REPAIR, OVERHAUL, EXCHANGE, WARRANTY
AND
DISTRIBUTION AGREEMENT
BETWEEN
DUNLOP EQUIPMENT DIVISION
AND
HAWKER PACIFIC, INC.
-------------------------------------------------------------------------------
THE [*] INDICATES THAT PORTIONS OF TEXT HAVE BEEN DELETED AND ARE BEING FILED
UNDER SEPARATE COVER WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.
REPAIR, OVERHAUL, EXCHANGE, WARRANTY AND DISTRIBUTION AGREEMENT
This Repair, Overhaul, Exchange, Warranty and Distribution Agreement
("Agreement") is made and effective as if this 1st day of November, 1996 by
and between;
DUNLOP EQUIPMENT DIVISION, a Company existing and organized under the laws
of England and having a place of business at ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, hereinafter referred to as "Equipment Division,"
represented by ▇.▇. ▇▇▇▇▇, Director and General Manager
and
HAWKER PACIFIC, INC., a Company existing and organized under the laws of
the State of California and having a place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ - USA, hereinafter referred to as "Hawker,"
represented by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chief Executive Officer,
herein collectively referred to as the "Parties'' or individually as a
"Party".
2 of 19
REPAIR, OVERHAUL, EXCHANGE, WARRANTY AND DISTRIBUTION AGREEMENT
CONTENTS
THE PARTIES
page
----
CONTENTS
WITNESSETH
1. SUBJECT AND SCOPE 6
2. EQUIPMENT DIVISION'S OBLIGATIONS 6
2.1 Technical and Logistics Support 6
2.3 Special Tooling and Test Benches 7
2.4 Sole Rights 8
3. HAWKER'S OBLIGATIONS 9
3.1 Quality Requirements 9
3.2 Technical and Logistics Support 9
3.3 Non-Competition 10
4. PIECE PARTS AND END ITEMS 10
4.5 Manufacture and Distribution 10
4.6 Initial Provisioning 10
4.7 Price Catalogues 10
4.8 Discounts 11
4.9 Special Pricing 11
4.10 Priority 11
5. CONDITIONS OF DELIVERY, INVOICES AND PAYMENT 11
6. WARRANTIES 11
6.1 Equipment Division Vendor Standard Warranty 11
7. LIABILITY 14
7.1 Hawker's Indemnification 14
7.2 Equipment Division's Indemnification 14
8. EXCUSABLE DELAY 14
9. TERM OF AGREEMENT AND TERMINATION 15
3 of 19
page
----
10. NOTICES 15
11. APPLICABLE LAW AND LITIGATION 16
12. SURVIVORSHIP 16
13. ASSIGNMENT 17
14. INVENTORY BUY BACK 17
15. MISCELLANEOUS 17
16. WAIVER 18
17. VOID PROVISIONS 18
18. AMENDMENTS 19
19. INSPECTION VISITS 19
20. ENTIRE AGREEMENT 19
4 of 19
WITNESSETH
WHEREAS, Equipment Division, is an Original Equipment Manufacturer (O.E.M.), and
seller of various helicopter and fixed wing equipment and provides for certain
repair, overhaul and exchange services in connection therewith,
WHEREAS, Hawker heretofore provided such services for Equipment Division as well
as distribution for same,
WHEREAS, in connection with the Sale of Hawker, the Parties wish to enter into
this Agreement providing for the continuation of such services and distribution
upon the terms and conditions herein,
NOW THEREFORE, in consideration of the mutual convenants contained herein, the
Parties agree as follows:
5 of 19
1 SUBJECT AND SCOPE
Equipment Division hereby appoints Hawker as its sole source for all
repair, overhaul and exchange work whether warranty or otherwise
(hereinafter collectively referred to as the "Work") of all Equipment
Division manufactured equipment (hereinafter collectively referred to as
the "Equipment"). Hawker's sole rights pursuant to this Article 1 shall be
for aircraft operated only in the territories of North, Central and South
America, including the Caribbean (hereinafter referred to as the
"Territory").
Further, subject to the terms and conditions contained herein, Equipment
Division hereby appoints Hawker as the sole distributor and sole source for
Equipment in the Territory.
2 EQUIPMENT DIVISION'S OBLIGATIONS
2.1 TECHNICAL AND LOGISTICS SUPPORT
In order to give Hawker all required qualifications for support of
the Equipment, Equipment Division shall provide the following to
Hawker:
A. Documentation (Free of Charge)
- Components Maintenance Manuals (CMM) and their revisions
- Service Bulletins, Service Newsletters and technical instructions
- General procedures
- Tooling and other drawings (as required)
- Material Specification Data Sheets (MSDS)
- Price lists of end-items and piece parts
B. Training
As and when agreed by the Parties, Equipment Division shall train a
reasonable number of Hawker technicians in Equipment Division's
and/or Hawker's facilities for familiarization with:
1. Overhaul and maintenance procedures
2. All technical data relating to the operational characteristics of
such Equipment including for example load limits, service lives
etc.
As consideration for such services, Hawker shall pay a basic training
fee to be agreed by the Parties. In addition, reasonable and
ordinary travel, food and lodging expenses incurred by Equipment
Division employees or agents connected with the training of
6 of 19
Hawker personnel at Hawker's facility shall be reimbursed by Hawker
upon receipt of proper evidential matter.
Hawker's personnel will be required to meet any requirements of
regulatory authorities having jurisdiction relating to security
matters before being allowed to enter Equipment Division
facilities. All costs and expenses incurred by Hawker personnel in
connection with such training shall be borne by Hawker.
C. Quality and Technical Assistance
Equipment Division shall have the right from time to time to
perform quality audits with no less than 48 hours prior written
notice. Reasonable corrective actions shall be applied by Hawker
as recommended by Equipment Division in relation thereto.
D. Technical Support
Equipment Division shall provide technical support to Hawker by way
of promptly answering technical queries raised by Hawker relating
to the repair, overhaul, exchange and warranty of the Equipment in
order that Hawker will be in good position to meet its commitments
to its customers with Mean Time To Repair ("MTTR") consistent with
market standards. Equipment Division's answers shall include
technical opinions and repair and servicing solutions and
procedures.
Equipment Division will also provide technical personnel for
assistance in Hawker field support visits, when deemed necessary by
both Parties.
Equipment Division and Hawker will exchange visit reports that
include sufficient information regarding Equipment Division product
performance, technical issues and data collection for operator
visits conducted in Hawker territory.
All services and information described in this Section D shall be
provided by Equipment Division at no charge to Hawker.
E. Operator Support
To the extent it is aware of the same, Equipment Division will keep
Hawker appraised of any and all operator conferences, meetings,
vendor liaison, cost-of-ownership programs, etc. that concern, or
involve, operators in the Territory.
2.2 SPECIAL TOOLING AND TEST BENCHES
The specific tooling and test benches necessary to repair and overhaul the
Equipment shall be provided by Equipment Division, if required, subject to
Hawker's acceptance of Equipment Division's quotation.
7 of 19
Subject to the reasonable approval of Equipment Division quality
personnel, Hawker may adapt at its own expense its test benches so as
to perform the tests required in the Equipment Division CMM's.
2.3 SOLE RIGHTS
In recognition of Hawker's sole rights hereunder Equipment Division
covenants and agrees as follows;
A. Equipment Division shall instruct its authorized repair
entities, including but not limited to Dunlop Aviation Services
(hereinafter referred to as "DAS"), to not knowingly in any
manner, directly or indirectly, solicit, accept or otherwise
conduct any Work on Aircraft operating only in the Territory.
Equipment Division shall instruct its authorized repair entities
including DAS to refer all inquiries for Work in or originating
from the Territory to Hawker.
B. Equipment Division shall not distribute or sell in any manner,
directly or indirectly, piece parts or end-item spares for
Equipment on aircraft operating only in the Territory.
Equipment Division shall refer all inquiries for Equipment
spares sales in or originating from the Territory to Hawker.
C. Equipment Division shall not appoint any other facility as an
"approved" Equipment Division repair, overhaul, exchange and/or
warranty facility located in or providing service to or Work on
aircraft operated only in the Territory, nor consent or agree
for any such facility to represent itself as "approved" by
Equipment Division.
D. Notwithstanding the foregoing, nothing herein shall prevent
Equipment Division from:
(iv) entering into agreements otherwise prohibited pursuant to
this Section 2.3 but only in order to obtain or retain
sole source status on an aircraft from the aircraft
constructor or subcontractor thereof;
(v) distributing or selling piece parts and end-item spares
for Equipment on Aircraft operated in the Territory only
if Equipment Division has an existing long term
contractual obligation to do so or must do so to obtain or
retain sole source status on an aircraft from the aircraft
constructor or subcontractor thereof.
E. The foregoing provisions in this Section 2.3 shall be deemed to
bind Equipment Division and all of its affiliates and a breach of
said provisions by any such affiliate shall be deemed to be a
breach by Equipment Division.
8 of 19
3 HAWKER'S OBLIGATIONS
Hawker commits itself to repair and overhaul the Equipment within MTTR
consistent with prevailing market standards and in a manner that will not
materially prejudice Equipment Division's market position and reputation.
3.1 QUALITY REQUIREMENTS
Hawker's capacity to comply satisfactorily with Equipment Division's
quality standards shall be audited by Equipment Division at timely
intervals. Any audit of Hawker's facilities by Equipment Division shall be
done consistent with Section 2.1.C hereof.
Hawker shall employ technicians and quality assurance personnel fully
competent to perform the work required by this Agreement and, in compliance
with all regulatory authorities having jurisdiction.
It is mutually agreed and understood that neither Equipment Division's
appointment of Hawker as its sole source for repair, overhaul and warranty
work, nor Equipment Division's quality approval will, in any way, be
construed as a guarantee by Equipment Division of Hawker performance.
3.2 TECHNICAL AND LOGISTICS SUPPORT
Hawker shall use all technical information given by Equipment Division for
the sole purpose of providing qualified repairs, and shall not use such
data (such as drawings, etc.) for the manufacture of parts without
Equipment Division's written permission. Similarly, Hawker shall not
publish this technical information nor disclose it to third parties.
All such information and data (including but not limited to, any and all
copies and reproductions thereof in whole or in part) shall remain the
property of Equipment Division and shall be promptly returned to Equipment
Division at the expiration of this Agreement.
In conjunction with Equipment Division, Hawker agrees to provide all
aircraft operators in the Territory with Equipment Division equipped
aircraft with technical support for maintenance of Equipment. This support
will include, but not be limited to:
A. Operator contact and product performance monitoring and feedback.
B. Coordinated technical visits with Equipment Division technical personnel
where deemed appropriate by Equipment Division.
9 of 19
▇. ▇▇▇▇▇▇ will provide comprehensive visit reports that include sufficient
information regarding Equipment Division product performance, technical
issues and data collection for warranty adjudication.
3.3 NON-COMPETITION
Hawker agrees not to knowingly solicit or accept any repair, overhaul,
exchange or warranty business, directly or indirectly, generated outside
the Territory.
Hawker agrees not to knowingly distribute directly or indirectly any
Equipment outside the Territory.
4 PIECE PARTS AND END-ITEMS
4.1 MANUFACTURE AND DISTRIBUTION
The manufacture of Equipment piece parts and end items are the
responsibility of Equipment Division, while the distribution of same
in the Territory is the sole responsibility of Hawker.
Hawker shall utilize published lead times as noted in Equipment
Division's current year price list for provisioning of said parts. In
addition, where Equipment Division takes advance action to provision
spare part manufacture in support of Aircraft operators, Hawker shall
receive the benefit of identical provisioned lead times to the extent
Equipment Division's capacity allows.
Both Equipment Division and Hawker acknowledge that certain
modifications or equipment failures can result in unexpected piece
parts consumption by operators. In view of that fact, Equipment
Division agrees to exert reasonable commercial efforts so that
Equipment Division can give reasonable priority to deliver piece parts
ordered by Hawker so as to protect Hawker and the operators from long
lead time exposures.
4.2 INITIAL PROVISIONING
Hawker shall issue purchase orders for the provisioning of an initial
piece parts inventory based on the CMM's sent by Equipment Division.
10 of 19
4.3 PRICE CATALOGUES
Following Equipment Division announcement of a spares price increase
(for which normally 90 days will be given), Equipment Division will
provide Hawker annually with at least one (1) printed copy and one (1)
diskette copy (Lotus 123 or Excel format) of all revised list price
catalogues in UK Pounds for the Equipment. The Parties anticipate
that, under normal circumstances, prices will be maintained for a 12
month period commencing January 1 each year.
4.4 DISCOUNTS
The sales prices for all Equipment purchased by Hawker from Equipment
Division, whether piece parts or end items, shall be priced to Hawker
at a discount from the list prices set forth in the appropriate
Catalogue. Such discount, shall be [*] percent.
4.5 SPECIAL PRICING
In the event the Parties identify additional circumstances and market
pressure which necessitate special pricing for certain Equipment, then
the Parties shall jointly agree to additional or revised special
pricing. No special pricing exists as of the commencement of the
Agreement.
4.6 PRIORITY
Subject to timely ordering in accordance with published leadtimes,
Hawker shall receive equivalent delivery priority with respect to
piece part and end item orders as given to Equipment Division's
operator customers.
5 CONDITIONS OF DELIVERY, INVOICES AND PAYMENT
Prices charged Hawker by Equipment Division shall be established in
accordance with Section 4 herein and are to be those existing on order
date. All other delivery conditions shall be as indicated in the
price catalogues.
Invoices by Equipment Division to Hawker shall be in UK Pounds.
Payment terms shall be net thirty (30) days from receipt of the
material.
6 WARRANTIES
6.1 EQUIPMENT DIVISION VENDOR STANDARD WARRANTY
Equipment Division warrants all materials supplied to be:
11 of 19
In compliance with applicable regulations and with approved drawings,
as well as with agreed specifications and test procedures included in
the order.
Free from defects in material, workmanship and operation, and from
faults inherent in design and manufacture.
Unless otherwise agreed in agreements between Equipment Division and
aircraft constructors and subsequent flow down to Aircraft operators
(details of which shall be supplied to Hawker), the duration of the
warranty for Equipment Division components is as follows:
- standard manufacturer's warranty after delivery to the operator of
the Equipment in which the item is incorporated, or standard
manufacturer's warranty after delivery of the Equipment to Hawker, as
the case may be.
The warranty covers the repair or replacement (at Equipment Division's
option) of the defective Equipment at no charge to the customer.
The warranty covers expenses actually incurred which are related to
transportation and customs, inward and outward, from the operator base
to Hawker's plant.
The warranty does not cover labor expenses related to installation,
removal, or tests by operator, and does not include any indemnity
either for possible use of an alternate piece of Equipment or for
unserviceability.
In no event shall Equipment Division be liable for incidental or
consequential losses or damages. The warranties of merchantability and
fitness for a particular use or purpose, and all other warranties,
express or implied, are disclaimed.
The warranty does not apply to failures caused by the improper use,
handling, installation, operation or maintenance.
Unauthorized opening, altering, tampering or modification of a piece
of Equipment or of a spare part are considered as improper use.
The components of the Equipment or spare parts which are not
manufactured by Equipment Division and can be considered as vendor
parts cannot be guaranteed beyond the warranty period given by their
respective vendor.
The operator must be capable of proving that the operation time
covered by the warranty has not expired. The operator must also
provide all necessary documentary evidence to substantiate his claim.
12 of 19
No defective piece of Equipment or spare part is to be returned to
Equipment Division except with the written consent of one of Equipment
Division's authorized representatives.
The return of any piece of Equipment or spare part will be made in
accordance with Equipment Division shipping instructions.
The warranty obligation only exists if Equipment Division or one of
its authorized representatives is informed of the failure within sixty
(60) days of its discovery.
Equipment or spare parts repaired or replaced under warranty shall be
re-warranted for the remaining portion of the effective warranty.
Hawker will comply with the agreed warranty claim procedure effective
as of the date of signature of this Agreement, or, as may be amended
from time to time by mutual consent between the Parties, including the
filing of a report which sets forth the reasons for acceptance or
rejection of any warranty claim.
Hawker is not responsible for placing an advance order for the stock
necessary for warranty work. Upon Hawker's request the parts which are
not available at Hawker will be shipped by Equipment Division on an
expedited basis.
- WORK PERFORMED IN CONNECTION WITH WARRANTY CLAIMS:
The work performed in connection with warranty claims which are
accepted by Hawker and which may require prior approval by Equipment
Division as described below shall be invoiced by Hawker to Equipment
Division in the following manner:
a) Replacement piece parts shall be invoiced by Hawker at their
actual "landed" cost to Hawker (i.e. the full cost purchase price
plus provisioning costs) incurred by Hawker to have parts entered
into its inventory).
b) Direct man hours expended by Hawker for test, disassembly,
repair, calibration, re-assembly, inspection and final tests
shall be invoiced at the current agreed billing rate in effect on
the date the work is performed. The agreed billing rate is
sixty (60.00) US Dollars per manhour for 1996. The Parties will
reasonably revise the agreed billing rate annually.
c) Subcontracting incurred by Hawker in fulfillment of these
warranty claims shall with prior agreement of Equipment Division
be invoiced by Hawker to Equipment Division at reasonable actual
and substantiated incurred costs.
d) Terms of payment accepted by Equipment Division for these
warranty charge-backs are net thirty (30) days in US Dollars,
wire transferred to Hawker's USA bank account.
13 of 19
Hawker is authorized to accept or to reject the validity of any
routine warranty claim by operators and to proceed with the accepted
warranty repair.
Hawker shall notify Equipment Division at the end of each month of the
receipt of all warranty claims. Hawker shall attach to any claim and
related notification a shop findings report and a technical opinion
summary. After repair, Hawker shall send a complete report to
Equipment Division.
Equipment Division reserves the right, at its option, in case of the
repeated and unusual failure of any Equipment, or in other specific
cases (modification programs, or special investigation possibly
necessitating a fleet-wide rework), either to delegate the work to
Hawker, if Hawker accepts to perform this activity, or to carry out
needed repair and/or modification and/or investigation at Equipment
Division's facility if Hawker declines.
7 LIABILITY
7.1 HAWKER'S INDEMNIFICATION
Hawker shall be solely liable for and hereby agrees to defend, indemnify
and hold harmless Equipment Division and its affiliates and their officers,
directors, shareholders, agents and employees, from and against any and all
liabilities, losses, damages, claims, costs and expenses for all injuries
or death to persons and for all damages, losses of or loss of use of
property caused by or arising out of the improper performance by Hawker of
services pursuant to this Agreement.
7.2 EQUIPMENT DIVISION'S INDEMNIFICATION
Equipment Division shall be solely liable for and hereby agrees to defend,
indemnify and hold harmless Hawker, and its affiliates and their officers,
directors, shareholders, agents and employees, from and against any and all
liabilities, losses, damages, claims, costs and expenses for all injuries
or death to persons and for all damages, losses of or loss of use of
property caused by or arising out of the improper performance by Equipment
Division of any obligation hereunder and/or defective Equipment supplied by
Equipment Division.
8 EXCUSABLE DELAY
Equipment Division shall not be liable for any delay in delivery or failure
in performance herein due to causes beyond Equipment Division's reasonable
control including acts of God, acts of civil or military authorities,
fires, strikes, floods, epidemics, war, civil disorder, riot, or other
causes beyond Equipment Division's reasonable control and not due to
Equipment Division's fault or negligence.
14 of 19
In the event of any such delay, the date of delivery shall be extended for
a period equal to the time lost by reason of the delay. This provision
shall not, however, relieve Equipment Division from using reasonable
efforts to continue prompt delivery performance while such causes exist and
whenever such causes are removed. Equipment Division promptly shall notify
Hawker when such delays occur and shall continue to advise it of new
shipping schedules and/or changes thereto.
9 TERM OF AGREEMENT AND TERMINATION
This Agreement shall become effective as of November 1, 1996 and shall
remain in effect for a period of ten (10) years. It is to be automatically
renewed thereafter for subsequent one (1)-year periods unless either Party
provides the other Party with a six (6) month prior written notice not to
renew.
However, this Agreement may be terminated immediately:
a)by either Party upon written notice to the other Party if:
1) The other party commits a material breach under this Agreement,
and fails to remedy such material breach in a reasonable amount
of time after receipt of written notice thereof or
2) a receiver is appointed for the whole or any substantial part of
the other Party's assets, or
3) the other Party enters into liquidation whether voluntary or
compulsory, or
b) by Equipment Division upon written notice to Hawker, if:
1) Hawker consistently fails to reasonably maintain Equipment
Division's existing required standards of quality in Hawker's
performance of services pursuant to this Agreement, or
2) Hawker ceases, on a permanent basis, to hold a valid certificate
from the relevant authorities as referred to in Article 3.1
"Quality requirements".
10 NOTICES
10.1 Notices under this Agreement shall be addressed to the respective
Parties as follows:
1. The President and Chief Executive Officer
HAWKER PACIFIC, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇
15 of 19
2 The General Manager
DUNLOP EQUIPMENT DIVISION
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ England
10.2 All communication under this agreement shall be given in writing
either by personal delivery, by reputable air courier or by
electronic transmission. The effective date for any such
communication shall be deemed to be the date on which it is
received by the addressee, unless later effectivity is specified
therein.
11 APPLICABLE LAW AND LITIGATION
11.1 The validity, construction and performance of this Agreement shall
be governed by and interpreted in accordance with the laws of the
State of New York.
11.2 The Parties shall endeavor in good faith to mutually resolve any
disputes between them involving the interpretation, application or
performance of this Agreement. Any such dispute which cannot be so
resolved shall be settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one or more
arbitrators appointed in accordance with said Rules. The place of
arbitration shall be Winnipeg, Manitoba or other mutually agreeable
location.
11.3 In the event of any dispute resolved pursuant to paragraph 11.2
above, all expenses (including reasonable attorney's fees and
costs) shall be apportioned as determined by the arbitrator(s).
12 SURVIVORSHIP
12.1 In the event of termination or expiration of this Agreement, the
rights and obligations of the Parties up to the date of such
termination or expiration shall be honored by the Parties unless
otherwise mutually agreed, and appropriate settlement of accounts
shall be made.
12.2 In any event, the rights and obligations of the Parties under the
following Articles of this Agreement shall survive any expiration
or termination of this Agreement:
Article 3.2 Technical and Logistics Support
Article 7 Liability
Article 11 Applicable Law and Litigation
Article 14 Inventory Buy Back
Article 15 Miscellaneous
16 of 19
13 ASSIGNMENT
Hawker shall not assign any rights or obligations arising under this
Agreement without the prior written consent of Equipment Division and/or
its successors. However, in the event that Hawker may be sold (whether by
stock or asset sale or merger), this Agreement shall be assigned and
transferred in its entirety to the Buyer of Hawker without the need for
Equipment Division's prior written consent and shall remain fully
enforceable thereafter. Notwithstanding the foregoing, under no
circumstances shall any rights under this Agreement be transferred
(whether by sale of Hawker, operation of law, assignment or other
arrangement) to a competitor of Equipment Division.
Equipment Division shall not assign any rights or obligations arising
under this Agreement without the prior written consent of Hawker and/or
its successors. However, in the event that Equipment Division may be sold
(whether by stock or asset sale or merger), this Agreement shall be
assigned and transferred in its entirety to the Buyer of Equipment
Division without the need for Hawker's prior written consent and shall
remain fully enforceable thereafter.
14 INVENTORY BUY BACK
14.1 Subject to Section 14.3 Equipment Division shall buy back from
Hawker all provisioned parts which become obsolete only as a result
of mandatory modifications ordered by regulatory authorities or
Equipment Division. Equipment Division will not be obligated to buy
back obsolete parts where the Parties agree that Hawker has
overprovisioned.
14.2 For all parts that become surplus to Hawker's requirements, Hawker
shall offer Equipment Division the right of refusal to purchase the
same and, if Equipment Division declines, Hawker may sell the same
to other parties.
14.3 All parts bought back by Equipment Division shall be in new
condition, free from shocks or marks. Equipment Division will
credit Hawker upon receipt and inspection of parts bought back by
Equipment Division at an amount equal to Hawker's cost of
acquisition for such parts.
15 MISCELLANEOUS
15.1 Hawker is an independent contractor and shall be solely responsible
under any contract or agreement it enters into for the provision of
the services contemplated to be provided by Hawker hereunder.
17 of 19
15.2 Without limiting Section 15.1 hereof, Hawker, its employees, agents,
subsidiaries and affiliates are not to be construed as being the
legal representatives of Equipment Division for any purpose
whatsoever and have no right or authority to endeavor or create, in
writing or in any other ways, any obligation of any kind, expressed
or implied, in the name of or on behalf of Equipment Division.
15.3 The rights herein granted and this Agreement are for the benefit of
the Parties hereto and not for the benefit of any third person, firm
or corporation, and nothing contained herein shall be construed to
create any right of any third parties under, as a result of, or in
connection with, this Agreement.
15.4 The term "Equipment Division" throughout this Agreement includes,
and this Agreement shall be binding upon all subsidiaries,
affiliates and other entities owned or controlled by Equipment
Division or its parent.
16 WAIVER
The failure of either Party to enforce any of the provisions of this
Agreement or to require at any time performance by the other Party of any
provisions hereof, shall in no way affect the validity of this Agreement or
any part thereof, or the right thereafter to enforce each and every such
provision.
The waiver of an express condition or requirement of this Agreement shall
not constitute a waiver of any future obligation to comply with such
provision, condition or requirement.
Anything done by either Party before this Agreement becomes effective,
which would be in fulfillment of an obligation thereunder, shall, after
this Agreement becomes effective, be treated as being in fulfillment of
such obligation under this Agreement.
17 VOID PROVISIONS
If any provision of this Agreement is determined to be void by any court of
competent jurisdiction, than such determination shall not affect any other
provision of this Agreement, and all such other provisions shall remain in
full force and effect. It is the intention of the Parties that if any of
the provisions of this Agreement are capable of two constructions, one of
which would render the provision void and the other of which would render
the provision valid, then the provision shall have the meaning which
renders it valid.
18 of 19
18 AMENDMENTS
No modification, extension, waiver or amendment of this Agreement, or any
of the provisions herein contained, shall be binding upon the Party against
whom enforcement of such modification, extension, waiver or amendment is
sought, unless it is made in writing and signed by an officer of such
Party. Either Party may, by appropriate written notice, designate other
individuals to whom the foregoing authority has been delegated.
19 INSPECTION VISITS
At its sole expense, Equipment Division shall have the right to send
technical, engineering and commercial representatives to Hawker's
facilities for the purpose of conducting inspections during the term of
this Agreement. All inspections shall be conducted during Hawker's normal
business hours, and persons conducting such inspections shall coordinate
their visits with Hawker's personnel prior to their arrival.
20 ENTIRE AGREEMENT
This Agreement is the entire Agreement of the Parties and shall supersede
any previously executed agreements or oral understandings between the
Parties which relate to the subject matter of this Agreement.
In WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives on the date indicated.
For:
DUNLOP EQUIPMENT DIVISION HAWKER PACIFIC, INC.
/s/ ▇.▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director and General Manager President and CEO
Date: 21 November 1996 Date: 1 November 1996
19 of 19