 Shenton Way # 11-08/09 Japan Fleet Service (Singapore)Pte. Ltd.
MAS (Monetary Authority of
Singapore) Building
Singapore 079117
<PAGE>
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: February 26, 1999
JAPAN FLEET SERVICE (DELAWARE) INC.
By: /s/Tim L. Watkins
--------------------------------
Name: Tim L. Watkins
Title: President
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: President
12
<PAGE>
Exhibit 11
PLEDGED STOCK DISPOSITION LETTER AGREEMENT
January 27, 1999
The Mitsubishi Trust and Banking Corporation,
Singapore Branch,
as Agent and Lender
6 Battery Road #08-01
Singapore 0104
Ladies and Gentlemen:
Reference is hereby made to (i) the Amended and Restated Loan Agreement
dated as of August 25, 1997 (as amended, modified and supplemented and in effect
from time to time, the "Loan Agreement") among JT Airpartners Leasing
(Singapore) Pte. Ltd., as borrower (the "Borrower"), The Mitsubishi Trust and
Banking Corporation, Singapore Branch, as lender (the "Lender") and The
Mitsubishi Trust and Banking Corporation, Singapore Branch, as agent (the
"Agent"); (ii) the Amended and Restated Pledge Agreement dated as of March 12,
1998 (as amended, modified or supplemented and in effect from time to time, the
"Pledge Agreement") between Japan Fleet Service (Delaware) Inc. (the " Pledgor")
and the Agent; and (iii) the 750,500 shares of common stock ("Pledged Stock") of
Aviation Sales Company represented by stock certificate no. ASU 0154 (the "Stock
Certificate") and pledged by the Pledgor to the Agent pursuant to the Pledge
Agreement. Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Loan Agreement.
The Pledgor wishes to sell portions of the Pledged Stock from time to time
and to pay on behalf of the Borrower to the Agent the proceeds from such sale as
partial prepayment of the Loans outstanding under the Loan Agreement, and the
Agent is willing to permit such sales subject to the terms hereof and of the
Pledge Agreement
Accordingly, by its signature below, each of the Agent, the Lender, the
Pledgor and the Borrower hereby agrees and acknowledges as follows:
(i) Subject to the receipt by the Agent of the proceeds of each sale by the
Pledgor of all or any portion of the Pledged Stock in accordance with the terms
and conditions set forth herein, the Agent (a) consents to such sale by the
Pledgor of the Pledged Stock and (b) releases the lien of the Pledge Agreement
on such portion of the Pledged Stock sold in accordance with the terms hereof,
(ii) In order to facilitate such sales, the Agent hereby agrees that it
will place the Pledged Stock in an account at Salomon Smith Barney, Inc. (the
"Broker") in the name of the Pledgor and under the control of the Agent (the
"Smith Barney Account") pursuant to, and as soon as possible after the execution
and delivery of, a Securities Account Control Agreement among the Pledgor, the
Agent and the Broker, in form and substance reasonably satisfactory to the Agent
(the "SSB Account Agreement") and instruct the Broker to make necessary
arrangements for the settlement of any such sale of the Pledged Stock through,
by or at the
1
<PAGE>
Depository Trust Company (the "DTC"), including changing the name of the holder
of the Pledged Stock to Cede & Co. or another nominee.
(iii) For each sale by the Pledgor of any Pledged Stock (a " Sale"), the
Pledgor hereby agrees (x) that the proceeds resulting therefrom, after deducting
reasonable fees and expenses payable to the Broker (the "Net Sale Proceeds")
shall be deposited, first, into the Smith Barney Account, and promptly
thereafter, into an account (the "Cayman Account") of the Pledgor maintained
with The Mitsubishi Trust and Banking Corporation, Cayman Branch or such other
bank designated by the Agent (the "Account Bank"), which account shall be
established in the name of the Pledgor (it being acknowledged and understood by
the Pledgor that the Agent will have instructed the Broker to make such
transfers) and subject to the Deed of Charge dated the date hereof among the
Pledgor, the Agent and the Account Bank (the "Cayman Deed of Charge") and (y) to
the extent commercially practicable, provide prior notice, and in any event,
cause the Broker to provide upon consummation of the Sale, same-day sale
confirmation directly by fax, to the Agent of such Sale made.
(iv) In respect of any amounts on deposit in such Cayman Account, for the
purposes of Section 4.2 of the Pledge Agreement, so long as no Loan Default or
an Event of Default under, and as defined in the Lease or the Sublease shall
have occurred and be continuing, the Pledgor agrees that such amounts shall be
invested in U.S. Dollar time deposits bearing interest at the Federal Funds Rare
(as defined in the Cayman Deed of Charge) with the Account Bank in accordance
with the Account Bank's normal practices for a period ending no later than the
next Payment Date.
(v) For each Sale made, the Pledgor shall promptly submit to the Agent in
writing an estimate of the amount of U.S. federal capital gains tax that will be
payable by the Pledgor in connection therewith ("Capital Gains Tax Estimate"),
which estimate shall be subject to the Agent's approval.
(vi) Upon the actual payment ("Actual Payment") by the Pledgor of any U.S.
federal capital gains tax payable in connection with any Sale made, the Pledgor
shall promptly provide the Agent with evidence satisfactory to the Agent of all
such payment made. If the Agent determines that the Capital Gains Tax Estimate
paid to the Pledgor in respect of such Sale exceeded the Actual Payment, upon
demand by the Agent, the Pledgor shall promptly cause such excess amount to be
re-deposited into the Cayman Account.
(vii) Whether or not any Sale is made, the Pledgor hereby agrees to pay all
fees and expenses payable to the Broker and the Account Bank for their
respective services rendered in connection with the transactions contemplated
hereby, at such time and in such manner as requested by the Broker or the
Account Bank, which fees and expenses shall be deemed to constitute Secured
Obligations under the Pledge Agreement and under the Cayman Deed of Charge and
authorizes the Agent, the Broker and Account Bank to withdraw, deduct or
off-set, from time to time, such amounts from the Smith Barney Account or the
Cayman Account, as the case may be, for payment of such fees and expenses.
2
<PAGE>
(viii) The Pledgor hereby authorizes and instructs the Agent to apply or
cause to be applied on each Payment Date (as defined in the Loan Agreement) all
amounts then on deposit in such Cayman Account in the following order: (1) to
the payment of all fees and expenses of the Broker then due and unpaid; (2) to
the payment of all fees and expenses of the Account Bank relating to the Cayman
Account then due and unpaid; (3) so long as no Event of Default shall have
occurred and be continuing, to the payment to the Pledgor of Capital Gains Tax
Estimate theretofore submitted to and approved by the Agent and remaining unpaid
(and the Agent hereby agrees to make a disbursement under this clause (3) in
order to enable the Pledgor to make payment of actual tax liability as and when
due) less any unpaid amount due from the Pledgor under (vi) above; (4) to the
partial prepayment of the principal of the outstanding Loan in the manner
specified in Section 4.01(d) of the Loan Agreement; and (5) to the payment of
all other obligations of the Borrower then due and owing under the Operative
Agreements (as defined in the Loan Agreement), if any. The Agent hereby agrees
to apply such amounts as instructed above.
(ix) Upon payment and satisfaction of all "Secured Obligations", as defined
in the Pledge Agreement, the Agent shall cause any amounts remaining in such
Cayman Account to be returned to the Pledgor.
(x) The Pledgor shall effect each Sale in full compliance with all Federal
and state securities laws of the United States of America.
(xi) If any Sale shall for any reason be declared void or otherwise
reversed or unwound, the portion of the Pledge Stock subject to such Sale shall
be deemed automatically re-pledged to the Agent under the Pledge Agreement and
the Pledgor shall take all actions reasonably requested by the Agent to evidence
and perfect such re-pledge.
(xii) Each of the Pledgor and the Borrower hereby agrees to indemnify the
Agent for any and all loss, cost, expense, claim or liability arising from any
Sale.
The Agent's obligations contemplated to be performed under this letter are
subject to the receipt by the Agent of the following:
(1) a certified copy of board resolutions of the Pledgor authorizing
the sale of the Pledged Stock and the transactions contemplated hereby;
(2) undated stock power by the Pledgor in respect of the Pledged Stock
duly executed in blank;
(3) duly executed copy of the Cayman Deed of Charge;
(4) [duly executed copy of the Account Control Agreement dated the
date hereof between the Broker, MTBC and the Pledgor;]
(5) the opinion of Orrick, Herrington & Sutcliffe, New York counsel to
the Pledgor and the Borrower, dated the date hereof, in form and substance
satisfactory to the Agent and the Lender;
3
<PAGE>
(6) the opinion of Milbank, Tweed, Hadley & McCloy, special New York
counsel to the Agent and the Lender, dated the date hereof, addressed solely to
the Agent and the Lender, in form and substance satisfactory to the Agent and
the Lender;
(7) the opinion of Maples and Calder Asia, Cayman counsel to the
Lender and the Agent, dated the date hereof, in form and substance satisfactory
to the Agent and the Lender; and
(8) any other documents or instruments the Agent may reasonably
request.
This letter shall be governed by, and construed in accordance with, the law
of the State of New York. This letter may be executed in separate counterparts,
all of which taken together shall constitute one and the same letter agreement.
[Signature page follows.]
4
<PAGE>
If the foregoing is consistent with your understanding of the matters set forth
herein, please indicate your agreement thereto by signing at the space provided
below.
Very truly yours,
JAPAN FLEET SERVICE (DELAWARE) INC.
By: /s/Keizaburo Fukushi
----------------------------------
Name: Keizaburo Fukushi
Title: Director
Acknowledged and Agreed:
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
SINGAPORE BRANCH,
as Agent and Lender
By /s/Morito Sato
-------------------------------
Name: Morito Sato
Title: General Manager
JT AIRPARTNERS LEASING (SINGAPORE) PTE. LTD.
By /s/Keizaburo Fukushi
-------------------------------
Name: Keizaburo Fukushi
Title: Director
5
<PAGE>
Exhibit 12
Securities Account Control Agreement
This SECURITIES ACCOUNT CONTROL AGREEMENT (the "Agreement") dated as
of February 4, 1999 by and among Japan Fleet Service (Delaware) Inc., a Delaware
corporation (the "Pledgor"), Salomon Smith Barney Inc. (the "Securities
Intermediary"), and The Mitsubishi Trust and Banking Corporation, Singapore
Branch, as agent (the "Agent"). All references herein to the "UCC" are
references to the Uniform Commercial Code as in effect in the State of New York.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to them in the Loan Agreement (as defined herein).
WHEREAS, JT Airpartners Leasing (Singapore) Pte. Ltd. (the
"Borrower"), the Agent and the Mitsubishi Trust and Banking Corporation,
Singapore Branch, as lender ("the "Lender") have entered into the Amended and
Restated Loan Agreement dated as of August 25, 1997 ("the "Loan Agreement");
WHEREAS, the Pledgor and the Agent have entered into the Amended and
Restated Pledge Agreement dated as of March 12, 1998 (the "Pledge Agreement");
WHEREAS, the Borrower, the Agent, the Lender and the Pledgor have
entered into the Pledged Stock Disposition Letter Agreement dated as of January
27, 1999 ("the Letter Agreement");
WHEREAS the Pledgor wishes to sell from time to time portions of the
750,500 shares of Common Stock (the "Pledged Stock") of Aviation Sales Company
represented by Stock Certificate No. ASU 0154 (the "Stock Certificate") and to
pay on behalf of the Borrower to the Agent the proceeds from such sales as
partial prepayment of the Loans outstanding under the Loan Agreement pursuant to
the Letter Agreement;
NOW THEREFORE, the parties hereto hereby agree, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, as
follows:
1. Establishment of Securities Account. The Securities Intermediary
hereby confirms that as of the date hereof the Securities Intermediary has
established account number 748-05799-1-6-473 (the "Security Account") at the
request of the Pledgor at a branch of the Securities Intermediary located in New
York pursuant to a Client Agreement dated February 4, 1999 between the Pledgor
and the Securities Intermediary (the "Client Agreement").
2. Treatment of the Securities Account.
(a) The Securities Account is, and shall be treated as a,
"securities account" within the meaning of Section 8-501 of the UCC. The
Securities Intermediary is a "securities intermediary" within the meaning of
Section 8-102 (14) of the UCC and is acting in that capacity.
(b) The Securities Account is an account to which financial
assets are or may be credited.
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(c) The Securities Intermediary shall, subject to the terms of
this Agreement (i) treat the Agent as entitled to exercise the rights that
comprise any financial asset credited to the accounts, and the "entitlement
holder" (within the meaning of Section 8-102 of the UCC), with respect to the
Securities Account on the books and records of the Securities Intermediary and
(ii) treat the Pledgor as not being such "entitlement holder" with respect to
the Securities Account and take instructions from the Pledgor solely as relates
to the sale of all or any portion of the Pledged Stock.
(d) All property delivered to the Securities Intermediary for
credit to the Securities Account shall be promptly credited to the Securities
Account.
(e)All proceeds from the sale of all or a portion of the Pledged
Stock shall be credited to the Securities Account.
(f) All securities or other property (other than cash) capable
of being issued or registered in the name of a person or entity or in bearer
form underlying any financial assets credited to the Securities Account shall be
registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case shall any
such financial asset credited to the Securities Account be registered in the
name of the Pledgor, payable to the order of the Pledgor or specially indorsed
to the Pledgor.
3. "Financial Assets" Election. Each item of property (whether
investment property, financial asset, security, instrument or cash or any other
property of any kind) credited to the Securities Account shall be treated as a
"financial asset" (within the meaning of Section 8-102(a)(9) of the UCC) under
Article 8 of the UCC.
4. Control by Agent. Notwithstanding any provision herein to the
contrary, the Securities Intermediary shall: (i) comply with all entitlement
orders it receives directing it to transfer or redeem any financial asset in the
Securities Account (each an "Entitlement Order") originated by Agent without
further consent by Pledgor and (ii) take directions with respect to the
Securities Account from the Agent.
5. Pledgor's Rights in Securities Account.
(a) Except as otherwise provided in Section 4 or this Section 5,
the Securities Intermediary shall comply with instructions of the Pledgor,
solely with respect to the sale of all or any portion of the Pledged Stock
against cash payment, without further consent by the Agent.
(b) If the Securities Intermediary shall have received written
notice from the Agent that there has been an Event of Default, the Securities
Intermediary shall cease complying with any instructions or directions
concerning the Securities Account originated by the Pledgor.
(c) The Securities Intermediary shall not comply with any
instructions of the Pledgor that would require the Securities Intermediary to
make a delivery to or for the account of the Pledgor or any other person except
in accordance with this Agreement or
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otherwise where the security interests therein are preserved to the satisfaction
of the Agent (as confirmed by written notice prior to such delivery) and except
for portions of the Pledged Stock that are sold against cash payment in
accordance with this Agreement, which may be delivered to the purchaser thereof
free and clear of the Agent's security interest.
6. Subordination of Lien; Waiver of Set-Off. In the event that the
Securities Intermediary has or subsequently obtains by agreement, operation of
law or otherwise a security interest in the Securities Account or any security
entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest of the
Agent; provided that the Securities Intermediary shall be indemnified by the
Pledgor and the Agent as provided in Section 10 hereof and shall have the right
of set-off provided in the immediately following sentence. The financial assets
credited to the Securities Account shall not be subject to deduction, set-off,
banker's lien, or any other right in favor of any person other than the Agent
(except that the Securities Intermediary may set off (a) all amounts due to the
Securities Intermediary in respect of the Securities Intermediary's customary
fees and expenses for the routine maintenance and operation of the Securities
Account, including without limitation, any taxes which the Securities
Intermediary is required to pay on behalf of the Pledgor, and (b) the face
amount of any checks which have been credited to the Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
7. Securities Intermediary's Responsibility.
(a)The Securities Intermediary shall credit the Pledged Stock to
the Securities Account as and when the same is delivered by the Agent to or to
the order of the Securities Intermediary. The proceeds of any sale of all or any
portion of the Pledged Stock shall be credited to the Securities Account
immediately upon settlement of any trade and receipt thereof by the Securities
Intermediary and thereafter, shall, as soon as practicable, be remitted to an
account designated by the Agent to the Securities Intermediary from time to
time.
(b) Except for liability resulting from permitting a withdrawal,
delivery, or payment in violation of Section 5 hereof, the Securities
Intermediary shall not be liable to the Agent for complying with instructions or
directions from the Pledgor (solely with respect to the sale of all or any
portion of the Pledged Stock) that are received by the Securities Intermediary
before the Securities Intermediary receives and has a reasonable opportunity to
act on a notice of the occurrence of an Event of Default or a conflicting
Entitlement Order originated by the Agent.
(c) The Securities Intermediary shall not be liable to the
Pledgor for complying with a notice of the occurrence of an Event of Default or
with Entitlement Orders originated by the Agent, even if the Pledgor notifies
the Securities Intermediary that the Agent is not legally entitled to issue the
Entitlement Order or notice of the occurrence of an Event of Default, unless the
Securities Intermediary takes the action after it is served with an injunction,
restraining order, or other legal process enjoining it from doing so, issued by
a court of competent jurisdiction, and had a reasonable opportunity to act on
the injunction, restraining order or other legal process.
(d) This Agreement does not create any obligation of the
Securities Intermediary except for those expressly set forth in this Agreement.
In particular, the Securities
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Intermediary need not investigate whether the Agent is entitled under the
Agent's agreements with the Pledgor to give an Entitlement Order or a notice of
the occurrence of an Event of Default. The Securities Intermediary may rely on
notices and communications it believes are given by the appropriate party.
(e) The Securities Intermediary and the Pledgor agree that
should there be any conflict between the Client Agreement and this Agreement,
the provisions of this Agreement shall control.
8. Statements, Confirmations, and Notices of Adverse Claims. The
Securities Intermediary shall send copies of all statements and confirmations
for the Securities Account simultaneously to Pledgor and Agent. Except for the
claims and interest of the Agent and of the Pledgor, the Securities Intermediary
does not know of any claim to, or interest in, the Securities Account or in any
financial assets credited thereto. If any person asserts any lien, encumbrance
or adverse claim (including any writ, garnishment, judgment, warrant of
attachment, execution or similar process) against any Securities Account or in
any financial asset carried therein, the Securities Intermediary shall notify
the Agent and the Pledgor thereof promptly after becoming aware thereof.
9. Representations, Warranties, and Covenants of the Securities
Intermediary. The Securities Intermediary hereby represents, warrants and
covenants:
(a) The Securities Account have been or shall be established as
described in Section 1 above and the Securities Account shall be maintained in
the manner set forth herein until termination of this Agreement. The Securities
Intermediary shall not change the name or account numbers of the Securities
Account without the prior written consent of the Agent.
(b) No financial asset is or shall be registered in the name of
the Pledgor, payable to the Pledgor's order, or specially indorsed to the
Pledgor, except to the extent such financial asset has been indorsed to the
Securities Intermediary or in blank.
(c) This Agreement is the valid and legally binding obligation
of the Securities Intermediary.
(d) Other than the Client Agreement and the other agreements
related thereto, (i) the Securities Intermediary has not entered into, and until
the termination of this Agreement shall not enter into, any agreement with any
other Person relating to the Securities Account and/or any financial assets
credited thereto pursuant to which it has agreed to comply with Entitlement
Orders of such Person; and (ii) the Securities Intermediary has not entered into
any other agreement with the Pledgor or the Agent purporting to limit or
condition the obligation of the Securities Intermediary to comply with
Entitlement Orders as set forth in Section 4 and Section 5 hereof.
10. Indemnity. Each of the Pledgor and the Agent hereby indemnifies
the Securities Intermediary, its officers, directors, employees, and agents
against claims, liabilities, and expenses arising out of this Agreement
(including reasonable attorneys' fees and disbursements), except to the extent
claims, liabilities, or expenses are caused by Securities Intermediary's gross
negligence or willful misconduct. The obligation of the Agent to indemnify
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under this Section 10 shall be subject to (i) the Securities Intermediary having
provided documentation and other evidence reasonably satisfactory to the Agent
as to the basis for its claim for indemnification and (ii) prior to seeking
indemnification from the Agent, the Securities Intermediary having made a claim
to the Pledgor for indemnification, having used commercially reasonable efforts
to pursue satisfaction by the Pledgor of such claim for indemnification and
having made a reasonable determination that the Pledgor will not fulfill its
indemnity obligation within a commercially reasonable period of time. The
Pledgor agrees that any amount paid by the Agent pursuant to this Section 10
shall be reimbursable expenses for purposes of Section 6.3 of the Pledge
Agreement.
11. Governing Law.This Agreement and the Securities Account shall be
governed by the laws of the State of New York. Regardless of any provisions in
any other agreement, for purposes of the UCC, New York shall be deemed to be the
"securities intermediary's jurisdiction" of the Securities Intermediary with
respect to the Securities Account and the securities entitlements related
thereto.
12. Waiver of Jury Trial; Miscellaneous. Each of the parties hereto
consents to the non-exclusive jurisdiction of any court located in the Borough
of Manhattan, New York, New York, with respect to any suit or action concerning
this Agreement or any transaction relating hereto and waives any claim it may
have to object to such jurisdiction on the basis of such court being an
inconvenient forum. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION RELATING HERETO.
13. Entire Agreement. This Agreement is the entire agreement, and
supersedes any prior agreements and contemporaneous oral agreements, of the
parties concerning its subject matter.
14. Amendments. No amendment or modification of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
15. Severability. To the extent a provision of this Agreement is
unenforceable, this Agreement shall be construed, to the maximum extent
permitted by applicable law, as if the unenforceable provision were omitted.
16. Successors. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
17. Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing, shall be addressed as
provided below and shall be considered as properly given (a) if delivered in
person, (b) if sent by overnight delivery, (c) if mailed by first class United
States mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by confirmed facsimile. Notice so given shall be
effective upon receipt by the addressee, except that communication or notice so
transmitted by transmission or other direct written electronic means shall be
deemed to have been validly and effectively given on the day
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(if a Business Day and, if not, on the next following Business Day) on which it
is transmitted before 4:00 p.m., recipient's time, and if transmitted after that
time, on the next following Business Day; provided, however, that if any notice
is tendered to an addressee and the delivery thereof is refused by such
addressee, such notice shall be effective upon such tender. Any party shall have
the right to change its address for notice hereunder to any other location
within the continental United States by giving of thirty (30) days' notice to
the other parties in the manner set forth hereinabove. Any communications
between the parties hereto or notices provided herein may be given to the
following addresses:
(1) Agent: The Mitsubish Trust and Banking Corporation,
Singapore Branch
6 Battery Road #08-01
Singapore 049909
Attention: Mr. Yutaka Hamabe
Chief Manager
Telecopy No.: 65-22-1857
Copy to: The Mitsubish Trust and Banking Corporation
1-4-5 Marunouchi, Chiyoda-Ku
Tokyo, 100 Japan
Attention: Mr. Masato Nakamura
International Business Development Division
Telecopy No.: 813-3214-2724
(2) Pledgor: Japan Fleet Service (Delaware) Inc.
32 Lockerman Square, Suite L-100
Dover, Delaware
Copy to: Japan Fleet Service Co., Ltd.,
Izumi Kojimachi, Chiyoda-Ku
Tokyo, 102 Japan
Attention: Mr. Keizaburo Fukushi
Telecopy No.: 813-3234-1069
(3) Securities Intermediary: Salomon Smith Barney Inc.,
390 Greenwich Street, 3rd Floor
New York, New York 10013
Attention: Robert G. Leonard
Telephone No.: (212) 723-4870
Telecopy No.: (212) 723-8731
18. Termination. The rights and powers granted herein to the Agent
have been granted in order to perfect its security interests in the Securities
Account, are powers coupled with an interest and shall neither be affected by
the bankruptcy of the Pledgor nor by the lapse of time. The obligations of the
Securities Intermediary hereunder shall continue in effect until the security
interests of the Agent in the Securities Account have been terminated pursuant
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to the terms of the Pledge Agreement or as provided below, and the Agent has
notified the Securities Intermediary of such termination in writing. This
Agreement may be terminated at any time by the Agent; provided, that the Agent
shall give the Pledgor three (3) business days written notice prior to
terminating this Agreement. In the event of termination, all financial assets in
the Securities Account shall be delivered to the Agent to the order of the
Agent.
19. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
20. Headings.Paragraph headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Securities Account
Control Agreement to be duly executed by their officers or partners thereunto
duly authorized as of the day and year first above written.
THE MITSUBISH TRUST AND BANKING
CORPORATION,
SINGAPORE BRANCH,
as Agent
By: /s/Morito Sato
---------------------------------
Name: Morito Sato
Title: General Manager
JAPAN FLEET SERVICE (DELAWARE) INC.,
as Pledgor
By: /s/Tim L. Watkins
--------------------------------
Name: Tim L. Watkins
Title: President
SALOMON SMITH BARNEY INC.,
as Securities Intermediary
By: /s/Robert G. Leonard
-------------------------------
Name: Robert G. Leonard
Title: Managing Director
